Article 1 in general 351101. Local contributions; disposition


24101.  State health care policy; legislative findings and declarations



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3524101.  State health care policy; legislative findings and declarations.
(a)  It is the policy of the state to promote:
(i)  The quality of health care provided to the citizens of Wyoming;
(ii)  Access to appropriate health care for all citizens of the state, including citizens in historically underserved populations and underserved geographic areas;
(iii)  Containment of health care costs; and
(iv)  A comprehensive health care system in the state.
(b)  The legislature finds that the policies specified under subsection (a) of this section will be significantly enhanced by cooperative arrangements including joint ventures and similar enterprises, and contracts among health care providers and purchasers, and certain collaborative agreements between third party payors and health care providers, that might otherwise be prohibited by federal and state antitrust laws if undertaken without governmental involvement. The legislature declares that the formation and operation of cooperative arrangements be the subject of government regulation by the state and that state regulation be substituted for the marketplace and market competition. The legislature intends by provisions of this chapter, that approval of cooperative arrangements among health care providers, purchasers and third party payors be accompanied by appropriate conditions and ongoing supervision and regulation of the operations of the cooperative arrangements, in order to protect against any abuses and to effectively except the actions of approved and regulated cooperative arrangements from state and federal antitrust liability.
3524102.  Definitions.
(a)  As used in this chapter:
(i)  "Access" means the financial, temporal or geographic availability of health care to consumers;
(ii)  "Aggrieved party" means any provider, purchaser or thirdparty payor including but not limited to any hospital, physician, allied health professional, health care provider or other person furnishing goods or services to or in competition with hospitals, insurers, hospital service corporations, medical service corporations, preferred provider organizations, health maintenance organizations or any employer or association that directly or indirectly provides health care benefits to its employees or members;
(iii)  "Applicant" means a party to an agreement or business arrangement for which approval is sought under this chapter;
(iv)  "Cost" means the amount paid by consumers or third party payors for health care services or products and the amount of premiums charged to consumers and employers for health insurance;
(v)  "Criteria" means the costs, access and quality of health care and the maintenance of a comprehensive health care system in the state;
(vi)  "Department" means the department of health;
(vii)  "Director" means the director of the department;
(viii)  "Exception" means a document issued by the director to parties who enter into a cooperative arrangement verifying that the director declares the purposes and objectives of the cooperative arrangement meet the standards prescribed under this chapter and reflecting that the arrangement is excepted and immune from federal and state antitrust liability;
(ix)  "Health care products" means medical equipment whether fixed or movable, used by a provider in the delivery of a health care service;
(x)  "Health care service" means any service provided by a health care provider licensed by the state which is generally reimbursed by medical assistance or third party coverage, but does not include retail, overthecounter sales of nonprescription drugs and other retail sales of healthrelated products not generally reimbursed by medical assistance and other third party coverage;
(xi)  "Provider" means any person or health care facility licensed, registered, certified, permitted or otherwise officially recognized by this state to provide health care in the ordinary course of business or practice of a profession or if a freestanding outpatient facility, a facility fee is charged for health services provided, or any combination of providers described in this paragraph which engages in payment or reimbursement functions in connection with a coordinated program for the delivery and financing of health care, including health maintenance organizations which are wholly or partially owned and operated by providers;
(xii)  "Purchaser" means a person or organization that purchases health care services on behalf of an identified group of persons, regardless of whether the cost of coverage or services is paid for by the purchaser or by the persons receiving coverage or services;
(xiii)  "Third party payor" means any insurer or other entity responsible for providing payment for health care services, including the worker's compensation division of the department of workforce services and any selfinsured entity;
(xiv)  "Trade secrets" means proprietary data including a formula, pattern, compilation, program, device, method, technique or process that:
(A)  Is supplied by the affected individual or organization to the state;
(B)  Is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain secrecy; and
(C)  Derives independent economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.
3524103.  Application for exception; exception absolute defense; liability limited; outofstate applicants; consultation with attorney general; rulemaking authority granted.
