Vermont Legislature SmartTranscripts:

[Troy Headrick (Ranking Member)]: You're live.

[Alice M. Emmons (Chair)]: Welcome folks. This is House Corrections Human Institutions Committee. It is Tuesday, April 21. And we have with us Ashley Berliner. You're still with Diva or not? No. We're going to have a conversation on Medicaid coverage because I think one thing that keeps popping up is for the forensic population, is there Medicaid coverage for those beds that are used for folks who would be in a forensic facility. How does the process currently work now? Are there any dollars that go towards folks who are non hospital order as well as hospitalization order for competencies or Medicaid reimbursement at this point. I think those are the angles that we'd really like to look at. So Ashley, I'm going to turn it over to you. If you could identify yourself?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Great. Yes. Ashley Berliner. I'm the director of Medicaid policy for the Agency of Human Services. Can you hear me all right?

[Alice M. Emmons (Chair)]: Yes.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Okay, I'm in a remote location, so

[Alice M. Emmons (Chair)]: I just want to

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: make sure the sound is all right.

[Alice M. Emmons (Chair)]: We're on vacation like the rest of the people, right?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Yes, Cleveland, Ohio, the classic spring break locale.

[Troy Headrick (Ranking Member)]: Woah. Big time.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: So, I'll just start by saying that AHS is in support of this bill. We believe that a forensic facility will allow Medicaid eligible facilities to remain accessible to and for individuals who have a medical need to be in those facilities. I'm happy to talk about anything you want to talk about today. You said you wanted to hear a little bit about how it's working today,

[Unidentified Committee Member]: so I can

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: go through that and I can answer questions as well. But how it works today is essentially we have certain facilities that are considered institutions for mental disease, IMD, and those are defined as institutions that are over 16 beds that primarily serve individuals with substance use disorder or mental illness. Those institutions, those IMDs, have very strict parameters around when Medicaid can be used. And in Vermont, we have an eleven fifteen waiver that allows us to pay for stays in IMDs, so Vermont Psychiatric Care Hospital, Brattleboro Retreat, allows us to pay for stays in IMDs that are under sixty days. We do not have any authority to pay for stays beyond sixty days, and we do not have any authority to pay for individuals that are considered inmates or considered forensic. So those Medicaid stays are Medicaid eligible individuals who have a medical necessity reason to be in the institution. The stay is under sixty days and they are not forensic.

[Alice M. Emmons (Chair)]: And they're not forensic.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Medicaid has a specific inmate exclusion, which prohibits the use of Medicaid funding for individuals that are classified as inmates. For purposes of an IMD, the inmate definition encompasses the forensic population as well.

[Alice M. Emmons (Chair)]: Can you just

[Troy Headrick (Ranking Member)]: clarify, that include folks who have been found not guilty by reasons of insanity, even though they've been found not guilty?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: If they are being held there involuntarily due to a criminal order, then yes, it includes them.

[Troy Headrick (Ranking Member)]: Even if they've been found not guilty?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: If they've been found not guilty because they're not competent?

[Alice M. Emmons (Chair)]: No. Not guilty by reason of insanity.

[Troy Headrick (Ranking Member)]: A very small chunk of this population, but I'm just curious on the technicalities that you know around it.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: If they're being held involuntarily because of a court order, then it would include that population. And DMH can provide a lot more detail on the specific orders that fall into forensic. But the way I think about it in the most simplistic way is just if they're there because the court says they have to be there, then it's forensic.

[Troy Headrick (Ranking Member)]: Okay, thank you.

[Alice M. Emmons (Chair)]: So it does cover some.

[Troy Headrick (Ranking Member)]: The waiver does not apply to NGRI.

[Unidentified Committee Member]: Okay. Is what I'm hearing at all.

[Troy Headrick (Ranking Member)]: That's what I'm hearing.

