Shumlin administration misused emergency rulemaking process, legislators say

The Vermont Statehouse. VTD/Josh Larkin

A legislative committee rebuked the administration for misusing emergency rule-making authority on Thursday. With a 5-0 vote, members of the Legislative Committee on Administrative Rules (LCAR) objected to an emergency rule changing Medicaid coverage. Committee Chair Richard Marek (D-Newfane) commented, “I think this committee has always respected emergency rulemaking, but it also does not want to see it become the preferred method for rulemaking.”

The vote does not block the rule, which remains in effect until March 6 unless the administration withdraws it. The administration is also going through the permanent rulemaking process.

The rule changes Medicaid coverage for a minor patient’s first visits to a physical, occupational or speech therapist. The rule was the result of a process that began in 2010, with the establishment of the Clinical Utilization Review Board (CURB) in the Department of Vermont Healthcare Access (DVHA), which oversees the state’s publicly funded health insurance programs. CURB’s mission includes improving the quality and efficiency of DVHA’s medical programs.

CURB raised concerns that doctors were sending children to the wrong sort of therapy. Recent examples DHVA cites include a child who received speech therapy, while DHVA contended that behavioral counseling is what the child needed, or another who received physical therapy, for whom DHVA would have prescribed a nutritionist and a family counselor. Under the old rule, the therapy could continue for up to four months before DHVA reviewed it. The emergency rule limits a patient to eight visits to a therapist before DHVA review.

Vermont laws allow emergency rules only when there is “an imminent peril to public health, safety or welfare.” DHVA made two claims of imminent peril, and Marek dismissed both, saying that accepting them “would radically transform what we permit emergency rulemaking to be used for.”

Greg Needle, Health Program Administrator at DHVA, pointed to a $100,000 annual savings for the state after the rule goes into effect. Marek replied, “If we were to accept that limited a scope of financial savings as a basis for emergency rulemaking, we would probably be throwing two-thirds of the rules that come in front of this committee into the habit of emergency rulemaking.”

The other “imminent peril” Needle cited was that a child could receive the wrong care for too long a time period and potentially suffer harm under the old rule. While CURB recommended the rule change in June, it was not filed with the Secretary of State’s office until Oct. 27. Marek contended that DHVA’s own delay weakened their assertion of imminent peril.

“There’s a number of balls that need to be rolling prior to us implementing anything,” Needle explained. He cited communications with providers and changes to computer software.

All that could happen, Marek countered, during the comment process for a permanent rule. He underscored the principle, saying that “there is a statutory, strong presumption in favor of the desirability of full public comment, and agencies frequently find that is not only useful for the public; it is also useful for the agencies.”

Sam Abel-Palmer of the Disability Law Project at Vermont Legal Aid called for more time to review the rule. He said he didn’t know whether they would object to it, noting “We’ve only looked at this for about a week.”

Lila Richardson, representing the Health Care Ombudsman’s office, said that the Medicaid Advisory Board was notified at their Oct. 27 meeting that the rule existed and the comment period had ended the day before. Apparently the comment period was extended, but only to Nov. 6, the day before the rule was scheduled to go into effect. Furthermore, she said, “this whole question of imminent peril was not raised at all as a justification for the rule. We didn’t learn about that argument until Nov. 10 that that was a rationale for filing as an emergency rule.”

The emergency rulemaking process does not require agencies to seek public comments on a proposed rule. Emergency rules remain in effect only for 120 days, though they can be renewed as emergency rules. A permanent rule requires a process, including public input, that LCAR members and staff described as normally taking about five months.

While LCAR’s objection does not block the emergency rule, if the rule is challenged in court, the Agency of Human Services will have the burden of proof that the emergency rule-making was justified. If LCAR had approved the rule, that burden of proof would have rested on the plaintiff.

LCAR also considered and approved the following rules:

• A rule from the Department of Corrections, in response to a statute change, describing the conditions for granting “reintegration furlough.”
• A rule from the Natural Resources Board setting a 5 mph speed limit for Silver Lake in Barnard and for the North Bay of Lake St. Catherine, removing the sunsetting of the City of Newport’s authority to establish a Mooring Management Zone in Lake Mephremagog, and noting prohibitions on motorboats on South Pond (Marlboro) and the pond behind the Dufresne Dam (Manchester).
• An emergency amendment to the Department of Health’s Regulated Drugs Rule making it illegal to possess or sell a number of bath salts and synthetic cannibinoids plus the hallucinogenic plant Salvia divinorum. (While drug regulations primarily apply to chemical compounds, Salvia joins the plants coca, marijuana, opium poppy, mescaline, peyote, and Datura stramonium, plus the mushroom psilocybin, as material Vermonters may not possess or cultivate.)
• An emergency rule from the Agency of Human Services, changing coverage for Medicaid, VHAP, and VPharm, according to a law passed last session.
• A renewed emergency rule from the Agency of Human Services, on enrollment requirements for Dr. Dynasaur, Medicaid, and CHIP.