Editor’s note: This story was updated on Wednesday with a statement from the Green Mountain Care Board.
[V]ermont’s health care oversight board blocked the designated public health care advocate from weighing in on affordability during a hearing Monday on insurance rates for the coming year.
The Green Mountain Care Board, the quasi-judicial body that regulates health care on behalf of Vermonters, yielded to a request from the state’s largest insurers to block Mike Fisher’s testimony.
Kevin Mullin, chair of the Green Mountain Care Board, confirmed Monday afternoon that the board upheld a motion from insurance companies to exclude a report and testimony by Fisher, the state’s designated health care advocate, from hearings this week on rate changes. He declined to say why.
Mullin and Judy Henkin, the board’s general counsel, again declined to explain the decision in a phone call Monday evening. They said a transcript from the hearing would be available for review later this week.
In a statement issued after this story was published, the Green Mountain Care Board described Fisher’s report as the “opinion” of a former lawmaker. “The ruling was limited to the legal issue of the admissibility of Mr. Fisher’s Expert Report and his testimony about its contents, and did not prohibit the HCA from exercising its statutory right to fully participate in the rate review process and to present admissible evidence and testimony at a hearing, in a manner consistent with Vermont law,”
In other words, while Fisher was barred from submitting testimony to the board in the formal rate case hearing, he is allowed to speak at a public hearing held on Tuesday.
The statement also said “it is not appropriate for board members, or the hearing officer, to publicly discuss issues raised by the parties,” because the case is still open.
Sara Teachout, spokesperson for Blue Cross and Blue Shield of Vermont, said that her organization moved to dismiss the inclusion of Fisher’s testimony as an “expert witness” because he did not meet the legal criteria for providing expert testimony.
“They are parties to the hearing,” Teachout said of the office of the health care advocate, which is part of Vermont Legal Aid. “It was just the type of testimony he was trying to introduce.”
In their motion, attorneys for Blue Cross and Blue Shield argue that Vermont law requires the exclusion of “opinion testimony” on the legal standards the board applies when ruling on rate increases.
The Green Mountain Care Board has to determine whether a proposed rate meets a number of criteria, including affordability and the solvency of insurers, according to Vermont statute.
“Mr. Fisher’s proffered opinion on ‘affordability’ is improper and inadmissible as a legal conclusion,” Blue Cross’ attorneys wrote in their motion.
Teachout added that Fisher’s attorney had asked to have him included as a factual witness during the hearing, which Blue Cross did not object to, but that this request was denied by the board. 
Blue Cross requested a 7.2 percent average rate increase next year for premiums offered through Vermont Health Connect. By law, the board has to hold public hearings on proposed rate changes, during which the insurer, Office of the Health Care Advocate and members of the public can testify.
Fisher filed an expert witness report with the board on July 10 to be included as part of the hearings for Blue Cross and MVP Health Care proposed rate increases. MVP requested an average 10.9 percent increase in premiums offered through Vermont Health Connect, and will argue its case in a hearing on Tuesday.
Both insurers’ proposed rate hikes are artificially inflated by a legislative change made earlier this year to preserve consumers’ access to federal subsidies. That change artificially inflated the price of silver level plans on Vermont Health Connect, though customers won’t actually pay those prices.
The lower averages of 4.7 percent for Blue Cross and 6.4 percent for MVP are a better indicator of the proposed increases consumers face in 2019.
Fisher, former vice-chair of the House Health Care Committee when Act 48 was drafted, declined to comment on Monday. He made his case for inclusion as an expert witness in a report filed in response to Blue Cross’ motion to block him.
“As one of the key legislators who assisted in navigating Act 48 through the whole legislative process, I have extensive knowledge of the politics and policies that led to the creation of the Green Mountain Care Board and Vermont’s current rate review process,” Fisher wrote.
Fisher concluded in his report that the board should consider affordability and access to quality health care as “independent standards, separate from a traditional actuarial analysis.”
Paul Schultz, actuary for Blue Cross, testified during the hearing that the proposed rate increases are necessary to maintain solvency for the insurance company, as required by the Vermont Department of Financial Regulation.
Schultz explained that a number of factors were driving up costs: federal regulatory changes; a projected member migration following the repeal of the federal individual mandate penalty; an increase of expensive “miracle drugs”; and an increase in preventative care, among other factors.
Blue Cross has implemented cost-containment measures such as encouraging members to see primary care providers when possible rather than going to hospitals and negotiating decreases in drug prices, Schulz said. To maintain solvency, the nonprofit insurance provider needs to be able to fund its reserves, he said.
When asked whether Blue Cross’ rates were affordable, Schultz responded that this was an “interesting question.”
“Our rates can only be unaffordable if the underlying cost of care is unaffordable,” he said.
Green Mountain Care Board member Tom Pelham said that he felt Fisher could have provided insight into how affordable Blue Cross’ rates are after Vermont Health Connect subsidies have been applied.
“Given Michael’s history of health care reform in Vermont and the position he holds now, it seems to be that it would be valuable to hear from him,” Pelham said in an interview Monday night. He added that he had worked with Fisher on health care reform when they had been legislators and knew of his experience first-hand.
“They are at the end of the phone lines of people who call for help and who feel underserved by the health care system,” he said of the advocate’s office.
Due to a late amendment filing by Blue Cross, the board will take an additional 30 days to review the proposed rate changes.
A hearing on MVP Healthcare’s proposed rates will take place in Room 10 in the Statehouse starting at 9 a.m. Tuesday morning. A public hearing on the rates with be held from 4:30 to 6:30 in the Memorial Room at Montpelier City Hall.