(a)  Providers, purchasers or any combination thereof, or third party payors if in collaboration with a provider, wishing to engage in contracts, business or financial arrangements or other activities, practices or arrangements that might be construed to be violations of state or federal antitrust laws but which are in the best interests of the state and further the policies and goals of this chapter, may apply to the director for an exception.
(b)  Except as provided under W.S. 3524115(e), approval of an application by the department is an absolute defense against any action under state and federal antitrust laws.
(c)  The application and any information obtained by the department under W.S. 3524104 through 3524110 that is not otherwise available are not admissible in any civil or criminal proceeding brought by the director or any other person based on an antitrust claim, except:
(i)  A proceeding brought under W.S. 3524115(e) based on an applicant's failure to substantially comply with the terms of the application; or
(ii)  A proceeding based on actions taken by the applicant prior to submitting the application, where the actions are acknowledged by the applicant in the application.
(d)  Providers, purchasers and third party payors not physically located in this state who are registered to do business in this state are eligible to apply for an exception for arrangements in which they transact business in this state.
(e)  The department shall consult with the attorney general in carrying out duties and responsibilities under this chapter.
(f)  The department shall promulgate rules and regulations necessary to carry out this chapter.
3524104.  Application for exception; contents; notice; joint application; filing fee; confidentiality of trade secret information; extension of time limitations.
(a)  An application for approval of an antitrust exception shall include to the extent applicable:
(i)  A descriptive title;
(ii)  A table of contents;
(iii)  Exact name of each party to the application and the address of the principal business office of each party;
(iv)  The name, address and telephone number of the persons authorized to receive notices and communications with respect to the application;
(v)  A verified statement by a responsible officer of each party to the application attesting to the accuracy and completeness of the enclosed information;
(vi)  Background information relating to the proposed arrangement, including:
(A)  A description of the proposed arrangement, including a list of any services or products that are the subject of the proposed arrangement;
(B)  An identification of any tangential services or products associated with the services or products that are the subject of the proposed arrangement;
(C)  A description of the geographic territory involved in the proposed arrangement;
(D)  If the geographic territory described under subparagraph (a)(vi)(C) of this section is different from the territory in which the applicants have engaged in the type of business at issue over the last five (5) years, a description of how and why the geographic territory differs;
(E)  Identification of all products or services that a substantial share of consumers would consider substitutes for any service or product that is the subject of the proposed arrangement;
(F)  Identification of any services or products of the proposed arrangement which are currently being offered, capable of being offered, utilized or capable of being utilized by other providers or purchasers in the geographic territory described under subparagraph (a)(vi)(C) of this section;
(G)  Identification of necessary action for other parties to enter the territory described under subparagraph (a)(vi)(C) of this section and compete with the applicant under current market and regulatory conditions;
(H)  A description of previous dealings between the parties to the application;
(J)  A detailed explanation of the projected effects including expected volume, change in price and increased revenue of the arrangement on the current business of each party;
(K)  The present market share of the parties to the application and of others affected by the proposed arrangement and projected market shares after implementation of the proposed arrangement;
(M)  An explanation of why the projected levels of costs, access or quality could not be achieved in the existing market without the proposed arrangement.
(vii)  A detailed explanation of the effect of the transaction on quality, access, containment of health care costs and the promotion of a comprehensive health care system in the state, which shall to the extent applicable, address the factors specified under W.S. 3524111(c) through (g).
(b)  In addition to the information required under subsection (a) of this section, the application shall contain a written description of the proposed arrangement for purposes of publication. The applicant shall also provide notice to the public and all interested persons making timely request for advanced notice of applications under this section. The notice shall be approved by the director, shall include sufficient information to advise the public of the nature of the proposed arrangement and enable the public to provide comments concerning the expected results of the arrangements and shall advise that any person may provide written comments to the director, with a copy to the applicant, within thirty (30) days of the date of publication. If the director determines that the submitted notice does not provide sufficient information, the director may after consultation with the applicant and the applicant agrees with the amendment, amend the notice before publication or disapprove the application.
(c)  For a proposed arrangement involving multiple parties, one (1) joint application shall be submitted on behalf of all parties to the arrangement.
