Vermont Superior Court Filed 01/17 24 Washington nit
SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-04063 65 State Street Montpelier VT 05602 802-828-2091 £17
WWW.Vermontjudiciary.org
Vermont Attorney General’s Office V. OneCare Vermont
O inion and Order on the GMCB’S Motion to Enforce
In this case, Petitioner Vermont Attorney General’s Office, on behalf of the Green
Mountain Care Board (GMCB), seeks to enforce an administrative subpoena that the
GMCB issued to Respondent OneCare Vermont compelling the production of certain
documents related to benchmarking data and related information used by OneCare to set
certain employee salaries and bonuses. See 3 V.S.A. § 809a (subpoena enforcement).
OneCare has produced some responsive information but has refused to produce the more
granular information currently at issue, which addresses the “how and Why” certain
salaries and incentives are set rather than their absolute amounts.
Section 809a provides: “In a proceeding to enforce a subpoena, if the petitioner
establishes that the subpoena was properly issued, and that the person subpoenaed has
failed to appear or to produce documents or things required, the court shall issue an
order compelling compliance with the agency subpoena. Otherwise, the court shall
vacate or modify the subpoena.” 3 V.S.A. § 809a(d). “[S]ubpoenas will be upheld if
within the agency’s authority, ‘not too indefinite,’ and reasonably relevant.” State v.
Terry ’s Tips, Inc., No. 560-9-05 Wncv, 2005 WL 5895258 (Vt. Super. Nov. 15, 2005)
(quoting United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)).
Order Page 1 of 5 23—CV-04063 Vermont Attorney General's Office v. OneCare Vermont OneCare has argued, both in opposition to the GMCB’s motion to enforce and in
support of its own motion to stay, that the requested material is irrelevant to any lawful
regulatory authority of the GMCB and that enforcement should be denied on that basis.
It also has asserted that some of the records sought by the GMCB are subject to
confidentiality provisions in contracts that OneCare has with third parties, ostensibly
limiting its ability to produce some responsive material.
Essentially, OneCare’s relevance argument is that the records sought by the
GMCB are relevant only if it possesses the regulatory power to control directly the
salaries of specific OneCare employees and that the GMCB lacks such authority. The
Court implicitly rejected that argument at length in its December 22, 2023, Opinion and
Order denying OneCare’s Motion to Stay. There, the Court explained that the GMCB
has “broad discretion to review OneCare finances, expenditures, wages, administrative
costs, etc., in support of its larger regulatory duties.” The Court could not conclude that
the GMCB’s broad right of access to information is co-extensive with any disputed
authority to set salaries.
The Court now makes express what was strongly implied in the December 22
decision. Regardless of the GMCB’s authority to set salaries, the Court is persuaded that
the information it has sought from OneCare is relevant to its more general regulatory
authorities, all as described in greater detail in the December 22 decision. In sum, the
GMCB is charged with “reviewing, modifying, and approving the budgets of ACOs,” such
as OneCare. In doing so, it “shall review and consider,” “the character, 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. §
Order Page 2 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont 9382(b)(1)(M). The GMCB is charged with executing such “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
administrative 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).
In the Court’s view, GMCB “plainly” has authority to review OneCare’s financial
records, including “wage and salary data,” Vermont State Auditor v. OneCare
Accountable Care Org., LLC, 2022 VT 29, ¶ 22, 216 Vt. 478, 489, to allow it to fulfill its
oversight mission in the above areas.
The thrust of OneCare’s contrary argument is that the GMCB’s access to
information should be limited in some manner so that, while it can have access to
OneCare’s records regarding wages and salaries on a macro level, it should be prevented
from looking into those matters in depth. The Court sees no such express limitation in
the statutes or rules, and certainly no such limitation can be implied in Vermont State
Auditor. Obtaining the more granular salary benchmarking and incentive information
sought by the subpoena is in keeping with and furthers the GMCB’s expansive oversight
responsibilities under the ACO regulatory scheme.
