The Vermont Statutes Online

Title 18: Health

Chapter 221: Health Care Administration

• Subchapter 001: QUALITY, RESOURCE ALLOCATION, AND COST CONTAINMENT

• § 9401. Policy

  (a) It is the policy of the State of Vermont that health care is a public good for all Vermonters and to ensure that all residents have access to quality health services at costs that are affordable. To achieve this policy, it is necessary that the State ensure the quality of health care services provided in Vermont and, until health care systems are successful in controlling their costs and resources, to oversee cost containment.

  (b) It is further the policy of the State of Vermont that the health care system should:

  (1) maintain and improve the quality of health care services offered to Vermonters;

  (2) utilize planning, market, and other mechanisms that contain or reduce increases in the cost of delivering services so that health care costs do not consume a disproportionate share of Vermonters’ incomes or the monies available for other services required to ensure the health, safety, and welfare of Vermonters;

  (3) encourage regional and local participation in decisions about health care delivery, financing, and provider supply;

  (4) utilize planning, market, and other mechanisms that will achieve rational allocation of health care resources in the State;

  (5) facilitate universal access to preventive and medically necessary health care;

  (6) support efforts to integrate mental health and substance abuse services with overall medical care. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), § 7; 2009, No. 49, § 8; 2009, No. 128 (Adj. Sess.), § 8, eff. May 27, 2010; 2023, No. 6, § 225, eff. July 1, 2023.)

• § 9402. Definitions

  As used in this chapter, unless otherwise indicated:

  (1) “Commissioner” means the Commissioner of Financial Regulation or the Commissioner’s designee.

  (2) “Community report” means the hospital report prepared under section 9405a of this title.

  (3) “Department” means the Department of Financial Regulation.

  (4) [Repealed.]

  (5) “Expenditure analysis” means the expenditure analysis developed pursuant to section 9383 of this title.

  (6) “Health care facility” means all institutions, whether public or private, proprietary or nonprofit, that offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any facility operated by religious groups relying solely on spiritual means through prayer or healing but includes all institutions included in subdivision 9432(8) of this title, except health maintenance organizations.

  (7) “Health care provider” means a person, partnership, or corporation, other than a facility or institution, licensed or certified or authorized by law to provide professional health care service in this State to an individual during that individual’s medical care, treatment, or confinement.

  (8) “Health insurer” means any health insurance company, nonprofit hospital and medical service corporation, managed care organizations, and, to the extent permitted under federal law, any administrator of an insured, self-insured, or publicly funded health care benefit plan offered by public and private entities.

  (9) “Health maintenance organization” means any person certified to operate a health maintenance organization by the Commissioner pursuant to 8 V.S.A. chapter 139.

  (10) “Health Resource Allocation Plan” means the plan published by the Green Mountain Care Board in accordance with subsection 9405(b) of this title.

  (11) “Home health agency” means a for-profit or nonprofit health care facility providing part-time or intermittent skilled nursing services and at least one of the following other therapeutic services made available on a visiting basis, in a place of residence used as a patient’s home: physical, speech, or occupational therapy; medical social services; home health aide services; or other non-nursing therapeutic services, including the services of nutritionists, dieticians, psychologists, and licensed mental health counselors.

  (12) “Home health services” means activities and functions of a home health agency, including nurses, home health aides, physical therapists, occupational therapists, speech therapists, medical social workers, or other non-nursing therapeutic services directly related to care, treatment, or diagnosis of patients in the home.

  (13) “Hospital” means an acute care hospital licensed under chapter 43 of this title.

  (14) “Managed care organization” means any financing mechanism or system that manages health care delivery for its members or subscribers, including health maintenance organizations and any other similar health care delivery system or organization.

  (15) “Health care spending estimate” means the spending estimate established in accordance with section 9383 of this title.

  (16) “State Health Improvement Plan” means the plan developed under section 9405 of this title.

  (17) “Green Mountain Care Board” or “Board” means the Green Mountain Care Board established in chapter 220 of this title. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), § 8; 2003, No. 53, §§ 2, 26; 2005, No. 57, § 3, eff. June 13, 2005; 2007, No. 27, § 11; 2009, No. 49, § 9; 2011, No. 48, § 19; 2011, No. 171 (Adj. Sess.), § 13, eff. May, 16, 2012; 2015, No. 54, § 33; 2017, No. 167 (Adj. Sess.), §§ 3, 10, eff. May 22, 2018.)

• § 9403. Repealed. No. 2013, No. 79, § 52(e), effective July 1, 2013.

• § 9404. Administration

  (a) The Commissioner and the Green Mountain Care Board shall supervise and direct the execution of all laws vested in the Department and the Board, respectively, by this chapter, and shall formulate and carry out all policies relating to this chapter.

  (b) The Commissioner and the Board may:

  (1) apply for and accept gifts, grants, or contributions from any person for purposes consistent with this chapter;

  (2) adopt rules necessary to implement the provisions of this chapter; and

  (3) enter into contracts and perform such acts as are necessary to accomplish the purposes of this chapter.

  (c) [Repealed.]

  (d) There is hereby created a special fund to be known as the Green Mountain Care Board Regulatory and Administrative Fund pursuant to 32 V.S.A. chapter 7, subchapter 5, for the purpose of providing the financial means for the Green Mountain Care Board to administer its obligations, responsibilities, and duties as required by law, including pursuant to 8 V.S.A. § 4062, chapters 220 and 221 of this title, and 33 V.S.A. chapter 18. All fees, fines, penalties, and similar assessments received by the Board in the administration of its obligations, responsibilities, and duties shall be credited to the Fund. The Fund may also be used by the Department of Health to administer its obligations, responsibilities, and duties as required by chapter 221 of this title. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), §§ 10, 38(a); 1999, No. 49, § 222; 2013, No. 79, § 36; 2015, No. 54, § 34; 2015, No. 68 (Adj. Sess.), § 67.)

• § 9405. State Health Improvement Plan; Health Resource Allocation Plan

  (a) The Secretary of Human Services or designee, in consultation with the Chair of the Green Mountain Care Board and health care professionals and after receipt of public comment, shall adopt a State Health Improvement Plan that sets forth the health goals and values for the State. The Secretary may amend the Plan as the Secretary deems necessary and appropriate. The Plan shall include health promotion, health protection, nutrition, and disease prevention priorities for the State; identify available human resources as well as human resources needed for achieving the State’s health goals and the planning required to meet those needs; identify gaps in ensuring equal access to appropriate mental health care that meets standards of quality, access, and affordability equivalent to other components of health care as part of an integrated, holistic system of care; and identify geographic parts of the State needing investments of additional resources in order to improve the health of the population. Copies of the Plan shall be submitted to members of the Senate Committee on Health and Welfare and the House Committee on Health Care.

  (b) The Green Mountain Care Board, in consultation with the Secretary of Human Services or designee, shall publish on its website the Health Resource Allocation Plan identifying Vermont’s critical health needs, goods, services, and resources, which shall be used to inform the Board’s regulatory processes, cost containment and statewide quality of care efforts, health care payment and delivery system reform initiatives, and any allocation of health resources within the State. The Plan shall identify Vermont residents’ needs for health care services, programs, and facilities; the resources available and the additional resources that would be required to realistically meet those needs and to make access to those services, programs, and facilities affordable for consumers; and the priorities for addressing those needs on a statewide basis. The Board may expand the Plan to include resources, needs, and priorities related to the social determinants of health. The Plan shall be revised periodically but not less frequently than once every four years.

  (1) In developing the Plan, the Board shall:

  (A) consider the principles in section 9371 of this title, as well as the purposes enumerated in sections 9401 and 9431 of this title;

  (B) identify priorities using information from:

  (i) the State Health Improvement Plan;

  (ii) emergency medical services resources and needs identified by the EMS Advisory Committee in accordance with subsection 909(f) of this title;

  (iii) the community health needs assessments required by section 9405a of this title;

  (iv) available health care workforce information;

  (v) materials provided to the Board through its other regulatory processes, including hospital budget review, oversight of accountable care organizations, issuance and denial of certificates of need, and health insurance rate review; and

  (vi) the public input process set forth in this section;

  (C) use existing data sources to identify and analyze the gaps between the supply of health resources and the health needs of Vermont residents and to identify utilization trends to determine areas of underutilization and overutilization; and

  (D) consider the cost impacts of fulfilling any gaps between the supply of health resources and the health needs of Vermont residents.

  (2) The Green Mountain Care Board shall convene the Green Mountain Care Board General Advisory Committee established pursuant to subdivision 9374(e)(1) of this title to provide recommendations to the Board during the Board’s development of the Plan.

  (3) The Board shall receive and consider public input on the Plan at a minimum of one Board meeting and one meeting of the Advisory Committee and shall give interested persons an opportunity to submit their views orally and in writing.

  (4) The Board shall include reproductive health care services and gender-affirming health care services, as those terms are defined in 1 V.S.A. § 150, in its Plan analysis.

  (5) As used in this section:

  (A) “Health resources” means investments into the State’s health care system, including investments in personnel, equipment, and infrastructure necessary to deliver:

  (i) hospital, nursing home, and other inpatient services;

  (ii) ambulatory care, including primary care services, mental health services, health screening and early intervention services, and services for the prevention and treatment of substance use disorders;

  (iii) home health services; and

  (iv) emergency care, including ambulance services.

  (B) “Health resources” may also include investments in personnel, equipment, and infrastructure necessary to address the social determinants of health. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), § 11; 2003, No. 53, § 3; 2007, No. 27, § 6; 2011, No. 48, § 20; 2011, No. 139 (Adj. Sess.), § 16, eff. May 14, 2012; 2011, No. 171 (Adj. Sess.), § 9, eff. May 16, 2012; 2013, No. 79, § 37; 2017, No. 167 (Adj. Sess.), § 4, eff. May 22, 2018; 2017, No. 200 (Adj. Sess.), § 16; 2019, No. 14, § 55, eff. April 20, 2019; 2019, No. 166 (Adj. Sess.), § 28, eff. Oct. 1, 2020; 2023, No. 15, § 9, eff. May 10, 2023.)

• § 9405a. Public participation and strategic planning

  (a) Each hospital shall have a protocol for meaningful public participation in its strategic planning process for identifying and addressing health care needs that the hospital provides or could provide in its service area. Needs identified through the process shall be integrated with the hospital’s long-term planning. Each hospital shall post on its website a description of its identified needs, strategic initiatives developed to address the identified needs, annual progress on implementation of the proposed initiatives, opportunities for public participation, and the ways in which the hospital ensures access to appropriate mental health care that meets standards of quality, access, and affordability equivalent to other components of health care as part of an integrated, holistic system of care. Hospitals may meet the community health needs assessment and implementation plan requirement through compliance with the relevant Internal Revenue Service community health needs assessment requirements for nonprofit hospitals.

  (b) When a hospital is working on a new community health needs assessment, the hospital shall post on its website information about the process for developing the community needs assessment and opportunities for public participation in the process. (Added 2003, No. 53, § 4; amended 2005, No. 71, § 77a; 2007, No. 27, § 4; 2011, No. 48, § 21; 2015, No. 152 (Adj. Sess.), § 1, eff. May 31, 2016; 2017, No. 200 (Adj. Sess.), § 17; 2019, No. 14, § 56, eff. April 20, 2019.)

• § 9405b. Hospital community reports and ambulatory surgical center quality reports

  (a) The Commissioner of Health, in consultation with representatives from hospitals, other groups of health care professionals, and members of the public representing patient interests, shall adopt rules establishing a statewide comparative hospital quality report. Hospitals located outside this State that serve a significant number of Vermont residents, as determined by the Commissioner of Health, shall be invited to participate in the community report process established by this section. The report shall include:

  (1) Measures of quality, including process and performance measures, that are valid, reliable, and useful, including comparisons to appropriate national benchmarks for high quality and successful results.

  (2) Measures of patient safety that are valid, reliable, and useful, including comparisons to appropriate industry benchmarks for safety.

  (3) Measures of hospital-acquired infections that are valid, reliable, and useful, including comparisons to appropriate industry benchmarks.

  (4) Valid, reliable, and useful information on nurse staffing, including comparisons to appropriate industry benchmarks for safety. This information may include system-centered measures such as skill mix, nursing care hours per patient day, and other system-centered measures for which reliable industry benchmarks become available.

  (5) Measures of the hospital’s financial health, including comparisons to appropriate national benchmarks for efficient operation and fiscal health.

  (6) A summary of the hospital’s budget, including revenue by source, the one-year and four-year capital expenditure plans, the depreciation schedule for existing facilities, and quantification of cost shifting to private payers.

  (7) Data that provides valid, reliable, useful, and efficient information for payers and the public for the comparison of charges for higher volume health care services.

  (b) Each hospital shall publish on its website:

  (1) the hospital’s process for achieving openness, inclusiveness, and meaningful public participation in its strategic planning and decision making;

  (2) the hospital’s consumer complaint resolution process, including identification of the hospital officer or employee responsible for its implementation;

  (3) information on membership and governing body qualifications; a listing of the current governing body members, including each member’s name, town of residence, occupation, employer, and job title, and the amount of compensation, if any, for serving on the governing body; and means of obtaining a schedule of meetings of the hospital’s governing body, including times scheduled for public participation; and

  (4) a link to the comparative statewide hospital quality report.

  (c) The Commissioner of Health shall publish the statewide comparative hospital quality report on a public website and shall update the report at least annually beginning on June 1, 2017.

  (d) The Commissioner of Health shall publish or otherwise make publicly available on its website each ambulatory surgical center’s performance results from quality reporting programs offered by the Centers for Medicare and Medicaid Services and shall update the information at least annually.

  (e) The Green Mountain Care Board may assess and collect from general hospitals licensed under chapter 43 of this title expenses incurred by the Commissioner of Health in administering hospital community reports and ambulatory surgical center quality reports under this section. (Added 2003, No. 53, § 5; amended 2005, No. 71, § 77b; 2005, No. 153 (Adj. Sess.), § 1; 2005, No. 215 (Adj. Sess.), § 327; 2007, No. 27, § 5; 2011, No. 48, § 22; 2013, No. 79, § 38; 2015, No. 11, § 22; 2015, No. 152 (Adj. Sess.), § 2, eff. May 31, 2016; 2019, No. 55, § 5, eff. Jan. 1, 2020; 2023, No. 113 (Adj. Sess.), § E.345.1, eff. July 1, 2024.)

• § 9405c. Notice of acquisition

  (a) As used in this section:

  (1) “Acquire” means a purchase or transfer through which a hospital will own or control the business of a medical practice.

  (2) “Hospital” means a general hospital or hospital facility licensed under chapter 43 of this title.

  (3) “Medical practice” means a business through which one or more physicians practice medicine.

  (b) Each hospital shall provide notice to the Office of the Attorney General at least 90 days or as soon as practicable prior to the effective date of a transaction through which the hospital will acquire a medical practice. The notice shall include at least the following information:

  (1) the name and address of the hospital acquiring the medical practice and contact information for a representative of the hospital; and

  (2) the name and address of the medical practice being acquired and contact information for a representative of the medical practice.

  (c) Information provided to the Office of the Attorney General pursuant to this section is exempt from public inspection and copying under the Public Records Act and shall be kept confidential except to the extent necessary to allow the Office to perform an inquiry into potentially anticompetitive practices. (Added 2015, No. 143 (Adj. Sess.), § 2.)

• § 9406. Repealed. 2011, No. 171 (Adj. Sess.), § 10, eff. May 16, 2012.

• § 9407. Repealed. 2011, No. 48, § 32(b).

• § 9408. Common claims forms and procedures

  Not later than January 15, 1993, the Commissioner shall adopt by rule uniform health insurance claims forms and uniform standards and procedures for the processing of claims, including electronic claims forms submission. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), § 14; 2023, No. 6, § 226, eff. July 1, 2023.)

• § 9408a. Uniform provider credentialing

  (a) Definitions. As used in this section:

  (1) “Credentialing” means a process through which an insurer or hospital makes a determination, based on criteria established by the insurer or hospital, concerning whether a provider is eligible to:

  (A) provide health care services to an insured or hospital patients; and

  (B) receive reimbursement for the health care services.

  (2) “Health care services” means health-care-related services or products rendered or sold by a provider within the scope of the provider’s license or legal authorization, including hospital, medical, surgical, dental, vision, and pharmaceutical services or products.

  (3) “Insured” means an individual entitled to reimbursement for expenses of health care services under a policy issued or administered by an insurer.

  (4) “Insurer” has the same meaning as in subdivision 9402(8) of this title.

  (5) “Provider” has the same meaning as in subdivision 9402(7) of this title.

  (b) The Department shall prescribe the credentialing application form used by the Council for Affordable Quality Healthcare (CAQH), or a similar, nationally recognized form prescribed by the Commissioner, in electronic or paper format, which must be used beginning January 1, 2007 by an insurer or a hospital that performs credentialing. The Commissioner may grant a hospital an extension to the implementation date for up to one year.

  (c) An insurer or a hospital shall notify a provider concerning a deficiency on a completed credentialing application form submitted by the provider not later than 30 business days after the insurer or hospital receives the completed credentialing application form.

  (d) A hospital shall notify a provider concerning the status of the provider’s completed credentialing application not later than:

  (1) 60 days after the hospital receives the completed credentialing application form; and

  (2) every 30 days after the notice is provided under subdivision (1) of this subsection, until the hospital makes a final credentialing determination concerning the provider.

  (e) [Repealed.]

  (f) An insurer shall act upon and finish the credentialing process of a completed application submitted by a provider within 60 calendar days after receipt of the application. An application shall be considered complete once the insurer has received all information and documentation necessary to make its credentialing determination as provided in subsections (b) and (c) of this section. (Added 2005, No. 191 (Adj. Sess.), § 56; amended 2007, No. 70, § 30; 2007, No. 203 (Adj. Sess.), § 30, eff. June 10, 2008; 2015, No. 152 (Adj. Sess.), § 3; 2023, No. 6, § 227, eff. July 1, 2023.)

• § 9409. Health care provider bargaining groups

  (a) The Green Mountain Care Board may approve the creation of one or more health care provider bargaining groups, consisting of health care providers who choose to participate. A bargaining group is authorized to negotiate on behalf of all participating providers with the Secretary of Administration, the Secretary of Human Services, the Green Mountain Care Board, or the Commissioner of Labor with respect to any matter in this chapter; chapter 13, 219, 220, or 222 of this title; 21 V.S.A. chapter 9; and 33 V.S.A. chapters 18 and 19 with respect to provider regulation, provider reimbursement, administrative simplification, information technology, workforce planning, or quality of health care.

  (b) The Green Mountain Care Board shall adopt by rule criteria for forming and approving bargaining groups and criteria and procedures for negotiations authorized by this section.

  (c) The rules relating to negotiations shall include a nonbinding arbitration process to assist in the resolution of disputes. Nothing in this section shall be construed to limit the authority of the Secretary of Administration, the Secretary of Human Services, the Green Mountain Care Board, or the Commissioner of Labor to reject the recommendation or decision of the arbiter. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), §§ 15, 38(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2011, No. 171 (Adj. Sess.), § 24, eff. May 16, 2012; 2015, No. 152 (Adj. Sess.), § 5.)

• § 9409a. Repealed. 2011, No. 171 (Adj. Sess.), § 41(b), effective May 16, 2012.

• § 9410. Health care database

  (a)(1) The Board shall establish and maintain a unified health care database to enable the Board to carry out its duties under this chapter, chapter 220 of this title, and Title 8, including:

  (A) determining the capacity and distribution of existing resources;

  (B) identifying health care needs and informing health care policy;

  (C) evaluating the effectiveness of intervention programs on improving patient outcomes;

  (D) comparing costs between various treatment settings and approaches;

  (E) providing information to consumers and purchasers of health care; and

  (F) improving the quality and affordability of patient health care and health care coverage.

  (2) [Repealed.]

  (b) The database shall contain unique patient and provider identifiers and a uniform coding system and shall reflect all health care utilization, costs, and resources in this State and health care utilization and costs for services provided to Vermont residents in another state.

  (c) Health insurers, health care providers, health care facilities, and governmental agencies shall file reports, data, schedules, statistics, or other information determined by the Board to be necessary to carry out the purposes of this section. Such information may include:

  (1) health insurance claims and enrollment information used by health insurers;

  (2) information relating to hospitals filed under subchapter 7 of this chapter (hospital budget reviews); and

  (3) any other information relating to health care costs, prices, quality, utilization, or resources required by the Board to be filed.

  (d) The Board may by rule establish the types of information to be filed under this section and the time and place and the manner in which such information shall be filed.

  (e) [Repealed.]

  (f) The Board shall adopt a confidentiality code to ensure that information obtained under this section is handled in an ethical manner.

  (g) Any person who knowingly fails to comply with the requirements of this section or rules adopted pursuant to this section shall be subject to an administrative penalty of not more than $1,000.00 per violation. The Board may impose an administrative penalty of not more than $10,000.00 each for those violations the Board finds were willful. In addition, any person who knowingly fails to comply with the confidentiality requirements of this section or confidentiality rules adopted pursuant to this section and uses, sells, or transfers the data or information for commercial advantage, pecuniary gain, personal gain, or malicious harm shall be subject to an administrative penalty of not more than $50,000.00 per violation. The powers vested in the Board by this subsection shall be in addition to any other powers to enforce any penalties, fines, or forfeitures authorized by law.

  (h)(1) All health insurers shall electronically provide to the Board in accordance with standards and procedures adopted by the Board by rule:

  (A) their health insurance claims data, provided that the Board may exempt from all or a portion of the filing requirements of this subsection data reflecting utilization and costs for services provided in this State to residents of other states;

  (B) cross-matched claims data on requested members, subscribers, or policyholders; and

  (C) member, subscriber, or policyholder information necessary to determine third-party liability for benefits provided.

  (2) The collection, storage, and release of health care data and statistical information that are subject to the federal requirements of the Health Insurance Portability and Accountability Act (HIPAA) shall be governed exclusively by the regulations adopted under in 45 C.F.R. Parts 160 and 164.

  (3)(A) The Board shall collaborate with the Agency of Human Services and participants in the Agency’s initiatives in the development of a comprehensive health care information system. The collaboration is intended to address the formulation of a description of the data sets that will be included in the comprehensive health care information system, the criteria and procedures for the development of limited-use data sets, the criteria and procedures to ensure that HIPAA compliant limited-use data sets are accessible, and a proposed time frame for the creation of a comprehensive health care information system.

  (B) To the extent allowed by HIPAA, the data shall be available as a resource for insurers, employers, providers, purchasers of health care, and State agencies to continuously review health care utilization, expenditures, and performance in Vermont. In presenting data for public access, comparative considerations shall be made regarding geography, demographics, general economic factors, and institutional size.

  (C) Consistent with the dictates of HIPAA, and subject to such terms and conditions as the Board may prescribe by rule, the Vermont Program for Quality in Health Care shall have access to the unified health care database for use in improving the quality of health care services in Vermont. In using the database, the Vermont Program for Quality in Health Care shall agree to abide by the rules and procedures established by the Board for access to the data. The Board’s rules may limit access to the database to limited-use sets of data as necessary to carry out the purposes of this section.

  (D) Notwithstanding HIPAA or any other provision of law, the comprehensive health care information system shall not publicly disclose any data that contain direct personal identifiers. For the purposes of this section, “direct personal identifiers” include information relating to an individual that contains primary or obvious identifiers, such as the individual’s name, street address, e-mail address, telephone number, and Social Security number.

  (i) On or before January 15, 2018 and every three years thereafter, the Commissioner of Health shall submit a recommendation to the General Assembly for conducting a survey of the health insurance status of Vermont residents. The provisions of 2 V.S.A. § 20(d)(expiration of required reports) shall not apply to the report to be made under this subsection.

  (j)(1) As used in this section, and without limiting the meaning of subdivision 9402(8) of this title, the term “health insurer” includes:

  (A) any entity defined in subdivision 9402(8) of this title;

  (B) any third-party administrator, any pharmacy benefit manager, any entity conducting administrative services for business, and any other similar entity with claims data, eligibility data, provider files, and other information relating to health care provided to a Vermont resident, and health care provided by Vermont health care providers and facilities required to be filed by a health insurer under this section;

  (C) any health benefit plan offered or administered by or on behalf of the State of Vermont or an agency or instrumentality of the State; and

  (D) any health benefit plan offered or administered by or on behalf of the federal government with the agreement of the federal government.

  (2) The Board may adopt rules to carry out the provisions of this subsection, including criteria for the required filing of such claims data, eligibility data, provider files, and other information as the Board determines to be necessary to carry out the purposes of this section and this chapter. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), §§ 16, 38(a); 2005, No. 71, § 312; 2005, No. 122 (Adj. Sess.), § 14; 2005, No. 191 (Adj. Sess.), § 57; 2007, No. 15, § 22; 2007, No. 70, § 25; 2007, No. 80, § 19; 2009, No. 42, § 33; 2009, No. 61, § 3; 2009, No. 156 (Adj. Sess.), § I.27; 2011, No. 48, § 27, eff. Oct. 1, 2011; 2013, No. 79, § 40, eff. June 7, 2013; 2013, No. 142 (Adj. Sess.), § 35; 2015, No. 54, § 35; 2021, No. 167 (Adj. Sess.), § 5, eff. June 1, 2022; 2023, No. 6, § 228, eff. July 1, 2023.)

• § 9411. Interactive price transparency dashboard

  (a) The Green Mountain Care Board shall develop and maintain a public, interactive, Internet-based price transparency dashboard that allows consumers to compare health care prices for certain health care services across the State. Using data from the Vermont Healthcare Claims Uniform Reporting and Evaluation System (VHCURES) established pursuant to section 9410 of this title, the dashboard shall provide the range of actual allowed amounts for selected health care services, showing both the amount paid by the health insurer or other payer and the amount of the member’s responsibility, and shall allow the consumer to sort the information by geographic location, by health care provider, by payer type, and by the specific health care procedure or health care service. The Board shall provide a link on the dashboard to the statewide comparative hospital quality report published by the Commissioner of Health pursuant to section 9405b of this title.

  (b) The Board shall update the information in the interactive price transparency dashboard at least annually. (Added 2019, No. 159 (Adj. Sess.), § 2.)

• § 9412. Enforcement

  (a) In order to carry out the duties under this chapter, in addition to the powers provided in this chapter, in chapter 220 of this title, and in Title 8, the Commissioner and the Board may examine the books, accounts, and papers of health insurers, health care providers, health care facilities, health plans, contracting entities, covered entities, and payers, as defined in section 9418 of this title, and may administer oaths and may issue subpoenas to a person to appear and testify or to produce documents or things.

  (b) In addition to any other power or duty authorized by law, the Commissioner of Financial Regulation shall, in the case of health insurers, enforce a violation of a provision of this subchapter or a rule adopted pursuant to a provision of this subchapter as a violation of a requirement of Title 8 relating to health insurers. (Added 1991, No. 160 (Adj. Sess.), § 1, eff. May 11, 1992; amended 1995, No. 180 (Adj. Sess.), §§ 18, 38; 2009, No. 61, § 28; 2011, No. 171 (Adj. Sess.), § 14, eff. May 16, 2012.)