[Alice M. Emmons (Chair)]: So there was conversations, actually, years ago. It was two years ago when there were conversations upstairs in the committee of human services about somewhere to place folks. The restoration of occupancy and there was talk about River Valley, the new 16 bed step down facility, secure residential, and using some of those beds. And some folks on the committee have asked what's happened to that. Are any of those beds being used? Right now, you know?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: I don't know. I'm sorry. I think DMH would have to come in and speak to that.

[Alice M. Emmons (Chair)]: Would there be an issue if they were used that we would lose Medicaid funding for those beds?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Any bed that is housing forensic individuals is not eligible for Medicaid. Are you asking if the people that are eligible for Medicaid would not be able to have Medicaid because there are forensic individuals in that facility? Correct. That is a question that needs to be answered by people that are not me and understand the certification process of River Valley, so it will be dependent on how they're being accredited or certified. From a straight Medicaid billing perspective, I don't have a concern about it. But I don't know what those implications would be for certification or accreditation of those facilities, because there are certain requirements that facilities have to meet that could be caught up in whether or not that would implicate Medicaid. So it's like a non answer. I'm sorry.

[Troy Headrick (Ranking Member)]: Similarly, we had talked about renovating a chunk of VPCH so that it had its own entrance separate from the rest of the facility and was separated from the rest of the facility, and that seems to have been found to not work as well. Do you have any clarification or details on that?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: I would say that any sort of separate entrance, separate naming doesn't change the nature of an IMD. So they would still be considered an IMD, of wing or a separate entrance or a separate staff. That doesn't have anything to do with the character of whether something's an IMD or not.

[Alice M. Emmons (Chair)]: So I just want to be clear when you're saying about the IMD. So, the specific question was about the state hospital as 25 beds.

[Troy Headrick (Ranking Member)]: Because

[Alice M. Emmons (Chair)]: we're over 16 beds, that would be classified as an IMD, Institute of Mental Disease. Yes. And we have a waiver from CMS that we are allowed to have those nine additional beds on top of the 16 and still get Medicaid for those beds, correct?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: For stays up to sixty days, yes.

[Alice M. Emmons (Chair)]: So the answer to Troy's question was if we were to convert a wing of that, even though I might have a separate entrance and be separated from the other sixteen

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: sixteen beds that were non forensic and nine beds that were forensic, even if you had a separate entrance, it would still be considered an IMD.

[Alice M. Emmons (Chair)]: That's what I wanted to get. So the committee was clear on

[Troy Headrick (Ranking Member)]: that. It

[Alice M. Emmons (Chair)]: did not.

[Unidentified Committee Member]: That's what they did a couple of years ago when they access S6 Plus upstairs.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: There are very strict federal regulations to basically prevent any circumvention of IMD rules. They've gone into quite a bit of detail about organizational structures and distance, so it would be quite hard to imagine any situation where we would be able to have even like not the same building, but close proximity, where we would be able to make an argument that it was not an IMD.

[Alice M. Emmons (Chair)]: So close proximity could be a 35 mile radius, I believe, is 35 miles, 40 miles?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Federal regulation doesn't specify close proximity, but they have a list of criteria that basically ask questions about the way that a facility is being overseen, if there's any shared administration. So if you have shared executive teams, shared budgets, shared administrative functions, shared cafeterias, anything that is under a shared umbrella makes it quite difficult to separate and would continue to be classified as an IMD. So like a hospital within a hospital framework does not get you out of the IMD construct.

[Alice M. Emmons (Chair)]: So is it the construct up, is it if you stay under 16 beds, you'd be covered, but if you go over 16, you won't be? Or is the construct more forensic versus non forensic?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: So I can only answer half of that question, unfortunately, because I can't speak to the accreditation of these facilities and the licensure processes. From a Medicaid billing perspective, it's about the beds.

[Alice M. Emmons (Chair)]: Number of beds.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: 16 beds or fewer. It's not an IMD, regardless of population mix. Over 16 beds, it is an IMD, regardless of population mix.

