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So, we've got four opinions from Friday. It's a hodgepodge—a fun word to use in any context—including federal meal reimbursements, jury determinations, the abuse registry, and hospital rates. Let's get to it.
First up: the meal-reimbursement program. Provider operated two childcare centers serving about a hundred kids, with meals reimbursed under the federal Child and Adult Care Food Program (CACFP).
The Vermont Agency of Education (AOE) reviewed Provider in 2019 and found some compliance issues, which were corrected. In 2022, AOE reviewed again and found bigger problems: missing paperwork, improper meal claims, and monitoring failures. A corrective‑action plan followed, and in spring 2023 AOE said the deficiencies were corrected—but warned that any recurrence would mean termination. Do not pass GO. Do not collect . . . I don't know . . . any more reimbursements.
Anywho . . . later in 2023, AOE showed up unannounced. And, well, more of the same: missing enrollment forms, wrong eligibility approvals, flawed meal counts, and missing monitoring records. AOE moved to terminate provider’s CACFP agreement and to disqualify the center and staff from future participation.
Provider appealed. At the hearing, provider used up most of the time examining AOE's witness. The hearing officer allowed both sides to make written submissions afterward. Provider did not object at the time, but later claimed that this violated due process. The hearing officer affirmed termination and disqualification.
And that brings us to Montpelier. Or were we already in Montpelier? SCOV. That brings us to SCOV.
On appeal, provider argues that the violations were trivial and the post‑hearing filings were improper. (and violated AOE rules)
A majority affirms. The majority notes that "serious deficiencies" are defined by federal regulations and do not depend on whether mistakes were common or unintentional. Once serious deficiencies persist after corrective action, AOE must terminate; it has no discretion to overlook them.
As for the post‑hearing filings, the majority is not swayed. It reasons provider failed to preserve the issue by not objecting when the procedure was set. Even if preserved, acceptance of post‑hearing submissions was within the hearing officer’s discretion, and provider was not prejudiced.
Justice Cohen, joined by Chief Justice Reiber, dissents. The dissent—as dissents are wont to do—sees it differently: AOE's own bar on post‑hearing submissions was meant to safeguard due process, so it couldn't—and shouldn't—be waived. The dissent would remand for a new, clean hearing. In re Butterfly Kisses Child Care Center, Inc., 2025 VT 46.
Next up, we have a dispute over the standard of care and whether it was proved.
Plaintiff, representing the estate, sued hospital for negligence and wrongful death after decedent, an elderly man with Parkinson's, died days after two doses of Zyprexa (chemical restraint) and a hospital transfer for respiratory distress.
The case is tried in front of a jury. The jury hears that decedent was admitted for confusion and weakness, gets Zyprexa for agitation (with daughter's okay), calms, then gets another dose in the early morning. Not long after, he crashes, is intubated, transferred, and dies of complications.
Experts disagree (shocker) on what the "standard of care" is—plaintiff's side says assessment is needed before every dose, no scheduled Zyprexa, and hospital policy affirms this. Defense says policy and standard differ, or at least aren't so clear. Plaintiff says order was "scheduled"; defense insists it was "as needed." Both sides dig in over whether decedent was asleep before the second dose and what that means for care.
The jurors are given a special verdict form, and they stop at the first question: Did plaintiff prove the standard of care? Jurors say "no." So they don’t get to breach, causation, or damages.
Plaintiff asks for a new trial, arguing the jury went against the weight of evidence. Trial court says, no—there was ample conflicting testimony, and it's the jury's job to settle that.
SCOV affirms, concluding there's no abuse of discretion. SCOV explains that the jury heard different takes on the standard, witness credibility, what "every 4 hours" meant, and whether hospital policy equals medical standard. It was their call, and SCOV concludes plaintiff doesn't clear the legal bar for a new trial.
Medical negligence cases are tough and this one further illustrates that concept. Watrous v. Porter Medical Center, Inc., 2025 VT 47
Next, we turn to the DCF registry. I'm conflicted whether I need to clarify that DCF means "Department for Children and Families." I probably don't. This may be the last time I do it. Anyway, DCF substantiated petitioner for risk of sexual harm to a child, based mostly on his prior history and the circumstances of his contact with L.M.
Petitioner was substantiated in 2006 for sexually abusing a minor, later convicted for a sex offense involving an adult, and all that means he's subject to probation and sex-offender treatment conditions. Petitioner and his husband watched L.M., an eight-year-old, a couple days a week and during sleepovers. Petitioner was never formally left alone with L.M., but L.M. spent nights at the apartment with Petitioner and others present (but sleeping).
DCF substantiated and the Human Services Board (HSB) affirmed. Petitioner had regular access to L.M., lied about details to the investigator, and failed to inform his probation officer. Board says you don’t need to be physically alone with a child to put them at risk. "Unsupervised" in this context doesn't mean adult eyes open at all times.
Petitioner appeals. He argues: (1) no proof he was ever unsupervised with L.M.; (2) DCF's reading of "unsupervised" is too broad; (3) similar cases were decided the other way; (4) His old substantiation shouldn't count without new proof; and (5) DCF should have done a more-individualized assessment.
SCOV disagrees on all grounds. The HSB's broader view of "unsupervised" is reasonable and supported by statute. The HSB made credibility determinations and weighed the evidence. DCF only needs to show petitioner was previously substantiated—not retry the old case. DCF weighed all the required risk factors. SCOV reasons that not every close case is inconsistent or arbitrary. In re Appeal of S.C.-M., 2025 VT 48.
Finally, we wander over to Rutvegas (do you know why Rutland is called Rutvegas?) and take a closer look at net patient revenue, whatever that means. Hospital (Rutland Regional Medical Center) requested a 6.1% net patient revenue (NPR) hike for FY25, arguing higher volumes and a need to reduce wait times. The Green Mountain Care Board (GMCB) settled at 5.0%—above the state benchmark, but below what Hospital wanted. For commercial rates, the GMCB approved 2.8% over last year. In a footnote, though, the GMCB said in Footnote 27: actually, thanks to past budget noncompliance, the real cap is 1.2%, pending a separate enforcement order.
Hospital appeals, calling the lower NPR arbitrary and complaining that the 1.2% cap violated the Administrative Procedure Act (they'd just won on that point in superior court).
SCOV mostly affirms. On the substance, no abuse of discretion: the GMCB weighed the right factors, explained itself, and reached a balance between access to care and cost controls. It’s not SCOV's job to do the math or reweigh the calculus; as long as the GMCB acted reasonably reasonable, its call stands.
On the process, though—hospital takes a win. That 1.2% rate reduction (in footnote 27) was based on a separate enforcement process the GMCB handled wrong under the law, and the civil division already said so. So footnote 27 is out; the higher commercial rate stands. So, a small victory for the hospital but not as sweeping as I'm sure it would have liked?
Will footnote 27 ever rise to the level of the well-known footnote four of Carolene Products? Probably not even close but why would I miss an opportunity to link to this fascinating exploration of Carolene's footnote three and filled milk? I wouldn't. There you go. In re Rutland Regional Medical Center, 2025 VT 49.
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