(d)  An application shall be accompanied by a filing fee to be determined by the department based upon the estimated cost of investigating, analyzing, reviewing and processing the application, including any contested case proceeding or appeal, in accordance with this chapter. The fee structure shall include a sliding scale based upon revenue generated by the parties applying for the exception during the preceding year. The annual renewal fee shall not exceed two thousand five hundred dollars ($2,500.00). Any unused portion of the fee shall be refunded to the applicant. All fees collected by the department under this subsection and W.S. 3524112(d) shall be deposited into a separate account and will be available to reimburse department start-up costs prior to submittal of the application. Expenditures from the account shall be for expenses incurred by the department in administering this chapter.
(e)  Trade secret information including information provided as part of the application process and ongoing supervision, shall be protected from disclosure in accordance with W.S. 164203(d)(v). An applicant shall designate the information provided in the application which it considers to be protected from disclosure in accordance with W.S. 164203(d). The director shall deny public access to any information so designated, subject to the right of a person denied inspection to appeal to the district court in accordance with the provisions of W.S. 164203(f). Any information not so designated shall be available for public inspection in accordance with the provisions of W.S. 164201 through 164205.
(f)  Upon a showing of good cause, the director may extend any of the time limits prescribed under W.S. 3524106 through 3524110 at the request of the applicant or another person.
3524105.  Grounds for refusal of application review.
(a)  If the director determines that an application is unclear, incomplete or provides an insufficient basis on which to base a decision, the director shall return the application and provide a written description of the deficiencies in the application to the applicant. The applicant may complete or revise and resubmit the application.
(b)  The director may decline to review any application relating to arrangements already in effect before the submission of the application.
3524106.  Notice of application; public comments; objections.
(a)  The director shall publish notice of application proposals required under W.S. 3524104(b) and provide notice to any person who has requested to be placed on a list to receive notice of applications. The director may also notify and request comments from persons as authorized under W.S. 3524104(b). Copies of any request received shall be provided to the applicant in sufficient time to enable a response as authorized under subsection (b) of this section.
(b)  Within twenty (20) days after notice is published, any person may mail to the director written comments with respect to the application. Comments may address what type of review procedure should be followed or specifically request that the director conduct a contested case hearing regarding the proposed arrangement. Persons submitting comments shall provide a copy of the comments to the applicant. The applicant may mail to the director written responses to any comments within ten (10) days after the deadline for mailing comments. The applicant shall also send a copy of the response to the person submitting the comment.
(c)  Any aggrieved party has the right to file written objections to the application with the director within thirty (30) days after the date of publication. A person objecting shall submit a copy of the objections to the applicant.
3524107.  Determination of review procedure; criteria; right to hearing afforded.
(a)  After the conclusion of the notice and comment period prescribed under W.S. 3524106, the director shall subject to subsection (b) of this section, select one (1) of the three (3) review procedures specified under W.S. 3524108 through 3524110. In determining which procedure to use, the director shall consider the following criteria:
(i)  The size of the proposed arrangement in terms of number of parties and amount of money involved;
(ii)  The complexity of the proposed arrangement;
(iii)  The novelty of the proposed arrangement;
(iv)  The substance and quantity of the comments received;
(v)  The presence or absence of any significant gaps in the factual record.
(b)  Upon request by the applicant, timely filing of an objection or a determination by the director, a contested case hearing shall be held no later than thirty (30) days after the conclusion of the notice, objection and comment period under W.S. 3524106. The director may extend the thirty (30) day period for good cause. The director shall hold a public hearing as specified under W.S. 3524110.
3524108.  Decision based upon written record.
(a)  If a contested case hearing is not required pursuant to W.S. 3524107(b) and instead of a limited hearing under W.S. 3524109, the director may issue a decision based on the application, the comments and the applicant's responses to the comments, to the extent each is relevant. In making the decision, the director may rely upon publicly available department of health data.
(b)  A decision rendered under this section shall be in writing and specify the items in the written record relied upon in reaching conclusions. The applicant shall be notified of notice taken of judicially cognizable facts as provided by W.S. 163108(d).
