Vermont Health Service Corp., In re, s. 83-199

• Decision Date: 03 August 1984
• Docket Number: 83-385,Nos. 83-199,s. 83-199
• Citation: 482 A.2d 294,144 Vt. 617
• Court: Vermont Supreme Court
• Parties: In re VERMONT HEALTH SERVICE CORPORATION.

Page 294

482 A.2d 294

144 Vt. 617

In re VERMONT HEALTH SERVICE CORPORATION.

Nos. 83-199, 83-385.

Supreme Court of Vermont.

Aug. 3, 1984.

Julian R. Goodrich and Barbara M. Prentice of Gibson, Noble & Goodrich, Montpelier, for plaintiff-appellant.

John J. Easton, Jr., Atty. Gen., and Gretchen Babcock, Sp. Asst. Atty. Gen., Montpelier, for defendant-appellee.

Richard T. Cassidy of Hoff, Wilson, Powell & Lang, P.C., Burlington, for defendant-appellee Friends of Health Care, Inc.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

This is an appeal by the petitioner-appellant, Blue Cross/Blue Shield of Vermont (hereinafter Blue Cross), from certain findings of fact and orders issued by appellee, ^* the Commissioner of Banking and Insurance (commissioner), pursuant to the authority vested in the commissioner under chapters 123 and 125 of Title 8, Vermont Statutes Annotated. In June, 1982, Blue Cross filed a petition with the commissioner requesting an aggregate rate increase of approximately 30% in its basic, major medical and comprehensive coverage for group and nongroup services. The commissioner held hearings on the rate request in July, 1982, and on August 30, 1982, issued his decision denying the rate increase. Additionally, in connection with his rate decision, the commissioner issued four supplemental orders. 8 V.S.A. § 4513(b). These orders required Blue Cross to: (1) submit a timetable for compliance with orders (2), (3) and (4); (2) reform its contracts with as many participating hospitals as possible "but in no event less than the number representing 50% of hospital reimbursement payments," within 120 days of the order date "in order to provide stronger financial incentives for provider economy and efficiency." To accomplish this, the reformed contracts were to include methods for defining and testing the reasonableness of hospital costs and of ancillary hospital services, selective contracting procedures designed to eliminate reimbursement for unnecessary or inefficient hospital services, and experience reporting data; (3) develop a method for subscriber and public and private agency input in the contract reformation process, as well as allow an observer from the commissioner's office to attend the contract negotiations between the petitioner and participating hospitals; (4) reconstitute its board of directors so that a majority of the board were members of the general public who did not derive any income from the delivery of health services or supplies.

In January, 1983, Blue Cross requested that the commissioner modify supplemental orders (2) and (3) "on the grounds that compliance with these orders have [sic] proven to be impossible and impracticable." New hearings were held on Blue Cross's modification request in February, 1983. On March 31, 1983, the commissioner issued his decision granting modification of supplemental orders (2) and (3). Respecting order (2), the commissioner ordered Blue Cross to reform or cancel its contracts with all participating hospitals no later than October 1, 1983, for October 1 fiscal year hospitals, and no later than December 31, 1983, for all others. Blue Cross was to submit proposed contract language to the commissioner for review and was to incorporate any modifications requested by the commissioner after review, or submit substantiated reasons why the requested modifications could not be incorporated into its contracts. Additionally, Blue Cross was to assign sufficient staff, and, if necessary, hire additional personnel to conduct comparison budget reviews of participating hospitals' reimbursable costs; develop proposals for economic risks and incentives to encourage efficiency and cost savings; and incorporate into the reformed contracts a system of utilization review to insure that Blue Cross was only reimbursing for necessary and actual services.

With respect to supplemental order (3), the commissioner deleted the requirement that a representative from his office attend the contract negotiation sessions between Blue Cross and participating hospitals. Instead, the commissioner provided that he would review all proposed reformed contracts before they were entered into to insure compliance with existing statutes, regulations and previous orders issued by him.

On April 29, 1983, Blue Cross initiated an appeal in this Court from both the August 30, 1982, and March 31, 1983, orders. V.R.A.P. 13; 3 V.S.A. § 809. Notwithstanding its appeal, in June, 1983, Blue Cross submitted a proposed hospital contract to the commissioner for his review, as provided for in the commissioner's March 31, 1983, modified supplemental order (3). On July 25, 1983, the commissioner issued a "response" to the proposed contract. On August 3, 1983, Blue Cross initiated another appeal in this Court from the commissioner's July 25 order. V.R.A.P. 13; 3 V.S.A. § 809. On November 17, 1983, this Court granted the commissioner's motion to consolidate both appeals. V.R.A.P. 3(c).