[Alice M. Emmons (Chair)]: And that's for Medicaid funding only?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: For Medicaid funding only, correct.

[Alice M. Emmons (Chair)]: It's not certification of the facility.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Yeah, I can't speak to anything related to certification, licensure, or accreditation of a facility.

[Alice M. Emmons (Chair)]: So, if we did a situation where we, I think I know the answer to this, but I'm not sure, where we had a forensic unit, could be small, could be six beds, 10 beds, whatever. And it was operated, the programming and the operations of it was under the agency of human services. But the security of the facility was with DOC and forensic folks would be housed there. Would there be any ability to collect Medicaid for those beds? No. Because it's forensic? Correct.

[Unidentified Committee Member]: Would

[Troy Headrick (Ranking Member)]: that have an impact though? And my guess is you said that there wasn't a really good definition on close proximity. But if that sort of place exists So let's just use the the work camp as an example. And and it's we turn that into a forensics facility. And we house let's say, we create 10 beds there. Because it's operated by the agency of human services and secured by the Department of Corrections, is that considered some of those shared administrative costs that you were talking about that may have an impact on the waiver?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: I'm sorry, I feel like I missed part of that. So, because it's under the same agency?

[Troy Headrick (Ranking Member)]: Yeah. Even though it's in, it's at a site that was formerly exclusively a DOC site. But we're changing that to be administered and governed by the agency in general, security provided by DOC.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: I think the agency, so like River Valley and Vermont Psychiatric Care Hospital, for instance, those are both under the agency of human services. They are two distinct facilities with two distinct kind of organizational and administrative functions, structures. And so River Valley is not an IMD. Vermont Psychiatric Care Hospital is. So I don't want to just blanket statement and say that it would be okay, but there are ways to construct it allow us to have facilities that are not considered IMDs.

[Troy Headrick (Ranking Member)]: Okay. It's feasible.

[Alice M. Emmons (Chair)]: But this isn't so much the facility, it's who you're housing there.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: There's two

[Alice M. Emmons (Chair)]: housing forensic folks.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Exactly. There's two really, there's the inmate exclusion and the IMD exemption, and they are really hard when you put them together. It's a really hard just kind of tangle of policy to figure out how Medicaid can and can't be allowed. But the easiest way to think about it is if it's forensic, it is not Medicaid eligible under any circumstance. And then there are other considerations for IMDs more generally, but forensics are not eligible. Period. There is no waiver for that.

[Alice M. Emmons (Chair)]: I

[Unidentified Committee Member]: think I just confused myself, this hopefully has an obvious answer. But then if we were to do a forensic facility within a prison, as this bill talks about, why then don't we lose Medicaid for the whole facility?

[Alice M. Emmons (Chair)]: We don't follow for the eleven fifteen waiver?

[Troy Headrick (Ranking Member)]: Yeah.

[Alice M. Emmons (Chair)]: So, we have an eleven fifteen waiver for folks who are ninety days prior to their release date. Would that If we have a designated forensic facility within one of our correctional facilities, Would that negate our eleven fifteen waiver?

[Troy Headrick (Ranking Member)]: Thank you, Chair.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: The correctional facility no. The correctional facility is not eligible for Medicaid. Having a forensic facility within a correctional facility also is not eligible for Medicaid. There's no Medicaid implications.

[Alice M. Emmons (Chair)]: We know that. We have an eleven fifteen waiver for folks who are incarcerated and sentenced that Medicaid is paying ninety days prior to their release date.

[Unidentified Committee Member]: Yes.

[Alice M. Emmons (Chair)]: Through that eleven fifteen waiver, Medicaid is picking up health care costs for that person.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Correct.

[Alice M. Emmons (Chair)]: Would that be in jeopardy if we had a forensic facility within that same facility?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Thank you for clarifying. Sorry to not follow. No, that would not be in jeopardy.

[Alice M. Emmons (Chair)]: And why wouldn't it be?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Because the waiver allows for ninety days pre release services for the Medicaid eligible population despite them being inmates. And so if you had an individual in the forensic facility that was going to be released ninety days, that was going to be released, they would also be eligible for ninety days pre release.