3524109.  Limited hearing on application; issues identified prior to hearing; procedure; evidence; decision.
(a)  If a contested case hearing is not required pursuant to W.S. 3524107(b) and in lieu of W.S. 3524108, the director may prior to rendering a decision on any application, order a limited hearing. A copy of the order shall be mailed to the applicant and to all persons who have submitted comments or requested to be kept informed of the proceedings involving the application. The order shall state the date, time and location of the limited hearing and shall identify specific issues to be addressed at the limited hearing, which may include the feasibility and desirability of one (1) or more alternatives to the proposed arrangement. The order shall require the applicant to submit written evidence in the form of affidavits and supporting documents, addressing the issues identified within twenty (20) days after the date of the order. The order shall also state that any person may arrange to receive a copy of the written evidence from the director, at the person's expense, and may provide written comments on the evidence within forty (40) days after the date of the order. Any person providing written comments pursuant to this subsection shall provide a copy of the comments to the applicant.
(b)  The limited hearing shall be held before the director or a department staff member designated by the director. The director or his designee shall question the applicant concerning the evidence submitted by the applicant. The questions may address relevant issues identified in the comments submitted in response to the written evidence or identified by the department of health staff or discovered through publicly available department of health data. At the conclusion of the applicant's responses to the questions, any person who submitted comments about the applicant's written evidence may make a statement addressing the applicant's responses to the questions. The director or his designee may ask questions of any person making a statement. At the conclusion of all statements, the applicant may make a closing statement.
(c)  The director's decision after a limited hearing shall to the extent each is relevant, be based upon the application, the comments, the applicant's response to the comments, the applicant's written evidence, the comments in response to the written evidence and the information presented at the limited hearing. In making the decision, the director may rely on publicly available department of health data.
3524110.  Contested case hearing on application; procedure specified; recommendations and final decisions.
(a)  If required by W.S. 3524107, the director shall order a contested case hearing. The director shall publish notice of the time, date and location of the hearing in a newspaper of general circulation at least a week prior to the hearing.
(b)  The hearing shall be conducted in an impartial manner pursuant to the Wyoming Administrative Procedure Act, applicable provisions of the Wyoming Rules of Civil Procedure and any rules for the conduct of contested cases adopted by the director of the office of administrative hearings pursuant to W.S. 922203. The hearing shall be conducted by a hearing officer. All factual issues relevant to a decision shall be presented in the contested case. The attorney general may appear as a party. Additional aggrieved parties may appear to the extent permitted under W.S. 163107. The record in the contested case includes the application, the comments, the applicant's response to the comments and any other evidence that is part of the record under the Wyoming Administrative Procedure Act.
(c)  The director shall issue a final decision within thirty (30) days following receipt of recommendations of the hearing officer.
(d)  All parties appearing in a contested case shall be provided a copy of the hearing officer's recommendation and the director's final decision.
3524111.  Criteria for approving application; factors enumerated.
(a)  The director shall not approve an application unless he determines the arrangement is more likely to result in a better overall promotion of the quality of health care, access to health care, a lower cost for health care and the increased availability of a comprehensive health care system in the state, than would otherwise occur under existing market conditions or conditions likely to develop without an exemption from state and federal antitrust law. If a proposed arrangement appears likely to improve certain criteria at the expense of other criteria, the director shall not approve the application unless he determines improvements outweigh the negative impacts and the proposed arrangement, taken as a whole, is likely to substantially further the purposes of this chapter.
(b)  In making a determination about cost, access, quality and the promotion of a comprehensive health care system in the state, the director may to the extent applicable, require the applicant to demonstrate or provide information for purposes of considering:
(i)  If the proposal includes provisions for cost containment;
(ii)  Market structure, including:
(A)  Actual and potential sellers and buyers or providers and purchasers;
(B)  Actual and potential consumers;
(C)  Geographic market area; and
(D)  Entry conditions.
(iii)  Current market conditions;
(iv)  The historical behavior of the market;
(v)  Performance of other similar arrangements;
(vi)  If the proposal unnecessarily restrains competition or restrains competition in ways not reasonably related to the purposes of this chapter; and
(vii)  The financial condition of the applicant.
