VermontSuperiorCourtFiled12/2223Washingtonmt

### VERMONTSUPERIOR

### CIVILDIVISIONCOURTWashington

### UnitCaseNo.

### 23-CV-0406365

### StateStreetMontpelier

## VT05602802-828-2091WWW.Vermontjudiciary.org

### OpinionandOrderon

### OneCare’sMotionto

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### VermontOrder Page 2 of 6

23

- CV

- 04063 Vermont Attorney General's Office v. OneCare Vermont Vermont Accountable Care Organization) , 23

- AP

- 290 (the Supreme Court case). 2 The

substance of the GMCB petition to enforce is not currently before the Court. The Court

addresses here only OneCare’s motion to stay.

Whether to issue a stay is a matter of judicial discretion. The party requesting a

stay has the burden of showing that the circumstances justify an exercise of that

discretion. See Clinton v. Jones, 520 U.S. 681, 708 (1997). See also Nken v. Holder , 556

U.S. 418, 433

– 35 (2009) (pointing to factors that may guide a court’s discretion).

In this instance, OneCare had failed to convince the Court that a stay is warranted

pending the outcome of the Supreme Court case. The chief reason offered in support of a

stay is that the Supreme Court may rule one way or the other on the GMCB’s regulatory

authority to set salary caps. The implication is that if the GMCB is determined to have

that power, then OneCare may voluntarily stop resisting the subpoena. Or, if the GMCB

is determined not to have that power, then it will be clear that the subpoen a is

unenforceable because it seeks information irrelevant to its authority. 3

The Court is not persuaded that the Supreme Court’s ruling necessarily will have

either impact on this case. Plainly stated, the issue in this case is the breadth of GMCB’s

2 Initially, the GMCB responded to OneCare’s motion to stay by filing a motion to

continue in which it argued that the Court should hold a hearing on its petition to

enforce the subpoena and only then consider OneCare’s motion to stay. The GMCB’s

motion to continue ignored the point of OneCare’s motion, to stay this case until the

Supreme Court rules so that any hearing on the petition to enforce may be avoided

altogether or at least would be informed by that ruling. The Court denied the GMCB’s

motion to continue in a December 11 entry, instructing it to file any substantive objection

to a stay by December 20, which it has done. OneCare has also submitted a Reply.

3 A third possibility unaccounted for in OneCare’s briefing is that the Supreme Court

could rule on one of the alternative bases for relief sought in that case and altogether

avoid the issue that ostensibly matters here.Order Page 3 of 6

23

- CV

- 04063 Vermont Attorney General's Office v. OneCare Vermont right of access to information , not what the GMCB is empowered to do with that

information. OneCare’s beliefs about the GMCB’s underlying motivations for requesting

the information

— that it will use the information to set salaries

— cannot control the

breadth of the GMCB’s entitlement to it. Indeed, the GMCB has proffered examples of

other uses to which such information might be relevant that, arguably, fall within the

ambit of its regulatory authority.

OneCare is Vermont’s only accountable care organization (ACO)

. An ACO is “an

organization of health care providers that has a formal legal structure, is identified by a

federal taxpayer identification number, and agrees to be accountable for the quality, cost,

and overall care of the patients assigned to it.” 18 V.S. A. § 9571(a). It is pervasively

regulated by the GMCB. See 18 V.S.A. §§ 9371

– 9383 ; see also Vermont State Auditor v.

OneCare Accountable Care Org., LLC , 2022 VT 29, ¶ 22, 216 Vt. 478.