Order Page 3 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont OneCare also argues that Judge Teachout’s decision in Expedia, Inc. counsels in
favor of quashing the subpoena in this case. The Court disagrees. In that case, the
Department of Taxes had been auditing Expedia in relation to its rooms and meals tax
liability. The matters in dispute were whether Expedia had liability as an “operator,”
and, if so, what were the taxable transactions. The Department could not explain what
purpose the information it sought via subpoena would serve in the context of the
litigation, and the Court could not “identify any fact or issue in controversy between the
parties for which the discovery sought by the State might be relevant.” Expedia, Inc. v.
Dep’t of Taxes, No. 119-2-18 WNCV, 2018 WL 11358600, at *2 (Vt. Super. May 07, 2018).
In short, the Department of Taxes and Expedia were embroiled in concrete adversarial
litigation over Expedia’s tax liability, yet the Department was demanding information
that had nothing to do with that controversy. The Court quashed the subpoena.
This case is very different. Here, the GMCB is exercising broad regulatory
oversight of a pervasively regulated entity to ensure that its operation and function are
consistent with aspirational statutory policies enacted in the public interest. The Court
has identified above and in its earlier ruling the expansive scope of the matters GMCB is
required to consider in executing those supervisory functions. The information sought is
relevant to those pursuits.
Accordingly, the GMCB’s motion is granted as to any responsive material that is
not clearly subject to an express confidentiality agreement that OneCare may have with
a third party.
Order Page 4 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont As to the alleged confidentiality agreements, the GMCB has not disputed the
Free access — add to your briefcase to read the full text and ask questions with AI
Vermont Superior Court Filed 01/17 24 Washington nit
SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 23-CV-04063 65 State Street Montpelier VT 05602 802-828-2091 £17
WWW.Vermontjudiciary.org
Vermont Attorney General’s Office V. OneCare Vermont
O inion and Order on the GMCB’S Motion to Enforce
In this case, Petitioner Vermont Attorney General’s Office, on behalf of the Green
Mountain Care Board (GMCB), seeks to enforce an administrative subpoena that the
GMCB issued to Respondent OneCare Vermont compelling the production of certain
documents related to benchmarking data and related information used by OneCare to set
certain employee salaries and bonuses. See 3 V.S.A. § 809a (subpoena enforcement).
OneCare has produced some responsive information but has refused to produce the more
granular information currently at issue, which addresses the “how and Why” certain
salaries and incentives are set rather than their absolute amounts.
Section 809a provides: “In a proceeding to enforce a subpoena, if the petitioner
establishes that the subpoena was properly issued, and that the person subpoenaed has
failed to appear or to produce documents or things required, the court shall issue an
order compelling compliance with the agency subpoena. Otherwise, the court shall
vacate or modify the subpoena.” 3 V.S.A. § 809a(d). “[S]ubpoenas will be upheld if
within the agency’s authority, ‘not too indefinite,’ and reasonably relevant.” State v.
Terry ’s Tips, Inc., No. 560-9-05 Wncv, 2005 WL 5895258 (Vt. Super. Nov. 15, 2005)
(quoting United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)).
Order Page 1 of 5 23—CV-04063 Vermont Attorney General's Office v. OneCare Vermont OneCare has argued, both in opposition to the GMCB’s motion to enforce and in
support of its own motion to stay, that the requested material is irrelevant to any lawful
regulatory authority of the GMCB and that enforcement should be denied on that basis.
It also has asserted that some of the records sought by the GMCB are subject to
confidentiality provisions in contracts that OneCare has with third parties, ostensibly
limiting its ability to produce some responsive material.
Essentially, OneCare’s relevance argument is that the records sought by the
GMCB are relevant only if it possesses the regulatory power to control directly the
salaries of specific OneCare employees and that the GMCB lacks such authority. The
Court implicitly rejected that argument at length in its December 22, 2023, Opinion and
Order denying OneCare’s Motion to Stay. There, the Court explained that the GMCB
has “broad discretion to review OneCare finances, expenditures, wages, administrative
costs, etc., in support of its larger regulatory duties.” The Court could not conclude that
the GMCB’s broad right of access to information is co-extensive with any disputed
authority to set salaries.
