[H]ealth care regulators will not seek external antitrust review of Vermont’s only remaining health care reform company now that lawmakers have approved a rule regulating such companies.
Top officials at the Green Mountain Care Board, which had been writing a rule for months to regulate accountable care organizations, pushed back against an advocate’s request to have federal antitrust review be part of that rule.
The board also decided not to send the rule itself out to be reviewed by external antitrust experts, citing the expense. The board’s lawyers said staff instead consulted the antitrust experts at the attorney general’s office, and the board plans to provide enough oversight of accountable care organizations to make the companies exempt from federal antitrust review.
The antitrust concerns came up in September at a meeting of the Legislative Committee on Administrative Rules, whose approval is needed for regulatory rules the Green Mountain Care Board writes.
Kevin Mullin, the chair of the board, said the Legislature considered antitrust issues when it created the board under Act 48 of 2011. Back then, he said, lawmakers envisioned that the board’s role was to make sure the public was protected.
Vermont’s only remaining accountable care organization, OneCare Vermont, is on track to become responsible for the care of the vast majority of Vermonters by 2023. Starting Jan. 1 more than 160 health care entities across the state, including 10 hospitals, will work under OneCare’s umbrella.
On Oct. 12, the Legislative Committee on Administrative Rules, or LCAR, approved the Green Mountain Care Board’s regulatory rule without a requirement for explicit antitrust review of accountable care organizations. One week later, Vermont’s last small health reform company announced it would fold, effective Jan. 1.
Mike Fisher, the chief health care advocate for Vermont Legal Aid, said in September that the Green Mountain Care Board should have the rule itself reviewed by an outside expert in antitrust issues, in part because his office doesn’t have an antitrust expert to do it.
Susan Aranoff, from the Vermont Developmental Disabilities Council, went further. She said Vermont should follow the lead of Texas and have OneCare and the now-defunct Community Health Accountable Care get antitrust review from the U.S. Department of Justice and Federal Trade Commission.
Michael Barber, the board’s deputy general counsel, responded to Aranoff’s concerns with a memo Oct. 6 outlining how the board interprets its position in enforcing antitrust laws, saying a formal federal review was not necessary and that Vermont’s companies may not be eligible for the review she cited.
On Oct. 12, Barber told lawmakers that the board consulted experts at the attorney general’s office but did not formally ship out the proposed rule for review.
Under questioning from Sen. Michael Sirotkin, D-Chittenden, who sits on LCAR, Barber agreed to clarify what type of conduct would prompt the board to forward concerns about anticompetitive behavior to the Vermont attorney general.
Fisher said his office still sees a potential issue. “I think we asked for an expert review, and the board chose not to do it, and we remain concerned on behalf of protecting the public that there be really vigilant oversight over antitrust activities,” Fisher said in an interview Monday.
Mullin disagreed about the need for outside review. “Based on discussions with our counsel, we didn’t believe it was necessary. It would’ve just been an additional expense to the taxpayer that wouldn’t have yielded anything of benefit,” Mullin said.
Fisher said federal antitrust laws prohibit anticompetitive behaviors, such as allowing business interests to coordinate with each other to raise prices. He said there are exemptions to the prohibition in cases where, under state supervision, entities are coordinating in an effort to serve the public interest.
He said of OneCare Vermont: “Here’s an example where health care entities are getting together to collaborate and work together … to do what they say is provide better care for people. So here’s a perfect case where we have to keep a really close eye to make sure it really is in the public interest.”
He added: “We at the health care advocate’s office will continue to look at this and to learn as much as we can and to hold both OneCare and the Green Mountain Care Board’s feet to the fire in making sure that we have good public oversight over this activity.”
Todd Moore, the CEO of OneCare, said he does not think his company needs to be subject to antitrust review, but that the company would comply if the state or federal governments sought to perform one.
“We don’t feel any need to spend a lot of extra time and attention and money on antitrust review, but certainly if that scrutiny does come from in-state or federal scrutiny, then we’re going to have to look into where we are,” Moore said Monday.
“Our goal is to deliver health care to Vermonters that is affordable and at the same time improves quality and access. That is what drives us,” Moore said. He said having a bigger scale — more providers involved with OneCare — makes the reform more effective but is not the primary goal.
“If we ever did use the size of the network as a way to try to force higher costs on the insurers of Vermont, we just don’t expect there’s any way we’d ever get away with it given the strength of the Green Mountain Care Board regulation,” Moore said.
Mullin said the final rule regulating accountable care organizations “is a good rule that will protect Vermonters.” He said the feedback from the Office of the Health Care Advocate helped create a better rule, and he thanked Fisher for scrutinizing antitrust issues.
“I’m glad that the health care advocate is pushing the issue just because it will keep the eyes on OneCare to make sure that they are doing things according to Hoyle,” Mullin said.