Friday, December 9, 2022

Divided Court rules a moot appeal of health insurance rates can not be decided as a case “capable of repetition yet evading review.”

 


In re Blue Cross and Blue Shield 2022 Individual & Small Group Market Filing, 2022 VT 53 (filed 11/4/2022)




CARROLL, J. 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. The case is moot because health-insurance rates for 2022 cannot now be changed. Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case. We affirm.

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.

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); 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”).

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 In Vermont Yankee, we held that ten months was sufficient time to complete appellate review. 2008 VT 89, ¶ 11. 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. 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.

In this case, the Department of Vermont Health Access (DVHA) apparently required Blue Cross to provide its final approved rates eleven days after GMCB’s August 5 approval so that it could review and certify the health insurance plans, incorporate final plan information into brochures and comparison tools, and then update, populate, and test the online exchange system in time for customers to browse plans by October 15. However, it is not clear from the record which of these events may constitute a firm deadline, if any, for completion of appellate review. Blue Cross never alerted the Court to the matter’s expedient nature. if it had immediately appealed the GMCB’s August 5 decision and requested an expedited timeline under Rule 2, the Court most likely would have had sufficient time to decide the appeal. The ten weeks which elapsed between August 5 and October 18 was enough to complete appellate review.

To prevail the second prong, Blue Cross must “show that there is a reasonable expectation” that it “will be subjected to the same action again.” The circumstances surrounding the pandemic were, as Blue Cross concedes, “extraordinary,” resulting in a “year like no other.” Accordingly, Blue Cross simply cannot demonstrate that it is more than a “theoretical possibility” it “will become embroiled again in this same situation.” Even if this case did not evade review it is also not capable of repetition.

Because Blue Cross cannot demonstrate that this kind of case is capable of repetition yet evading review or subjects it to continuing negative collateral consequences, Blue Cross fails to meet the exceptional thresholds necessary for us to reach the merits in a moot case.

COHEN, J., dissenting. I agree that this matter is technically moot because Blue Cross’s 2022 rates can no longer be changed, but I disagree with the majority’s conclusion that this case does not meet the mootness exception for matters capable of repetition but evading review.

Assuming for the sake of argument that Blue Cross should have foregone reconsideration, the review period began on August 5, 2021, when the GMCB issued its initial decision. This appeal became effectively moot on August 16—when the DVHA required insurers to provide their final rates—or very shortly thereafter.  Insofar as the majority is suggesting that appeals from the GMCB could be briefed, argued, and decided in a couple of weeks or less, and that this timetable should be the new bar for satisfying the evading-review prong, I disagree.

Because the timeline for health-insurance-rate regulation and administration remains essentially the same year to year, this case inherently evades review The fact that Blue Cross did not take steps to expedite its appeal should not be relevant because there would have been insufficient time for review even if the appeal were expedited as much as possible. The first prong of the mootness exception is met.

There is also “a reasonable expectation that [Blue Cross] will be subjected to the same action again,” and thus the second element of the mootness exception is met here. Blue Cross has presented a discrete legal question regarding a criterion that the GMCB is legally obligated to consider in every annual-rate review: whether the GMCB misinterpreted the term “excessive.” Nowhere does the GMCB claim that its interpretation of the term “excessive” depended on the pandemic’s extraordinary factual circumstances. In other words, the GMCB does not contend that the way it applied “excessive” was a one-time anomaly justified by the pandemic. Instead, the GMCB argues that , properly interpreted, its governing rules and statutes require it to consider nonactuarial evidence in determining whether a proposed rate is excessive. This legal position would be relevant in any rate year. Though the specific facts will change year to  year, our case law compels us to reach the merits of this appeal. Blue Cross has presented a novel legal issue that is nearly certain to affect future rate proceedings.

Because in my view the majority opinion effectively forecloses appellate review of a recurring issue, I respectfully dissent. I am authorized to state that Chief Justice Reiber joins this dissent.

 

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