• § 9413. Health care quality and price comparison

  Each health insurer with more than 200 covered lives in this State shall establish an Internet-based tool to enable its members to compare the price of health care in Vermont by service or procedure, including office visits, emergency care, radiologic services, and preventive care such as mammography and colonoscopy. The tool shall include provider quality information as available and to the extent consistent with other applicable laws and regulations. The tool shall allow members to compare price by selecting a specific service or procedure and a geographic region of the State. Based on the criteria specified, the tool shall provide the member with an estimate for each provider of the amount the member would pay for the service or procedure, an estimate of the amount the insurance plan would pay, and an estimate of the combined payments. The price information shall reflect the cost-sharing applicable to a member’s specific plan, as well as any remaining balance on the member’s deductible for the plan year. (Added 2015, No. 54, § 20, eff. July 1, 2016.)

• § 9414. Quality assurance for managed care

  (a) The Commissioner shall have the power and responsibility to ensure that each managed care organization provides quality health care to its members, in accordance with the provisions of this section.

  (1) In determining whether a managed care organization meets the requirements of this section, the Commissioner may review and examine, in accordance with subsection (e) of this section, the organization’s administrative policies and procedures, quality management and improvement procedures, utilization management, credentialing practices, members’ rights and responsibilities, preventive health services, medical records practices, grievance and appeal procedures, member services, financial incentives or disincentives, disenrollment, provider contracting, and systems and data reporting capacities. The Commissioner shall establish, by rule, specific criteria to be considered under this section.

  (2) A managed care organization shall, in plain language, disclose to its members:

  (A) any provision of its enrollment plan or provider contracts that may restrict referral or treatment options or that may require prior authorization or utilization review or that may limit in any manner the services covered under the members’ enrollment plan;

  (B) the criteria used for credentialing or selecting health care providers with whom the organization contracts;

  (C) the financial inducements offered to any health care provider or health care facility for the reduction or limitation of health care services;

  (D) the utilization review procedures of the organization, including the credentials and training of utilization review personnel;

  (E) whether the organization’s health care providers are contractually prohibited from participating in other managed care organizations or from performing services for persons who are not members of the managed care organization;

  (F) upon request, health care providers available to members under the enrollment plan.

  (3) A managed care organization shall not include any provision in a contract with a health care provider that prohibits the health care provider from disclosing to members information about the contract or the members’ enrollment plan that may affect their health or any decision regarding health care treatment.

  (4) The Commissioner or designee may resolve any consumer or provider complaint arising out of this subsection as though the managed care organization were an insurer licensed pursuant to Title 8. As used in this section, “complaint” means a report of a violation or suspected violation of the standards set forth in this section or adopted by rule pursuant to this section and made by or on behalf of a consumer or provider.

  (5) The Commissioner shall prepare an annual report on or before July 1 of each year providing the number of complaints received during the previous calendar year regarding violations or suspected violations of the standards set forth in this section or adopted by rule pursuant to this section. The report shall specify the aggregate number of complaints related to each standard and shall be posted on the Department’s website.

  (b)(1) A managed care organization shall ensure that the health care services provided to members are consistent with prevailing professionally recognized standards of medical practice.

  (2) A managed care organization shall participate in the Blueprint for Health established in chapter 13 of this title. If needed to implement the Blueprint, a managed care organization shall establish a chronic care program, which shall include:

  (A) appropriate benefit plan design;

  (B) informational materials, training, and follow-up necessary to support members and providers; and

  (C) payment reform methodologies.

  (3) Each managed care organization shall have procedures to ensure availability, accessibility, and continuity of care, and ongoing procedures for the identification, evaluation, resolution, and follow-up of potential and actual problems in its health care administration and delivery.

  (4) Each managed care organization shall be accredited by a national independent accreditation organization approved by the Commissioner.

  (c) Consistent with participation in the Blueprint for Health pursuant to subdivision (b)(2) of this section and the accreditation required by subdivision (b)(4) of this section, the managed care organization shall have an internal quality assurance program to monitor and evaluate its health care services, including primary and specialist physician services, and ancillary and preventive health care services, across all institutional and noninstitutional settings. The internal quality assurance program shall be fully described in written form; provided to all managers, providers, and staff; and made available to members of the organization. The components of the internal quality assurance program shall include the following:

  (1) a peer review committee or comparable designated committee responsible for quality assurance activities;

  (2) accountability of the committee to the board of directors or other governing authority of the organization;

  (3) participation by an appropriate base of providers and support staff;

  (4) supervision by the medical director of the organization;

  (5) regularly scheduled meetings; and

  (6) minutes or records of the meetings that describe in detail the actions of the committee, including problems discussed, charts reviewed, recommendations made, and any other pertinent information.

  (d), (e) [Repealed.]

  (f)(1) For the purpose of evaluating a managed care organization’s performance under the provisions of this section, the Commissioner may examine and review information protected by the provisions of the patient’s privilege under 12 V.S.A. § 1612(a) or otherwise required by law to be held confidential.

  (2) [Repealed.]

  (3) Any information made available under this section shall be furnished in a manner that does not disclose the identity of the protected person. The Commissioner shall adopt a confidentiality code to ensure that information obtained under this section is handled in an ethical manner. Information disclosed to the Commissioner under this section shall be confidential and privileged and shall not be subject to subpoena or available for public disclosure, except that the Commissioner is authorized to use such information during the course of any legal or regulatory action under this title against a managed care organization.

  (g)(1) In addition to any other remedy or sanction provided by law, after notice and an opportunity to be heard, if the Commissioner determines that a managed care organization has violated or failed to comply with any of the provisions of this section or any rule adopted pursuant to this section, the Commissioner may:

  (A) sanction the violation or failure to comply as provided in Title 8, including sanctions provided by or incorporated in 8 V.S.A. §§ 4726, 5108, and 5109, and may use any information obtained during the course of any legal or regulatory action against a managed care organization;

  (B) order the managed care organization to cease and desist in further violations; and

  (C) order the managed care organization to remediate the violation, including issuing an order to the managed care organization to terminate its contract with any person or entity that administers claims or the coverage of benefits on behalf of the managed care organization.

  (2) A managed care organization that contracts with a person or entity to administer claims or provide coverage of health benefits is fully responsible for the acts and omissions of such person or entity. Such person or entity shall comply with all obligations, under this title and Title 8, of the health insurance plan and the health insurer on behalf of which such person or entity is providing or administering coverage.

  (3) A violation of any provision of this section or a rule adopted pursuant to this section shall constitute an unfair act or practice in the business of insurance in violation of 8 V.S.A. § 4723.

  (h) Each managed care organization subject to examination, investigation, or review by the Commissioner under this section shall pay the Commissioner the reasonable costs of such examination, investigation, or review conducted or caused to be conducted by the Commissioner, at a rate to be determined by the Commissioner. All examinations conducted under this section shall be pursuant to and in conformity with 8 V.S.A. §§ 3573, 3574, 3575, and 3576, except that the Commissioner may modify or adapt those examination guidelines, principles, and procedures to be more appropriate or useful to the examination of managed care organizations.

  (i) [Repealed.] (Added 1993, No. 30, § 19; amended 1995, No. 180 (Adj. Sess.), §§ 21, 38(a), (b); 1999, No. 38, § 22, eff. May 20, 1999; 2007, No. 142 (Adj. Sess.), §§ 2, 3, eff. May 14, 2008; 2007, No. 204 (Adj. Sess.), § 1; 2015, No. 54, § 36; 2015, No. 152 (Adj. Sess.), § 7; 2023, No. 6, § 229, eff. July 1, 2023.)

• § 9414a. Annual reporting by health insurers

  (a) As used in this section:

  (1) “Adverse benefit determination” means a denial, reduction, modification, or termination of, or a failure to provide or make payment in whole or in part for, a benefit, including:

  (A) a denial, reduction, modification, termination, or failure to provide or make payment that is based on a determination of the member’s eligibility to participate in a health benefit plan;

  (B) a denial, reduction, modification, or termination of, or failure to make payment in whole or in part for, a benefit resulting from the application of any utilization review; and

  (C) a failure to provide coverage for an item or service for which benefits are otherwise provided because the item or service is determined to be experimental, investigational, or not medically necessary or appropriate.

  (2) “Claim” means a preservice review or a request for payment for a covered service that a member or the member’s health care provider submits to the insurer at or after the time that health care services have been provided.

  (3) “Concurrent review” means utilization review conducted during a member’s stay in a hospital or other facility, or during another ongoing course of treatment.

  (4) “Grievance” means a complaint submitted by or on behalf of a member regarding:

  (A) an adverse benefit determination;

  (B) the availability, delivery, or quality of health care services;

  (C) claims payment, handling, or reimbursement for health care services; or

  (D) matters relating to the contractual relationship between a member and the managed care organization or health insurer offering the health benefit plan.

  (5) “Independent external review” means a review of a health care decision by an independent review organization pursuant to 8 V.S.A. § 4089f.

  (6) “Postservice review” means the review of any claim for a benefit that is not a preservice or concurrent review.

  (7) “Preservice review” means the review of any claim for a benefit with respect to which the terms of coverage condition receipt of the benefit in whole or in part on approval of the benefit in advance of obtaining health care.

  (8) “Utilization review” means a set of formal techniques designed to monitor the use, or evaluate the clinical necessity, appropriateness, efficacy, or efficiency, of health care services, procedures, or settings, including prescription drugs.

  (b) Health insurers with a minimum of 2,000 Vermont lives covered at the end of the preceding year or who offer insurance through the Vermont Health Benefit Exchange pursuant to 33 V.S.A. chapter 18, subchapter 1 shall annually report the following information to the Commissioner of Financial Regulation, in plain language, as an addendum to the health insurer’s annual statement:

  (1) the health insurer’s state of domicile and the total number of states in which the insurer operates;

  (2) the total number of Vermont lives covered by the health insurer;

  (3) the total number of claims submitted to the health insurer;

  (4) the total number of claims denied by the health insurer, including the total number of denied claims for mental health services, treatment for substance use disorder, and prescription drugs;

  (5) data regarding the number and percentage of denials of service by the health insurer based on utilization review, including utilization review at the preservice review, concurrent review, and postservice review levels and including denials of mental health services, services for substance use disorder, and prescription drugs broken out separately, including:

  (A) denials of service by the health insurer;

  (B) denials of service appealed to the health insurer at the first-level grievance and, of those, the total number overturned;

  (C) denials of service appealed to the health insurer at any second-level grievance and, of those, the total number overturned;

  (D) denials of service at the preservice level for which external review was sought and, of those, the total number overturned;

  (6) the total number of adverse benefit determinations made by the health insurer, including:

  (A) the total number of adverse benefit determinations appealed to the health insurer at the first-level grievance and, of those, the total number overturned;

  (B) the total number of adverse benefit determinations appealed to the health insurer at any second-level grievance and, of those, the total number overturned;

  (C) the total number of adverse benefit determinations for which external review was sought and, of those, the total number overturned;

  (7) [Repealed.]

  (8) the total number of claims denied by the health insurer as duplicate claims, as coding errors, or for services or providers not covered;

  (9) the percentage of claims processed in a timely manner;

  (10) the percentage of claims processed accurately, both financially and administratively;

  (11) the number and percentage of utilization review decisions meeting the timelines described in subdivisions (A)-(D) of this subdivision (11), including timeliness data for all utilization review decisions and timeliness data for physical health, mental health, substance use disorder, and prescription drug utilization review decisions broken out separately:

  (A) concurrent reviews within 24 hours;

  (B) urgent preservice reviews within 48 hours of receipt of the request;

  (C) nonurgent preservice reviews within two business days after receipt of request; and

  (D) postservice reviews within 30 days after receipt of request;

  (12) data regarding the number of grievances related to availability, delivery, or quality of health care services or matters relating to the contractual relationship between a member and the health insurer, including:

  (A) health care provider performance and office management issues;

  (B) plan administration;

  (C) access to health care providers and services;

  (D) access to mental health providers and services; and

  (E) access to substance use disorder providers and services;

  (13) the total number of claims, including separate numbers for claims related to mental health services, services for substance use disorder, and prescription drugs, denied by the health insurer on the grounds that the service was experimental, investigational, or an off-label use of a drug; was not medically necessary; or involved access to a provider that is inconsistent with the limitations imposed by the plan;

  (14) results of surveys evaluating health care provider satisfaction with the health insurer;

  (15) the health insurer’s actions taken in response to the prior year’s health care provider survey results;

  (16)(A) the titles and salaries of all corporate officers and board members during the preceding year; and

  (B) the bonuses and compensatory benefits of all corporate officers and board members during the preceding year;

  (17) the health insurer’s marketing and advertising expenses during the preceding year;

  (18) the health insurer’s federal and Vermont-specific lobbying expenses during the preceding year;

  (19) the amount and recipient of each political contribution made by the health insurer during the preceding year;

  (20) the amount and recipient of dues paid during the preceding year by the health insurer to trade groups that engage in lobbying efforts or that make political contributions;

  (21) the health insurer’s legal expenses related to claims or service denials during the preceding year; and

  (22) the amount and recipient of charitable contributions made by the health insurer during the preceding year.

  (c) Health insurers may indicate the extent of overlap or duplication in reporting the information described in subsection (b) of this section.

  (d) The Department of Financial Regulation shall create a standardized form using terms with uniform, industry-standard meanings for the purpose of collecting the information described in subsection (b) of this section, and each health insurer shall use the standardized form for reporting the required information as an addendum to its annual statement. To the extent possible, health insurers shall report information specific to Vermont on the standardized form and shall indicate on the form where the reported information is not specific to Vermont.

  (e)(1) The Department of Financial Regulation and the Office of the Health Care Advocate shall post on their websites links to the standardized form completed by each health insurer pursuant to this section. Each health insurer shall post its form on its own website.

  (2) The Department of Vermont Health Access shall post on the Vermont Health Benefit Exchange established pursuant to 33 V.S.A. chapter 18, subchapter 1 an electronic link to the standardized forms posted by the Department of Financial Regulation pursuant to subdivision (1) of this subsection.

  (f) The Commissioner of Financial Regulation may adopt rules pursuant to 3 V.S.A. chapter 25 to carry out the purposes of this section. (Added 2011, No. 150 (Adj. Sess.), § 1; amended 2013, No. 79, § 40b; 2015, No. 152 (Adj. Sess.), § 8; 2023, No. 6, § 230, eff. July 1, 2023.)

• § 9415. Repealed. 2015, No. 54, § 61.

• § 9416. Vermont Program for Quality in Health Care

  (a) The Commissioner of Health shall contract with the Vermont Program for Quality in Health Care, Inc. to implement and maintain a statewide quality assurance system to evaluate and improve the quality of health care services rendered by health care providers of health care facilities, including managed care organizations, to determine that health care services rendered were professionally indicated or were performed in compliance with the applicable standard of care, and that the cost of health care rendered was considered reasonable by the providers of professional health services in that area. The Commissioner of Health shall ensure that the information technology components of the quality assurance system comply with, and the Commissioner of Vermont Health Access shall ensure such components are incorporated into, the Statewide Health Information Technology Plan developed under section 9351 of this title and any other information technology initiatives coordinated pursuant to 3 V.S.A. § 3027.

  (b) The Vermont Program for Quality in Health Care, Inc. shall file an annual report with the Commissioner of Health. The report shall include an assessment of progress in the areas designated by the Commissioner of Health, including comparative studies on the provision and outcomes of health care and professional accountability.

  (c) Expenses incurred under this section by the Vermont Program for Quality in Health Care, Inc. shall be borne as follows: 35 percent by the hospitals, 15 percent by nonprofit hospital and medical service corporations licensed under 8 V.S.A. chapter 123 or 125, and 50 percent by health insurance companies licensed under 8 V.S.A. chapter 101 and health maintenance organizations licensed under 8 V.S.A. chapter 139. Expenses allocated under this section to persons licensed under 8 V.S.A. chapters 101 and 139 shall be billed based on premiums paid for health insurance coverage as defined in subsection 9415(b) of this title. Expenses allocated under this section shall not exceed 75 percent of the operating budget of the Vermont Program for Quality in Health Care, Inc. (Added 1995, No. 180 (Adj. Sess.), § 21a; amended 2005, No. 215 (Adj. Sess.), § 329; 2007, No. 70, § 33; 2009, No. 61, § 4; 2011, No. 171 (Adj. Sess.), § 30, eff. July 1, 2013; 2017, No. 85, § F.10, eff. June 28, 2017.)

• § 9417. Tax-advantaged accounts for health-related expenses; administration; rulemaking

  (a) As used in this section:

  (1) “Flexible spending account” or “FSA” has the same meaning as in 26 U.S.C. § 106(c)(2).

  (2) “Health reimbursement arrangement” or “HRA” means any account-based reimbursement arrangement funded solely by employer contributions that reimburses an employee, spouse, or dependents, or a combination thereof, for medical care expenses incurred by the employee, spouse, dependents, or a combination thereof, up to a maximum coverage amount set by the employer for a given coverage period and that is established pursuant to 26 U.S.C. §§ 105-106 and applicable guidance from the Internal Revenue Service.

  (3) “Health savings account” or “HSA” has the same meaning as in 26 U.S.C. § 223(d)(1).

  (b) Any entity administering one or more HRAs, HSAs, FSAs, or similar tax-advantaged accounts for health-related expenses, or a combination of these, in this State is subject to the jurisdiction of the Commissioner of Financial Regulation pursuant to 8 V.S.A. § 10 and all other applicable provisions.

  (c) The Commissioner of Financial Regulation shall adopt rules pursuant to 3 V.S.A. chapter 25 to license and regulate, to the extent permitted under federal law, entities administering or proposing to administer one or more HRAs, HSAs, FSAs, or similar tax-advantaged accounts for health-related expenses, or a combination of these, in this State. The rules shall include:

  (1) licensure or registration filing requirements; and

  (2) such requirements and qualifications for such entities as the Commissioner determines necessary to protect Vermont consumers and employers and to help ensure that funds are disbursed appropriately.

  (d) Following the adoption of rules pursuant to subsection (c) of this section, an entity making an initial application for a license or registration to administer HRAs, HSAs, FSAs, or similar tax-advantaged accounts for health-related expenses, or a combination of these, in this State shall pay to the Commissioner a nonrefundable fee of $600.00 for examining, investigating, and processing the application. Each such entity shall also pay a renewal fee of $600.00 on or before December 31 every three years following initial licensure.

  (e) This section shall not apply to an employer that self-administers one or more tax-advantaged accounts on behalf of its own employees. (Added 2019, No. 54, § 1; amended 2021, No. 137 (Adj. Sess.), § 6, eff. July 1, 2022.)

• Subchapter 002: CLAIMS PROCESSING AND CONTRACT STANDARDS

• § 9418. Payment for health care services

  (a) Except as otherwise specified, as used in this subchapter:

  (1) “Claim” means any claim, bill, or request for payment for all or any portion of provided health care services that is submitted by:

  (A) a health care provider or a health care facility pursuant to a contract or agreement with the health plan; or

  (B) a health care provider, a health care facility, or a patient covered by the health plan.

  (2) “Contested claim” means a claim submitted to a payer, health plan, or contracting entity that does not include:

  (A) sufficient information needed to determine payer liability; or

  (B) reasonable access to information needed to determine the liability or basis for payment of the claim.

  (3) “Contracting entity” means any entity that contracts directly or indirectly with a health care provider for either the delivery of health care services or the selling, leasing, renting, assigning, or granting of access to a contract or terms of a contract. For purposes of this subchapter, the Department of Vermont Health Access, health care providers, physician hospital organizations, health care facilities, and stand-alone dental plans are not contracting entities.

  (4) “Covered entity” means an organization that enters into a contract with a contracting entity to gain access to a provider network contract. For purposes of this subchapter, the Department of Vermont Health Access is not a covered entity.

  (5) “Denied” or “denial” means the circumstance in which the plan asserts that it has no liability to pay a claim, based on eligibility status of the patient, coverage of a service under the health plan, medical necessity of a service, liability of another payer, or other grounds.

  (6) “Edit” or “editing” means a practice or procedure pursuant to which one or more adjustments are made to Current Procedural Terminology (CPT) codes, American Society of Anesthesiologists’ (ASA) current procedural terminology, the American Dental Association’s (ADA) current dental terminology, or Healthcare Common Procedure Coding System (HCPCS) Level II codes included in a claim that result in:

  (A) payment being made based on some, but not all, of the codes originally billed by a participating health care provider;

  (B) payment being made based on different codes from those originally billed by a participating health care provider;

  (C) payment for one or more of the codes included in the claim originally billed by a participating health care provider being reduced by application of payer’s editing software, such as multiple procedure logic software;

  (D) payment for one or more of the codes being denied;

  (E) a reduced payment as a result of services provided to an insured that are claimed under more than one procedure code on the same service date; or

  (F) any combination of the subdivisions in this subdivision (6).

  (7) “Health care contract” or “contract” means a contract entered into, amended, or renewed between a contracting entity or health plan and a health care provider specifying the rights and responsibilities of the contracting entity and provider for the delivery of health care services to insureds, including primary care health services, preventive health services, chronic care services, and specialty health care services.

  (8) “Health plan” means a health insurer, disability insurer, health maintenance organization, medical or hospital service corporation, and, to the extent permitted under federal law, any administrator of an insured or self-insured plan. “Health plan” also includes a health plan that requires its medical groups, independent practice associations, or other independent contractors to pay claims for the provision of health care services.

  (9) “Health care provider” or “provider” means a person, partnership, or corporation licensed, certified, or otherwise authorized by law to provide professional health care services in this State and shall include a health care provider group, network, independent practice association, or physician hospital organization that is acting exclusively as an administrator on behalf of a health care provider to facilitate the provider’s participation in health care contracts. The term includes a hospital but does not include a pharmacist, pharmacy, nursing home, or a health care provider organization or physician hospital organization that leases its network to a covered entity or contracts directly with employers or self-insured plans.

  (10) “Insured” means any person eligible for health care benefits under a health benefit plan and includes all of the following terms: enrollee, subscriber, member, insured, dependent, covered individual, and beneficiary.

  (11) “Most favored nation clause” means a provision in a health care contract that:

  (A) prohibits, or grants a contracting entity an option to prohibit, a participating provider who contracts with another contracting entity from accepting lower payment for the provision of health care services than the payment specified in the first contracting entity’s contract;

  (B) requires, or grants a contracting entity an option to require, the participating provider to accept a lower payment in the event the participating provider agrees to provide health care services for any other contracting entity at a lower price;

  (C) requires, or grants a contracting entity an option to require, termination or renegotiation of the existing health care contract in the event the participating provider agrees to provide health care services for any other contracting entity at a lower price;

  (D) requires the participating provider to disclose the participating provider’s contractual reimbursement rates with other contracting entities.

  (12) “National Correct Coding Initiative” or “NCCI” means the Centers for Medicare and Medicaid Services’ (CMS) published list of edits and adjustments that are made to health care providers’ claims submitted for services or supplies provided to patients insured under the federal Medicare program and other federal insurance programs.

  (13) “Participating provider” means a health care provider that has a health care contract with a contracting entity and is entitled to reimbursement for health care services rendered to an insured under the health care contract. The term includes a hospital, but does not include a pharmacist, pharmacy, or nursing home, or a health care practitioner organization or physician-hospital organization that leases the health care practitioner organization’s or physician-hospital organization’s network to a covered entity or contracts directly with employers or self-insured plans.

  (14) “Payer” means any person or entity that assumes the financial risk for the payment of claims under a health care contract or the reimbursement for health care services rendered to an insured by a participating provider under the health care contract. The term “payer” does not include:

  (A) the Department of Vermont Health Access; or

  (B) reinsurers that neither pay claims directly nor act as contracting entities.

  (15) “Prior authorization” means the process used by a health plan to determine the medical necessity, medical appropriateness, or both, of otherwise covered drugs, medical procedures, medical tests, and health care services. The term “prior authorization” includes preadmission review, pretreatment review, and utilization review.

  (16) “Procedure codes” means a set of descriptive codes indicating the procedure performed by a health care provider and includes the American Medical Association’s Current Procedural Terminology codes (CPT), the Healthcare Common Procedure Coding System Level II Codes (HCPCS), the American Society of Anesthesiologists’ (ASA) current procedural terminology, and the American Dental Association’s current dental terminology.

  (17) “Product” means, to the extent permitted by State and federal law, one of the following types of categories of coverage for which a participating provider may be obligated to provide health care services pursuant to a health care contract:

  (A) health maintenance organization;

  (B) preferred provider organization;

  (C) fee-for-service or indemnity plan;

  (D) Medicare Advantage HMO plan;

  (E) Medicare Advantage private fee-for-service plan;

  (F) Medicare Advantage special needs plan;

  (G) Medicare Advantage PPO;

  (H) Medicare supplement plan;

  (I) workers’ compensation plan; or

  (J) any other commercial health coverage plan or product.

  (b) Not later than 30 days following receipt of a claim, a health plan, contracting entity, or payer shall do one of the following:

  (1) Pay or reimburse the claim.

  (2) Notify the claimant in writing that the claim is contested or denied. The notice shall include specific reasons supporting the contest or denial and a description of any additional information required for the health plan, contracting entity, or payer to determine liability for the claim.

  (3) Pend a claim for services rendered to an enrollee during the second and third months of the consecutive three-month grace period required for recipients of advance payments of premium tax credits pursuant to 26 U.S.C. § 36B. In the event the enrollee pays all outstanding premiums prior to the exhaustion of the grace period, the health plan, contracting entity, or payer shall have 30 days following receipt of the outstanding premiums to proceed as provided in subdivision (1) or (2) of this subsection, as applicable.

  (c) If a claim is contested because the health plan, contracting entity, or payer was not provided with sufficient information to determine payer liability and for which written notice has been provided as required by subdivision (b)(2) of this section, then the health plan, contracting entity, or payer shall have 30 days after receipt of the additional information to complete consideration of the claim.

  (d) A health plan, contracting entity, or payer shall acknowledge receipt of an electronic claim to the submitting party within 24 hours after the beginning of the next business day following receipt of the claim. For purposes of this subsection, the term “submitting party” means:

  (1) a health care provider submitting a claim to a contracting entity, health plan, or payer; or

  (2) a clearinghouse submitting a claim on behalf of a health care provider to a contracting entity, health plan, or payer.