[Alice M. Emmons (Chair)]: Well, does the 11/15 waiver apply to detainees, folks who have not been sentenced? It does not. So, a person who is not comfortable to stand trial has not been sentenced. So, they would be considered a detainee.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Then, they wouldn't be eligible for the ninety day. Correct.

[Alice M. Emmons (Chair)]: It would be only when they have gained competency to stand trial and they have stood trial and then face conviction in the sentence. So, they could then be incompetent after that. They must receive the sentence. Welcome to the world of medicated and corrections. This has been very helpful, Ashley. Questions? Other questions to the committee? Is it clear as mud to folks? No, I

[Unidentified Committee Member]: think it's pretty clear. There's some mud there. As long as you got stuff. I thought I understood before and now I'm completely confused. One second. And confused about IMDs or? At first I was hearing that as long as they're in less than sixty days and they are not charged, that Medicaid would pay for. They're not convicted. Exactly. I'm sorry, convicted.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: No, Medicaid will not pay for any inmate. Period. With the exception of individuals who are adjudicated and ninety days pre release from correctional facilities.

[Troy Headrick (Ranking Member)]: So no forensics patient, there's no scenario where a forensics person gets Medicaid anywhere, whether that's an IMB facility.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: Excuse me, the only scenario is if they are in an inpatient hospital over twenty four hours, like University of Vermont Medical Center, and they have to go in for inpatient an stay. So Ashley,

[Alice M. Emmons (Chair)]: to carry out Representative Winter's thoughts, a person is charged with a crime. The court has ordered a hospitalization order for competency. So the person goes to the state hospital. Does Medicaid cover that? No.

[Troy Headrick (Ranking Member)]: But if they went to UVMC for a broken leg, it would.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: If they had to be hospitalized for more than twenty four hours, they would. Yes.

[Alice M. Emmons (Chair)]: If they went to the state hospitals and they were there for four days for an evaluation of competency, would Medicaid cover those four days for that visit?

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: No, I do not believe so. We should get DMH to talk about these discrete details. I do not believe so in that scenario. There is a scenario where someone is in corrections, they're serving a sentence, they were determined guilty and so are serving a sentence, and they have a psychotic break, and they have to be admitted to an inpatient facility, that could be eligible for Medicaid short term, and then they're put back into the general correctional population. But someone who is standing trial or being evaluated for competency would not be eligible.

[Alice M. Emmons (Chair)]: So are there situations where folks right now go to the state hospital for those evaluations who have been charged with a crime, but the court has ordered a hospitalization? Can't speak

[Unidentified Committee Member]: to that.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: I'm sorry. I think DMH would be a great person to come in.

[Alice M. Emmons (Chair)]: So does that help clarify a little bit of that confusion?

[Unidentified Committee Member]: I think so. My apologies. They're not going to cover it. That's what I'm hearing.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: That's right. Right.

[Alice M. Emmons (Chair)]: That's right. Corrections is the easy way to help.

[Ashley Berliner (Director of Medicaid Policy, VT Agency of Human Services)]: My apologies. I have to run to Thank health care right you so much. Please let me know if there's anything I can provide additional detail on, but I think DMH will be really helpful in answering those specific example questions.

[Alice M. Emmons (Chair)]: Well, you, Asher.

[Troy Headrick (Ranking Member)]: Thank you. You. On your vacation. On Zoom.

[Unidentified Committee Member]: Working vacation.

[Alice M. Emmons (Chair)]: Eric Fitzpatrick is gonna come in and give us a quick walk through of the new draft that judiciary has put out. He's due here around quarter after one. He was due at 01:00, but they really needed him for about fifteen, twenty minutes over in house judiciary. I was asked if we could give him up for that amount of time and I said yes. So, let's go off of YouTube and we'll be back I hope in ten or fifteen.