Vermont Superior Court Judge Helen M. Toor ruled May 24 that whistleblower Robert Hoffman may proceed with his suit for wrongful discharge against University of Vermont Medical Center and OneCare Vermont Accountable Care Organization, LLC.
Meanwhile, The Green Mountain Care Board that oversees OneCare Vermont has grown increasingly strident in its demands for accountability from the organization for whom “accountable” is its middle name.
In her ruling on cross-motions for summary judgment, Judge Toor determined that Mr. Hoffman was an employee at will and not under contract, and that he has met his burden to proceed with his claims that his firing was retaliatory for his expressed concerns that OneCare Vermont was defrauding taxpayers:
According to Hoffman, during the deep-dive meeting he told OneCare’s management “that he believed the defendants had violated the organization’s precepts and promises, violated its contracts with Medicare/Medicaid and BCBS VT by not producing contract deliverables, had not created a viable [accountable care organization], and were misleading the public about its contributions to the state’s healthcare system. In other words, they had breached the public trust.” … Hoffman contends that Defendants’ termination of his employment constituted “retaliation in violation of Vermont’s public policy that protects employees who speak out about agencies’ misleading the public about vital aspects of the public interest.”
Whether Robert Hoffman was justifiably fired may be of less interest to Vermonters than whether he was correct in his alarms that OneCare Vermont was misinforming the public. The entity appears to have been an overpriced failure from the get-go, a repeat of Gov. Peter Shumlin’s failed One Payer system, of which Shumlin has said:
“Their job is to try to build support for an idea. I did the same thing when I ran. Listen — changing health-care systems is wonky work.”
Still, he said, “if I were running for president of the United States, I would have a team working on a plan so I don’t sell an idea to Americans that you can’t achieve. That’s the mistake I made.”
According to Hoffman and many others, OneCare has been similarly selling a plan that is unachievable (or simply ineptly administered, though there is little difference). Many of the same players who foisted the failed Shumlin plan onto taxpayers were involved in the launch of OneCare:
Anya Rader Wallack will be the new president of One Care, the Accountable Care Organization that hopes to control as much health care in Vermont as possible. Anya Rader Wallack was the chief architect and promoter of Gov. Peter Shumlin’s single payer plan from 2011 to 2013, before fleeing the state when it couldn’t be made to work. It collapsed in ruins in December 2014. Last June she reappeared with a PhD in “social policy.”
OneCare set out to improve patient care and affordability by overseeing cash flow to providers, and measuring various data sets. Despite numerous alarms, this expensive waste of money (Wallack’s salary was more than twice that of the Governor’s at $400,000; OneCare’s Vicki Loner is seeking $490,000 a year!) has continued, adding administrative costs that are lucrative for a handful of bureaucrats but for which zero improved health outcomes have been documented despite a spike in per patient healthcare costs and no actionable data intelligence from OneCare Vermont.
The non-profit insurer said at the time that staff analysts were not seeing evidence that contracts with OneCare were improving outcomes or reducing the cost of care. But the company’s more immediate concern stems from a plan OneCare unveiled in August 2022 to start outsourcing its health care data management and analytics to UVM Health Network in 2023.
It appears that the misgivings voiced by Robert Hoffman concerned BCBS as well.
This in turn led to the May 22 letter to OneCare entity by its overseer Green Mountain Care Board, stating:
This letter is provided to OneCare as written notice under GMCB Rule 5.000, § 5.407(a) of the GMCB’s determination that OneCare’s FY23 performance varies substantially from OneCare’s FY23 budget as approved by the GMCB. As OneCare is currently not operating in compliance with the FY23 budget approved by the GMCB, OneCare should request that the GMCB modify its approval of OneCare’s FY23 budget to reflect OneCare’s actual FY23 operations, per GMCB Rule 5.000, § 5.407(b), in order to avoid the need for the GMCB to pursue remedial action under GMCB Rule 5.000, § 5.504.
Ironically, that outsourcing of healthcare data was slated to be overseen by Vice President of Analytics at UVMHN Leah Fullem, the manager who oversaw Robert Hoffman and is the chief witness against him in his Civil case. Per Judge Toor:
Leah Fullem was Hoffman’s supervisor. … Hoffman alleged during the [deep-dive] meeting that OneCare employees had made misleading statements to the public, specifically in a poster prepared by OneCare employees about the degree to which OneCare’s tools were being used, that was presented at a forum hosted by the UVM Health Network. According to Hoffman, there was a “disconnect” between the representations made in the poster and the conclusions he reached through his analysis. Fullem rejected the conclusions Hoffman presented at this meeting and found his analysis to be biased, unbalanced, and not particularly useful. Ptf’s SUMF ¶ 20. During this deep-dive meeting, Fullem decided to terminate Hoffman’s employment. ….On Friday, May 4, and again on Monday, May 7, Fullem emailed Barbara Doherty, OneCare’s human resources business partner, regarding “an urgent issue” and her desire to terminate Hoffman’s employment. the day following Hoffman’s presentation and peer manager meeting, Fullem emailed Doherty about an “urgent issue,” and Doherty’s email to Kaes on the following business day expressly referenced Hoffman’s alleged statements to others that “he is filing a whistleblower claim with the government about out misuse of federal funds.” Ex. 21 to Ptf’s SUMF. Doherty informed Kaes that Fullem wanted to terminate Hoffman “preferably this afternoon.” (pp. 2, 6-7, 16)
After several years of ignored warnings by Hoffman, State Auditor Doug Hoffer, and yours truly, OneCare has so dramatically shifted payment structures in its entrenchment that it is hard to unwind the damage. It seems the hard lessons of the Shumlin Administration were not learned:
“I see no evidence from the Medicare-for-all advocacy community of a serious effort to understand and learn from the lessons from Vermont’s failure,” said John McDonough, who was a senior aide to Sen. Edward M. Kennedy (D-Mass.) and is now a professor at the Harvard T.H. Chan School of Public Health. “Those who ignore history are cursed to repeat it.”
Vermont lacks the fiscal resources to squander such huge sums in failed pretensions of improved care. Some argue that the costlier care caused by OneCare’s Unaccountability has reduced overall patient outcomes. A recent study raised similar concerns:
It found OneCare patients went to the emergency department at significantly greater rates, averaging 36% higher than patients in other ACOs. Vermonters in OneCare had 18% fewer visits to primary care providers and paid 30% more for prescription drugs.
Robert Hoffman has not been shy in his shrill cries of foul play at OneCare. As Judge Toor opined:
Reporting fraud and misuse of federal funds can hardly be considered a matter not protected by public policy. … If the evidence at trial bears out that Hoffman raised concerns of OneCare’s misuse of federal funds and violation of the False Claims Act before he was terminated, the court concludes that this would constitute a protected activity that could potentially support a claim of retaliatory discharge.
Perhaps somewhere between Robert Hoffman’s whistleblower suit and Green Mountain Care Board’s sharper eye, there will finally be some actual accountability for the ironically monikered accountable care organization known as OneCare Vermont. In the meantime, Vermonters will likely see a similar morass of bureaucratic complexity and increased spending with no measurable results in the newly minted S.5 Affordable Heat Standard, which promises to be even less accountable than the OneCare debacle.
John Klar is an attorney and farmer residing in Brookfield. © Copyright True North Reports 2023. All rights reserved.