Blue Cross's first argument on appeal is that the findings of fact issued by the commissioner in connection with both his August, 1982, and March, 1983, orders are not supported by competent and substantial evidence, as required by 8 V.S.A. § 4513(b). We are reminded by appellee Friends of Health Care, Inc., however, that on November 9, 1983, this Court granted the commissioner's motion to dismiss Blue Cross's appeal of the August 30, 1982, order for being out of time. V.R.A.P. 4. Accordingly, we are without jurisdiction to consider either the sufficiency of the evidence supporting the August 30 findings of fact, or the findings themselves. R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 142-43, 453 A.2d 83, 85 (1982); State v. Savo, 136 Vt. 330, 330-31, 388 A.2d 391, 392 (1978).

Given the unappealability of the August 30, 1982, order, Blue Cross's brief refers us to only two "findings" from the March 31, 1983, order that, it is contended, are not supported by the evidence. A review of the commissioner's March 31 findings and conclusions, however, leads us to believe that Blue Cross in fact takes issue with only one finding. The other contested "finding" is more accurately a conclusion based upon the finding faulted by Blue Cross. This confusion as to what are findings and what are conclusions could be avoided in the future if the commissioner would clearly delineate his findings and conclusions with separate numbers and paragraphs. See 3 V.S.A. § 812(a) (final decision "shall include findings of fact and conclusions of law, separately stated ") (emphasis added).

In his March 31, 1983, order, the commissioner found that Blue Cross's inability to comply with supplemental order (2) within the 120 day time period stemmed from the fact that Blue Cross had assigned only one staff member to the budget review procedure, which was the first step in the renegotiation process. Based on this finding, the commissioner concluded that Blue Cross's "failure to achieve contract reform within 120 days as required by the order was the result of ... its own lack of due diligence." Blue Cross argues that this finding flies in the face of testimony, elicited during the February, 1983, hearings, that the one employee assigned to the budget review process "was supported by considerable staff" and resources from various other departments within the Blue Cross organization.

Whether the commissioner's finding is right or wrong, we fail to see how Blue Cross is harmed by it. Although the commissioner concluded, based on this finding, that timely failure to reform its contracts was due to its own lack of diligence, he nevertheless modified his original order and extended the time for compliance. The finding, if error, was harmless. Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, 107, 413 A.2d 1204, 1206 (1980); Hogel v. Hogel, 136 Vt. 195, 197-98, 388 A.2d 369, 370 (1978); East Montpelier Development Corp. v. Barre Trust Co., 127 Vt. 491, 494, 253 A.2d 131, 134 (1969).

Blue Cross next argues that the commissioner's supplemental orders of March 31, 1983, represent an unlawful intrusion into its internal management decision-making prerogatives. See, e.g., In re New England Tel. & Tel. Co., 115 Vt. 494, 510, 66 A.2d 135, 145 (1949) (regulation should not obtrude into management). The March 31, 1983, orders required the renegotiation of Blue Cross participating hospital contracts to the end that enumerated hospital cost containment incentives were specifically addressed. Additionally, the order required the commissioner's prior approval of the reformed contract language.

We have previously stated the rule that, absent compelling indication of error, interpretations of statutory provisions by the administrative body responsible for their execution will be sustained on appeal. In re Desautels Real Estate, Inc., 142 Vt. 326, 336, 457 A.2d 1361, 1366 (1982).

The enabling legislation for nonprofit hospital services corporations, such as Blue Cross, is contained in chapter 123 of Title 8, Vermont Statutes Annotated. Section 4512(a) provides that a nonprofit hospital service corporation "shall be maintained and operated solely for the benefit of the subscribers thereof ...." Under § 4513(a), a hospital service corporation may not enter into any subscriber contract without first obtaining a permit from the commissioner. The commissioner may deny a permit "if he finds that the rates [to be charged to the subscriber] are excessive, inadequate or unfairly discriminatory."

In connection with a rate decision, the commissioner may also make reasonable supplemental orders to the corporation and may attach reasonable conditions and limitations to such orders as he finds, on the basis of competent and substantial evidence, necessary to insure that benefits and services are provided at minimum cost under efficient and economical management of the corporation. The commissioner...