(c)  The analysis of cost by the director shall consider the individual consumer of health care and if a proposed arrangement will result in costefficiencies in the services provided by the applicant. Costefficiencies to be realized by providers, group purchasers or other participants in the health care system also are relevant and shall be considered to the extent any efficiencies are likely to directly or indirectly benefit the consumer. If an application is submitted by providers primarily paid by third party payors or persons unaffiliated with the applicant, it is sufficient for the applicant to show that cost savings are likely to be passed on to the unaffiliated third party payors or persons and the applicants shall not be required to show that third party payors with whom the applicants are not affiliated will pass on cost savings to individuals receiving coverage through the third party payors. To the extent relevant and ascertainable, cost analysis may also include the impact on overall employer premiums for health insurance. In making determinations as to costs, the director shall determine the extent to which:
(i)  The cost savings likely to result to the applicant;
(ii)  The extent to which cost savings are likely to be passed on to the consumer and in what form;
(iii)  The extent to which overall employer premium costs for health insurance will be decreased;
(iv)  The extent to which the proposed arrangement is likely to result in cost shifting by the applicant onto other payors or purchasers of other products or services;
(v)  The extent to which any cost shifting by the applicant is likely to be followed by other persons in the market;
(vi)  The extent to which the proposed arrangement reduces overall systemic cost shifting;
(vii)  The current and anticipated supply and demand for any products or services at issue;
(viii)  The representations and guarantees of the applicant and their enforceability;
(ix)  Effectiveness of regulation by the director;
(x)  Inferences to be drawn from market structure;
(xi)  The cost of regulation, both for the state and for the applicant; and
(xii)  Any other factors showing that the proposed arrangement is or is not likely to reduce costs.
(d)  In making determinations as to access, the director shall determine the extent to which the:
(i)  Utilization of needed health care services or products by the intended targeted population is likely to increase or decrease. When a proposed arrangement is likely to increase access in one (1) geographic area by lowering prices or otherwise expanding supply, but limits access in another geographic area by removing service capabilities from that second area, the director shall require the applicant to articulate the criteria employed to balance these effects;
(ii)  Proposed arrangement is likely to make available a new and needed service or product to a certain geographic area;
(iii)  Proposed arrangement is likely to otherwise make health care services or products more financially or geographically available to consumers, particularly persons in historically underserved populations including indigent persons and unserved geographic areas; and
(iv)  Proposed arrangement is likely to result in a wide distribution of appropriate health care services throughout the state.
(e)  If the director determines that the proposed arrangement is likely to increase access and bases that determination on a projected increase in utilization, the director shall require the applicant to demonstrate that the increased utilization does not result in overutilization.
(f)  In making determinations as to quality, the director shall determine the extent to which the proposed arrangement is likely to:
(i)  Decrease morbidity and mortality;
(ii)  Result in faster convalescence;
(iii)  Result in fewer hospital days;
(iv)  Permit providers to attain needed experience or frequency of treatment likely to lead to better outcomes;
(v)  Result in more effective or efficient provider credentialing and licensing;
(vi)  Result in increased or more effective use of clinical practice guidelines, quality assurance measures such as continued quality improvement and other outcome measurements;
(vii)  Increase patient satisfaction; and
(viii)  Have any other features likely to improve or reduce the quality of health care.
(g)  Notwithstanding subsection (f) of this section, in evaluating if a proposed arrangement improves or reduces the quality of health care, the director shall preserve the confidentiality of quality management functions involving health care facilities and peer review activities involving professional standard review organizations as set forth in W.S. 352910 and 3517101 through 3517106.
(h)  In making determinations as to whether a proposed arrangement contributes to the promotion of a comprehensive health care system in the state, the director shall determine the extent to which the arrangement is likely to:
(i)  Promote the development of and access to a wide variety of health care services and specialties in the state;
(ii)  Minimize costshifting in which more lucrative patient populations and specialties are served at the expense of other patients and specialties, resulting in fewer services available in the state; and
(iii)  Promote access to appropriate health care services in locations throughout the state.

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