In re Blue Cross

• Decision Date: 04 November 2022
• Docket Number: 21-AP-220
• Parties: IN RE BLUE CROSS and Blue Shield 2022 Individual & Small Group Market Rate Filing
• Court: Vermont Supreme Court

288 A.3d 160

IN RE BLUE CROSS and Blue Shield 2022 Individual & Small Group Market Rate Filing

No. 21-AP-220

Supreme Court of Vermont.

April Term, 2022

November 4, 2022

Bridget Asay and Michael Donofrio of Stris & Maher LLP, Montpelier, for Appellant.

Thomas J. Donovan, Jr., Attorney General, and Rachel E. Smith, Deputy Solicitor General, Montpelier, for Appellee Green Mountain Care Board.

Kaili Kuiper and Eric Schultheis, Vermont Legal Aid, Inc., Montpelier, for Appellee Office of the Health Care Advocate.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1. Blue Cross Blue Shield of Vermont (Blue Cross) appeals from the Green Mountain Care Board's (GMCB) decision modifying its proposed health-insurance rates for 2022. We affirm.

¶ 2. In May 2021, Blue Cross filed its annual proposed rates for qualified health plans under the Affordable Care Act for individuals and small groups. Following public comment, input from the Health Care Advocate, Blue Cross's actuary, the GMCB's independent actuary, and the Department of Financial Regulation (DFR), and a hearing, the GMCB issued a decision on August 5, 2021. The GMCB approved Blue Cross's proposed rates with several exceptions, one of which is relevant here: its contribution to reserves (CTR).

¶ 3. As the GMCB found and no party disputes: "[CTR] is an important source of funding policyholder reserves, or member reserves, which in turn are the funds that ensure that insurance companies remain solvent and can meet their obligations and pay member claims." "Risk Based Capital (RBC) is a method of measuring the minimum reserves appropriate to support overall business operations, an important element of solvency. DFR has approved an RBC target for BCBSVT of 590% to 745%." Blue Cross had sought a base CTR rate of 1.5%, but the GMCB ordered Blue Cross to lower it to 1.0%, thereby diminishing overall insurance rates by 0.5% and reducing health-insurance premiums. The GMCB found that a 1.5% base CTR was "excessive" because Blue Cross was expected to be above its target RBC range by the end of 2021, "individuals and small businesses are still struggling financially after a year-long economic slowdown," and a 1.0% CTR would allow its "reserves to sit comfortably within the company's RBC target range."

¶ 4. Blue Cross moved for reconsideration, arguing that the term "excessive" is strictly actuarial in nature, and that the GMCB misconstrued it by weighing non-actuarial evidence—testimony concerning affordability—as part of its examination of whether the proposed rate was excessive. The GMCB denied the motion, and this appeal followed.

¶ 5. On appeal, Blue Cross raises essentially the same issue. Because none of the actuarial experts who testified concluded that Blue Cross's proposed CTR was excessive, Blue Cross argues, the GMCB could not properly conclude that it was.

¶ 6. Blue Cross concedes that health-insurance rates for 2022 cannot now be changed, but it urges this Court to rule on the merits, arguing that this matter is not moot because the CTR rate for this year will disadvantage Blue Cross in future rate-review proceedings. It also contends that even if the matter is technically moot, both recognized exceptions to mootness apply here: negative collateral consequences will stem from the GMCB's error, and this error is capable of repetition but evading review.

¶ 7. "A case is moot if the reviewing court can no longer grant effective relief." In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (quotation omitted). "An actual controversy must exist at all stages of the case, ‘not merely at the time the plaintiff originally filed the complaint.’ " Hunters, Anglers & Trappers Ass'n of Vt., Inc. v. Winooski Valley Park Dist., 2006 VT 82, ¶ 15, 181 Vt. 12, 913 A.2d 391 (quoting Doria v. Univ. of Vt., 156 Vt. 114, 117, 589 A.2d 317, 319 (1991) ).

¶ 8. Blue Cross contends that it will suffer certain financial injuries unless this Court reverses the GMCB and approves Blue Cross's proposed 2022 health-insurance rates. But the parties agree that this year's rates are now locked. See 45 C.F.R. § 156.210(a) (providing qualified health plan "issuer must set rates for an entire benefit year"); 33 V.S.A. § 1811(i) ("A registered carrier shall guarantee the rates on a health benefit plan for a minimum of 12 months."). Because we can grant no effective relief to Blue Cross, this controversy is moot. Accepting Blue Cross's argument that this matter is not moot because future, independent rate-review proceedings might result in financial injury is the kind of "hypothetical factual situation" we have explained the Vermont Constitution does not authorize us to review.¹ State v. Nash, 144 Vt. 427, 435, 479 A.2d 757, 761 (1984). Thus, to prevail Blue Cross must demonstrate that one of two exceptions to mootness applies.