The GMCB is charged with executing “its duties consistent with the principles

expressed” in 18 V.S.A. § 9371. Id. § 9375(a). Those principles include making

Vermont’s “ health care system

. . . transparent in design, efficient in operation, and

accountable to the people,” id . § 9371(3) , evaluating it “for improvements in access,

quality, and cost containment,” id . § 9371(9), establishing “mechanisms for containing all

system costs and eliminating unnecessary expenditures, including by reducing

administrat ive costs and by reducing costs that do not contribute to efficient, high

quality health services or improve health outcomes,” id . § 9371(10), and ensuring that

health care financing is “sufficient, fair, predictable, transparent, sustainable, and

shared equitably,” id . § 9371(11). As relevant here, in “reviewing, modifying, and

approving the budgets of ACOs,” the GMCB “shall review and consider,” “the character,Order Page 4 of 6

23

- CV

- 04063 Vermont Attorney General's Office v. OneCare Vermont competence, fiscal responsibility, and soundness of the ACO and its principals,” 18 V.S.A.

§ 9382(b)(1)(D) , as well as “information on the ACO’s administrative costs, as defined by

the” GMCB, id . § 9382(b)(1)(M).

No doubt, under the GMCB’s Oversight of Accountable Care Organizations Rules,

an ACO’s governing body “ has ultimate authority and responsibility for the oversight and

strategic direction of the ACO and for holding management accountable for the ACO’s

activities. ” Vt. Admin. Code 4

- 7

- 5:5. 202(a)(4). Nevertheless, the ACO is expected to

supply information annually to help enable the GMCB to undertake its own review

duties, including:

1. information on the ACO’s structure, composition, ownership, governance,

and management;

2. the ACO’s proposed budget for the next Budget Year, including detailed

information on the ACO’s expected expenditures, costs of operation, and

revenues

. . .;

3. other financial information, such as information on the ACO’s reserves,

assets, liabilities, fund balances, other income, short

- and long

- term

investments, rates, charges, units of service, and administrative costs,

including wage and salary data;

. . .

6. information on actions, investigations, or findings involving the ACO or

its agents or employees;

. . .

21. information on the ACO’s efforts or plans to make its costs transparent

and easy to understand for the public; and

22. such other information as the Board may require.

Vt. Admin. Code 4

- 7

- 5:5. 403 (a). It is noteworthy that, in the GMCB’s review of ACO

budgets, “ the burden of justifying its proposed budget ” is on the ACO, and the GMCBOrder Page 5 of 6

23

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- 04063 Vermont Attorney General's Office v. OneCare Vermont appears to have discretion to determine which issues are relevant to its assessment. Vt.

Admin. Code 4

- 7

- 5:5.40 5 (a) , (b)(4).

The GMCB is further empowered to “ issue subpoenas, examine persons,

administer oaths, and require production of papers and records ” as needed to perform its

duties. 18 V.S.A. § 9374(i); see also Vt. Admin. Code 4

- 7

- 5:5. 503 (a) (“ The Board may use

any and all powers granted to it by law to monitor an ACO’s performance or operations

or to investigate an ACO’s compliance with the requirements of this Rule, other

applicable laws or regulations, and decisions and orders of the Board. Such reviews may

be perfor med at any time .”).

Simply stated, regardless of the GMCB’s authority to set concrete salary caps for

OneCare employees, the GMCB nevertheless appears to retain broad discretion to review

OneCare finances, expenditures, wages, administrative costs, etc.

, in support of its larger

regulatory duties. The Court cannot conclude that extent to which the GMCB may

permissibly obtain and use the subject information is coextensive with the questions

currently presented to the Supreme Court. As to the GMCB’s access to information,

t he re is no apparent efficiency in waiting for a ruling from the Supreme Court before

addressing the petition to enforce the subpoena.Order Page 6 of 6

23

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- 04063 Vermont Attorney General's Office v. OneCare Vermont Conclusion

For the foregoing reasons, OneCare’s motion to stay is denied. This case was pre

emptively set for a hearing on the petition to enforce to avoid further delay in the event

that the motion to stay is denied. The hearing will go forward as scheduled.

Electronically s igned on December 22, 2023 , per V.R.E.F. 9(d)

__________________________ Timothy B. Tomasi

Superior Court Judge