  (e) Interest shall accrue on a claim at the rate of 12 percent per annum calculated as follows:

  (1) for a claim that is uncontested, from the first calendar day following the 30-day period following the date the claim is received by the health plan, contracting entity, or payer;

  (2) for a nonelectronic contested claim for which notice was provided as required by subdivision (b)(2) of this section, or for an electronic contested claim for which notice and acknowledgment were provided as required in subdivision (b)(2) and subsection (c) of this section, from the first calendar day after the 30-day period following the date that sufficient additional information is received;

  (3) for a nonelectronic contested claim for which notice was not provided as required by subdivision (b)(2) of this section or for which notice was provided later than the 30 days required by subdivision (b)(2) of this section, from the first calendar day after the 30-day period following the date the original claim was received by the health plan, contracting entity, or payer;

  (4) for a contested electronic claim, for which notice and acknowledgment were not provided as required by subdivision (b)(2) and subsection (c) of this section, or for which notice or acknowledgment were provided later than the time required by subdivision (b)(2) and subsection (c) of this section, from the first calendar day after the 30-day period following the date the original claim was received by the health plan, contracting entity, or payer;

  (5) for a claim that was denied or for which notice of denial was provided as required by subdivision (b)(2) of this section, from the first calendar day after the 30-day period following the date of a final arbitration award, judgment, or administrative order that found a plan, contracting entity, or payer to be liable for payment of the claim; and

  (6) for a claim that was denied, for which notice of denial was not provided as required by subdivision (b)(2) of this section, or for which notice was provided later than the 30 days required by subdivision (b)(2) of this section, from the first calendar day after the 30-day period following the date the original claim was received by the health plan, contracting entity, or payer.

  (f) The Commissioner may suspend the accrual of interest under subsection (e) of this section if the Commissioner determines that the health plan’s failure to pay a claim within the applicable time limit is the result of a major disaster, act of God, or unanticipated major computer system failure or that the action is necessary to protect the solvency of the health plan.

  (g) All payments shall be made within the time periods provided by this section unless otherwise specified in the contract between the health plan and the health care provider or the health care facility. The health plan shall provide notice as required by subsection (b) of this section and pay interest on uncontested and contested claims as required in subsection (e) of this section from the day following the contract payment period, unless otherwise specified in the contract.

  (h) A health plan in this State shall not impose on any provider any retrospective denial of a previously paid claim or any part of that previously paid claim, unless:

  (1) The health plan has provided at least 30 days’ notice of any retrospective denial or overpayment recovery or both in writing to the provider. The notice must include:

  (A) the patient’s name;

  (B) the service date;

  (C) the payment amount;

  (D) the proposed adjustment; and

  (E) a reasonably specific explanation of the proposed adjustment.

  (2) The time that has elapsed since the date of payment of the previously paid claim does not exceed 12 months.

  (i) The retrospective denial of a previously paid claim shall be permitted beyond 12 months from the date of payment for any of the following reasons:

  (1) the plan has a reasonable belief that fraud or other intentional misconduct has occurred;

  (2) the claim payment was incorrect because the health care provider was already paid for the health services identified in the claim;

  (3) the health care services identified in the claim were not delivered by the provider;

  (4) the claim payment is the subject of adjustment with another health plan; or

  (5) the claim is the subject of legal action.

  (j)(1) For purposes of subsections (h) and (i) of this section, for routine recoveries as described in subdivisions (A) through (J) of this subdivision (1), retrospective denial or overpayment recovery of any or all of a previously paid claim shall not require 30 days’ notice before recovery may be made. A recovery shall be considered routine only if one of the following situations applies:

  (A) duplicate payment to a health care provider for the same professional service;

  (B) payment with respect to an individual who was not a plan member as of the date the service was provided;

  (C) payment for a noncovered service, not to include services denied as not medically necessary, experimental, or investigational in nature, or services denied through a utilization review mechanism;

  (D) erroneous payment for services due to plan administrative error;

  (E) erroneous payment for services where the claim was processed in a manner inconsistent with the data submitted by the provider;

  (F) payment where the health care provider provides the plan with new or additional information demonstrating an overpayment;

  (G) payment to a health care provider at an incorrect rate or using an incorrect fee schedule;

  (H) payment of claims for the same plan member that are received by the health plan out of the chronological order in which the services were performed;

  (I) payment where the health care provider has received payment for the same services from another payer whose obligation is primary; or

  (J) payments made in coordination with a payment by a government payer that require adjustment based on an adjustment in the government-paid portion of the claim.

  (2) Notwithstanding the provisions of subdivision (1) of this subsection, recoveries that, in the reasonable business judgment of the payer, would be likely to affect a significant volume of claims or accumulate to a significant dollar amount shall not be deemed routine, regardless of whether one or more of the situations in subdivisions (1)(A) through (1)(J) of this subsection apply.

  (3) Nothing in this subsection shall be construed to affect the time frames established in subdivision (h)(2) or subsection (i) of this section.

  (k) Notwithstanding this section, a health plan may not retroactively deny or recoup a pharmacy point-of-sale payment except in the circumstances of fraud, intentional misconduct, a member not receiving the prescription, or error in the processing of the claim.

  (l) Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or State laws and regulations or to relieve a health plan from complying with payment standards established by federal or State laws and regulations.

  (m) The provisions of this section shall not apply to stand-alone dental plans licensed to do business in Vermont. (Added 1997, No. 159 (Adj. Sess.), § 14a; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 203 (Adj. Sess.), § 27, eff. June 10, 2008; 2009, No. 61, § 29; 2009, No. 156 (Adj. Sess.), § I.28; 2011, No. 171 (Adj. Sess.), § 11g; 2013, No. 79, § 5, eff. Jan. 1, 2014; 2015, No. 54, § 37; 2023, No. 6, § 231, eff. July 1, 2023.)

• § 9418a. Processing claims, downcoding, and adherence to coding rules [Effective until January 1, 2025; see also section 9418a effective January 1, 2025 and section 9418a effective January 1, 2026, set out below]

  (a) Health plans, contracting entities, covered entities, and payers shall accept and initiate the processing of all health care claims submitted by a health care provider pursuant to and consistent with the current version of the American Medical Association’s Current Procedural Terminology (CPT) codes, reporting guidelines, and conventions; the Centers for Medicare and Medicaid Services Healthcare Common Procedure Coding System (HCPCS); American Society of Anesthesiologists; the National Correct Coding Initiative (NCCI); the National Council for Prescription Drug Programs coding; or other appropriate nationally recognized standards, guidelines, or conventions approved by the Commissioner.

  (b) When editing claims, health plans, contracting entities, covered entities, and payers shall adhere to edit standards except as provided in subsection (c) of this section:

  (1) the CPT, HCPCS, and NCCI;

  (2) national specialty society edit standards; or

  (3) other appropriate nationally recognized edit standards, guidelines, or conventions approved by the Commissioner.

  (c) Adherence to the edit standards in subdivision (b)(1) or (2) of this section is not required:

  (1) when necessary to comply with State or federal laws, rules, regulations, or coverage mandates; or

  (2) for edits that the payer determines are more favorable to providers than the edit standards in subdivisions (b)(1) through (3) of this section or to address new codes not yet incorporated by a payer’s edit management software, provided the edit standards are developed with input from the relevant Vermont provider community and national provider organizations and provided the edits are available to providers on the plan’s websites and in their newsletters.

  (d) Nothing in this section shall preclude a health plan, contracting entity, covered entity, or payer from determining that any such claim is not eligible for payment in full or in part, based on a determination that:

  (1) the claim is contested as defined in subdivision 9418(a)(2) of this title;

  (2) the service provided is not a covered benefit under the contract, including a determination that such service is not medically necessary or is experimental or investigational;

  (3) the insured did not obtain a referral, prior authorization, or precertification, or satisfy any other condition precedent to receiving covered benefits from the health care provider;

  (4) the covered benefit exceeds the benefit limits of the contract;

  (5) the person is not eligible for coverage or is otherwise not compliant with the terms and conditions of his or her coverage agreement;

  (6) the health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or

  (7) the health plan, contracting entity, covered entity, or payer determines through coordination of benefits that another entity is liable for the claim.

  (e) Nothing in this section shall be deemed to require a health plan, contracting entity, covered entity, or payer to pay or reimburse a claim, in full or in part, or to dictate the amount of a claim to be paid by a health plan, contracting entity, covered entity, or payer to a health care provider.

  (f) No health plan, contracting entity, covered entity, or payer shall automatically reassign or reduce the code level of evaluation and management codes billed for covered services (downcoding), except that a health plan, contracting entity, covered entity, or payer may reassign a new patient visit code to an established patient visit code based solely on CPT codes, CPT guidelines, and CPT conventions.

  (g) Notwithstanding the provisions of subsection (d) of this section, and other than the edits contained in the conventions in subsections (a) and (b) of this section, health plans, contracting entities, covered entities, and payers shall continue to have the right to deny, pend, or adjust claims for services on other bases and shall have the right to reassign or reduce the code level for selected claims for services based on a review of the clinical information provided at the time the service was rendered for the particular claim or a review of the information derived from a health plan’s fraud or abuse billing detection programs that create a reasonable belief of fraudulent or abusive billing practices, provided that the decision to reassign or reduce is based primarily on a review of clinical information.

  (h) Every health plan, contracting entity, covered entity, and payer shall publish on its provider website and in its provider newsletter if applicable:

  (1) the name of any commercially available claims editing software product that the health plan, contracting entity, covered entity, or payer utilizes;

  (2) the standard or standards, pursuant to subsection (b) of this section, that the entity uses for claim edits;

  (3) the payment percentages for modifiers; and

  (4) any significant edits, as determined by the health plan, contracting entity, covered entity, or payer, added to the claims software product after the effective date of this section, which are made at the request of the health plan, contracting entity, covered entity, or payer.

  (i) Upon written request, the health plan, contracting entity, covered entity, or payer shall also directly provide the information in subsection (h) of this section to a health care provider who is a participating member in the health plan’s, contracting entity’s, covered entity’s, or payer’s provider network.

  (j) For purposes of this section, “health plan” includes a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.

  (k) BlueCross BlueShield of Vermont and the Vermont Medical Society are requested to continue convening a work group consisting of health plans, health care providers, State agencies, and other interested parties to study the edit standards in subsection (b) of this section, the edit standards in national class action settlements, and edit standards and edit transparency standards established by other states to determine the most appropriate way to ensure that health care providers can access information about the edit standards applicable to the health care services they provide. The work group is requested to provide an annual progress report to the House Committee on Health Care and the Senate Committees on Health and Welfare and on Finance.

  (l) With respect to the work group established under subsection (k) of this section and to the extent required to avoid violations of federal antitrust laws, the Department shall facilitate and supervise the participation of members of the work group. (Added 2007, No. 203 (Adj. Sess.), § 28, eff. June 10, 2008; amended 2009, No. 61, § 30; 2011, No. 21, § 18; 2011, No. 171 (Adj. Sess.), § 11a, eff. May 16, 2012; 2023, No. 111 (Adj. Sess.), § 2, eff. January 1, 2025 and January 1, 2026; 2023, No. 111 (Adj. Sess.), § 8, eff. January 1, 2028.)

• § 9418a. Processing claims, downcoding, and adherence to coding rules [Effective January 1, 2025; Effective until January 1, 2026; see also section 9418a effective until January 1, 2025, set out above and section 9418a effective January 1, 2026, set out below]

  (a) Health plans, contracting entities, covered entities, and payers shall accept and initiate the processing of all health care claims submitted by a health care provider pursuant to and consistent with the current version of the American Medical Association’s Current Procedural Terminology (CPT) codes, reporting guidelines, and conventions; the Centers for Medicare and Medicaid Services Healthcare Common Procedure Coding System (HCPCS); American Society of Anesthesiologists; the National Correct Coding Initiative (NCCI); the National Council for Prescription Drug Programs coding; or other appropriate nationally recognized standards, guidelines, or conventions approved by the Commissioner.

  (b) When editing claims, health plans, contracting entities, covered entities, and payers shall adhere to edit standards except as provided in subsection (c) of this section:

  (1) the CPT, HCPCS, and NCCI;

  (2) national specialty society edit standards; or

  (3) other appropriate nationally recognized edit standards, guidelines, or conventions approved by the Commissioner.

  (c) Adherence to the edit standards in subdivision (b)(1) or (2) of this section is not required:

  (1) when necessary to comply with State or federal laws, rules, regulations, or coverage mandates; or

  (2) for edits that the payer determines are more favorable to providers than the edit standards in subdivisions (b)(1) through (3) of this section or to address new codes not yet incorporated by a payer’s edit management software, provided the edit standards are developed with input from the relevant Vermont provider community and national provider organizations and provided the edits are available to providers on the plan’s websites and in their newsletters.

  (d) [Reserved.]

  (e)(1) Except as otherwise provided in subdivision (2) of this subsection, no health plan, contracting entity, covered entity, or payer shall subject any health care provider to prepayment coding validation edit review. As used in this subsection, “prepayment coding validation edit review” means any action by the health plan, contracting entity, covered entity, or payer, or by a contractor, assignee, agent, or other entity acting on its behalf, requiring a health care provider to provide medical record documentation in conjunction with or after submission of a claim for payment for health care services delivered, but before the claim has been adjudicated.

  (2) Nothing in this subsection shall be construed to prohibit targeted prepayment coding validation edit review of a specific provider, provider group, or facility under certain circumstances, including evaluating high-dollar claims; verifying complex financial arrangements; investigating member questions; conducting post-audit monitoring; addressing a reasonable belief of fraud, waste, or abuse; or other circumstances determined by the Commissioner through a bulletin or guidance.

  (f) Nothing in this section shall preclude a health plan, contracting entity, covered entity, or payer from determining that any such claim is not eligible for payment in full or in part, based on a determination that:

  (1) the claim is contested as defined in subdivision 9418(a)(2) of this title;

  (2) the service provided is not a covered benefit under the contract, including a determination that such service is not medically necessary or is experimental or investigational;

  (3) the insured did not obtain a referral, prior authorization, or precertification, or satisfy any other condition precedent to receiving covered benefits from the health care provider;

  (4) the covered benefit exceeds the benefit limits of the contract;

  (5) the person is not eligible for coverage or is otherwise not compliant with the terms and conditions of his or her coverage agreement;

  (6) the health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or

  (7) the health plan, contracting entity, covered entity, or payer determines through coordination of benefits that another entity is liable for the claim.

  (g) Nothing in this section shall be deemed to require a health plan, contracting entity, covered entity, or payer to pay or reimburse a claim, in full or in part, or to dictate the amount of a claim to be paid by a health plan, contracting entity, covered entity, or payer to a health care provider.

  (h) No health plan, contracting entity, covered entity, or payer shall automatically reassign or reduce the code level of evaluation and management codes billed for covered services (downcoding), except that a health plan, contracting entity, covered entity, or payer may reassign a new patient visit code to an established patient visit code based solely on CPT codes, CPT guidelines, and CPT conventions.

  (i) Notwithstanding the provisions of subsection (f) of this section, and other than the edits contained in the conventions in subsections (a) and (b) of this section, health plans, contracting entities, covered entities, and payers shall continue to have the right to deny, pend, or adjust claims for services on other bases and shall have the right to reassign or reduce the code level for selected claims for services based on a review of the clinical information provided at the time the service was rendered for the particular claim or a review of the information derived from a health plan’s fraud or abuse billing detection programs that create a reasonable belief of fraudulent or abusive billing practices, provided that the decision to reassign or reduce is based primarily on a review of clinical information.

  (j) Every health plan, contracting entity, covered entity, and payer shall publish on its provider website and in its provider newsletter if applicable:

  (1) the name of any commercially available claims editing software product that the health plan, contracting entity, covered entity, or payer utilizes;

  (2) the standard or standards, pursuant to subsection (b) of this section, that the entity uses for claim edits;

  (3) the payment percentages for modifiers; and

  (4) any significant edits, as determined by the health plan, contracting entity, covered entity, or payer, added to the claims software product after the effective date of this section, which are made at the request of the health plan, contracting entity, covered entity, or payer.

  (k) Upon written request, the health plan, contracting entity, covered entity, or payer shall also directly provide the information in subsection (j) of this section to a health care provider who is a participating member in the health plan’s, contracting entity’s, covered entity’s, or payer’s provider network.

  (l) For purposes of this section, “health plan” includes a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.

  [Subsection (m) repealed effective January 1, 2028.]

  (m) There is established a working group comprising the health plans, contracting entities, covered entities, and payers subject to the reporting requirement in subsection 9414a(b) of this title; representatives of hospitals and health care providers,; representatives of the Department of Financial Regulation and of other relevant State agencies,; and other interested parties to study trends in coding and billing that health plans, contracting entities, covered entities, or payers, or a combination of them, seek to address through claim editing. The working group shall provide a progress report to the House Committee on Health Care and the Senate Committees on Health and Welfare and on Finance upon request.

  [Subsection (n) repealed effective January 1, 2028.]

  (n) With respect to the working group established under subsection (m) of this section and to the extent required to avoid violations of federal antitrust laws, the Department shall facilitate and supervise the participation of members of the working group. (Added 2007, No. 203 (Adj. Sess.), § 28, eff. June 10, 2008; amended 2009, No. 61, § 30; 2011, No. 21, § 18; 2011, No. 171 (Adj. Sess.), § 11a, eff. May 16, 2012; 2023, No. 111 (Adj. Sess.), § 2, eff. January 1, 2025 and January 1, 2026; 2023, No. 111 (Adj. Sess.), § 8, eff. January 1, 2028.)

• § 9418a. Processing claims, downcoding, and adherence to coding rules [Effective January 1, 2026; see also section 9418a effective until January 1, 2025 and section 9418a effective January 1, 2025, set out above]

  (a) Health plans, contracting entities, covered entities, and payers shall accept and initiate the processing of all health care claims submitted by a health care provider pursuant to and consistent with the current version of the American Medical Association’s Current Procedural Terminology (CPT) codes, reporting guidelines, and conventions; the Centers for Medicare and Medicaid Services Healthcare Common Procedure Coding System (HCPCS); American Society of Anesthesiologists; the National Correct Coding Initiative (NCCI); the National Council for Prescription Drug Programs coding; or other appropriate nationally recognized standards, guidelines, or conventions approved by the Commissioner.

  (b)(1) Except as provided in subsection (c) of this section, when editing claims, health plans, contracting entities, covered entities, and payers shall require not more than the following edit standards, processes, and guidelines:

  (A) for claims for outpatient and professional services, the NCCI as in effect for Medicare;

  (B) for facility claims, the Medicare Code Editor as in effect for Medicare;

  (C) for pharmacy claims, appropriate nationally recognized edit standards, guidelines, or conventions; and

  (D) for any other claim not addressed by subdivision (A), (B), or (C) of this subdivision (1), other appropriate nationally recognized edit standards, guidelines, or conventions approved by the Commissioner.

  (2) For outpatient services, professional services, and facility claims, a health plan, contracting entity, covered entity, or payer shall apply the relevant edit standards, processes, and guidelines from NCCI or Medicare Code Editor pursuant to subdivisions (1)(A) and (B) of this subsection that were in effect for Medicare on the date of the claim submission; provided, however, that if Medicare has changed an applicable edit standard, process, or guideline within 90 days prior to the date of the claim submission, the health plan, contracting entity, covered entity, or payer may use the version of the edit standard, process, or guideline that Medicare had applied prior to the most recent change if the health plan, contracting entity, covered entity, or payer has not yet released an updated version of its edits in accordance with subsection (d) of this section.

  (c) Adherence to the edit standards in subsection (b) of this section is not required:

  (1) when necessary to comply with State or federal laws, rules, regulations, or coverage mandates; or

  (2) for edits that the payer determines are more favorable to providers than the edit standards in subsection (b) of this section or to address new codes not yet incorporated by a payer’s edit management software, provided the edit standards are:

  (A) developed with input from the relevant Vermont provider community and national provider organizations;

  (B) clearly supported by nationally recognized standards, guidelines, or conventions approved by the Commissioner of Financial Regulation; and

  (C) available to providers on the plan’s websites and in its newsletters or equivalent electronic communications.

  (d) Health plans, contracting entities, covered entities, and payers shall not release edits more than quarterly, to take effect on January 1, April 1, July 1, or October 1, as applicable, and the edits shall not be implemented without filing with the Commissioner of Financial Regulation to ensure consistency with nationally recognized standards guidelines, and conventions, and at least 30 days’ advance notice to providers. Whenever Medicare changes an edit standard, process, or guideline that it applies to outpatient service, professional service, or facility claims, each health plan, contracting entity, covered entity, or payer shall incorporate those modifications into its next quarterly release of edits.

  (e)(1) Except as otherwise provided in subdivision (2) of this subsection, no health plan, contracting entity, covered entity, or payer shall subject any health care provider to prepayment coding validation edit review. As used in this subsection, “prepayment coding validation edit review” means any action by the health plan, contracting entity, covered entity, or payer, or by a contractor, assignee, agent, or other entity acting on its behalf, requiring a health care provider to provide medical record documentation in conjunction with or after submission of a claim for payment for health care services delivered, but before the claim has been adjudicated.

  (2) Nothing in this subsection shall be construed to prohibit targeted prepayment coding validation edit review of a specific provider, provider group, or facility under certain circumstances, including evaluating high-dollar claims; verifying complex financial arrangements; investigating member questions; conducting post-audit monitoring; addressing a reasonable belief of fraud, waste, or abuse; or other circumstances determined by the Commissioner through a bulletin or guidance.

  (f) Nothing in this section shall preclude a health plan, contracting entity, covered entity, or payer from determining that any such claim is not eligible for payment in full or in part, based on a determination that:

  (1) the claim is contested as defined in subdivision 9418(a)(2) of this title;

  (2) the service provided is not a covered benefit under the contract, including a determination that such service is not medically necessary or is experimental or investigational;

  (3) the insured did not obtain a referral, prior authorization, or precertification, or satisfy any other condition precedent to receiving covered benefits from the health care provider;

  (4) the covered benefit exceeds the benefit limits of the contract;

  (5) the person is not eligible for coverage or is otherwise not compliant with the terms and conditions of his or her coverage agreement;

  (6) the health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or

  (7) the health plan, contracting entity, covered entity, or payer determines through coordination of benefits that another entity is liable for the claim.

  (g) Nothing in this section shall be deemed to require a health plan, contracting entity, covered entity, or payer to pay or reimburse a claim, in full or in part, or to dictate the amount of a claim to be paid by a health plan, contracting entity, covered entity, or payer to a health care provider.

  (h) No health plan, contracting entity, covered entity, or payer shall automatically reassign or reduce the code level of evaluation and management codes billed for covered services (downcoding), except that a health plan, contracting entity, covered entity, or payer may reassign a new patient visit code to an established patient visit code based solely on CPT codes, CPT guidelines, and CPT conventions.

  (i) Notwithstanding the provisions of subsection (f) of this section, and other than the edits contained in the conventions in subsections (a) and (b) of this section, health plans, contracting entities, covered entities, and payers shall continue to have the right to deny, pend, or adjust claims for services on other bases and shall have the right to reassign or reduce the code level for selected claims for services based on a review of the clinical information provided at the time the service was rendered for the particular claim or a review of the information derived from a health plan’s fraud or abuse billing detection programs that create a reasonable belief of fraudulent or abusive billing practices, provided that the decision to reassign or reduce is based primarily on a review of clinical information.

  (j) If adding an edit pursuant to subsection (b) or subdivision (c)(1) or (2) of this section, a health plan, contracting entity, covered entity, or payer shall publish on its provider website and in its provider newsletter or equivalent electronic provider communications:

  (1) the name of any commercially available claims editing software product that the health plan, contracting entity, covered entity, or payer utilizes;

  (2) the specific standard or standards that the entity uses for claim edits and how those claim edits are supported by those specific standards;

  (3) the payment percentages for modifiers; and

  (4) the specific edit or edits added to the claims software product.

  (k) Upon written request, the health plan, contracting entity, covered entity, or payer shall also directly provide the information in subsection (j) of this section to a health care provider who is a participating member in the health plan’s, contracting entity’s, covered entity’s, or payer’s provider network.

  (l) For purposes of this section, “health plan” includes a workers’ compensation policy of a casualty insurer licensed to do business in Vermont.

  [Subsection (m) repealed effective January 1, 2028.]

  (m) There is established a working group comprising the health plans, contracting entities, covered entities, and payers subject to the reporting requirement in subsection 9414a(b) of this title; representatives of hospitals and health care providers,; representatives of the Department of Financial Regulation and of other relevant State agencies,; and other interested parties to study trends in coding and billing that health plans, contracting entities, covered entities, or payers, or a combination of them, seek to address through claim editing. The working group shall provide a progress report to the House Committee on Health Care and the Senate Committees on Health and Welfare and on Finance upon request.

  [Subsection (n) repealed effective January 1, 2028.]

  (n) With respect to the working group established under subsection (m) of this section and to the extent required to avoid violations of federal antitrust laws, the Department shall facilitate and supervise the participation of members of the working group. (Added 2007, No. 203 (Adj. Sess.), § 28, eff. June 10, 2008; amended 2009, No. 61, § 30; 2011, No. 21, § 18; 2011, No. 171 (Adj. Sess.), § 11a, eff. May 16, 2012; 2023, No. 111 (Adj. Sess.), § 2, eff. January 1, 2025 and January 1, 2026; 2023, No. 111 (Adj. Sess.), § 8, eff. January 1, 2028.)

• § 9418b. Prior authorization

  (a) Health plans shall pay claims for health care services for which prior authorization was required by and received from the health plan, unless:

  (1) the insured was not a covered individual at the time the service was rendered;

  (2) the insured’s benefit limitations were exhausted;

  (3) the prior authorization was based on materially inaccurate information from the health care provider;

  (4) the health plan has a reasonable belief that fraud or other intentional misconduct has occurred; or

  (5) the health plan determines through coordination of benefits that another health insurer is liable for the claim.

  (b) Notwithstanding the provisions of subsection (a) of this section, nothing in this section shall be construed to prohibit a health plan from denying continued or extended coverage as part of concurrent review, denying a claim if the health plan is not primarily obligated to pay the claim, or applying payment policies that are consistent with an applicable law, rule, or regulation.

  [Subsection (c) effective until January 1, 2025; see also subsection (c) effective January 1, 2025 set out below.]

  (c) A health plan shall furnish, upon request from a health care provider, a current list of services and supplies requiring prior authorization.

  [Subsection (c) effective January 1, 2025; see also subsection (c) effective until January 1, 2025 set out above.]

  (c)(1)(A) Except as provided in subdivision (B) of this subdivision (1), a health plan shall not impose any prior authorization requirement for any admission, item, service, treatment, or procedure ordered by a primary care provider.

  (B) The prohibition set forth in subdivision (A) of this subdivision (1) shall not be construed to prohibit prior authorization requirements for prescription drugs or for an admission, item, service, treatment, or procedure that is provided out-of-network.

  (2) As used in this subsection, “primary care provider” has the same meaning as is used by the Vermont Blueprint for Health.

  [Subsection (d) effective until January 1, 2025; see also subsection (d) effective January 1, 2025 set out below.]

  (d) A health plan shall post a current list of services and supplies requiring prior authorization to the insurer’s website.

  [Subsection (d) effective January 1, 2025; see also subsection (d) effective until January 1, 2025 set out above.]

  (d)(1) A health plan shall furnish, upon request from a health care provider, a current list of services and supplies requiring prior authorization.

  (2) A health plan shall make a current list of services and supplies requiring prior authorization available to the public on the insurer’s website.

