Senate Bill No. 335

(By Senators Ross, Helmick, Love, Anderson,

Schoonover and Sharpe)

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[Introduced February 8, 1996;

referred to the Committee on Health and Human Resources;

and then to the Committee on Finance.]

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A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b, relating to collaborative health care networks; cooperative agreements among health care providers and third-party payers or either thereof; applications for certificates of public advantage from the department of health and human resources; payment of assessments by parties to cooperative agreements; a special, nonexpiring fund for such assessments available for evaluation and active supervision of cooperative agreements; required determination that benefits to health care consumers outweighs potential reduction of competition; standards for issuing certificates of public advantage; conditions for active supervision, modification or revocation of certificates of public advantage; exclusion from state antitrust enforcement; and intended federal antitrust immunity.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-b, to read as follows:
ARTICLE 1B. COORDINATED HEALTH CARE DELIVERY ACT.

§16-1B-1. Statement of legislative intent.

It is the policy of this state to promote:
(a) The quality of health care provided to the citizens of West Virginia;
(b) Access to appropriate health care for all citizens of this state;
(c) Containment of health care costs;
(d) Promotion of comprehensive and coordinated health care delivery in this state;
(e) That health care providers, payers, purchasers and consumers, or any thereof, may desire to work voluntarily together to form integrated health care networks to plan, organize, provide and arrange for their health care services;
(f) That federal antitrust laws may pose barriers to competing rural providers, payers, purchasers and consumers, or any thereof, from developing cooperative agreements unless this state becomes actively involved in the supervision of voluntary networks;
§16-1B-2. Definition.
For purposes of this article, the following terms shall have the meanings set forth in this section:
(a) "Active supervision" means actual state direction, supervision or control that results in the exercise of power by the department to review anticompetitive conduct that results from, or is authorized by, a cooperative agreement for which a certificate of public advantage has been issued pursuant to this article. The term includes the authority granted the department by this article to terminate or cancel a certificate of public advantage or to investigate or enjoin a cooperative agreement and other conditions to the certificate provided under section six of this article.
(b) "Cooperative agreement" means:
(1) An agreement among two or more health care providers or third-party payers for the sharing, allocation or referral of patients, personnel, patient information, instructional programs, equipment, support services or facilities, or medical, diagnostic, or laboratory facilities or procedures or other services traditionally offered or purchased by health care facilities or other health care providers; or
(2) An agreement among two or more health care providers for acquisition of control, consolidation, merger or sale of assets of those health care providers.
(c) "Department" means the department of health and human resources of this state.
(d) "Health care provider" means any person who or entity which delivers, administers or supervises health care products or services, for profit or otherwise, in the ordinary course of business or professional practice.
(e) "Secretary" means the secretary of the department.
(f) "Third-party payer" means any insurer or other entity responsible for providing payment for health care services, including state and federal programs and self-insured entities.
§16-1B-3. Discussions or negotiations; certificate of public
advantage.