The Court now makes express what was strongly implied in the December 22
decision. Regardless of the GMCB’s authority to set salaries, the Court is persuaded that
the information it has sought from OneCare is relevant to its more general regulatory
authorities, all as described in greater detail in the December 22 decision. In sum, the
GMCB is charged with “reviewing, modifying, and approving the budgets of ACOs,” such
as OneCare. In doing so, it “shall review and consider,” “the character, 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. §
Order Page 2 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont 9382(b)(1)(M). The GMCB is charged with executing such “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
administrative 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).
In the Court’s view, GMCB “plainly” has authority to review OneCare’s financial
records, including “wage and salary data,” Vermont State Auditor v. OneCare
Accountable Care Org., LLC, 2022 VT 29, ¶ 22, 216 Vt. 478, 489, to allow it to fulfill its
oversight mission in the above areas.
The thrust of OneCare’s contrary argument is that the GMCB’s access to
information should be limited in some manner so that, while it can have access to
OneCare’s records regarding wages and salaries on a macro level, it should be prevented
from looking into those matters in depth. The Court sees no such express limitation in
the statutes or rules, and certainly no such limitation can be implied in Vermont State
Auditor. Obtaining the more granular salary benchmarking and incentive information
sought by the subpoena is in keeping with and furthers the GMCB’s expansive oversight
responsibilities under the ACO regulatory scheme.
Order Page 3 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont OneCare also argues that Judge Teachout’s decision in Expedia, Inc. counsels in
favor of quashing the subpoena in this case. The Court disagrees. In that case, the
Department of Taxes had been auditing Expedia in relation to its rooms and meals tax
liability. The matters in dispute were whether Expedia had liability as an “operator,”
and, if so, what were the taxable transactions. The Department could not explain what
purpose the information it sought via subpoena would serve in the context of the
litigation, and the Court could not “identify any fact or issue in controversy between the
parties for which the discovery sought by the State might be relevant.” Expedia, Inc. v.
Dep’t of Taxes, No. 119-2-18 WNCV, 2018 WL 11358600, at *2 (Vt. Super. May 07, 2018).
In short, the Department of Taxes and Expedia were embroiled in concrete adversarial
litigation over Expedia’s tax liability, yet the Department was demanding information
that had nothing to do with that controversy. The Court quashed the subpoena.
This case is very different. Here, the GMCB is exercising broad regulatory
oversight of a pervasively regulated entity to ensure that its operation and function are
consistent with aspirational statutory policies enacted in the public interest. The Court
has identified above and in its earlier ruling the expansive scope of the matters GMCB is
required to consider in executing those supervisory functions. The information sought is
relevant to those pursuits.
Accordingly, the GMCB’s motion is granted as to any responsive material that is
not clearly subject to an express confidentiality agreement that OneCare may have with
a third party.
Order Page 4 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont As to the alleged confidentiality agreements, the GMCB has not disputed the
applicability of any such agreements vis-à-vis subpoena enforcement.1 Instead, it has
suggested that it is willing to agree to preserve the confidentiality of any such
information, either with OneCare or the third parties, and to seek the third parties’
assent to production, which it anticipates obtaining. As to any responsive confidential
documents, the GMCB’s motion is granted to that extent.
Conclusion
For the foregoing reasons, the GMCB’s motion to enforce is granted as follows:
(a) OneCare shall promptly produce all responsive documents that are not clearly subject to an express confidentiality agreement that OneCare has with a third party.
(b) As to any confidential materials, without delay the parties shall confer in good faith and, as necessary, make reasonable efforts to obtain assent from third parties for production to OneCare subject to a stipulated protective order. When assent is obtained or determined to be unnecessary, relevant responsive material shall be produced promptly.
(c) If any responsive confidential material has not been produced within 45 days, the GMCB may file, within 30 days thereafter, a new motion to enforce addressed to those circumstances.
Electronically signed on Tuesday, January 16, 2024, per V.R.E.F. 9(d).
_______________________ Timothy B. Tomasi Superior Court Judge
1 The alleged confidentiality agreements are not in the record.The Court takes no position on whether they could properly operate to limit the GMCB’s access to information within their scope. Order Page 5 of 5 23-CV-04063 Vermont Attorney General's Office v. OneCare Vermont