  (e) In addition to any other remedy provided by law, if the Commissioner finds that a health plan has engaged in a pattern and practice of violating this section, the Commissioner may impose an administrative penalty against the health plan of no more than $500.00 for each violation and may order the health plan to cease and desist from further violations and order the health plan to remediate the violation. In determining the amount of penalty to be assessed, the Commissioner shall consider the following factors:

  (1) the appropriateness of the penalty with respect to the financial resources and good faith of the health plan;

  (2) the gravity of the violation or practice;

  (3) the history of previous violations or practices of a similar nature;

  (4) the economic benefit derived by the health plan and the economic impact on the health care facility or health care provider resulting from the violation; and

  (5) any other relevant factors.

  (f) Nothing in this section shall be construed to prohibit a health plan from applying payment policies that are consistent with applicable federal or State laws and regulations or to relieve a health plan from complying with payment standards established by federal or State laws and regulations.

  (g)(1)(A) Notwithstanding any provision of law to the contrary, on and after March 1, 2014, when requiring prior authorization for prescription drugs, medical procedures, and medical tests, a health plan shall accept for each prior authorization request either:

  (i) the national standard transaction information, such as HIPAA 278 standards, for sending or receiving authorizations electronically; or

  (ii) a uniform prior authorization form developed pursuant to subdivisions (2) and (3) of this subsection (g).

  (B) A health plan shall have the capability to accept both the national standard transaction information and the uniform prior authorization forms developed pursuant to subdivisions (2) and (3) of this subsection (g).

  (2)(A) Not later than September 1, 2013, the Department of Financial Regulation shall develop a clear, uniform, and readily accessible prior authorization form for prior authorization requests for medical procedures and medical tests.

  (B) Not later than September 1, 2013, the Department of Financial Regulation shall develop clear, uniform, and readily accessible forms for prior authorization requests for prescription drugs after determining the appropriate number of forms.

  (3) Each uniform prior authorization form developed pursuant to subdivision (2) of this subsection shall meet the following criteria, where applicable:

  (A) The form shall include the core set of common data requirements for nonclinical information for prior authorization included in the HIPAA 278 standard transaction, national standards for prior authorization and electronic prescriptions, or both. The Department shall revise the form as needed to ensure that national standards are adopted and incorporated as soon as such standards are available and final.

  (B) The form shall be made available electronically by the Department and by the health plan.

  (C) The completed form or its data elements may be submitted electronically from the prescribing health care provider to the health plan.

  (D) The Department shall develop the form in consultation with the Department of Vermont Health Access and with input from interested parties from at least one public meeting.

  (E) The Department shall consider input on the proposed form from the national ASC X-12 workgroup, if available.

  (F) In developing the uniform prior authorization forms, the Department shall take into consideration the following:

  (i) existing prior authorization forms established by the federal Centers for Medicare and Medicaid Services, by the Department of Vermont Health Access, and by insurance and Medicaid departments and agencies in other states; and

  (ii) national standards related to electronic prior authorization.

  [Subdivision (g)(4) effective until January 1, 2025; see also subdivision (g)(4) effective January 1, 2025 set out below.]

  (4) A health plan shall respond to a completed prior authorization request from a prescribing health care provider within 48 hours after receipt for urgent requests and within two business days after receipt for nonurgent requests. The health plan shall notify a health care provider of or make available to a health care provider a receipt of the request for prior authorization and any needed missing information within 24 hours after receipt. If a health plan does not, within the time limits set forth in this section, respond to a completed prior authorization request, acknowledge receipt of the request for prior authorization, or request missing information, the prior authorization request shall be deemed to have been granted.

  [Subdivision (g)(4) effective January 1, 2025; see also subdivision (g)(4) effective until January 1, 2025 set out above.]

  (4)(A)(i) For urgent prior authorization requests, a health plan shall approve, deny, or inform the insured or health care provider if any information is missing from a prior authorization request from an insured or a prescribing health care provider within 24 hours following receipt.

  (ii) If a health plan informs an insured or a health care provider that more information is necessary for the health plan to make a determination on the request, the health plan shall have 24 hours to approve or deny the request upon receipt of the necessary information.

  (B) For nonurgent prior authorization requests:

  (i) A health plan shall approve or deny a completed prior authorization request from an insured or a prescribing health care provider within two business days following receipt.

  (ii) A health plan shall acknowledge receipt of the prior authorization request within 24 hours following receipt and shall inform the insured or health care provider at that time if any information is missing that is necessary for the health plan to make a determination on the request.

  (iii) If a health plan notifies an insured or a health care provider that more information is necessary pursuant to subdivision (ii) of this subdivision (4)(B), the health plan shall have 24 hours to approve or deny the request upon receipt of the necessary information.

  (C) If a health plan does not, within the time limits set forth in this section, respond to a completed prior authorization request, acknowledge receipt of the request for prior authorization, or request missing information, the prior authorization request shall be deemed to have been granted.

  (D) Prior authorization approval for a prescribed or ordered treatment, service, or course of medication shall be valid for the duration of the prescribed or ordered treatment, service, or course of medication or one year, whichever is longer; provided, however, that for a prescribed or ordered treatment, service, or course of medication that continues for more than one year, a health plan shall not require renewal of the prior authorization approval more frequently than once every five years.

  (E) For an insured who is stable on a treatment, service, or course of medication, as determined by a health care provider, that was approved for coverage under a previous health plan, a health plan shall not restrict coverage of that treatment, service, or course of medication for at least 90 days upon the insured’s enrollment in the new health plan.

  (h)(1) A health plan shall review the list of medical procedures and medical tests for which it requires prior authorization at least annually and shall eliminate the prior authorization requirements for those procedures and tests for which such a requirement is no longer justified or for which requests are routinely approved with such frequency as to demonstrate that the prior authorization requirement does not promote health care quality or reduce health care spending to a degree sufficient to justify the administrative costs to the plan.

  (2) A health plan shall attest to the Department of Financial Regulation and the Green Mountain Care Board annually on or before September 15 that it has completed the review and appropriate elimination of prior authorization requirements as required by subdivision (1) of this subsection. (Added 2007, No. 203 (Adj. Sess.), § 29, eff. June 10, 2008; amended 2009, No. 61, § 31; 2011, No. 171 (Adj. Sess.), § 11h; 2013, No. 79, § 5a, eff. June 7, 2013; 2015, No. 54, § 38; 2019, No. 140 (Adj. Sess.), § 8, eff. July 6, 2020; 2023, No. 6, § 232, eff. July 1, 2023; 2023, No. 111 (Adj. Sess.), §§ 3, 4, eff. January 1, 2025.)

• § 9418c. Fair contract standards

  [Subsection (a) effective until January 1, 2025; see also subsection (a) effective January 1, 2025 set out below.]

  (a) Required information.

  (1) Each contracting entity shall provide and each health care contract shall obligate the contracting entity to provide participating health care providers information sufficient for the participating provider to determine the compensation or payment terms for health care services, including all of the following:

  (A) The manner of payment, such as fee-for-service, capitation, case rate, or risk.

  (B) On request, the fee-for-service dollar amount allowable for each CPT code for those CPT codes that a provider in the same specialty typically uses or that the requesting provider actually bills. Fee schedule information may be provided by CD-ROM or electronically, at the election of the contracting entity, but a provider may elect to receive a hard copy of the fee schedule information instead of the CD-ROM or electronic version.

  (C) A clearly understandable, readily available mechanism, such as a specific website address, that includes the following information:

  (i) the name of the commercially available claims editing software product that the health plan, contracting entity, covered entity, or payer uses;

  (ii) the standard or standards from subsection 9418a(c) of this title that the entity uses for claim edits;

  (iii) payment percentages for modifiers; and

  (iv) any significant edits, as determined by the health plan, contracting entity, covered entity, or payer, added to the claims software product, which are made at the request of the health plan, contracting entity, covered entity, or payer, and which have been approved by the Commissioner pursuant to subsection 9418a(b) or (c) of this title.

  (2) Contracting entities shall provide the information described in subdivisions (1)(A) and (B) of this subsection to health care providers who are actively engaged in the process of determining whether to become a participating provider in the contracting entity’s network.

  (3) Contracting entities may require health care providers to execute written confidentiality agreements with respect to fee schedule and claim edit information received from contracting entities.

  (4) Each health care contract shall include the following information:

  (A) Any product, company, or network for which the participating provider has agreed to provide services.

  (B) For each product or network, reimbursement terms and methodologies, unless the terms are identical for multiple products or networks.

  (C) The term of the health care contract.

  (D) Termination notice period and reasons for termination.

  (E) Language that identifies the entity responsible for the processing of the participating provider’s compensation or payment, including contact information, including telephone, fax, and e-mail. This requirement may be satisfied by providing a specific web address that contains the necessary information.

  (F) Any internal mechanism provided by the contracting entity to resolve disputes concerning the interpretation or application of the terms and conditions of the contract. A contracting entity may satisfy this requirement by providing a clearly understandable, readily available mechanism, such as a specific website address or an appendix, that allows a participating provider to determine the procedures for the internal mechanism to resolve those disputes.

  (G) A list of addenda, if any, to the contract.

  [Subsection (a) effective January 1, 2025; see also subsection (a) effective until January 1, 2025 set out above.]

  (a) Required information.

  (1) Each contracting entity shall provide and each health care contract shall obligate the contracting entity to provide participating health care providers information sufficient for the participating provider to determine the compensation or payment terms for health care services, including all of the following:

  (A) The manner of payment, such as fee-for-service, capitation, case rate, or risk.

  (B) On request, the fee-for-service dollar amount allowable for each CPT code for those CPT codes that a provider in the same specialty typically uses or that the requesting provider actually bills. Fee schedule information may be provided electronically, at the election of the contracting entity, but a provider may elect to receive a hard copy of the fee schedule information instead of the electronic version.

  (C) A clearly understandable, readily available mechanism, such as a specific website address, that includes the following information:

  (i) the name of the commercially available claims editing software product that the health plan, contracting entity, covered entity, or payer uses;

  (ii) the specific standard or standards from subsection 9418a(c) of this title that the entity uses for claim edits and how those claim edits are supported by those specific standards;

  (iii) payment percentages for modifiers; and

  (iv) any significant edits, as determined by the health plan, contracting entity, covered entity, or payer, added to the claims software product, which are made at the request of the health plan, contracting entity, covered entity, or payer, and which have been approved by the Commissioner pursuant to subsection 9418a(b) or (c) of this title.

  (D) Any policies for prepayment or postpayment audits, or both, including whether the policies include limits on the number of medical records a contracting entity may request for audit in any calendar year.

  (2) Contracting entities shall provide the information described in subdivisions (1)(A) and (B) of this subsection to health care providers who are actively engaged in the process of determining whether to become a participating provider in the contracting entity’s network.

  (3) Contracting entities may require health care providers to execute written confidentiality agreements with respect to fee schedule and claim edit information received from contracting entities.

  (4) Each health care contract shall include the following information:

  (A) Any product, company, or network for which the participating provider has agreed to provide services.

  (B) For each product or network, reimbursement terms and methodologies, unless the terms are identical for multiple products or networks.

  (C) The term of the health care contract.

  (D) Termination notice period and reasons for termination.

  (E) Language that identifies the entity responsible for the processing of the participating provider’s compensation or payment, including contact information, including telephone, fax, and e-mail. This requirement may be satisfied by providing a specific web address that contains the necessary information.

  (F) Any internal mechanism provided by the contracting entity to resolve disputes concerning the interpretation or application of the terms and conditions of the contract. A contracting entity may satisfy this requirement by providing a clearly understandable, readily available mechanism, such as a specific website address or an appendix, that allows a participating provider to determine the procedures for the internal mechanism to resolve those disputes.

  (G) A list of addenda, if any, to the contract.

  (5)(A) If a contracting entity uses policies or manuals to augment the content of the contract with a health care provider, the contracting entity shall ensure that those policies or manuals contain sufficient information to allow providers to understand and comply with the content.

  (B) For any new policy or manual, or any change to an existing policy or manual, the contracting entity shall do all of the following:

  (i) Provide notice of the new policy, manual, or change to each participating provider in writing not fewer than 60 days prior to the effective date of the policy, manual, or change, which notice shall be conspicuously entitled “Notice of Policy Change” and shall include:

  (I) a summary of the new policy, manual, or change;

  (II) an explanation of the policy, manual, or change;

  (III) the effective date of the policy, manual, or change; and

  (IV) a notice of the right to object in writing to the policy, manual, or change, along with a time frame for objection and where and how to send the objection.

  (ii) Provide the participating provider 60 days after receiving the notice and summary to object in writing to the new policy, manual, or change. If the participating provider objects to the new policy, manual, or change, the contracting entity shall provide an initial substantive response to the objection within 30 days following the contracting entity’s receipt of the written objection, and the contracting entity shall work together with the provider to achieve a reasonable resolution to the objection within 60 days following the provider’s receipt of the contracting entity’s initial substantive response. If the provider is not satisfied with the proposed resolution, the provider may pursue any remedy available to the provider under the health care contract or under applicable law.

  (b) Summary disclosure form.

  (1) Each contracting entity shall include a summary disclosure form with a health care contract that includes all of the information specified in subsection (a) of this section. The information in the summary disclosure form shall refer to the location in the health care contract, whether a page number, section of the contract, appendix, or other identifier, that specifies the provisions in the contract to which the information in the form refers.

  (2) The summary disclosure form shall include all of the following information:

  (A) That the form is merely a guide to the health care contract and that the terms and conditions of the health care contract constitute the actual contract rights of the parties.

  (B) That reading the form is not a substitute for reading the entire health care contract.

  (C) That by signing the health care contract, the participating provider will be bound by the contract’s terms and conditions.

  (D) That the terms and conditions of the health care contract may be amended pursuant to section 9418d of this title, and the participating provider is encouraged to carefully read any proposed amendments sent after execution of the contract.

  (E) That nothing in the summary disclosure form creates any additional rights or causes of action in favor of either party.

  (3) No contracting entity that includes any information in the summary disclosure form with the reasonable belief that the information is truthful and accurate shall be subject to a civil action for damages or to binding arbitration based on information included in the summary disclosure form. Inclusion of intentional misstatements or intentional misrepresentations in the summary disclosure form shall be considered a violation of this chapter subject to enforcement under section 9418g of this title. This section does not impair or affect any power of the Department of Financial Regulation to enforce any applicable law.

  (4) The summary disclosure form described in subdivisions (1) and (2) of this subsection shall be in substantially the following form:

  Summary disclosure form

  Compensation terms

  Manner of payment:

  [ ] Fee for service

  [ ] Capitation

  [ ] Risk

  [ ] Other ............... See ...............

  Reimbursement schedule available at .................................

  Claim edit information available at .....................................

  List of products, product types, or networks covered by this contract (fill in names as applicable):

  [ ] ...............

  [ ] ...............

  [ ] ...............

  [ ] ...............

  [ ] ...............

  Term of this contract .........................................

  Termination notice period .........................................

  Contracting entity, covered entity, or payer responsible for processing payment available at .........................................

  Internal mechanism for resolving disputes regarding contract terms available at .........................................

  Addenda to contract (list addenda, if any)

  Telephone number to access a readily available mechanism, such as a specific website address, to allow a participating provider to receive the information listed above from the payer: .........................................

  Rental network information

  .........................................

  .........................................

  Important information—please read carefully

  The information provided in this Summary Disclosure Form is a guide to the attached Health Care Contract. The terms and conditions of the attached Health Care Contract constitute the contract rights of the parties.

  Reading this Summary Disclosure Form is not a substitute for reading the entire Health Care Contract. When you sign the Health Care Contract, you will be bound by its terms and conditions. These terms and conditions may be amended over time pursuant to 18 V.S.A. § 9418d. You are encouraged to read any proposed amendments that are sent to you after execution of the Health Care Contract.

  Nothing in this Summary Disclosure Form creates any additional rights or causes of action in favor of either party.

  (5) Upon request, contracting entities shall provide the summary disclosure form to a participating provider or a provider who is actively engaged in the process of determining whether to become a participating provider within 60 days after receipt of the request.

  (c) When a contracting entity presents a proposed health care contract for consideration by a provider, the contracting entity shall provide in writing or make reasonably available the information required in subdivisions (a)(1)(A) and (B) of this section.

  (d) Upon request, the contracting entity shall identify any utilization management, quality improvement, price or quality transparency program, or a similar program that the contracting entity uses to review, monitor, evaluate, or assess the services provided pursuant to a health care contract. The contracting entity shall disclose the policies, procedures, or guidelines of such a program upon request by the participating provider who is subject to or is participating in the program within 14 days after the date of the request.

  (e) The requirements of subdivision (b)(5) of this section do not prohibit a contracting entity from requiring a reasonable confidentiality agreement between the provider and the contracting entity regarding the terms of the proposed health care contract. (Added 2009, No. 61, § 32; amended 2023, No. 6, § 233, eff. July 1, 2023; 2023, No. 111 (Adj. Sess.), § 5, eff. January 1, 2025.)

• § 9418d. Contract amendments

  (a) A health care contract may be amended by mutual agreement of the parties.

  (b) Absent mutual agreement of the parties, a health care contract may be amended only as follows:

  (1) The contracting entity shall provide to the participating provider notice of the amendment and the amendment in writing not later than 60 days prior to the effective date of the amendment. The notice shall be conspicuously entitled “Notice of Amendment to Contract” and shall include a summary of the amendment as described in subdivision (4) of this subsection. The notice period may be extended by mutual agreement of the parties.

  (2) The participating provider shall have 60 days after receiving the amendment, notice, and summary pursuant to subdivision (1) of this subsection to object, in writing, to the proposed amendment. If the participating provider objects to the amendment and there is no resolution of the objection within 60 days following the contracting entity’s receipt of the written objection, either party may terminate the contract upon written notice of termination provided to the other party. Termination shall become effective in the time period specified in the health care contract. If no termination period is specified in the health care contract, the termination shall become effective 90 days after the notice of termination is provided. The terms of the underlying contract shall remain in effect through the termination period and shall be unaffected by the proposed amendment.

  (3) If the participating provider does not object to the amendment in the manner specified in subdivision (2) of this subsection, the amendment shall be effective as specified in the notice described in subdivision (1) of this subsection.

  (4) The notice of amendment shall include a summary cover sheet that shall include the following information:

  (A) a brief explanation of the amendment;

  (B) the date the amendment will become effective;

  (C) a notice of right to object in writing to the amendment;

  (D) the time frame for objection;

  (E) the address to send an objection;

  (F) contact information for the person to call to discuss the amendment for further information or to resolve an objection;

  (G) the effect of an objection;

  (H) the right to terminate the contract if the objection is not resolved;

  (I) the time period for the effective date of any such termination; and

  (J) the address to send a notice of termination.

  (c) Subsection (b) of this section shall not apply in the following circumstances:

  (1) The delay caused by compliance with the 60-day notice period in subdivision (b)(1) of this section could result in imminent harm to an insured.

  (2) The amendment of a health care contract is required by a State or federal law, rule, or regulation that includes an effective date for the amendment.

  (3) The provider affirmatively accepts the amendment in writing and agrees to an earlier effective date than that specified in the notice required by subdivision (b)(1) of this section.

  (4) The participating provider’s payment or compensation is based on the current Medicaid or Medicare physician reimbursement schedule, and the amendment reflects a change in payment or compensation resulting solely from a change in that physician reimbursement schedule.

  (5) The amendment is a routine change or update of the health care contract made in response to any addition, deletion, or revision of any service code, procedure code, or reporting code, or a pricing change is made by a third party source. For purposes of this subdivision:

  (A) “Service code, procedure code, or reporting code” means the American Medical Association’s Current Procedural Terminology, the American Dental Association’s Current Dental Terminology, the Centers for Medicare and Medicaid Services’ Healthcare Common Procedure Coding System, the World Health Organization’s International Classification of Diseases, or the Drug Topics Red Book average wholesale price; and

  (B) “Third party source” means the American Medical Association, the American Society of Anesthesiologists, the American Dental Association, the Centers for Medicare and Medicaid Services, the National Center for Health Statistics, the U.S. Department of Health and Human Services Office of the Inspector General, the Vermont Department of Financial Regulation, or the Vermont Agency of Human Services.

  (d) Notwithstanding subsections (a), (b), and (c) of this section, a health care contract may be amended by operation of law as required by any applicable state or federal law, rule, or regulation.

  (e) Subsection (b) of this section shall not apply to amendments of health care contracts with hospitals. (Added 2009, No. 61, § 33.)

• § 9418e. Most favored nation clauses prohibited

  Not later than 180 days after the effective date of this section, no contracting entity shall do any of the following:

  (1) offer to a provider, hospital, pharmacist, or pharmacy a health care contract that includes a most favored nation clause;

  (2) enter into a health care contract with a provider, hospital, pharmacist, or pharmacy that includes a most favored nation clause; or

  (3) amend an existing health care contract previously entered into with a provider, hospital, pharmacist, or pharmacy to include a most favored nation clause. (Added 2009, No. 61, § 34; amended 2023, No. 6, § 234, eff. July 1, 2023.)

• § 9418f. Rental network contracts

  (a) Definitions. As used in this section:

  (1) “Health care services” means services for the diagnosis, prevention, treatment, or cure of a health condition, illness, injury, or disease.

  (2)(A) “Provider” means a physician, a physician organization, or a physician hospital organization that is acting exclusively as an administrator on behalf of a provider to facilitate the provider’s participation in health care contracts.

  (B) “Provider” does not include a physician organization or physician hospital organization that leases or rents the physician organization’s or physician hospital organization’s network to a covered entity.

  (3) “Provider network contract” means a contract between a contracting entity and a provider specifying the rights and responsibilities of the contracting entity and provider for the delivery of and payment for health care services to covered individuals.

  (b) Scope. This section shall not apply to:

  (1) Provider network contracts for services provided to Medicaid, Medicare, or the State Children’s Health Insurance Program (SCHIP) beneficiaries.

  (2) Circumstances in which access to the provider network contract is granted to an entity operating under the same brand licensee program as the contracting entity.

  (c) Registration.

  (1) Any person not otherwise licensed or registered by the Commissioner that intends to conduct business as a contracting entity shall register with the Commissioner prior to commencing business. Each person not licensed or registered by the Commissioner as a contracting entity upon the effective date of this section shall have 30 days within which to register with the Commissioner.

  (2) Registration shall consist of the submission of the following information:

  (A) the official name of the contracting entity;

  (B) the mailing address and main telephone number for the contracting entity’s main headquarters; and

  (C) the name and telephone number of the contracting entity’s representative who shall serve as the primary contact with the Commissioner.

  (3) The information required by this subsection shall be submitted in written or electronic format, as prescribed by the Commissioner.

  (4) Annually on July 1, each person registered as a contracting entity under this section shall pay to the Commissioner a fee of $200.00. Fees collected under this subdivision shall be deposited into the Health Care Special Fund, number 21070, and shall be available to the Commissioner to offset the cost of administering the registration process.

  (d) Contracting entity rights and responsibilities.

  (1) A contracting entity may not grant access to a provider’s health care services and contractual discounts pursuant to a provider network contract unless:

  (A) the provider network contract specifically states that the contracting entity may enter into an agreement with a third party, allowing the third party to obtain the contracting entity’s rights and responsibilities under the provider network contract as if the third party were the contracting entity; and

  (B) the third party accessing the provider network contract is contractually obligated to comply with all applicable terms, limitations, and conditions of the provider network contract.

  (2) A contracting entity that grants access to a provider’s health care services and contractual discounts pursuant to a provider network contract shall:

  (A) identify and provide to the provider, upon request at the time a provider network contract is entered into with a provider, a written or electronic list of all third parties known at the time of contracting, to which the contracting entity has or will grant access to the provider’s health care services and contractual discounts pursuant to a provider network contract;

  (B) maintain a website or other readily available mechanism, such as a toll-free telephone number, through which a provider may obtain a listing, updated at least every 90 days, of the third parties to which the contracting entity has executed contracts to grant access to such provider’s health care services and contractual discounts pursuant to a provider network contract;

  (C) provide the covered entity with sufficient information regarding the provider network contract to enable the covered entity to comply with all relevant terms, limitations, and conditions of the provider network contract;

  (D) require that the covered entity who contracts with the contracting entity to gain access to the provider network contract identify the source of the contractual discount taken by the covered entity on each remittance advice or explanation of payment form furnished to a health care provider when such discount is pursuant to the contracting entity’s provider network contract;

  (E) notify the covered entity who contracts with the contracting entity to gain access to the provider network contract of the termination of the provider network contract not later than 30 days prior to the effective date of the final termination of the provider network contract; and

  (F) require those that are by contract eligible to claim the right to access a provider’s discounted rate to cease claiming entitlement to those rates or other contracted rights or obligations for services rendered after termination of the provider network contract.

  (3) The notice required under subdivision (2)(E) of this subsection can be provided through any reasonable means, including written notice, electronic communication, or an update to an electronic database or other provider listing.

  (4) Subject to any applicable continuity of care requirements, agreements, or contractual provisions:

  (A) a covered entity’s right to access a provider’s health care services and contractual discounts pursuant to a provider network contract shall terminate on the date the provider network contract is terminated;

  (B) claims for health care services performed after the termination date of the provider network contract are not eligible for processing and payment in accordance with the provider network contract; and

  (C) claims for health care services performed before the termination date of the provider network contract, but processed after the termination date, are eligible for processing and payment in accordance with the provider network contract.

  (5)(A) All information made available to providers in accordance with the requirements of this section shall be confidential and shall not be disclosed to any person or entity not involved in the provider’s practice or the administration thereof without the prior written consent of the contracting entity.

  (B) Nothing in this section shall be construed to prohibit a contracting entity from requiring the provider to execute a reasonable confidentiality agreement to ensure that confidential or proprietary information disclosed by the contracting entity is not used for any purpose other than the provider’s direct practice management or billing activities.

  (e) Rental by third parties prohibited. A covered entity, having itself been granted access to a provider’s health care services and contractual discounts pursuant to a provider network contract, may not further lease, rent, or otherwise grant access to the contract to any other person.

  (f) Unauthorized access to provider network contracts.

  (1) It is a violation of this subchapter subject to enforcement under section 9418g of this title to access or utilize a provider’s contractual discount pursuant to a provider network contract without a contractual relationship with the provider, contracting entity, or covered entity, as specified in this section.

  (2) Contracting entities and third parties are obligated to comply with subdivision (d)(2)(B) of this section concerning the services referenced on a remittance advice or explanation of payment. A provider may refuse the discount taken on the remittance advice or explanation of payment if the discount is taken without a contractual basis or in violation of these sections. However, an error in the remittance advice or explanation of payment may be corrected within 30 days following notice by the provider.

  (3) A contracting entity may not lease, rent, or otherwise grant a covered entity access to a provider network contract unless the covered entity accessing the health care contract is:

  (A) a payer, a third party administrator, or another entity that administers or processes claims on behalf of the payer;

  (B) a preferred provider organization or preferred provider network, including a physician organization or physician hospital organization; or

  (C) an entity engaged in the electronic claims transport between the contracting entity and the payer that does not provide access to the provider’s services and a discount to any other covered entity. (Added 2009, No. 61, § 35; amended 2023, No. 6, § 235, eff. July 1, 2023.)