¶ 9. We have recognized the mootness exception for cases that are capable of repetition yet evading review. The exception applies when two conditions are met: (1) "the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and [(2)] there must be a reasonable expectation that the same complaining party will be subjected to the same action again." Price v. Town of Fairlee, 2011 VT 48, ¶ 24, 190 Vt. 66, 26 A.3d 26.

¶ 10. In considering the first prong, "we have examined whether, in the future, the complaining party ‘would not be able to challenge [the action] effectively.’ " In re Vt. Dep't of Pub. Serv. (Vermont Yankee), 2008 VT 89, ¶ 11, 184 Vt. 613, 959 A.2d 564 (mem.) (quoting Hunters, Anglers & Trappers Ass'n of Vt., 2006 VT 82, ¶ 16, 181 Vt. 12, 913 A.2d 391 ); see also Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018) (per curiam) ("The question ... [is] whether the underlying action is almost certain to run its course before ... the [court] can give the case full consideration." (quotation omitted)). If a litigant "could have taken actions to expedite the appellate process" but did not, the matter does not fit within this exception. State v. Rooney, 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481 (mem.); see Paige v. State, 2017 VT 54, ¶¶ 4 n.*, 9, 205 Vt. 287, 171 A.3d 1011 (explaining that appellant filed motions to extend time to file main brief and reply brief and waited until long after event mooting appeal before requesting oral argument from Supreme Court); Hamamoto, 881 F.3d at 723 (concluding capable-of-repetition-but-evading-review exception was not met in case where plaintiffs did "not demonstrate[ ] that expedited review would have been unavailable").

¶ 11. Vermont Rule of Appellate Procedure 2 permits the Supreme Court to suspend any provision of the appellate rules to expedite its decision or for other good cause. See Paige, 2017 VT 54, ¶ 25, 205 Vt. 287, 171 A.3d 1011 (Robinson, J., concurring). "The rule is intended to make clear the power of the Court ... to alter the time schedule in cases of pressing concern to the public or the litigants ...." Reporter's Notes, V.R.A.P. 2. The Court has expedited its review and decision-making when circumstances require it to. See, e.g., Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, 163 A.3d 1173 (per curiam) (opinion issued two weeks after appeal filed); In re Investigation Into Gen. Ord. 45 Notice Filed by Cent. Vt. Pub. Serv. Corp., 149 Vt. 285, 542 A.2d 288 (1988) (opinion addressing appellant's motion for expedited decision issued twenty days after appeal filed).²

¶ 12. We have not established a firm period of time that is "too short" to allow judicial review, though our cases draw broad parameters. In State v. Rooney we held that less than four months was sufficient time to complete appellate review. 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481 (order sealing documents issued on February 1 and order vacated following conclusion of trial on May 22). In Vermont Yankee, we held that ten months was sufficient time to complete appellate review and thus declined to apply the exception. 2008 VT 89, ¶ 11, 184 Vt. 613, 959 A.2d 564. However, in Price, we applied this exception where the statutes at issue created a ninety-day window to review the challenged action at both the trial and appellate levels. 2011 VT 48, ¶¶ 24-25, 190 Vt. 66, 26 A.3d 26. We also applied the exception to a six-month window for judicial review at both trial and appellate levels. In re Durkee, 2017 VT 49, ¶¶ 10-13, 205 Vt. 11, 171 A.3d 33.

¶ 13. In Rooney, appellants filed an appeal from a temporary order sealing audio and visual records in a criminal case twenty-four days after the order issued. The order provided that the trial court would make the records available no later than the conclusion of the trial. Two months after filing the appeal, the appellants moved to expedite. The Court granted the motion and held oral argument on the matter approximately two weeks later. After oral argument but before the Court issued a decision, the trial court vacated its temporary sealing order, mooting the case. After post-argument briefing, the Court concluded that the matter did not fit within the capable-of-repetition-but-evading-review exception because if the appellants had "acted more diligently in requesting expedited review, the challenged order could have, in all likelihood, been reviewed" before the trial court vacated the order. Rooney, 2008 VT 102, ¶ 12, 184 Vt. 620, 965 A.2d 481. The appellants "could have taken actions to expedite the appellate process ... [and] the challenged action was not so short as to have ‘inevitably lapsed into mootness prior to review.’ " Id. (brackets omitted) (quoting In re Kurtzman, 194 F.3d 54, 59 (2d Cir. 1999) (per curiam) (explaining that focus for reviewing court is whether elapsed time giving rise to mootness in case before it "would always limit judicial review of the question presented" (emphasis added) (quotation omitted))).

¶ 14. This case is similar to Rooney. The GMCB issued its decision on August 5, 2021, exactly ninety...