A former employee and frequent critic of Vermont’s largest accountable care organization is nearing his day in court.
A Superior Court judge in Chittenden County ruled May 24 that a wrongful termination case brought by former OneCare Vermont data analytics manager Robert Hoffman is strong enough to go before a jury. Hoffman filed the civil lawsuit almost two years ago against both OneCare and the University of Vermont Medical Center, described in the complaint as OneCare’s operational partner.
OneCare hired Hoffman in March 2018 and fired him that May, both sides agree. At issue are the reasons for his termination.
Hoffman claims that his supervisors at OneCare decided to end his employment after he raised concerns related to the data analytic software that he had been tasked with evaluating. He went on to lodge a federal whistleblower complaint that August, in which he said the company was making false claims about how the software was able to perform analyses of health care quality and outcomes.
A year later, the U.S. Attorney’s Office declined to pursue the case, concluding that, even if true, problems with the software would not have dissuaded the state or federal governments from contracting with the company to broker care services for Vermonters covered by the Medicaid and Medicare programs.
However, that result does not affect Hoffman’s wrongful termination case, Judge Helen Toor said in her ruling last week.
“If the evidence at trial bears out that Hoffman raised concerns of OneCare’s misuse of federal funds and violation of the False Claims Act before he was terminated, the court concludes that this would constitute a protected activity that could potentially support a claim of retaliatory discharge,” she wrote.
Accountable care organizations, or ACOs, were created by the 2010 Affordable Care Act to contract with private insurers and federal and state governments to provide “value-based” health care for specific groups of patients.
In Vermont’s current “all-payer” experiment, an accountable care organization — specifically, OneCare — is the vehicle for bundling payments and incentives from many different payers, including Medicare, Medicaid and certain kinds of private insurance. The organization passes those funds on to hospitals and hundreds of other health care providers in the form of regular monthly up-front payments and end-of-year bonuses or penalties for agreed upon outcomes and metrics.
In theory, OneCare’s analytic software would assist its contracted health care providers in meeting those metrics by offering targeted regular feedback on their performance and results.
Hoffman is seeking monetary damages, both compensatory and punitive, though no dollar figure has been specified.
The job loss was a significant blow to his career and reputation, said his lawyer, Norman Watts of Quechee. It required that he and his family move out of state, which was both financially and emotionally difficult, he said.
A settlement was always possible, but not likely, and has not recently been discussed, according to Watts.
“He’s a dedicated (health) policy guy,” Watts said. “He felt very strongly that OneCare needed to be improved and streamlined and really reorganized, and they fired him for his complaints and left him out in the cold.”
A pretrial hearing is set for early July, and a jury trial might occur as early as August.
OneCare disputes both Hoffman’s conclusions about its software’s capacity and his charge that he was fired for raising those concerns. In a written statement, company spokesperson Amy Bodette pointed out that the judge’s recent rulings dismissed a separate claim of breach of contract.
“We continue to believe that Mr. Hoffman’s remaining claims are baseless, and will demonstrate that at trial later this year,” she said. “We will not allow this to distract us from OneCare’s ongoing work to improve the health of Vermonters and ultimately lower the cost of health care.”
Instead, in court filings, OneCare — a subsidiary of the University of Vermont Health Network — offered various instances of what Hoffman’s supervisors considered his unprofessional style of communication with staff and contractors. The company’s defense is that those interactions were the cause of his termination.
His primary supervisor at OneCare, Leah Fullem — now the director of information management and data analytics for the entire health network — said in a deposition that a flawed presentation to her about the software deficiencies was “the last sort of straw.” She emailed the company’s human resources contractor the following day to begin termination.
The timing of Fullem’s email, the day after Hoffman said he raised his concerns, could reasonably lead a jury to believe that his whistleblowing was what set events in motion, Judge Toor wrote in her ruling.
The jury will need to listen to testimony because, she wrote, “ultimately, the decision on this issue will likely turn on credibility.”
Correction: An earlier version of this story misspelled the name of the OneCare spokesperson.