• § 9418g. Enforcement

  In addition to any other remedy provided by law, the Commissioner may, in the Commissioner’s sole discretion, enforce the provisions of this subchapter as specified in this section. In determining whether to undertake an enforcement action, the Commissioner may consider the relative resources of the complaining party and the alleged noncompliant party, the Commissioner’s other enforcement responsibilities, and such other factors as the Commissioner deems appropriate.

  (1) The Commissioner shall have the power to examine and investigate any health plan, contracting entity, covered entity, or payer to determine if the health plan, contracting entity, covered entity, or payer has violated the provisions of this subchapter, or any rules or order of the Commissioner adopted or issued pursuant to this subchapter.

  (2) If the Commissioner finds that a health plan, contracting entity, covered entity, or payer has violated this subchapter, or any rules or order of the Commissioner adopted or issued pursuant to this subchapter, the Commissioner may order the health plan, contracting entity, covered entity, or payer to cease and desist from further violations and may order the health plan, contracting entity, covered entity, or payer to remediate the violation.

  (3) If the Commissioner finds that a health plan, contracting entity, covered entity, or payer has violated this subchapter or any rules or order of the Commissioner adopted or issued pursuant to this subchapter, the Commissioner may impose an administrative penalty against the health plan, contracting entity, covered entity, or payer of not more than $1,000.00 for each violation and not more than $10,000.00 for each willful violation. In determining the amount of the penalty to be assessed, the Commissioner shall consider the following factors:

  (A) the appropriateness of the penalty with respect to the financial resources and good faith of the health plan, contracting entity, covered entity, or payer;

  (B) the gravity of the violation or practice;

  (C) the history of previous violations or practices of a similar nature;

  (D) the economic benefit derived by the health plan, contracting entity, covered entity, or payer and the economic impact on the health care facility or health care provider resulting from the violation; and

  (E) any other relevant factors.

  (4) Any dispute arising out of or relating to the provisions of this subchapter shall, at the option of either party, be settled by arbitration in accordance with the commercial rules of the American Arbitration Association or the rules or procedures of another mutually agreed upon alternative dispute resolution forum, such as the American Health Lawyers Association. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction, and the arbitrator’s award shall be binding on both parties.

  (5) Nothing in this subchapter shall be construed to prohibit a health plan, contracting entity, covered entity, or payer from applying payment policies that are consistent with applicable federal or State laws and regulations, or to relieve a health plan, contracting entity, covered entity, or payer from complying with payment standards established by federal or State laws and regulations, including rules adopted by the Commissioner. (Added 2009, No. 61, § 36; amended 2023, No. 6, § 236, eff. July 1, 2023.)

• § 9419. Charges for access to medical records

  (a) A custodian may impose a charge that is no more than a flat $5.00 fee or no more than $0.50 per page, whichever is greater, for providing copies of an individual’s health care record. A custodian shall provide an individual or the authorized recipient with an itemized bill for the charges assessed. A custodian shall not charge for providing copies of any health care record requested to support a claim or an appeal under any provision of the Social Security Act or for any other federal or State needs-based benefit or program.

  (b) A custodian may charge an individual a fee, reasonably related to the associated costs, for providing copies of X-rays, films, models, disks, tapes, or other health care record information maintained in other formats.

  (c) As used in this section:

  (1) “Custodian” means any person who maintains health care information for any lawful purpose, including a health care provider, a health care facility, or a health insurer.

  (2) “Health care record” means all written and recorded health care information about an individual maintained by a custodian.

  (3) “Individual” means a natural person, alive or dead, who is the subject of health care information and includes, when appropriate, the individual’s attorney-in-fact; legal guardian; health care agent, as defined in chapter 231 of this title; executor; or administrator. (Added 1999, No. 129 (Adj. Sess.), § 2; amended 2017, No. 113 (Adj. Sess.), § 107.)

• § 9420. Conversion of nonprofit hospitals

  (a) Policy and purpose. The State has a responsibility to ensure that the assets of nonprofit entities, which are impressed with a charitable trust, are managed prudently and are preserved for their proper charitable purposes.

  (b) Definitions. As used in this section:

  (1) “Charitable assets” means the fair market value of a nonprofit hospital. When a conversion affects only some of the assets of a nonprofit hospital, “charitable assets” means those assets of the hospital that will be so affected.

  (2) [Repealed.]

  (3) “Conversion” means a transaction or series of transactions described in subdivision (4) of this subsection.

  (4) “Convert” means to sell, transfer, lease, exchange, option, commit, convey, or otherwise dispose of assets or operations of a nonprofit hospital. The term does not include transactions occurring in the normal and ordinary course of business for the nonprofit hospital, such as management contracts, vendor contracts, physician-hospital contracts, managed care contracts, financing agreements, or ventures such as letters of credit, or cooperative or networking agreements with for-profit providers.

  (5) “Fair market value” means the price that the assets being converted would bring in a competitive and open market under a fair sale with the buyer and seller acting prudently, knowledgeably, at arm’s length, and in their own best interests.

  (6) “Hospital system” means a network of hospitals affiliated with a nonprofit hospital.

  (7) “Nonprofit hospital” means a nonprofit entity, where no part of the net earnings may lawfully be applied to the benefit of any private shareholder or individual, and that is a hospital as defined in section 1902 of this title or a hospital member of a hospital system, provided that the term “hospital” does not include any hospital conducted, maintained, or operated by the U.S. government or the State of Vermont or the duly authorized agency of either.

  (8) “Parties” means the nonprofit hospital and any other person who is a party to a conversion described in the application filed pursuant to subsection (e) of this section, including any person that, pursuant to the plan of conversion, is to receive charitable assets or proceeds as a result of the conversion. When, in this section, reference is made to liabilities or obligations of the parties, such liabilities and obligations shall be joint and several.

  (9) “Qualifying amount” means an amount that is at least $1 million and represents at least 40 percent of the value of the assets of the nonprofit hospital, or that vests control of the nonprofit hospital in another person or entity. For purposes of determining whether the threshold requirements of this subdivision have been or will be met, related conversions shall be aggregated.

  (10) “Green Mountain Care Board” or “Board” means the Green Mountain Care Board established in chapter 220 of this title.

  (c) Approval required for conversion of qualifying amount of charitable assets. A nonprofit hospital may convert a qualifying amount of charitable assets only with the approval of the Green Mountain Care Board, and either the Attorney General or the Superior Court, pursuant to the procedures and standards set forth in this section.

  (d) Exception for conversions in which assets will be owned and controlled by a nonprofit corporation.

  (1) Other than subsection (q) of this section and subdivision (2) of this subsection, this section shall not apply to conversions in which the party receiving assets of a nonprofit hospital is a nonprofit corporation.

  (2) In any conversion that would have required an application under subsection (e) of this section but for the exception set forth in subdivision (1) of this subsection, notice to or written waiver by the Attorney General shall be given or obtained as if required under 11B V.S.A. § 12.02(g).

  (e) Application. Prior to consummating any conversion of a qualifying amount of charitable assets, the parties shall submit an application to the Attorney General and the Green Mountain Care Board, together with any attachments complying with subsection (f) of this section. If any material change occurs in the proposal set forth in the filed application, an amendment setting forth such change, together with copies of all documents and other material relevant to such change, shall be filed with the Attorney General and the Board within two business days, or as soon thereafter as practicable, after any party to the conversion learns of such change. If the conversion involves a hospital system, and one or more of the hospitals in the system desire to convert charitable assets, the Attorney General, in consultation with the Board, shall determine whether an application shall be required from the hospital system.

  (f) Completion and contents of application.

  (1) Within 30 days after receipt of the application, or within 10 days after receipt of any amendment to the application, whichever is longer, the Attorney General, with the Green Mountain Care Board’s agreement, shall determine whether the application is complete. The Attorney General shall promptly notify the parties of the date the application is deemed complete or of the reasons for a determination that the application is incomplete. A complete application shall include the following:

  (A) A detailed summary of the purposes and material terms of the proposed conversion.

  (B) The names and addresses of the parties that have been or will be created as part of the conversion, including a list of all individuals who are or have been chosen as their directors, officers, or board members.

  (C) Copies of all organizational documents relating to the parties.

  (D) Copies of all contracts and other agreements related to the conversion.

  (E) Copies of the most recent audited financial reports of the entities involved.

  (F) A detailed description of all assets of the nonprofit hospital, including the value of the assets and the basis for that valuation. For assets included in or otherwise affected by the conversion, the following information is also to be included:

  (i) the nature of any restrictions on such assets owned or held by the nonprofit hospital and the purpose or purposes for which such assets were received;

  (ii) a statement as to whether the assets will be converted to cash in connection with or as a result of the conversion; and

  (iii) a detailed description of all proposed changes in control or ownership of the assets and an explanation regarding whether and if so, how the charitable assets of the nonprofit hospital will continue to be used in a manner consistent with their intended charitable purpose.

  (G) A description of the process by which the decision to undertake the conversion and to select the acquiring party and the type and amount of consideration to be given or received in the conversion, if applicable, was reached by the nonprofit hospital, and all documents relating to that process and decision, including minutes, committee or special study reports, correspondence, presentations, audits, and other internal or outside reviews or analyses.

  (H) The amount, source, and nature of any consideration to be paid to the nonprofit hospital, its directors, officers, board members, executives, or experts retained by the nonprofit hospital, including prospective employment or consultation.

  (I) A detailed description of the structure and functions of any charitable foundation that will receive proceeds of the conversion, including a description of its assets, its mission, the purposes of the foundation, the expected charitable uses of the assets, how it will be broadly based in, and represent, the community affected by the conversion, and how proceeds from the conversion will be controlled.

  (J) A certified board resolution or other appropriate document evidencing approval of the conversion by each party involved.

  (K) A certification signed by those members, identified by name and title, of the governing body or other person approving the conversion on behalf of the nonprofit hospital that the standards set forth in subsection (j) of this section have been considered in good faith and are met, together with such explanations and other documentation as may be necessary to demonstrate such compliance.

  (L) A separate certification from each member of the governing board, the chief executive officer, and other officers designated in the governing documents of the nonprofit hospital, executed under oath, stating whether that director or officer is then, or may become within three years of completion of the conversion a member or shareholder in, or officer, employee, agent, or consultant of, or may otherwise derive any compensation or benefits, directly or indirectly, from any party.

  (M) A statement from any party specifying the manner in which it proposes to continue to fulfill the charitable obligations of the nonprofit hospital, if applicable.

  (N) Any additional information the Attorney General or Green Mountain Care Board finds necessary or appropriate for the full consideration of the application.

  (2) The parties shall make the contents of the application reasonably available to the public prior to any hearing for public comment described in subsection (g) of this section to the extent that they are not otherwise exempt from disclosure under 1 V.S.A. § 317(b).

  (g) Notice and hearing for public comment on application.

  (1) The Attorney General and the Green Mountain Care Board shall hold one or more public hearings on the transaction or transactions described in the application. A record shall be made of any hearing. The hearing shall commence within 30 days after the determination by the Attorney General that the application is complete. If a hearing is continued or multiple hearings are held, any hearing shall be completed within 60 days after the Attorney General’s determination that an application is complete. In determining the number, location, and time of hearings, the Attorney General, in consultation with the Board, shall consider the geographic areas and populations served by the nonprofit hospital and most affected by the conversion and the interest of the public in commenting on the application.

  (2) The Attorney General shall provide reasonable notice of any hearing to the parties, the Board, and the public, and may order that the parties bear the cost of notice to the public. Notice to the public shall be provided in newspapers having general circulation in the region affected and shall identify the applicants and the proposed conversion. A copy of the public notice shall be sent to the Office of the Health Care Advocate, to the State Long-Term Care Ombudsman, and to the Senators and members of the House of Representatives representing the county and district and to the clerk, chief municipal officer, and legislative body of the municipality in which the nonprofit hospital is principally located. Upon receipt, the clerk shall post notice in or near the clerk’s office and in at least two other public places in the municipality. Any person may testify at a hearing under this section and, within such reasonable time as the Attorney General may prescribe, file written comments with the Attorney General and Board concerning the proposed conversion.

  (h) Determination by the Green Mountain Care Board.

  (1) The Green Mountain Care Board shall consider the application, together with any report and recommendations from the Board’s staff requested by the Board, and any other information submitted into the record, and approve or deny it within 50 days following the last public hearing held pursuant to subsection (g) of this section, unless the Board extends such time up to an additional 60 days with notice prior to its expiration to the Attorney General and the parties.

  (2) The Board shall approve the proposed transaction if the Board finds that the application and transaction will satisfy the criteria established in section 9437 of this title. For purposes of applying the criteria established in section 9437, the term “project” shall include a conversion or other transaction subject to the provisions of this subchapter.

  (3) A denial by the Board may be appealed to the Supreme Court pursuant to section 9381 of this title. If no appeal is taken or if the Board’s order is affirmed by the Supreme Court, the application shall be terminated. A failure of the Board to approve of an application in a timely manner shall be considered a final order in favor of the applicant.

  (i) Determination by Attorney General. The Attorney General shall make a determination as to whether the conversion described in the application meets the standards provided in subsection (j) of this section.

  (1) If the Attorney General determines that the conversion described in the application meets the standards set forth in subsection (j) of this section, the Attorney General shall approve the conversion and so notify the parties in writing.

  (2) If the Attorney General determines that the conversion described in the application does not meet such standards, the Attorney General may not approve the conversion and shall so notify the parties of such disapproval and the basis for it in writing, including identification of the standards listed in subsection (j) of this section that the Attorney General finds not to have been met by the proposed conversion. Nothing in this subsection shall prevent the parties from amending the application to meet any objections of the Attorney General.

  (3) The notice of approval or disapproval by the Attorney General under this subsection shall be provided not later than either 60 days following the date of the last hearing held under subsection (g) of this section or 10 days following approval of the conversion by the Board, whichever is later. The Attorney General, for good cause, may extend this period an additional 60 days.

  (j) Standards for Attorney General’s review. In determining whether to approve a conversion under subsection (i) of this section, the Attorney General shall consider whether:

  (1) the governing body of the nonprofit hospital exercised due diligence in deciding to engage in the conversion, selecting the acquiring party, and ensuring that the terms and conditions of the conversion are fair and reasonable to the nonprofit hospital;

  (2) the nonprofit hospital will receive fair market value for its charitable assets, and whether the market value of those assets has not been manipulated by the actions of the parties in a manner that causes the value of the assets to decrease;

  (3) the conversion will not result in a breach of fiduciary duty, including any undisclosed or material conflicts of interest related to payments or benefits to officers, directors, board members, executives, or experts employed or retained by the parties;

  (4) the conversion will not result in private inurement to any person;

  (5) the proceeds of the conversion will be used in a manner and place consistent with the public benefit purposes of the nonprofit hospital;

  (6) any foundation established to hold the proceeds of the conversion will be representative of and broadly based in the community served by the nonprofit hospital and will be subject to appropriate public accountability standards;

  (7) the application contains sufficient information and data to permit the Attorney General and the Green Mountain Care Board to evaluate the conversion and its effects on the public’s interests in accordance with this section; and

  (8) the conversion plan has made reasonable provision for reports, upon request, to the Attorney General on the conduct and affairs of any person that, as a result of the conversion, is to receive charitable assets or proceeds from the conversion to carry on any part of the public purposes of the nonprofit hospital.

  (k) Investigation by Attorney General. The Attorney General may conduct an investigation relating to the conversion pursuant to the procedures set forth generally in 9 V.S.A. § 2460. The Attorney General may contract with such experts or consultants the Attorney General deems appropriate to assist in an investigation of a conversion under this section. The Attorney General may order any party to reimburse the Attorney General for all reasonable and actual costs incurred by the Attorney General in retaining outside professionals to assist with the investigation or review of the conversion.

  (l) Superior Court action. If the Attorney General does not approve the conversion described in the application and any amendments, the parties may commence an action in the Superior Court of Washington County, or with the agreement of the Attorney General, of any other county, within 60 days after the Attorney General’s notice of disapproval provided to the parties under subdivision (i)(2) of this section. The parties shall notify the Green Mountain Care Board of the commencement of an action under this subsection. The Board shall be permitted to request that the court consider the Board’s determination under subsection (h) of this section in its decision under this subsection.

  (m) Court determination and order.

  (1) Within 45 days after the commencement of an action under subsection (l) of this section, the court shall hold a hearing to determine whether the conversion described in the application and any amendments submitted prior to the Attorney General’s notice of disapproval satisfy the standards under subsection (j) of this section that the Attorney General identified in the notice of disapproval as not having been met by the transaction described in the application. The court shall determine the matter within 45 days after the conclusion of the hearing. The court, for good cause, may extend each of the time periods provided in this subsection for its hearing and determination for an additional 30 days, or for a longer period if agreed to by the parties and the Attorney General. The Attorney General shall represent the interests of the public at any hearing under this subsection. The parties shall have the burden to establish that the application, with any amendments that were submitted prior to the Attorney General’s notice of disapproval, meets each of the standards of subsection (j) of this section identified in the Attorney General’s notice of disapproval as not having been met by the application.

  (2) If the court finds that the parties have shown that the conversion described in the application meets the standards of subsection (j) of this section identified in the Attorney General’s notice of disapproval as not having been met by the application, the court shall set aside the determination of the Attorney General, and the parties may proceed under this section as if the Attorney General had approved the conversion described in the application.

  (3) If the Attorney General substantially prevails in the action, the court may order the parties to reimburse the State for the reasonable value of the Attorney General’s services and expenses in defending the action, separate and apart from any amounts the parties are required to pay pursuant to subsection (k) of this section.

  (4) Nothing herein shall prevent the Attorney General, while an action brought under subsection (l) of this section is pending, from approving the conversion described in the application, as modified by such terms as are agreed between the parties, the Attorney General, and the Green Mountain Care Board to bring the conversion into compliance with the standards set forth in subsection (j) of this section.

  (n) Use of converted assets or proceeds of a conversion approved pursuant to this section. If at any time following a conversion, the Attorney General has reason to believe that converted assets or the proceeds of a conversion are not being held or used in a manner consistent with information provided to the Attorney General, the Board, or a court in connection with any application or proceedings under this section, the Attorney General may investigate the matter pursuant to procedures set forth generally in 9 V.S.A. § 2460 and may bring an action in Washington Superior Court or in the Superior Court of any county where one of the parties has a principal place of business. The court may order appropriate relief in such circumstances, including avoidance of the conversion or transfer of the converted assets or proceeds or the amount of any private inurement to a person or party for use consistent with the purposes for which the assets were held prior to the conversion, and the award of costs of investigation and prosecution under this subsection, including the reasonable value of legal services.

  (o) Remedies and penalties for violations.

  (1) The Attorney General may bring or maintain a civil action in the Washington Superior Court, or any other county in which one of the parties has its principal place of business, to enjoin, restrain, or prevent the consummation of any conversion that has not been approved in accordance with this section or where approval of the conversion was obtained on the basis of materially inaccurate information furnished by any party to the Attorney General or the Board.

  (2) A conversion entered into in violation of any provision of this section may be voided, upon petition of the Attorney General, by the Superior Court of Washington County or the county in which any party has its principal place of business.

  (3) If a person violates a provision of this section or any lawful order of a court acting pursuant to this section, the court, upon petition of the Attorney General, may order that person to pay to the State the value of services and expenses incurred by the Attorney General in the investigation and prosecution of the violation, and may:

  (A) order that person to cease such activity or other appropriate injunctive relief;

  (B) order the disgorgement of any private inurement; and

  (C) impose a penalty on that person of up to $1 million.

  (4) In determining whether to grant relief under this subsection, and the nature of such relief, the court shall consider whether:

  (A) the violation was willful;

  (B) any person has derived, or may derive, an economic benefit from the conversion;

  (C) the purposes for which the assets had been held by the nonprofit hospital have been frustrated by the violation; and

  (D) the interests of the public or the community served by the nonprofit hospital would be jeopardized by voiding the contract.

  (p) Conversion of less than a qualifying amount of assets.

  (1) The Attorney General may conduct an investigation relating to a conversion pursuant to the procedures set forth generally in 9 V.S.A. § 2460 if the Attorney General has reason to believe that a nonprofit hospital has converted or is about to convert less than a qualifying amount of its assets in such a manner that would:

  (A) if it met the qualifying amount threshold, require an application under subsection (e) of this section; and

  (B) constitute a conversion that does not meet one or more of the standards set forth in subsection (j) of this section.

  (2) The Attorney General, in consultation with the Green Mountain Care Board, may bring an action with respect to any conversion of less than a qualifying amount of assets, according to the procedures set forth in subsection (n) of this section. The Attorney General shall notify the Board of any action commenced under this subsection. The Board shall be permitted to investigate and determine whether the transaction satisfies the criteria established in subdivision (g)(2) of this section, and to request that the court consider the Board’s recommendation in its decision under this subsection. In such an action, the Superior Court may enjoin or void any transaction and may award any other relief as provided under subsection (n) of this section.

  (3) In any action brought by the Attorney General under this subdivision, the Attorney General shall have the burden to establish that the conversion:

  (A) violates one or more of the standards listed in subdivision (j)(1), (3), (4), or (6) of this section; or

  (B) substantially violates one or more of the standards set forth in subdivisions (j)(2) and (5) of this section.

  (q) Other preexisting authority.

  (1) Nothing in this section shall be construed to limit the authority of the Green Mountain Care Board, Attorney General, Department of Health, or a court of competent jurisdiction under existing law, or the interpretation or administration of a charitable gift under 14 V.S.A. § 2328.

  (2) This section shall not be construed to limit the regulatory and enforcement authority of the Board, or exempt any applicant or other person from requirements for licensure or other approvals required by law. (Added 2005, No. 28, § 1, eff. May 24, 2005; amended 2015, No. 54, § 39; 2017, No. 113 (Adj. Sess.), § 108; 2023, No. 6, § 237, eff. July 1, 2023.)

• § 9421. Pharmacy benefit management; registration; insurer audit of pharmacy benefit manager activities [Repealed effective July 1, 2029]

  (a) A pharmacy benefit manager shall not do business in this State without first registering with the Commissioner on a form and in a manner prescribed by the Commissioner.

  (b) In accordance with rules adopted by the Commissioner, pharmacy benefit managers operating in the State of Vermont and proposing to contract for the provision of pharmacy benefit management shall notify health insurers when the pharmacy benefit manager provides a quotation that a quotation for an administrative-services-only contract with full pass through of negotiated prices, rebates, and other such financial benefits that would identify to the health insurer external sources of revenue and profit is generally available and whether the pharmacy benefit manager offers that type of arrangement. Quotations for an administrative-services-only contract shall include a reasonable fee payable by the health insurer that represents a competitive pharmacy benefit profit. This subsection shall not be interpreted to require a pharmacy benefit manager to offer an administrative-services-only contract.

  (c) In order to enable periodic verification of pricing arrangements in administrative-services-only contracts, pharmacy benefit managers shall allow access, in accordance with rules adopted by the Commissioner, by the health insurer who is a party to the administrative-services-only contract to financial and contractual information necessary to conduct a complete and independent audit designed to verify the following:

  (1) full pass through of negotiated drug prices and fees associated with all drugs dispensed to beneficiaries of the health plan in both retail and mail order settings or resulting from any of the pharmacy benefit management functions defined in the contract;

  (2) full pass through of all financial remuneration associated with all drugs dispensed to beneficiaries of the health plan in both retail and mail order settings or resulting from any of the pharmacy benefit management functions defined in the contract; and

  (3) any other verifications relating to the pricing arrangements and activities of the pharmacy benefit manager required by the contract if required by the Commissioner.

  (d) The reasonable expenses of the Department of Financial Regulation in administering the provisions of this section may be charged to pharmacy benefit managers in the manner provided for in 8 V.S.A. § 18. These expenses shall be allocated in proportion to the lives of Vermonters covered by each pharmacy benefit manager as reported annually to the Commissioner in a manner and form prescribed by the Commissioner. The Department of Financial Regulation shall not charge its expenses to the pharmacy benefit manager contracting with the Department of Vermont Health Access if the Department of Vermont Health Access notifies the Department of Financial Regulation of the conditions contained in its contract with a pharmacy benefit manager.

  (e) The Commissioner may adopt such rules as are necessary or desirable in carrying out the purposes of this section. The rules also shall ensure that proprietary information is kept confidential and not disclosed by a health insurer.

  (f) The Department of Financial Regulation shall monitor the cost impacts on Vermont consumers of pharmacy benefit manager regulation pursuant to this section, subchapter 9 of this chapter, and 8 V.S.A. chapter 107 and shall recommend appropriate modifications to the laws as needed to promote health care affordability in this State.

  (g) As used in this section:

  (1) “Health insurer” shall have the same meaning as in subdivision 9471(2) of this title.

  (2) “Health plan” shall have the same meaning as in subdivision 9471(3) of this title.

  (3) “Pharmacy benefit management” shall have the same meaning as in subdivision 9471(4) of this title.

  (4) “Pharmacy benefit manager” shall have the same meaning as in subdivision 9471(5) of this title. (Added 2007, No. 80, § 9; amended 2009, No. 156 (Adj. Sess.), § I.29; 2011, No. 150 (Adj. Sess.), § 3; 2017, No. 113 (Adj. Sess.), § 109; 2021, No. 131 (Adj. Sess.), § 1a, eff. January 1, 2023; repealed by 2023, No. 127 (Adj. Sess.), § 4(a)(1), eff. July 1, 2029.)

• § 9422. Credit card payments optional for providers

  (a) As used in this section:

  (1) “Credit card payment” means a type of electronic funds transfer in which a health insurer or its contracted vendor issues a single-use series of numbers associated with payment for health care services delivered by a health care provider and chargeable for a predetermined dollar amount and in which the health care provider is responsible for processing the payment using a credit card terminal or Internet portal. The term includes virtual or online credit card payments in which no physical credit card is presented to the health care provider and the single-use credit card number expires upon payment processing.

  (2) “Health care provider” has the same meaning as in section 9402 of this title.

  (3) “Health insurer” means an insurance company that provides health insurance as defined in 8 V.S.A. § 3301(a)(2), a nonprofit hospital or medical service corporation, a managed care organization, a health maintenance organization, and, to the extent permitted under federal law, any administrator of an insured, self-insured, or publicly funded health care benefit plan offered by a public or private entity, as well as any entity offering a policy for specific disease, accident, injury, hospital indemnity, dental care, disability income, long-term care, or other limited benefit coverage.

  (b) A health insurer or its contracted vendor shall not require a health care provider, including a dentist or ambulance service provider, to accept reimbursement by credit card payment unless the health care provider has affirmatively elected to receive payments in this manner. If a health care provider, including a dentist or ambulance service provider, does not affirmatively elect to receive reimbursement by credit card payment, the health insurer or its contracted vendor shall make payments to the provider in another manner. (Added 2021, No. 25, § 32, eff. Jan. 1, 2022.)

• §§ 9423-9424. Repealed. 1995, No. 180 (Adj. Sess.), § 22.

• Subchapter 005: HEALTH FACILITY PLANNING

• § 9431. Policy and purpose

  (a) It is declared to be the public policy of this State that the general welfare and protection of the lives, health, and property of the people of this State require that all new health care projects be offered or developed in a manner that avoids unnecessary duplication and contains or reduces increases in the cost of delivering services, while at the same time maintaining and improving the quality of and access to health care services, and promoting rational allocation of health care resources in the State; and that the need, cost, type, level, quality, and feasibility of providing any new health care project be subject to review and assessment prior to any offering or development.