A health care provider may discuss preliminary matters toward or may negotiate a cooperative agreement with another health care provider or third-party payer if the likely benefits to health care consumers which may result from the agreement outweigh the disadvantages attributable to a potential reduction in competition that may result from the agreement. The parties to a cooperative agreement may apply to the department for a certificate of public advantage governing the agreement. Although a health care provider or third-party payer is not required to apply for a certificate of public advantage, a party that does not apply for a certificate does not receive the exclusion from state antitrust enforcement and intended federal antitrust immunity provided by section eight of this article. The application must include an executed copy of the cooperative agreement and must describe the nature and scope of the cooperation in the agreement and any consideration passing to any party under the agreement. The applicants shall file a copy of the application and related materials with the department. The department shall review the application and may hold a public hearing within ninety days of the date of filing the application. The decision must be in writing and must set forth the basis for the decision. The department shall furnish a copy of the decision to the applicants and any intervenor.
§16-1B-4. Assessment; health care cooperative agreement fund.
The department shall establish an assessment to be paid by each party to a cooperative agreement. The aggregate amount of the assessment for a cooperative agreement may not exceed forty thousand dollars, unless the department determines that an extraordinary need exists for an additional amount to ensure effective evaluation of the application or supervision under this article. After consultation with the parties, the department may require the payment of the assessment on an incremental basis and may require separate payments for the process of evaluating the application or for the process of active supervision. The assessment may be modified by agreement between the department and the parties to the cooperative agreement. The department shall deposit the moneys received under this section in the health care cooperative agreement fund, which is hereby created as a special fund in the state treasury. The funds in the health care cooperative agreement fund are available to the department, subject to legislative appropriation and upon requisition of the secretary, for evaluation and active supervision of cooperative agreements among health care providers or third-party payers. Any balance in the fund at the end of any fiscal year shall remain in the fund and shall not expire or revert.
§16-1B-5. Certificate of public advantage; standards.
(a) The department shall issue a certificate of public advantage for a cooperative agreement if the department determines that the applicants have demonstrated by clear and convincing evidence that the likely benefits to health care consumers which may result from the agreement outweigh the disadvantages attributable to a potential reduction in competition that may result from the agreement.
(b) In evaluating the likely benefits of a cooperative agreement to health care consumers, the department shall consider whether any of the following benefits may result from the cooperative agreement:
(1) Enhancement of the quality of health care services provided to residents of this state;
(2) Preservation of health care facilities or services in geographical proximity to the communities traditionally served by those facilities or services;
(3) Gains in the cost efficiency or clinical effectiveness of services provided by the parties involved;
(4) Improvements in the utilization of health care resources and equipment;
(5) Avoidance of duplication of health care resources; and
(6) Enhancement of the ability to cooperatively provide services to underserved, uninsured or low-income patients.
(c) The department's evaluation of the disadvantages attributable to a potential reduction in competition which may result from the agreement may include the following factors:
(1) The extent of any likely adverse impact on the bargaining power of health maintenance organizations, preferred provider organizations, managed health care service agents or other health care payers in negotiating payment and service arrangements with hospitals, physicians, allied health care professionals or other health care providers;
(2) The extent of any reduction in competition among physicians, allied health professionals, other health care providers or persons furnishing goods or services to or in competition with providers or third-party payers that is likely to result directly or indirectly from the cooperative agreement;
(3) The extent of any likely adverse impact on patients in the quality, availability and price of health care services; and
(4) The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of likely benefits to health care consumers over disadvantages attributable to a potential reduction in competition which may result from the agreement.
§16-1B-6. Conditions for active supervision.
The decision granting an application for a certificate of public advantage must include conditions for active supervision. The active supervision must be sufficient for the department to determine periodically whether circumstances may be present to meet the criteria for certificate termination pursuant to section seven of this article and shall otherwise be structured to provide a reasonable basis for state action immunity from federal antitrust laws as interpreted by applicable laws, judicial decisions, opinions of the attorney general, and statements of antitrust enforcement policy issued by the United States department of justice and the federal trade commission. The conditions for active supervision, except the authority granted the department or attorney general by this chapter, may be modified or terminated by agreement between the parties to the cooperative agreement and the department.
§16-1B-7. Modification or revocation of certificate of public advantage; standards; procedures.
(a) The department may revoke a certificate of public advantage only if:
(1) The arrangement is not in substantial compliance with the terms of the application for the certificate of public advantage;
(2) The arrangement is not in substantial compliance with the conditions of the certificate of public advantage;
(3) The arrangement has not and is not likely to substantially achieve the improvements in cost, access or quality identified in the department's order issuing the certificate of public advantage as the basis for issuing the certificate; or
(4) The conditions in the marketplace have changed to such an extent that competition would promote reductions in cost and improvements in access and quality better than does the arrangement at issue. In order to revoke on the basis that conditions in the marketplace have changed, the department's order must identify specific changes in the marketplace and articulate why those changes warrant revocation.
(b) The department shall begin a proceeding to revoke a certificate of public advantage by providing written notice to the holders of the certificate describing in detail the basis for the proposed revocation. Notice of the proceeding must be published in the state register established by article two-k, chapter twenty-nine-a of this code. The notice must invite the submission of comments to the department.
(c) A proceeding to revoke a certificate of public advantage must be conducted as a contested case proceeding upon the written request of the holders or a holder of the certificate. Decisions of the department in a proceeding to revoke a certificate are subject to judicial review under the provisions of article five, chapter twenty-nine-a of this code.
(d) In deciding whether to revoke a certificate of public advantage, the department shall take into account the hardship that the revocation may impose on the holders or on any holder and any potential disruption of the market as a whole. The department shall not revoke a certificate if the arrangement can be modified, restructured or regulated so as to remedy the problem as an alternative to revocation. Before approving an alternative to revocation that involves modifying or restructuring an arrangement, the department shall publish notice in the state register that any person may comment on the proposed modification or restructuring within twenty days after publication of the notice. The department shall not approve the modification or restructured arrangement until the comment period has concluded. An approved, modified or restructured arrangement is subject to appropriate supervision under section six of this article.
(e) Holders or a holder that has had its certificate of public advantage revoked is not required to terminate the arrangement. The holders or holder cannot be held liable under state or federal antitrust law for acts that occurred while the approval was in effect, except to the extent that the holders or holder failed to substantially comply with the arrangement as set forth in its application for the certificate of public advantage or with the terms of its certificate. The holders or holder is fully subject to state and federal law after the revocation becomes effective and may be held liable for acts that occur after the revocation.
§16-1B-8. Exclusion from state antitrust enforcement; federal antitrust immunity intended.
A health care provider or third-party payer which participates in the discussion or negotiation of a cooperative agreement for which an application is filed is engaged in conduct for which no action may be brought pursuant to article eighteen, chapter forty-eight of this code for penalties, damages, injunctive enforcement, or other remedies. A health care provider or third-party payer which participates in the implementation of a cooperative agreement, for which a certificate of public advantage was issued, is engaged in conduct for which no action may be brought pursuant to penalties, damages, injunctive enforcement, or other remedies. The intent of this section is that the conduct be provided state action immunity from federal antitrust laws. This exclusion from state antitrust enforcement and intended federal antitrust immunity applies unless the discussion or negotiation exceeds the scope of a cooperative agreement as authorized by this chapter or the implementation exceeds the scope of the cooperative agreement for which a certificate of public advantage was issued. This section does not exempt hospitals or other health care providers from compliance with laws governing hospital cost reimbursement. Notwithstanding any provisions of this code to the contrary, any improvements, construction, expansion or acquisition of health care equipment or services approved as a condition of a cooperative agreement are not subject to laws governing certificate of need.





NOTE: The purpose of this bill is to establish a program under which certificates of public advantage are issued by the department of health and human resources to health care providers and third-party payers, or any thereof, who negotiate and enter into cooperative agreements with likely benefits outweighing the disadvantages attributable to a potential reduction in competition; to establish standards for such certificates; to require conditions of active supervision for each certificate; to provide funding for the evaluation and supervision of cooperative agreements through an assessment to be deposited in a special, nonexpiring fund; to provide for modification or revocation of certificates of public advantage; to exclude participation in cooperative agreements for which an application is filed or issued from state antitrust enforcement; and to specify the Legislature's intent to create state-action immunity from federal antitrust laws.

This article is new; therefore, strike-throughs and underscoring have been omitted.