  (b) [Repealed.] (Added 1979, No. 65, § 1; amended 1997, No. 159 (Adj. Sess.), § 6, eff. April 29, 1998; 2003, No. 53, § 8; 2011, No. 171 (Adj. Sess.), § 14a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9432. Definitions

  As used in this subchapter:

  (1) “Ambulatory surgical center” means a facility or portion of a facility that provides surgical care not requiring an overnight stay. The office of a dentist in which activities are limited to dentistry and oral or maxillofacial surgical procedures shall not be deemed an ambulatory surgical center for purposes of this subchapter. In order to be considered an ambulatory surgical center, a facility shall meet all the following criteria:

  (A) charge, or intend to charge, a facility fee in addition to professional fees for the services performed;

  (B) have an operating room or recovery room in the facility;

  (C) use an anesthesiologist or nurse anesthetist;

  (D) provide one or more outpatient services for which Medicare coverage is provided.

  (2) “Annual operating expense” means that expense that, by generally accepted accounting principles, is incurred by a new health care service during the first fiscal year in which the service is in full operation after completion of the project.

  (3) “Applicant” means a person who has submitted an application or proposal requesting issuance of a certificate of need.

  (4) “Bed capacity” means the number of licensed beds operated by the facility under its most current license under chapter 43 of this title and of facilities under 33 V.S.A. chapter 71.

  (5) “Capital expenditure” means an expenditure for the plant or equipment that is not properly chargeable as an expense of operation and maintenance and includes acquisition by purchase, donation, leasehold expenditure, or lease that is treated as capital expense in accordance to the accounting standards established for lease expenditures by the Financial Accounting Standards Board, calculated over the length of the lease for plant or equipment, and includes assets having an expected life of at least three years. A capital expenditure includes the cost of studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition, improvement, expansion, or replacement of the plant and equipment.

  (6) “Construction” means actual commencement of any construction or fabrication of any new building, or addition to any existing facility, or any expenditure relating to the alteration, remodeling, renovation, modernization, improvement, relocation, repair, or replacement of a health care facility, including expenditures necessary for compliance with life and health safety codes.

  (7) “To develop,” when used in connection with health services, means to undertake activities that on their completion will result in the offer of a new health care project, or the incurring of a financial obligation in relation to the offering of a service.

  (8) “Health care facility” means all persons or institutions, including mobile facilities, whether public or private, proprietary or not for profit, that offer diagnosis, treatment, inpatient, or ambulatory care to two or more unrelated persons, and the buildings in which those services are offered. The term shall not apply to any institution operated by religious groups relying solely on spiritual means through prayer for healing, but shall include:

  (A) hospitals, including general hospitals, mental hospitals, chronic disease facilities, birthing centers, maternity hospitals, and psychiatric facilities including any hospital conducted, maintained, or operated by the State of Vermont, or its subdivisions, or a duly authorized agency thereof;

  (B) nursing homes, health maintenance organizations, home health agencies, outpatient diagnostic or therapy programs, kidney disease treatment centers, mental health agencies or centers, diagnostic imaging facilities, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, or any inpatient or ambulatory surgical, diagnostic, or treatment center.

  (9) “Health care provider” means a person, partnership, corporation, facility, or institution, licensed or certified or authorized by law to provide professional health care service in this State to an individual during that individual’s medical care, treatment, or confinement.

  (10) “Health services” mean activities and functions of a health care facility that are directly related to care, treatment, or diagnosis of patients.

  (11) “Material change” means a change to a health care project for which a certificate of need has been issued that:

  (A) constitutes a new health care project as defined in section 9434 of this title; or

  (B) increases the total costs of the project by more than 10 percent of the approved amount.

  (12) “Nonmaterial change” means a modification that does not meet the cost threshold of a material change as defined in subdivision (11) of this section, but otherwise modifies the kind, scope, or capacity of a project for which a certificate of need has been granted under this subchapter.

  (13) “Obligation” means an obligation for a capital expenditure which is deemed to have been incurred by or on behalf of a health care facility or health maintenance organization.

  (14) “To offer,” when used in connection with health services, means that a health care provider holds itself out as capable of providing, or as having the means for the provision of, specified health services. (Added 1979, No. 65, § 1; amended 1985, No. 151 (Adj. Sess.), § 16; 1985, No. 234 (Adj. Sess.), § 1; 1987, No. 96, § 8; 1989, No. 180 (Adj. Sess.), § 1; 1989, No. 225 (Adj. Sess.), § 25(b); 1991, No. 160 (Adj. Sess.), § 24, eff. May 11, 1992; 1993, No. 114 (Adj. Sess.), §§ 3, 4; 1995, No. 180 (Adj. Sess.), § 23; 1997, No. 159 (Adj. Sess.), § 7, eff. April 29, 1998; 2003, No. 53, §§ 9, 26; 2005, No. 71, § 77c; 2007, No. 139 (Adj. Sess.), § 1; 2009, No. 49, § 13.)

• § 9433. Administration

  (a) The Green Mountain Care Board shall exercise such duties and powers as necessary for the implementation of the certificate of need program as provided by and consistent with this subchapter. The Board shall issue or deny certificates of need and administer the program.

  (b) The Board shall adopt rules governing the review of certificate of need applications consistent with and necessary to the proper administration of this subchapter. All rules shall be adopted pursuant to 3 V.S.A. chapter 25.

  (c) The Board shall consult with hospitals and other health care facilities, professional associations and societies, the Secretary of Human Services, the Office of the Health Care Advocate, and other interested parties in matters of policy affecting the administration of this subchapter.

  (d) [Repealed.] (Added 1979, No. 65, § 1; amended 1987, No. 96 §§ 9, 21(a); 1991, No. 160 (Adj. Sess.), § 25, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), §§ 24, 38(a); 2003, No. 53, § 26; 2011, No. 48, § 23; 2011, No. 171 (Adj. Sess.), § 15, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9434. Certificate of need; general rules

  (a) A health care facility other than a hospital shall not develop or have developed on its behalf a new health care project without issuance of a certificate of need by the Board. For purposes of this subsection, a “new health care project” includes the following:

  (1) The construction, development, purchase, renovation, or other establishment of a health care facility, or any capital expenditure by or on behalf of a health care facility, for which the capital cost exceeds $1,500,000.00.

  (2) A change from one licensing period to the next in the number of licensed beds of a health care facility through addition or conversion, or through relocation from one physical facility or site to another.

  (3) The offering of any home health service, or the transfer or conveyance of more than a 50 percent ownership interest in a health care facility other than a hospital or nursing home.

  (4) The purchase, lease, or other comparable arrangement of a single piece of diagnostic and therapeutic equipment for which the cost, or in the case of a donation the value, is in excess of $1,000,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment that are necessarily interdependent in the performance of their ordinary functions or that would constitute any health care facility included under subdivision 9432(8)(B) of this title, as determined by the Board, shall be considered together in calculating the amount of an expenditure. The Board’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under section 9381 of this title.

  (5) The offering of a health care service or technology having an annual operating expense that exceeds $500,000.00 for either of the next two budgeted fiscal years, if the service or technology was not offered or employed, either on a fixed or a mobile basis, by the health care facility within the previous three fiscal years.

  (6) The construction, development, purchase, lease, or other establishment of an ambulatory surgical center.

  (b) A hospital shall not develop or have developed on its behalf a new health care project without issuance of a certificate of need by the Board. For purposes of this subsection, a “new health care project” includes the following:

  (1) The construction, development, purchase, renovation, or other establishment of a health care facility, or any capital expenditure by or on behalf of a hospital, for which the capital cost exceeds $3,000,000.00.

  (2) The purchase, lease, or other comparable arrangement of a single piece of diagnostic and therapeutic equipment for which the cost, or in the case of a donation the value, is in excess of $1,500,000.00. For purposes of this subdivision, the purchase or lease of one or more articles of diagnostic or therapeutic equipment that are necessarily interdependent in the performance of their ordinary functions or that would constitute any health care facility included under subdivision 9432(8)(B) of this title, as determined by the Board, shall be considered together in calculating the amount of an expenditure. The Board’s determination of functional interdependence of items of equipment under this subdivision shall have the effect of a final decision and is subject to appeal under section 9381 of this title.

  (3) The offering of a health care service or technology having an annual operating expense that exceeds $1,000,000.00 for either of the next two budgeted fiscal years, if the service or technology was not offered or employed, either on a fixed or a mobile basis, by the hospital within the previous three fiscal years.

  (4) A change from one licensing period to the next in the number of licensed beds of a health care facility through addition or conversion, or through relocation from one physical facility or site to another.

  (5) The offering of any home health service.

  (c) In the case of a project that requires a certificate of need under this section, expenditures for which are anticipated to be in excess of $30,000,000.00, the applicant first shall secure a conceptual development phase certificate of need, in accordance with the standards and procedures established in this subchapter, that permits the applicant to make expenditures for architectural services, engineering design services, or any other planning services, as defined by the Board, needed in connection with the project. Upon completion of the conceptual development phase of the project, and before offering or further developing the project, the applicant shall secure a final certificate of need in accordance with the standards and procedures established in this subchapter. Applicants shall not be subject to sanctions for failure to comply with the provisions of this subsection if such failure is solely the result of good faith reliance on verified project cost estimates issued by qualified persons, which cost estimates would have led a reasonable person to conclude the project was not anticipated to be in excess of $30,000,000.00 and therefore not subject to this subsection. The provisions of this subsection notwithstanding, expenditures may be made in preparation for obtaining a conceptual development phase certificate of need, which expenditures shall not exceed $1,500,000.00 for non-hospitals or $3,000,000.00 for hospitals.

  (d) If the Board determines that a person required to obtain a certificate of need under this subchapter has separated a single project into components in order to avoid cost thresholds or other requirements under this subchapter, the person shall be required to submit an application for a certificate of need for the entire project, and the Board may proceed under section 9445 of this title. The Board’s determination under this subsection shall have the effect of a final decision and is subject to appeal under section 9381 of this title.

  (e) The Board may periodically adjust the monetary jurisdictional thresholds contained in this section. In doing so, the Board shall reflect the same categories of health care facilities, services, and programs recognized in this section. Any adjustment by the Board shall not exceed an amount calculated using the cumulative Consumer Price Index rate of inflation. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 2; 1987, No. 96, § 21(b); 1989, No. 180 (Adj. Sess.), § 2; 1991, No. 160 (Adj. Sess.), § 38, eff. May 11, 1992; 1993, No. 30, § 17, eff. May 21, 1993; 1995, No. 160 (Adj. Sess.), § 8; 1995, No. 178 (Adj. Sess.), §§ 132a, 306; 1995, No. 180 (Adj. Sess.), § 25; 1997, No. 159 (Adj. Sess.), § 8, eff. April 29, 1998; 2003, No. 53, §§ 10, 26; 2003, No. 105 (Adj. Sess.), § 14, eff. May 4, 2004; 2005, No. 57, § 4, eff. June 13, 2005; 2007, No. 27, § 7; 2009, No. 49, §§ 10, 10a; 2011, No. 171 (Adj. Sess.), § 16, eff. Jan. 1, 2013; 2017, No. 125 (Adj. Sess.), § 2; 2017, No. 167 (Adj. Sess.), § 6; 2019, No. 72, § E.329.1, eff. June 18, 2019; 2019, No. 72, § E.329.2, eff. July 1, 2020.)

• § 9435. Exclusions

  (a) Excluded from this subchapter are offices of physicians, dentists, or other practitioners of the healing arts, meaning the physical places that are occupied by such providers on a regular basis in which such providers perform the range of diagnostic and treatment services usually performed by such providers on an outpatient basis unless they are subject to review under subdivision 9434(a)(4) of this title.

  (b) Excluded from this subchapter are community mental health or developmental disability center health care projects proposed by a designated agency and supervised by the Commissioner of Mental Health or the Commissioner of Disabilities, Aging, and Independent Living, or both, depending on the circumstances and subject matter of the project, provided the appropriate Commissioner or Commissioners make a written approval of the proposed health care project. The designated agency shall submit a copy of the approval with a letter of intent to the Board.

  (c) The provisions of subsection (a) of this section shall not apply to offices owned, operated, or leased by a hospital or its subsidiary, parent, or holding company, outpatient diagnostic or therapy programs, kidney disease treatment centers, independent diagnostic laboratories, cardiac catheterization laboratories, radiation therapy facilities, ambulatory surgical centers, and diagnostic imaging facilities and similar facilities owned or operated by a physician, dentist, or other practitioner of the healing arts.

  (d) Excluded from this subchapter are redesignations, designation revocations, and collaborative agreements of home health agencies subject to the supervision of the Commissioner of Disabilities, Aging, and Independent Living under 33 V.S.A. chapter 5.

  (e) Upon request under 8 V.S.A. § 5102(f) by a Program for All-Inclusive Care for the Elderly (PACE) authorized under federal Medicare law, or by a Prepaid Inpatient Health Plan (PIHP) or Prepaid Ambulatory Health Plan (PAHP) established in accordance with federal Medicare or Medicaid laws and regulations, the Board may approve the exemption of the PACE program, PIHP, or PAHP from the provisions of this subchapter and from any other provisions of this chapter if the Board determines that the purposes of this subchapter and the purposes of any other provision of this chapter will not be materially and adversely affected by the exemption. In approving an exemption, the Board may prescribe such terms and conditions as the Board deems necessary to carry out the purposes of this subchapter and this chapter.

  (f) Excluded from this subchapter are routine replacements of nonmedical equipment and fixtures, including furnaces, boilers, refrigeration units, kitchen equipment, heating and cooling units, and similar items. These replacements purchased by a hospital shall be included in the hospital’s budget and may be reviewed in the budget process set forth in subchapter 7 of this chapter.

  (g) With the approval of the Commissioner of Health, excluded from this subchapter is a facility in which the prescription, distribution, or administration of medication for opioid use disorder is a principal activity.

  (h) Excluded from this subchapter are overdose prevention centers established and operated in accordance with section 4256 of this title. (Added 1979, No. 65, § 1; amended 1981, No. 233 (Adj. Sess.), § 14a, eff. May 4, 1982; 1985, No. 234 (Adj. Sess.), § 3; 1989, No. 180 (Adj. Sess.), § 3; 2003, No. 53, § 11; 2005, No. 57, § 5, eff. June 13, 2005; 2005, No. 71, § 77d; 2005, No. 88 (Adj. Sess.), § 3, eff. Feb. 15, 2006; 2005, No. 174 (Adj. Sess.), § 50; 2007, No. 15, § 18; 2007, No. 178 (Adj. Sess.), § 8; 2011, No. 171 (Adj. Sess.), § 16a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6; 2023, No. 87 (Adj. Sess.), § 81, eff. March 13, 2024; 2023, No. 178 (Adj. Sess.), § 1a, eff. June 17, 2024.)

• § 9436. Repealed. 2003, No. 53, § 27(3).

• § 9437. Criteria

  A certificate of need shall be granted if the applicant demonstrates that the project serves the public good and the Board finds:

  (1) The proposed project aligns with statewide health care reform goals and principles because the project:

  (A) takes into consideration health care payment and delivery system reform initiatives;

  (B) addresses current and future community needs in a manner that balances statewide needs, if applicable; and

  (C) is consistent with appropriate allocation of health care resources, including appropriate utilization of services, as identified in the Health Resource Allocation Plan developed pursuant to section 9405 of this title.

  (2) The cost of the project is reasonable, because each of the following conditions is met:

  (A) The applicant’s financial condition will sustain any financial burden likely to result from completion of the project.

  (B) The project will not result in an undue increase in the costs of medical care or an undue impact on the affordability of medical care for consumers. In making a finding under this subdivision, the Board shall consider and weigh relevant factors, including:

  (i) the financial implications of the project on hospitals and other clinical settings, including the impact on their services, expenditures, and charges; and

  (ii) whether the impact on services, expenditures, and charges is outweighed by the benefit of the project to the public.

  (C) Less expensive alternatives do not exist, would be unsatisfactory, or are not feasible or appropriate.

  (D) If applicable, the applicant has incorporated appropriate energy efficiency measures.

  (3) There is an identifiable, existing, or reasonably anticipated need for the proposed project that is appropriate for the applicant to provide.

  (4) The project will improve the quality of health care in the State or provide greater access to health care for Vermont’s residents, or both.

  (5) The project will not have an undue adverse impact on any other existing services provided by the applicant.

  (6) [Repealed.]

  (7) The applicant has adequately considered the availability of affordable, accessible transportation services to the facility, if applicable.

  (8) If the application is for the purchase or lease of new Health Care Information Technology, it conforms with the Health Information Technology Plan established under section 9351 of this title.

  (9) The project will support equal access to appropriate mental health care that meets standards of quality, access, and affordability equivalent to other components of health care as part of an integrated, holistic system of care, as appropriate. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 5; 1987, No. 96, § 12; 1991, No. 160 (Adj. Sess.), § 27, eff. May 11, 1992; 1993, No. 50, § 4; 1995, No. 180 (Adj. Sess.), §§ 27, 38(a); 1997, No. 159 (Adj. Sess.), § 10, eff. March 15, 1999; 2003, No. 53, § 13, eff. July 1, 2005; 2003, No. 53, § 26; 2005, No. 71, § 277a; 2007, No. 70, § 34; 2007, No. 139 (Adj. Sess.), § 8; 2009, No. 61, § 5; 2009, No. 83 (Adj. Sess.), § 3, eff. April 21, 2010; 2011, No. 171 (Adj. Sess.), § 17, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6; 2017, No. 200 (Adj. Sess.), § 18; 2019, No. 14, § 57, eff. April 30, 2019.)

• § 9438. Repealed. 1995, No.180 (Adj. Sess.), § 32.

• § 9439. Competing applications

  (a) The Board shall provide by rule a process by which any person wishing to offer or develop a new health care project may submit a competing application when a substantially similar application is pending. The competing application must be filed and completed in a timely manner, and the original application and all competing applications shall be reviewed concurrently. A competing applicant shall have the same standing for administrative and judicial review under this subchapter as the original applicant.

  (b) When a letter of intent to compete has been filed, the review process is suspended and the time within which a decision must be made as provided in subdivision 9440(d)(4) of this title is stayed until the competing application has been ruled complete or for a period of 55 days from the date of notification under subdivision 9440(c)(8) of this title as to the original application, whichever is shorter.

  (c) Nothing in this subchapter shall be construed to restrict the Board to granting a certificate of need to only one applicant for a new health care project.

  (d) [Repealed.]

  (e) [Repealed.]

  (f) Unless an application meets the requirements of subsection 9440(e) of this title, the Board shall consider disapproving a certificate of need application for a hospital if a project was not identified prospectively as needed at least two years prior to the time of filing in the hospital’s four-year capital plan required under subdivision 9454(a)(6) of this title. The Board shall review all hospital four-year capital plans as part of the review under subdivision 9437(2)(B) of this title. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 6; 1987, No. 96, §§ 13, 21(b); 1991, No. 160 (Adj. Sess.), § 28, eff. May 11, 1992; 1993, No. 50, § 1; 1995, No. 180 (Adj. Sess.), §§ 28, 38(a); 2003, No. 53, §§ 14, 26; 2007, No. 139 (Adj. Sess.), § 2; 2009, No. 128 (Adj. Sess.), § 25, eff. May 27, 2010; 2011, No. 171 (Adj. Sess.), § 18, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9440. Procedures

  (a) Notwithstanding 3 V.S.A. chapter 25, a certificate of need application shall be in accordance with the procedures of this section.

  (b)(1) The application shall be in such form and contain such information as the Board establishes. In addition, the Board may require of an applicant any or all of the following information that the Board deems necessary:

  (A) Institutional utilization data, including an explanation of the unique character of services and a description of case mix.

  (B) A population based description of the institution’s service area.

  (C) The applicant’s financial statements.

  (D) Third party reimbursement data.

  (E) Copies of feasibility studies, surveys, designs, plans, working drawings, or specifications developed in relation to the proposed project.

  (F) Annual reports and four-year long range plans.

  (G) Leases, contracts, or agreements of any kind that might affect quality of care or the nature of services provided.

  (H) The status of all certificates issued to the applicant under this subchapter during the three years preceding the date of the application. As a condition to deeming an application complete under this section, the Board may require that an applicant meet with the Board to discuss the resolution of the applicant’s compliance with those prior certificates.

  (I) Additional information as needed by the Board, including information from affiliated corporations or other persons in the control of or controlled by the applicant.

  (2) In addition to the information required for submission, an applicant may submit, and the Board shall consider, any other information relevant to the application or the review criteria.

  (c) The application process shall be as follows:

  (1) [Repealed.]

  (2)(A) Prior to filing an application for a certificate of need, an applicant shall file an adequate letter of intent with the Board not less than 30 days prior to the date on which the application is to be filed. The letter of intent shall form the basis for determining the applicability of this subchapter to the proposed expenditure or action. A letter of intent shall become invalid if an application is not filed within six months after the date that the letter of intent is received. The Board shall post public notice of such letters of intent on its website electronically within five business days after receipt. The public notice shall identify the applicant, the proposed new health care project, and the date by which a competing application or petition to intervene must be filed.

  (B) Applicants who agree that their proposals are subject to jurisdiction pursuant to section 9434 of this title shall not be required to file a letter of intent pursuant to subdivision (A) of this subdivision (2) and may file an application without further process. Public notice of the application shall be posted electronically on the Board’s website as provided for in subdivision (A) of this subdivision (2) for letters of intent.

  (3) The Board shall review each letter of intent and, if the letter contains the information required for letters of intent as established by the Board by rule, within 30 days, determine whether the project described in the letter will require a certificate of need. If the Board determines that a certificate of need is required for a proposed expenditure or action, an application for a certificate of need shall be filed before development of the project begins.

  (4) Within 90 days after receipt of an application, the Board shall notify the applicant that the application contains all necessary information required and is complete, or that the application review period is complete notwithstanding the absence of necessary information. The Board may extend the 90-day application review period for an additional 60 days, or for a period of time in excess of 150 days with the consent of the applicant. The time during which the applicant is responding to the Board’s notice that additional information is required shall not be included within the maximum review period permitted under this subsection. The Board may determine that the certificate of need application shall be denied if the applicant has failed to provide all necessary information required to review the application.

  (5)(A) An applicant seeking expedited review of a certificate of need application may simultaneously file with the Board a request for expedited review and an application. After receiving the request and an application, the Board shall issue public notice of the request and application in the manner set forth in subdivision (2) of this subsection.

  (B)(i) At least 20 days after the public notice was issued, if no competing application has been filed and no party has sought and been granted, nor is likely to be granted, interested party status, the Board may issue a certificate of need in accordance with such expedited process as the Board deems appropriate, if the Board determines that:

  (I) the proposed project appears likely not to be contested and does not substantially alter services; or

  (II) the application relates to a health care facility affected by bankruptcy proceedings.

  (ii) Any order granting expedited review shall include the procedures and timelines that the Board shall follow for the expedited review process. If practicable, the expedited review process shall include acceptance of public comment until at least 10 days after the expedited application is complete.

  (C) If a competing application is filed or a person is granted interested party status, the applicant shall follow the certificate of need standards and procedures in this section, except that:

  (i) a competing applicant or interested party may waive, in writing, the requirement for a public hearing; and

  (ii) in the case of a health care facility affected by bankruptcy proceedings, the Board may, after notice and an opportunity to be heard, issue a certificate of need with such abbreviated process as the Board deems appropriate, notwithstanding the contested nature of the application.

  (D) The Board shall review applications for the following projects on an expedited basis, unless a request for intervention as a competing applicant or interested party is granted:

  (i) the repair, renovation, or replacement of facility infrastructure, or a combination thereof that does not involve new construction; and

  (ii) the routine replacement of medical equipment if the technology and capability of the new equipment is comparable to that of the replaced equipment.

  (6) If an applicant fails to respond to an information request under subdivision (4) of this subsection within 90 days, the application shall be deemed inactive unless the applicant, within six months after the expiration of the 90-day period, requests in writing and shows good cause that the application should be reactivated, and the Board grants the request. If an applicant fails to respond to an information request within six months, the application shall become invalid unless the applicant requests, and the Board grants, an extension.

  (7) For purposes of this section, “interested party” status shall be granted to persons or organizations representing the interests of persons who demonstrate that they will be substantially and directly affected by the new health care project under review. Persons able to render material assistance to the Board by providing nonduplicative evidence relevant to the determination may be admitted in an amicus curiae capacity but shall not be considered parties. A petition seeking party or amicus curiae status shall be filed not later than five business days after the application is complete. The Board shall grant or deny a petition to intervene under this subdivision within 15 days after the petition is filed. The Board shall grant or deny the petition within an additional 30 days upon finding that good cause exists for the extension. Once interested party status is granted, the Board shall provide the information necessary to enable the party to participate in the review process, including information about procedures, copies of all written correspondence, and copies of all entries in the application record.

  (8) Once an application has been deemed to be complete, public notice of the application shall be provided electronically on the Board’s website. The notice shall identify the applicant, the proposed new health care project, and the date, time, and location of any public hearing.

  (9) The Office of the Health Care Advocate established under chapter 229 of this title or, in the case of nursing homes, the Long-Term Care Ombudsman’s Office established under 33 V.S.A. § 7502, is authorized but not required to participate in any administrative or judicial review of an application under this subchapter and shall be considered an interested party in such proceedings upon filing a notice of intervention with the Board. Once either office files a notice of intervention pursuant to this subchapter, the Board shall provide that office with the information necessary to participate in the review process, including information about procedures, copies of all written correspondence, and copies of all entries in the application record for all certificate of need proceedings, regardless of whether expedited status has been granted.

  (d) The review process shall be as follows:

  (1) The Board shall review:

  (A) the application materials provided by the applicant; and

  (B) any information, evidence, or arguments raised by interested parties or amicus curiae, and any other public input.

  (2) Except as otherwise provided in subdivision (c)(5) and subsection (e) of this section, the Board shall hold a public hearing during the course of a review.

  (3) The Board shall make a final decision within 120 days after the date of notification under subdivision (c)(4) of this section. Whenever it is not practicable to complete a review within 120 days, the Board may extend the review period up to an additional 30 days.

  (4) After reviewing each application, the Board shall make a decision either to issue or to deny the application for a certificate of need. The decision shall be in the form of an approval in whole or in part, or an approval subject to such conditions as the Board may impose in furtherance of the purposes of this subchapter, or a denial. In granting a partial approval or a conditional approval, the Board shall not mandate a new health care project not proposed by the applicant or mandate the deletion of any existing service. Any partial approval or conditional approval must be directly within the scope of the project proposed by the applicant and the criteria used in reviewing the application.

  (5) If the Board proposes to render a final decision denying an application in whole or in part, or approving a contested application, the Board shall serve the parties with notice of a proposed decision containing proposed findings of fact and conclusions of law and shall provide the parties an opportunity to file exceptions and present briefs and oral argument to the Board. The Board may also permit the parties to present additional evidence.

  (6) Notice of the final decision shall be sent to the applicant, competing applicants, and interested parties. The final decision shall include written findings and conclusions stating the basis of the decision.

  (7) The Board shall establish rules governing the compilation of the record used by the Board in connection with decisions made on applications filed and certificates issued under this subchapter.

  (e) The Board shall adopt rules governing procedures for the expeditious processing of applications for replacement, repair, rebuilding, or reequipping of any part of a health care facility or health maintenance organization destroyed or damaged as the result of fire, storm, flood, act of God, or civil disturbance, or any other circumstances beyond the control of the applicant where the Board finds that the circumstances require action in less time than normally required for review. If the nature of the emergency requires it, an application under this subsection may be reviewed by the Board only, without notice and opportunity for public hearing or intervention by any party.

  (f) Any applicant, competing applicant, or interested party aggrieved by a final decision of the Board under this section may appeal pursuant to the provisions of section 9381 of this title.

  (g) If the Board has reason to believe that the applicant has violated a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a prior certificate of need, the Board may take into consideration such violation in determining whether to approve, deny, or approve the application subject to conditions. The applicant shall be provided an opportunity to contest whether such violation occurred, unless such an opportunity has already been provided. The Board may impose as a condition of approval of the application that a violation be corrected or remediated before the certificate may take effect.

  (h) As used in this section, an application or proposed project is “contested” if one or more interested parties have intervened in the proceeding. If an interested party withdraws from the application or signifies its support of the application in writing before the Board renders a final decision, the application shall not be considered contested and the Board shall not be required to hold a public hearing on the application pursuant to subdivision (d)(2) of this section or issue a proposed decision pursuant to subdivision (d)(5) of this section. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 7; 1987, No. 96, § 14; 1991, No. 160 (Adj. Sess.), §§ 29-32, 38, eff. May 11, 1992; 1993, No. 50, §§ 2, 3; 1995, No. 180 (Adj. Sess.), § 29; 1997, No. 159 (Adj. Sess.), § 11, eff. April 29, 1998; 2003, No. 53, §§ 15, 26; 2005, No. 71, § 77e; 2007, No. 27, § 8; 2007, No. 139 (Adj. Sess.), §§ 3-5, 5d; 2007, No. 139 (Adj. Sess.), § 5a, eff. May 9, 2008; 2007, No. 139 (Adj. Sess.), § 5e, eff. July 1, 2009; 2009, No. 49, § 11; 2009, No. 128 (Adj. Sess.), § 21, eff. May 27, 2010; 2011, No. 48, § 24; 2011, No. 171 (Adj. Sess.), § 19, eff. Jan. 1, 2013; 2013, No. 79, § 35e, eff. Jan. 1, 2014; 2015, No. 54, § 40; 2017, No. 167 (Adj. Sess.), § 6; 2023, No. 6, § 238, eff. July 1, 2023.)

• § 9440a. Applications, information, and testimony; oath required

  (a) Each application filed under this subchapter, any written information required or permitted to be submitted in connection with an application or with the monitoring of an order, decision, or certificate issued by the Board, and any testimony taken before the Board or a hearing officer appointed by the Board shall be submitted or taken under oath. The form and manner of the submission shall be prescribed by the Board. The authority granted to the Board under this section is in addition to any other authority granted to the Board under law.

  (b) Each application shall be filed by the applicant’s chief executive officer under oath, as provided by subsection (a) of this section. The Board may direct that information submitted with the application be submitted under oath by persons with personal knowledge of such information.

  (c) A person who knowingly makes a false statement under oath or who knowingly submits false information under oath to the Board or a hearing officer appointed by the Board or who knowingly testifies falsely in any proceeding before the Board or a hearing officer appointed by the Board shall be guilty of perjury and punished as provided in 13 V.S.A. § 2901. (Added 2003, No. 53, § 16; amended 2011, No. 48, § 25; 2011, No. 171 (Adj. Sess.), § 20, eff. Jan. 1, 2013.)

• § 9440b. Information technology; review procedures

  Notwithstanding the procedures in section 9440 of this title, the Board shall establish by rule standards and expedited procedures for reviewing applications for the purchase or lease of health care information technology that otherwise would be subject to review under this subchapter. Such applications shall not be granted or approved unless they are consistent with the Health Information Technology Plan developed under section 9351 of this title and the Health Resource Allocation Plan. (Added 2005, No. 71, § 277b; amended 2007, No. 70, § 35; 2009, No. 61, § 6; 2011, No. 171 (Adj. Sess.), § 20a, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9441. Fees

  (a) The Board shall charge a fee for the filing of certificate of need applications. The fee shall be calculated at the rate of 0.125 percent of project costs.

  (b) The maximum fee shall not exceed $20,000.00 and the minimum filing fee is $250.00 regardless of project cost. No fee shall be charged on projects amended as part of the review process.

  (c) The Board may retain such additional professional or other staff as needed to assist in particular proceedings under this subchapter and may assess and collect the reasonable expenses for such additional staff from the applicant. The Board, on petition by the applicant and opportunity for hearing, may reduce such assessment upon a proper showing by the applicant that such expenses were excessive or unnecessary. The authority granted to the Board under this section is in addition to any other authority granted to the Board under law.

  (d) All fees collected pursuant to this section shall be deposited into the Green Mountain Care Board Regulatory and Administrative Fund established by subsection 9404(d) of this title and may be used by the Board to administer its obligations, responsibilities, and duties as required by law. (Added 1985, No. 234 (Adj. Sess.), § 7a, eff. Oct. 1, 1986; amended 1991, No. 160 (Adj. Sess.), § 33, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), §§ 30, 38(a); 1995, No. 186 (Adj. Sess.), § 16; 1999, No. 49, § 223; 2003, No. 53, § 17, eff. June 4, 2003; 2011, No. 171 (Adj. Sess.), § 20b, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9442. Bonds

  In any circumstance in which bonds are to be or may be issued in connection with a new health care project subject to the provisions of this subchapter, the certificate of need shall include the requirement that all information required to be provided to the bonding agency shall be provided also to the Board within a reasonable period of time. The Board shall be authorized to obtain any information from the bonding agency deemed necessary to carry out the duties of monitoring and oversight of a certificate of need. The bonding agency shall consider the recommendations of the Board in connection with any such proposed authorization. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 8; 1987, No. 96, §§ 15, 21(a), 22; 1991, No. 160 (Adj. Sess.), § 34, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, §§ 18, 26; 2011, No. 171 (Adj. Sess.), § 20c, eff. Jan. 1, 2013.)

• § 9443. Expiration of certificates of need

  (a) Unless otherwise specified in the certificate of need, a project shall be implemented within five years or the certificate shall be invalid.

  (b) Not later than 180 days before the expiration date of a certificate of need, an applicant that has not yet implemented the project approved in the certificate of need may petition the Board for an extension of the implementation period. The Board may grant an extension in its discretion.

  (c) Certificates of need shall expire on the date the Board accepts the final implementation report filed in connection with the project implemented pursuant to the certificate.

  (d) An action or expenditure that is related to a service or expenditure that was the subject of a certificate of need shall not be considered a material or nonmaterial change to that project if the original certificate of need expired, as provided in this section, at least two years before the action is proposed. The proposed action shall require a certificate of need only if the change itself would be considered a new health care project under section 9434 of this title. (Added 1979, No. 65, § 1; amended 1985, No. 234 (Adj. Sess.), § 9; 1987, No. 96, § 1; 1991, No. 160 (Adj. Sess.), § 35, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 31; 2009, No. 49, § 12; 2011, No. 171 (Adj. Sess.), § 20d, eff. Jan. 1, 2013; 2013, No. 192 (Adj. Sess.), § 25; 2023, No. 6, § 239, eff. July 1, 2023.)

• § 9444. Revocation of certificates; material change

  (a) The Board may revoke a certificate of need for substantial noncompliance with the scope of the project as designated in the application, or for failure to comply with the conditions set forth in the certificate of need granted by the Board.

  (b)(1) In the event that after a project has been approved, its proponent wishes to materially change the approved project, all such changes are subject to review under this subchapter.

  (2) Applicants shall notify the Board of a nonmaterial change to the approved project. If the Board decides to review a nonmaterial change, the Board may provide for any necessary process, including a public hearing, before approval. Where the Board decides not to review a change, such change will be deemed to have been granted a certificate of need. (Added 1979, No. 65, § 1; amended 1987, No. 96, § 17; 1991, No. 160 (Adj. Sess.), § 38(a), eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, § 26; 2007, No. 139 (Adj. Sess.), § 6; 2009, No. 49, § 14; 2011, No. 171 (Adj. Sess.), § 21, eff. Jan. 1, 2013.)

• § 9445. Enforcement

  (a) Any person who offers or develops any new health care project within the meaning of this subchapter without first obtaining a certificate of need as required by this subchapter, or who otherwise violates any of the provisions of this subchapter or any rule adopted or order issued pursuant to this subchapter, may be subject to one or both of the following administrative sanctions by the Board, after notice and an opportunity to be heard:

  (1) The Board may order that no license or certificate permitted to be issued by any State agency may be issued to any health care facility to operate, offer, or develop any new health care project for a specified period of time, or that remedial conditions be attached to the issuance of such licenses or certificates.

  (2) The Board may order that payments or reimbursements to the entity for claims made under any health insurance policy, subscriber contract, or health benefit plan offered or administered by any public or private health insurer, including the Medicaid program and any other health benefit program administered by the State be denied, reduced, or limited, and in the case of a hospital that the hospital’s annual budget approved under subchapter 7 of this chapter be adjusted, modified, or reduced.

  (b) In addition to all other sanctions, if any person offers or develops any new health care project without first having been issued a certificate of need or certificate of exemption for the project, or violates any other provision of this subchapter or any rule adopted or order issued pursuant to this subchapter, the Board, the Office of the Health Care Advocate, the State Long-Term Care Ombudsman, and health care providers and consumers located in the State shall have standing to maintain a civil action in the Superior Court of the county in which such alleged violation has occurred, or in which such person may be found, to enjoin, restrain, or prevent such violation. Upon written request by the Board, it shall be the duty of the Vermont Attorney General to furnish appropriate legal services and to prosecute an action for injunctive relief to an appropriate conclusion, which shall not be reimbursed under subdivision (a)(2) of this section.

  (c)(1) After notice and an opportunity for hearing, the Board may impose on a person who violates a provision of this subchapter or a rule adopted or order issued pursuant to this subchapter, one or more of the following:

  (A) a civil administrative penalty of not more than $75,000.00, or in the case of a continuing violation, a civil administrative penalty of not more than $200,000.00 or one-tenth of one percent of the gross annual revenues of the health care facility, whichever is greater, which shall not be reimbursed under subdivision (a)(2) of this section;

  (B) an order that the person cease and desist from further violations; and

  (C) any such other actions necessary to remediate a violation.

  (2) A person aggrieved by a decision of the Board under this subchapter may appeal under section 9381 of this title.

  (d) The Board shall adopt by rule criteria for assessing the circumstances in which a violation of a provision of this subchapter, a rule adopted pursuant to this subchapter, or the terms or conditions of a certificate of need require that a penalty under this section shall be imposed, and criteria for assessing the circumstances in which a penalty under this section may be imposed. (Added 1979, No. 65, § 1; amended 1991, No. 160 (Adj. Sess.), § 36, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38(a); 2003, No. 53, § 19; 2007, No. 139 (Adj. Sess.), §§ 5c, 7; 2011, No. 171 (Adj. Sess.), § 21a, eff. Jan. 1, 2013; 2013, No. 79, § 35f, eff. Jan. 1, 2014; 2015, No. 54, § 41; 2017, No. 167 (Adj. Sess.), § 6.)

• § 9446. Home health agencies; geographic service areas

  The terms of a certificate of need relating to the boundaries of the geographic service area of a home health agency may be modified by the Board, in consultation with the Commissioner of Disabilities, Aging, and Independent Living, after notice and opportunity for hearing, or upon written application to the Board by the affected home health agencies or consumers, demonstrating a substantial need for the modification. Service area boundaries may be modified by the Board to take account of natural or physical barriers that may make the provision of existing services uneconomical or impractical, to prevent or minimize unnecessary duplication of services or facilities, or otherwise to promote the public interest. The Board shall issue an order granting such application only upon a finding that the granting of such application is consistent with the purposes of 33 V.S.A. chapter 63, subchapter 1A and the Health Resource Allocation Plan established under section 9405 of this title and after notice and an opportunity to participate on the record by all interested persons, including affected local governments. (Added 2005, No. 57, § 6, eff. June 13, 2005; amended 2011, No. 171 (Adj. Sess.), § 22, eff. Jan. 1, 2013; 2017, No. 167 (Adj. Sess.), § 6.)

• Subchapter 007: HOSPITAL BUDGET REVIEW

• § 9451. Definitions

  As used in this subchapter:

  (1) “Hospital” means a hospital licensed under chapter 43 of this title, except a hospital that is conducted, maintained, or operated by the State of Vermont.

  (2) “Volume” means the number of inpatient days of care or admissions and the number of all inpatient and outpatient ancillary services rendered to patients by a hospital. (Added 1983, No. 93, § 1, eff. May 4, 1983; amended 1991, No. 160 (Adj. Sess.), § 9, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 33; 2019, No. 140 (Adj. Sess.), § 2, eff. July 6, 2020.)

• § 9452. Repealed. 1995, No. 180 (Adj. Sess.), § 36.

• § 9453. Powers and duties

  (a) The Board shall:

  (1) adopt uniform formats that hospitals shall use to report financial, scope-of-services, and utilization data and information;

  (2) designate a data organization with which hospitals shall file financial, scope-of-services, and utilization data and information; and

  (3) designate a data organization or organizations to process, analyze, store, or retrieve data or information.

  (b) To effectuate the purposes of this subchapter, the Board may adopt rules under 3 V.S.A. chapter 25. (Added 1983, No. 93 § 1, eff. May 4, 1983; amended 1991, No. 160 (Adj. Sess.), § 11, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), §§ 34, 38(a); 2003, No. 53, §§ 22, 26; 2011, No. 171 (Adj. Sess.), § 23, eff. May 16, 2012.)

• § 9454. Hospitals; duties

  (a) Hospitals shall file the following information at the time and place and in the manner established by the Board:

  (1) a budget for the forthcoming fiscal year;

  (2) financial information, including costs of operation, revenues, assets, liabilities, fund balances, other income, rates, charges, units of services, and wage and salary data;

  (3) scope-of-service and volume-of-service information, including inpatient services, outpatient services, and ancillary services by type of service provided;

  (4) utilization information;

  (5) new hospital services and programs proposed for the forthcoming fiscal year;

  (6) known depreciation schedules on existing buildings, a four-year capital expenditure projection, and a one-year capital expenditure plan; and

  (7) such other information as the Board may require.

  (b) Hospitals shall adopt a fiscal year that shall begin on October 1. (Added 1983, No. 93, § 1, eff. May 4, 1983; amended 1991, No. 160 (Adj. Sess.), § 17, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 38; 2003, No. 53, § 23; 2011, No. 171 (Adj. Sess.), § 23, eff. May 16, 2012; 2015, No. 97 (Adj. Sess.), § 51a.)

• § 9455. Repealed. 1995, No. 180 (Adj. Sess.), § 36.

• § 9456. Budget review

  (a) The Board shall conduct reviews of each hospital’s proposed budget based on the information provided pursuant to this subchapter and in accordance with a schedule established by the Board.

  (b) In conjunction with budget reviews, the Board shall:

  (1) review utilization information;

  (2) consider the Health Resource Allocation Plan identifying Vermont’s critical health needs, goods, services, and resources developed pursuant to section 9405 of this title;

  (3) consider the expenditure analysis for the previous year and the proposed expenditure analysis for the year under review;

  (4) consider any reports from professional review organizations;

  (5) solicit public comment on all aspects of hospital costs and use and on the budgets proposed by individual hospitals;

  (6) meet with hospitals to review and discuss hospital budgets for the forthcoming fiscal year;

  (7) give public notice of the meetings with hospitals, and invite the public to attend and to comment on the proposed budgets;

  (8) consider the extent to which costs incurred by the hospital in connection with services provided to Medicaid beneficiaries are being charged to non-Medicaid health benefit plans and other non-Medicaid payers;

  (9) require each hospital to file an analysis that reflects a reduction in net revenue needs from non-Medicaid payers equal to any anticipated increase in Medicaid, Medicare, or another public health care program reimbursements, and to any reduction in bad debt or charity care due to an increase in the number of insured individuals;

  (10) require each hospital to provide information on administrative costs, as defined by the Board, including specific information on the amounts spent on marketing and advertising costs;

  (11) require each hospital to create or maintain connectivity to the State’s Health Information Exchange Network in accordance with the criteria established by the Vermont Information Technology Leaders, Inc., pursuant to subsection 9352(i) of this title, provided that the Board shall not require a hospital to create a level of connectivity that the State’s Exchange is unable to support;

  (12) review the hospital’s investments in workforce development initiatives, including nursing workforce pipeline collaborations with nursing schools and compensation and other support for nurse preceptors; and

  (13) consider the salaries for the hospital’s executive and clinical leadership and the hospital’s salary spread, including a comparison of median salaries to the medians of northern New England states.

  (c) Individual hospital budgets established under this section shall:

  (1) be consistent with the Health Resource Allocation Plan;

  (2) take into consideration national, regional, or in-state peer group norms, according to indicators, ratios, and statistics established by the Board;

  (3) promote efficient and economic operation of the hospital;

  (4) reflect budget performances for prior years;

  (5) include a finding that the analysis provided in subdivision (b)(9) of this section is a reasonable methodology for reflecting a reduction in net revenues for non-Medicaid payers; and

  (6) demonstrate that they support equal access to appropriate mental health care that meets standards of quality, access, and affordability equivalent to other components of health care as part of an integrated, holistic system of care.

  (d)(1) Annually, the Board shall establish a budget for each hospital on or before September 15, followed by a written decision by October 1. Each hospital shall operate within the budget established under this section.

  (2)(A) It is the General Assembly’s intent that hospital cost containment conduct is afforded state action immunity under applicable federal and State antitrust laws, if:

  (i) the Board requires or authorizes the conduct in any hospital budget established by the Board under this section;

  (ii) the conduct is in accordance with standards and procedures prescribed by the Board; and

  (iii) the conduct is actively supervised by the Board.

  (B) A hospital’s violation of the Board’s standards and procedures shall be subject to enforcement pursuant to subsection (h) of this section.

  (3)(A) The Office of the Health Care Advocate shall have the right to receive copies of all materials related to the hospital budget review and may:

  (i) ask questions of employees of the Green Mountain Care Board related to the Board’s hospital budget review;

  (ii) submit written questions to the Board that the Board will ask of hospitals in advance of any hearing held in conjunction with the Board’s hospital review:

  (iii) submit written comments for the Board’s consideration; and

  (iv) ask questions and provide testimony in any hearing held in conjunction with the Board’s hospital budget review.

  (B) The Office of the Health Care Advocate shall not further disclose any confidential or proprietary information provided to the Office pursuant to this subdivision (3).

  (e) The Board may establish a process to define, on an annual basis, criteria for hospitals to meet, such as utilization and inflation benchmarks. The Board may waive one or more of the review processes listed in subsection (b) of this section.

  (f) The Board may, upon application, adjust a budget established under this section upon a showing of need based upon exceptional or unforeseen circumstances in accordance with the criteria and processes established under section 9405 of this title.

  (g) The Board may request, and a hospital shall provide, information determined by the Board to be necessary to determine whether the hospital is operating within a budget established under this section. For purposes of this subsection, subsection (h) of this section, and subdivision 9454(a)(7) of this title, the Board’s authority shall extend to an affiliated corporation or other person in the control of or controlled by the hospital to the extent that such authority is necessary to carry out the purposes of this subsection, subsection (h) of this section, or subdivision 9454(a)(7) of this title. As used in this subsection, a rebuttable presumption of “control” is created if the entity, hospital, or other person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing 20 percent or more of the voting securities or membership interest or other governing interest of the hospital or other controlled entity.

  (h)(1) If a hospital violates a provision of this section, the Board may maintain an action in the Superior Court of the county in which the hospital is located to enjoin, restrain, or prevent such violation.

  (2)(A) After notice and an opportunity for hearing, the Board may impose on a person who knowingly violates a provision of this subchapter, or a rule adopted pursuant to this subchapter, a civil administrative penalty of no more than $40,000.00, or in the case of a continuing violation, a civil administrative penalty of no more than $100,000.00 or one-tenth of one percent of the gross annual revenues of the hospital, whichever is greater. This subdivision shall not apply to violations of subsection (d) of this section caused by exceptional or unforeseen circumstances.

  (B)(i) The Board may order a hospital to:

  (I)(aa) cease material violations of this subchapter or of a regulation or order issued pursuant to this subchapter; or

  (bb) cease operating contrary to the budget established for the hospital under this section, provided such a deviation from the budget is material; and

  (II) take such corrective measures as are necessary to remediate the violation or deviation and to carry out the purposes of this subchapter.

  (ii) Orders issued under this subdivision (2)(B) shall be issued after notice and an opportunity to be heard, except where the Board finds that a hospital’s financial or other emergency circumstances pose an immediate threat of harm to the public or to the financial condition of the hospital. Where there is an immediate threat, the Board may issue orders under this subdivision (2)(B) without written or oral notice to the hospital. Where an order is issued without notice, the hospital shall be notified of the right to a hearing at the time the order is issued. The hearing shall be held within 30 days after receipt of the hospital’s request for a hearing, and a decision shall be issued within 30 days after conclusion of the hearing. The Board may increase the time to hold the hearing or to render the decision for good cause shown. Hospitals may appeal any decision in this subsection to Superior Court. Appeal shall be on the record as developed by the Board in the administrative proceeding and the standard of review shall be as provided in 8 V.S.A. § 16.

  (3)(A) The Board shall require the officers and directors of a hospital to file under oath, on a form and in a manner prescribed by the Board, any information designated by the Board and required pursuant to this subchapter. The authority granted to the Board under this subsection is in addition to any other authority granted to the Board under law.

  (B) A person who knowingly makes a false statement under oath or who knowingly submits false information under oath to the Board or to a hearing officer appointed by the Board or who knowingly testifies falsely in any proceeding before the Board or a hearing officer appointed by the Board shall be guilty of perjury and punished as provided in 13 V.S.A. § 2901. (Added 1983, No. 93, § 1, eff. May 4, 1983; amended 1987, No. 96, § 19; 1991, No. 160 (Adj. Sess.), § 13, eff. May 11, 1992; 1995, No. 180 (Adj. Sess.), § 35; 1999, No. 81 (Adj. Sess.), § 1, eff. Oct. 1, 2000; 2001, No. 63, § 123b; 2003, No. 53, § 24; 2005, No. 71, § 77f; 2005, No. 191 (Adj. Sess.), § 25; 2007, No. 27, § 9; 2009, No. 128 (Adj. Sess.), §§ 16, 22-24, eff. May 27, 2010; 2011, No. 21, § 17, eff. May 11, 2011; 2011, No. 48, § 25a; 2011, No. 171 (Adj. Sess.), § 23, eff. May 16, 2012; 2013, No. 79, § 34, eff. June 7, 2013; 2015, No. 54, § 42; 2015, No. 152 (Adj. Sess.), § 2a; 2017, No. 167 (Adj. Sess.), § 5, eff. May 22, 2018; 2017, No. 200 (Adj. Sess.), § 19; 2019, No. 14, § 58, eff. April 30, 2019; 2021, No. 183 (Adj. Sess.), § 30, eff. January 1, 2023; 2023, No. 6, § 240, eff. July 1, 2023.)

• § 9457. Information available to the public

  (a) Information required to be filed under this subchapter shall be made available to the public upon request in accordance with 1 V.S.A. chapter 5, subchapter 3 (Public Records Act), except that information that directly or indirectly identifies individual patients or health care practitioners shall be kept confidential.

  (b) Notwithstanding 1 V.S.A. chapter 5, subchapter 2 (Vermont Open Meeting Law) or any provision of this subchapter to the contrary, the Board may examine and discuss confidential information outside a public hearing or meeting. (Added 1983, No. 93, § 1, eff. May 4, 1983; amended 2019, No. 159 (Adj. Sess.), § 9, eff. Nov. 1, 2020.)

• § 9458. Repealed. 1995, No. 180 (Adj. Sess.), § 36.

• Subchapter 008: MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT QUALITY ASSURANCE

• § 9461. Quality measures

  (a) The Department of Financial Regulation shall develop performance quality measures to evaluate and ensure that health insurers, including managed care organizations that contract with health insurers to administer the insurers’ mental health benefits, comply with the provisions of 8 V.S.A. § 4089b and related rules.

  (b) The Departments of Health and of Mental Health shall develop clinical and performance quality measures to evaluate and ensure that health care professionals and health care facilities in Vermont provide high quality mental health and substance abuse treatment services to their patients. (Added 2011, No. 171 (Adj. Sess.), § 11b, eff. May 16, 2012; amended 2015, No. 11, § 20.)

• § 9462. Quality improvement projects

  In addition to reviewing mental health and substance abuse treatment data pursuant to subdivision 9375(b)(12) of this title, the Green Mountain Care Board shall consider the results of any quality improvement projects not otherwise confidential or privileged undertaken by managed care organizations for mental health and substance abuse care and treatment pursuant to 8 V.S.A. § 4089b(d)(1)(B)(vii) and subsection 9414(i) of this title. (Added 2011, No. 171 (Adj. Sess.), § 11b, eff. May 16, 2012.)

• Subchapter 009: PHARMACY BENEFIT MANAGERS

• § 9471. Definitions [Repealed effective July 1, 2029]

  As used in this subchapter:

  (1) “Beneficiary” means an individual enrolled in a health plan in which coverage of prescription drugs is administered by a pharmacy benefit manager and includes his or her dependent or other person provided health coverage through that health plan.

  (2) “Health insurer” is defined by section 9402 of this title and shall include:

  (A) a health insurance company, a nonprofit hospital and medical service corporation, and health maintenance organizations;

  (B) an employer, labor union, or other group of persons organized in Vermont that provides a health plan to beneficiaries who are employed or reside in Vermont; and

  (C) the State of Vermont and any agent or instrumentality of the State that offers, administers, or provides financial support to State government.

  (3) “Health plan” means a health benefit plan offered, administered, or issued by a health insurer doing business in Vermont.

  (4) “Pharmacy benefit management” means an arrangement for the procurement of prescription drugs at a negotiated rate for dispensation within this State to beneficiaries, the administration or management of prescription drug benefits provided by a health plan for the benefit of beneficiaries, or any of the following services provided with regard to the administration of pharmacy benefits:

  (A) mail service pharmacy;

  (B) claims processing, retail network management, and payment of claims to pharmacies for prescription drugs dispensed to beneficiaries;

  (C) clinical formulary development and management services;

  (D) rebate contracting and administration;

  (E) certain patient compliance, therapeutic intervention, and generic substitution programs; and

  (F) disease or chronic care management programs.

  (5) “Pharmacy benefit manager” means an entity that performs pharmacy benefit management, except an entity that provides pharmacy benefit management services for Vermont Medicaid. The term includes a person or entity in a contractual or employment relationship with an entity performing pharmacy benefit management for a health plan.

  (6) “Maximum allowable cost” means the per unit drug product reimbursement amount, excluding dispensing fees, for a group of equivalent multisource generic prescription drugs.

  (7) “Pharmacy benefit manager affiliate” means a pharmacy or pharmacist that, directly or indirectly, through one or more intermediaries, is owned or controlled by, or is under common ownership or control with, a pharmacy benefit manager. (Added 2007, No. 80, § 8; amended 2013, No. 79, § 21, eff. Jan. 1, 2014; 2015, No. 54, § 2, eff. June 5, 2015; 2021, No. 131 (Adj. Sess.), § 2, eff. January 1, 2023; repealed by 2023, No. 127 (Adj. Sess.), § 4(a)(2), eff. July 1, 2029.)

• § 9472. Pharmacy benefit managers; required practices with respect to health insurers and covered persons [Repealed effective July 1, 2029]

  (a) A pharmacy benefit manager that provides pharmacy benefit management for a health plan has a fiduciary duty to its health insurer client that includes a duty to be fair and truthful toward the health insurer, to act in the health insurer’s best interests, and to perform its duties with care, skill, prudence, and diligence. In the case of a health benefit plan offered by a health insurer as defined by subdivision 9471(2)(A) of this title, the health insurer shall remain responsible for administering the health benefit plan in accordance with the health insurance policy or subscriber contract or plan and in compliance with all applicable provisions of Title 8 and this title.

  (b) A pharmacy benefit manager shall provide notice to the health insurer that the terms contained in subsection (c) of this section may be included in the contract between the pharmacy benefit manager and the health insurer.

  (c) A pharmacy benefit manager that provides pharmacy benefit management for a health plan shall do all of the following:

  (1) Provide all financial and utilization information requested by a health insurer relating to the provision of benefits to beneficiaries through that health insurer’s health plan and all financial and utilization information relating to services to that health insurer. A pharmacy benefit manager providing information under this subsection may designate that material as confidential. Information designated as confidential by a pharmacy benefit manager and provided to a health insurer under this subsection shall not be disclosed by the health insurer to any person without the consent of the pharmacy benefit manager, except that disclosure may be made by the health insurer:

  (A) in a court filing under the consumer protection provisions of 9 V.S.A. chapter 63, provided that the information shall be filed under seal and that prior to the information being unsealed, the court shall give notice and an opportunity to be heard to the pharmacy benefit manager on why the information should remain confidential;

  (B) to State and federal government officials;

  (C) when authorized by 9 V.S.A. chapter 63;

  (D) when ordered by a court for good cause shown; or

  (E) when ordered by the Commissioner as to a health insurer as defined in subdivision 9471(2)(A) of this title pursuant to the provisions of Title 8 and this title.

  (2) Notify a health insurer in writing of any proposed or ongoing activity, policy, or practice of the pharmacy benefit manager that presents, directly or indirectly, any conflict of interest with the requirements of this section.

  (3) With regard to the dispensation of a substitute prescription drug for a prescribed drug to a beneficiary in which the substitute drug costs more than the prescribed drug and the pharmacy benefit manager receives a benefit or payment directly or indirectly, disclose to the health insurer the cost of both drugs and the benefit or payment directly or indirectly accruing to the pharmacy benefit manager as a result of the substitution.

  (4) If the pharmacy benefit manager derives any payment or benefit for the dispensation of prescription drugs within the State based on volume of sales for certain prescription drugs or classes or brands of drugs within the State, pass that payment or benefit on in full to the health insurer.

  (5) Disclose to the health insurer all financial terms and arrangements for remuneration of any kind that apply between the pharmacy benefit manager and any prescription drug manufacturer that relate to benefits provided to beneficiaries under or services to the health insurer’s health plan, including formulary management and drug-switch programs, educational support, claims processing, and pharmacy network fees charged from retail pharmacies and data sales fees. A pharmacy benefit manager providing information under this subsection may designate that material as confidential. Information designated as confidential by a pharmacy benefit manager and provided to a health insurer under this subsection shall not be disclosed by the health insurer to any person without the consent of the pharmacy benefit manager, except that disclosure may be made by the health insurer:

  (A) in a court filing under the consumer protection provisions of 9 V.S.A. chapter 63, provided that the information shall be filed under seal and that prior to the information being unsealed, the court shall give notice and an opportunity to be heard to the pharmacy benefit manager on why the information should remain confidential;

  (B) when authorized by 9 V.S.A. chapter 63;

  (C) when ordered by a court for good cause shown; or

  (D) when ordered by the Commissioner as to a health insurer as defined in subdivision 9471(2)(A) of this title pursuant to the provisions of Title 8 and this title.

  (d) At least annually, a pharmacy benefit manager that provides pharmacy benefit management for a health plan shall disclose to the health insurer, the Department of Financial Regulation, and the Green Mountain Care Board the aggregate amount the pharmacy benefit manager retained on all claims charged to the health insurer for prescriptions filled during the preceding calendar year in excess of the amount the pharmacy benefit manager reimbursed pharmacies.

  (e) A pharmacy benefit manager contract with a health insurer shall not contain any provision purporting to reserve discretion to the pharmacy benefit manager to move a drug to a higher tier or remove a drug from its drug formulary any more frequently than two times per year.

  (f)(1) A pharmacy benefit manager shall not require a covered person purchasing a covered prescription drug to pay an amount greater than the lesser of:

  (A) the cost-sharing amount under the terms of the health benefit plan;

  (B) the maximum allowable cost for the drug; or

  (C) the amount the covered person would pay for the drug if the covered person were paying the cash price.

  (2) Any amount paid by a covered person under subdivision (1) of this subsection shall be attributed toward any deductible and, to the extent consistent with Sec. 2707 of the Public Health Service Act (42 U.S.C. § 300gg-6), the annual out-of-pocket maximums under the covered person’s health benefit plan.

  (g) Compliance with the requirements of this section is required for pharmacy benefit managers entering into contracts with a health insurer in this State for pharmacy benefit management in this State. (Added 2007, No. 80, § 8; amended 2013, No. 144 (Adj. Sess.), § 12, eff. May 27, 2014; 2021, No. 131 (Adj. Sess.), § 2, eff. January 1, 2023; repealed by 2023, No. 127 (Adj. Sess.), § 4(a)(2), eff. July 1, 2029.)

• § 9473. Pharmacy benefit managers; required practices with respect to pharmacies [Repealed effective July 1, 2029]

  (a) Within 14 calendar days following receipt of a pharmacy claim, a pharmacy benefit manager or other entity paying pharmacy claims shall do one of the following:

  (1) Pay or reimburse the claim.

  (2) Notify the pharmacy in writing that the claim is contested or denied. The notice shall include specific reasons supporting the contest or denial and a description of any additional information required for the pharmacy benefit manager or other payer to determine liability for the claim.

  (b) A participation contract between a pharmacy benefit manager and a pharmacist shall not prohibit, restrict, or penalize a pharmacy or pharmacist in any way from disclosing to any covered person any health care information that the pharmacy or pharmacist deems appropriate, including:

  (1) the nature of treatment, risks, or alternatives to treatment;

  (2) the availability of alternate therapies, consultations, or tests;

  (3) the decision of utilization reviewers or similar persons to authorize or deny services;

  (4) the process that is used to authorize or deny health care services; or

  (5) information on financial incentives and structures used by the health insurer.

  (c) A pharmacy benefit manager or other entity paying pharmacy claims shall not:

  (1) require a pharmacy to pass through any portion of the insured’s co-payment, or patient responsibility, to the pharmacy benefit manager or other payer;

  (2) prohibit a pharmacy or pharmacist from discussing information regarding the total cost for pharmacist services for a prescription drug;

  (3) prohibit or penalize a pharmacy or pharmacist for providing information to an insured regarding the insured’s cost-sharing amount for a prescription drug; or

  (4) prohibit or penalize a pharmacy or pharmacist for the pharmacist or other pharmacy employee disclosing to an insured the cash price for a prescription drug or selling a lower cost drug to the insured if one is available.

  (d) A pharmacy benefit manager contract with a participating pharmacist or pharmacy shall not prohibit, restrict, or limit disclosure of information to the Commissioner, law enforcement, or State and federal government officials, provided that:

  (1) the recipient of the information represents that the recipient has the authority, to the extent provided by State or federal law, to maintain proprietary information as confidential; and

  (2) prior to disclosure of information designated as confidential, the pharmacist or pharmacy:

  (A) marks as confidential any document in which the information appears; and

  (B) requests confidential treatment for any oral communication of the information.

  (e) A pharmacy benefit manager shall not terminate a contract with or penalize a pharmacist or pharmacy due to the pharmacist or pharmacy:

  (1) disclosing information about pharmacy benefit manager practices, except for information determined to be a trade secret under State law or by the Commissioner, when disclosed in a manner other than in accordance with subsection (d) of this section; or

  (2) sharing any portion of the pharmacy benefit manager contract with the Commissioner pursuant to a complaint or query regarding the contract’s compliance with the provisions of this chapter.

  (f) For each drug for which a pharmacy benefit manager establishes a maximum allowable cost in order to determine the reimbursement rate, the pharmacy benefit manager shall do all of the following:

  (1) Make available, in a format that is readily accessible and understandable by a pharmacist, the actual maximum allowable cost for each drug and the source used to determine the maximum allowable cost, which shall not be dependent upon individual beneficiary identification or benefit stage.

  (2) Update the maximum allowable cost at least once every seven calendar days. In order to be subject to maximum allowable cost, a drug must be widely available for purchase by all pharmacies in the State, without limitations, from national or regional wholesalers and must not be obsolete or temporarily unavailable.

  (3) Establish or maintain a reasonable administrative appeals process to allow a dispensing pharmacy provider to contest a listed maximum allowable cost.

  (4)(A) Respond in writing to any appealing pharmacy provider within 10 calendar days after receipt of an appeal, provided that, except as provided in subdivision (B) of this subdivision (4), a dispensing pharmacy provider shall file any appeal within 10 calendar days from the date its claim for reimbursement is adjudicated.

  (B) A pharmacy benefit manager shall allow a dispensing pharmacy provider to appeal after the 10-calendar-day appeal period set forth in subdivision (A) of this subdivision (4) if the prescription claim is subject to an audit initiated by the pharmacy benefit manager or its auditing agent.

  (5) For a denied appeal, provide the reason for the denial and identify the national drug code and a Vermont-licensed wholesaler of an equivalent drug product that may be purchased by contracted pharmacies at or below the maximum allowable cost.

  (6) For an appeal in which the appealing pharmacy is successful:

  (A) make the change in the maximum allowable cost within 30 business days after the redetermination; and

  (B) allow the appealing pharmacy or pharmacist to reverse and rebill the claim in question.

  (g) A pharmacy benefit manager shall not:

  (1) require a claim for a drug to include a modifier or supplemental transmission, or both, to indicate that the drug is a 340B drug unless the claim is for payment, directly or indirectly, by Medicaid; or

  (2) restrict access to a pharmacy network or adjust reimbursement rates based on a pharmacy’s participation in a 340B contract pharmacy arrangement.

  (h)(1) A pharmacy benefit manager or other third party that reimburses a 340B covered entity for drugs that are subject to an agreement under 42 U.S.C. § 256b through the 340B drug pricing program shall not reimburse the 340B covered entity for pharmacy-dispensed drugs at a rate lower than that paid for the same drug to pharmacies that are not 340B covered entities, and the pharmacy benefit manager shall not assess any fee, charge-back, or other adjustment on the 340B covered entity on the basis that the covered entity participates in the 340B program as set forth in 42 U.S.C. § 256b.

  (2) With respect to a patient who is eligible to receive drugs that are subject to an agreement under 42 U.S.C. § 256b through the 340B drug pricing program, a pharmacy benefit manager or other third party that makes payment for the drugs shall not discriminate against a 340B covered entity in a manner that prevents or interferes with the patient’s choice to receive the drugs from the 340B covered entity.

  (i) A pharmacy benefit manager shall not reimburse a pharmacy or pharmacist in this State an amount less than the amount the pharmacy benefit manager reimburses a pharmacy benefit manager affiliate for providing the same pharmacist services.

  (j) A pharmacy benefit manager shall not restrict, limit, or impose requirements on a licensed pharmacy in excess of those set forth by the Vermont Board of Pharmacy or by other State or federal law, nor shall it withhold reimbursement for services on the basis of noncompliance with participation requirements.

  (k) A pharmacy benefit manager shall provide notice to all participating pharmacies prior to changing its drug formulary. (Added 2013, No. 144 (Adj. Sess.), § 14; amended 2015, No. 54, § 3, eff. June 5, 2015; 2017, No. 193 (Adj. Sess.), § 11; 2021, No. 74, § E.227.1; 2021, No. 131 (Adj. Sess.), § 2, eff. January 1, 2023 and § 7, eff. May 24, 2022; 2023, No. 51, § 6, eff. July 1, 2023; repealed by 2023, No. 127 (Adj. Sess.), § 4(a)(2), eff. July 1, 2029.)

• § 9474. Enforcement [Repealed effective July 1, 2029]

  (a) Except as provided in subsection (d) of this section, in addition to any remedy available to the Commissioner under this title and any other remedy provided by law, a violation of this subchapter shall be considered a violation of the Vermont Consumer Protection Act in 9 V.S.A. chapter 63, subchapter 1. Except as provided in subsection (d) of this section, all rights, authority, and remedies available to the Attorney General and private parties to enforce the Vermont Consumer Protection Act shall be available to enforce the provisions of this subchapter.

  (b) In connection with any action for violation of the Vermont Consumer Protection Act, the Commissioner’s determinations concerning the interpretation and administration of the provisions of this subchapter and any rules adopted pursuant to this subchapter shall carry a presumption of validity. The Attorney General and the Commissioner shall consult with each other prior to the commencement of any investigation or enforcement action with respect to any pharmacy benefit manager.

  (c) The Commissioner may investigate, examine, or otherwise enforce a violation of this subchapter by a pharmacy benefit manager under section 9412 of this title as if the pharmacy benefit manager were a health insurer.

  (d) The Commissioner shall have the exclusive authority to investigate, examine, and otherwise enforce the provisions of this subchapter relating to a pharmacy benefit manager in connection with the pharmacy benefit manager’s contractual relationship with, and any other activity with respect to, a health insurer defined by subdivision 9471(2)(A) of this title.

  (e) Notwithstanding any provision of this section to the contrary, the Commissioner and the Attorney General may bring a joint enforcement action against any person or entity for a violation of this subchapter. (Added 2007, No. 80, § 8; amended 2007, No. 89 (Adj. Sess.), § 6; 2013, No. 144 (Adj. Sess.), § 13, eff. May 27, 2014; 2017, No. 113 (Adj. Sess.), § 110; 2023, No. 6, § 241, eff. July 1, 2023; repealed by 2023, No. 127 (Adj. Sess.), § 4(a)(2), eff. July 1, 2029.)

• Subchapter 010: PATIENT FINANCIAL ASSISTANCE

• § 9481. Definitions

  As used in this subchapter:

  (1) “Amount generally billed” means the amount a large health care facility generally bills to individuals for emergency or other medically necessary health care services, determined using the “look-back method” set forth in 26 C.F.R. § 1.501(r)-5(b)(3).

  (2) “Credit reporting agency” means a person who, for fees, dues, or on a cooperative basis, regularly engages in whole or in part in the practice of assembling or evaluating information concerning a consumer’s credit or other information for the purpose of furnishing a credit report to another person.

  (3) “Health care provider” means a person, partnership, corporation, facility, or institution licensed, certified, or otherwise authorized by law to provide professional health care services in this State to an individual during that individual’s medical care, treatment, or confinement.

  (4) “Health care services” means services for the diagnosis, prevention, treatment, cure, or relief of a physical, dental, behavioral, or mental health condition or substance use disorder, including procedures, products, devices, and medications.

  (5) “Household income” means income calculated in accordance with the financial methodologies for determining financial eligibility for advance premium tax credits under 26 C.F.R. § 1.36B-2, including the method used to calculate household size, with the following modifications:

  (A) domestic partners, and any individual who is considered a dependent of either partner for federal income tax purposes, shall be treated as members of the same household;

  (B) married individuals who file federal income tax returns separately but could file jointly, and any individual who is considered a dependent of one or both spouses for federal income tax purposes, shall be treated as members of the same household;

  (C) married individuals who are living separately while their divorce is pending shall not be treated as members of the same household, regardless of whether they are filing federal income tax returns jointly or separately; and

  (D) household income for individuals who are not required to file a federal income tax return, and for undocumented immigrants who have not filed a federal income tax return, shall be calculated as if they had filed a federal income tax return.

  (6) “Large health care facility” means each of the following health care providers:

  (A) a hospital licensed pursuant to chapter 43 of this title;

  (B) an outpatient clinic or facility affiliated with or operating under the license of a hospital licensed pursuant to chapter 43 of this title; and

  (C) an ambulatory surgical center licensed pursuant to chapter 49 of this title.

  (7) “Medical creditor” means a large health care facility to whom a consumer owes money for health care services.

  (8) “Medical debt” means a debt arising from the receipt of health care services.

  (9) “Medical debt collector” means an individual or entity that regularly collects or attempts to collect, directly or indirectly, medical debts originally owed or due, or asserted to be owed or due, to another individual or entity.

  (10) “Medically necessary health care services” means health care services, including diagnostic testing, preventive services, and after care, that are appropriate to the patient’s diagnosis or condition in terms of type, amount, frequency, level, setting, and duration. Medically necessary care must:

  (A) be informed by generally accepted medical or scientific evidence and be consistent with generally accepted practice parameters as recognized by health care professions in the same specialties as typically provide the procedure or treatment, or diagnose or manage the medical condition;

  (B) be informed by the unique needs of each individual patient and each presenting situation; and

  (C) meet one or more of the following criteria:

  (i) help restore or maintain the patient’s health;

  (ii) prevent deterioration of or palliate the patient’s condition; or

  (iii) prevent the reasonably likely onset of a health problem or detect an incipient problem.

  (11) “Patient” means the individual who receives or received health care services and shall include a parent if the patient is a minor or a legal guardian if the patient is a minor or adult under guardianship.

  (12) “Vermont resident” means an individual, regardless of citizenship and including undocumented immigrants, who resides in Vermont, is employed by a Vermont employer to deliver services for the employer in this State in the normal course of the employee’s employment, or attends school in Vermont, or a combination of these. The term includes an individual who is living in Vermont at the time that services are received but who lacks stable permanent housing. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9482. Financial assistance policies for large health care facilities

  (a) Each large health care facility in this State shall develop a written financial assistance policy that, at a minimum, complies with the provisions of this subchapter and any applicable federal requirements.

  (b) The financial assistance policy shall:

  (1) apply, at a minimum, to all emergency and other medically necessary health care services that the large health care facility offers;

  (2) provide free or discounted care to Vermont residents and to individuals who live in Vermont at the time the services are delivered but who lack stable permanent housing, as follows:

  (A) for an uninsured patient with household income at or below 250 percent of the federal poverty level (FPL), a 100 percent discount from the amount generally billed for the services received, resulting in free care;

  (B) for an uninsured patient with household income between 250 and 400 percent FPL, a minimum of a 40 percent discount from the amount generally billed for the services received;

  (C) for a patient with health insurance or other coverage for the services delivered and with household income at or below 250 percent FPL, a waiver of all out-of-pocket costs that would otherwise be due from the patient;

  (D) for a patient with health insurance or other coverage for the services delivered and with household income between 250 and 400 percent FPL, a minimum of a 40 percent discount on the patient’s out-of-pocket costs; and

  (E) for patients with household income at or below 600 percent FPL, catastrophic assistance in the event that the large health care facility’s medical bills for a patient’s care exceed 20 percent of the patient’s household income, in which case the facility shall reduce the amount due from the patient to 20 percent of the patient’s household income; and

  (3) include all of the following:

  (A) the eligibility criteria for financial assistance;

  (B) the basis for calculating amounts charged to patients;

  (C) the method and process for applying for financial assistance, including the information and documentation that the facility may require a patient to provide as part of the application;

  (D) the reasonable steps that the facility will take to determine whether a patient is eligible for financial assistance;

  (E) the facility’s billing and collections policy, including the actions the facility may take in the event of nonpayment, such as collections action and reporting to credit reporting agencies;

  (F) an appeals process for patients who are denied financial assistance or who believe the amount of financial assistance granted is inconsistent with the policy or the provisions of this subchapter; and

  (G) a plain language summary of the policy.

  (c) The owners or governing body of the large health care facility shall approve the facility’s financial assistance policy and shall review and approve the policy at least once every three years.

  (d) A large health care facility may require a patient to be a Vermont resident as a condition of eligibility for financial assistance but shall not impose any requirements regarding the duration of a patient’s status as a Vermont resident. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9483. Implementation of financial assistance policy

  (a) In addition to any other actions required by applicable State or federal law, a large health care facility shall take the following steps before seeking payment for any emergency or medically necessary health care services:

  (1) determine whether the patient has health insurance or other coverage for the services delivered, including whether the health care services may be covered in whole or in part by an automobile insurance, a worker’s compensation, or other type of policy;

  (2) if the patient is uninsured, offer to provide the patient with information on how to apply for, and offer to connect the patient with help in applying for, public programs that may assist with health care costs; provided, however, that an undocumented immigrant’s refusal to apply for public programs shall not be grounds for denying financial assistance under the facility’s financial assistance policy;

  (3) offer to provide the patient with information on how to apply for, and offer to connect the patient with help in applying for, health insurance and private programs that may assist with health care costs; provided, however, that a patient’s refusal to apply for private health insurance shall not be grounds for denying financial assistance under the facility’s financial assistance policy;

  (4) if available, use information in the facility’s possession to determine the patient’s eligibility for free or discounted care based on the criteria set forth in subdivision 9482(b)(2) of this subchapter; and

  (5) offer to the patient, at no charge, a financial assistance policy application and assistance in completing the application.

  (b) A large health care facility shall determine a patient’s eligibility for financial assistance as follows:

  (1)(A) The facility shall determine a patient’s household income using the patient’s most recent federal or state income tax return.

  (B)(i) The facility shall give each patient the option to submit pay stubs, documentation of public assistance, or other documentation of household income that the Department of Vermont Health Access identifies as valid documentation for purposes of this subchapter in lieu of or in addition to an income tax return.

  (ii) A patient who is an undocumented immigrant shall also be given the option to submit other documentation of household income, such as a profit and loss statement, in lieu of an income tax return.

  (C) The facility shall not require any additional information to verify income beyond the sources of information set forth in subdivisions (A) and (B) of this subdivision (1).

  (2) The facility may grant financial assistance to a patient notwithstanding the patient’s failure to provide one of the required forms of household income documentation and may rely on, but not require, other evidence of eligibility.

  (3) The facility may grant financial assistance based on a determination of presumptive eligibility relying on information in the facility’s possession but shall not presumptively deny an application based on that information.

  (4)(A) The facility may, but is not required to, include an asset test in its financial assistance eligibility criteria. If the facility chooses to include an asset test in its financial assistance eligibility criteria, the asset test shall only apply to liquid assets. For purposes of determining financial assistance eligibility, liquid assets shall not include the household’s primary residence, any 401(k) or individual retirement accounts, or any pension plans.

  (B) Any limit on liquid assets for purposes of financial assistance eligibility shall be set at a dollar amount not less than 400 percent of the federal poverty level for the relevant household size for the year in which the health care services were delivered.

  (c)(1) Within 30 calendar days following receipt of an application for financial assistance, the large health care facility shall notify the patient in writing as to whether the application is approved or disapproved or, if the application is incomplete, what information is needed to complete the application.

  (2) If the facility approves the application for financial assistance, the facility shall provide the patient with a calculation of the financial assistance granted and a revised bill.

  (3) If the facility denies the application for financial assistance, the facility shall allow the patient to submit an appeal within 60 days following receipt of the facility’s decision. The facility shall notify the patient of its approval or denial of the patient’s appeal within 60 days following receipt of the appeal.

  (d)(1) A large health care facility or medical debt collector shall, at a minimum, offer to any patient who qualifies for financial assistance a payment plan and shall not require the patient to make monthly payments that exceed five percent of the patient’s gross monthly household income.

  (2) A large health care facility or medical debt collector shall not impose any prepayment or early payment penalty or fee on any patient and shall not charge interest on any medical debt owed by a patient who qualifies for the facility’s financial assistance program.

  (e) A large health care facility shall not discriminate on the basis of race, color, sex, sexual orientation, gender identity, marital status, religion, ancestry, national origin, citizenship, immigration status, primary language, disability, medical condition, or genetic information in its provision of financial assistance or in the implementation of its financial assistance policy. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9484. Public education and information

  (a) Each large health care facility shall publicize its financial assistance policy widely by:

  (1) making the financial assistance policy and application form easily accessible online through the facility’s website and through any patient portal or other online communication portal used by the facility’s patients;

  (2) providing paper copies of the financial assistance policy and application form upon request at no charge, both by mail and at the facility’s office; for hospitals, copies shall also be available in the hospital’s patient reception and admissions areas and in the locations in which patient billing and financial assistance services are provided;

  (3) providing oral and written translations of the financial assistance policy upon request;

  (4) notifying and informing members of the community served by the facility about the financial assistance policy in a manner reasonably calculated to reach the members of the community who are most likely to need financial assistance, including members who are non-native English speakers, provided that these efforts shall be commensurate with the facility’s size and income; and

  (5) conspicuously displaying notices of and information regarding the financial assistance policy in the facility’s offices; for hospitals, the notices and information shall be posted in the hospital’s patient reception and admissions areas and in the locations in which patient billing and financial assistance services are provided.

  (b) Each large health care facility shall directly notify individuals who receive care from the facility about the facility’s financial assistance policy by, at a minimum:

  (1) offering a paper copy of the financial assistance policy to each patient as part of the patient’s first visit or, in the case of a hospital, during the intake and discharge processes; and

  (2) including a conspicuous written notice on billing statements, whether sent by the facility or by a medical debt collector, stating that financial assistance is available to some patients based on income and including:

  (A) a telephone number that the patient can call to request a financial assistance application and to receive information about the financial assistance policy and the application process; and

  (B) the specific website address at which copies of the policy and application are available.

  (c) All written or oral attempts by a medical creditor or medical debt collector to collect a medical debt arising from health care services delivered by a large health care facility shall include information for the patient about the relevant financial assistance policy or policies. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9485. Prohibition on sale of medical debt

  No large health care facility shall sell its medical debt. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9486. Prohibition of waiver of rights

  Any waiver by a patient or other individual of any protection provided by or any right of the patient or other individual under this subchapter is void and shall not be enforced by any court or any other person. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)

• § 9487. Enforcement

  The Office of the Attorney General has the same authority to make rules, conduct civil investigations, enter into assurances of discontinuance, and bring civil actions for violations of this subchapter as is provided under 9 V.S.A. chapter 63, subchapter 1. (Added 2021, No. 119 (Adj. Sess.), § 1, eff. July 1, 2022.)