CHAPTER 24 - HEALTH CARE COOPERATIVE ARRANGEMENTS FORANTI-TRUST EXCEPTIONS
35-24-101. State health care policy; legislative findings anddeclarations.
(a) It is the policy of the state to promote:
(i) The quality of health care provided to the citizens ofWyoming;
(ii) Access to appropriate health care for all citizens of thestate, including citizens in historically underserved populations andunderserved 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 undersubsection (a) of this section will be significantly enhanced by cooperativearrangements including joint ventures and similar enterprises, and contractsamong health care providers and purchasers, and certain collaborativeagreements between third party payors and health care providers, that mightotherwise be prohibited by federal and state antitrust laws if undertakenwithout governmental involvement. The legislature declares that the formationand operation of cooperative arrangements be the subject of governmentregulation by the state and that state regulation be substituted for themarketplace and market competition. The legislature intends by provisions ofthis chapter, that approval of cooperative arrangements among health careproviders, purchasers and third party payors be accompanied by appropriateconditions and ongoing supervision and regulation of the operations of thecooperative arrangements, in order to protect against any abuses and toeffectively except the actions of approved and regulated cooperativearrangements from state and federal antitrust liability.
35-24-102. Definitions.
(a) As used in this chapter:
(i) "Access" means the financial, temporal orgeographic availability of health care to consumers;
(ii) "Aggrieved party" means any provider, purchaseror third-party payor including but not limited to any hospital, physician,allied health professional, health care provider or other person furnishinggoods or services to or in competition with hospitals, insurers, hospitalservice corporations, medical service corporations, preferred providerorganizations, health maintenance organizations or any employer or associationthat directly or indirectly provides health care benefits to its employees ormembers;
(iii) "Applicant" means a party to an agreement orbusiness arrangement for which approval is sought under this chapter;
(iv) "Cost" means the amount paid by consumers orthird party payors for health care services or products and the amount ofpremiums charged to consumers and employers for health insurance;
(v) "Criteria" means the costs, access and quality ofhealth care and the maintenance of a comprehensive health care system in thestate;
(vi) "Department" means the department of health;
(vii) "Director" means the director of the department;
(viii) "Exception" means a document issued by thedirector to parties who enter into a cooperative arrangement verifying that thedirector declares the purposes and objectives of the cooperative arrangementmeet the standards prescribed under this chapter and reflecting that thearrangement is excepted and immune from federal and state antitrust liability;
(ix) "Health care products" means medical equipmentwhether fixed or movable, used by a provider in the delivery of a health careservice;
(x) "Health care service" means any service providedby a health care provider licensed by the state which is generally reimbursedby medical assistance or third party coverage, but does not include retail,over-the-counter sales of nonprescription drugs and other retail sales ofhealth-related products not generally reimbursed by medical assistance andother third party coverage;
(xi) "Provider" means any person or health carefacility licensed, registered, certified, permitted or otherwise officiallyrecognized by this state to provide health care in the ordinary course ofbusiness or practice of a profession or if a freestanding outpatient facility,a facility fee is charged for health services provided, or any combination ofproviders described in this paragraph which engages in payment or reimbursementfunctions in connection with a coordinated program for the delivery andfinancing of health care, including health maintenance organizations which arewholly or partially owned and operated by providers;
(xii) "Purchaser" means a person or organization thatpurchases health care services on behalf of an identified group of persons,regardless of whether the cost of coverage or services is paid for by thepurchaser or by the persons receiving coverage or services;
(xiii) "Third party payor" means any insurer or otherentity responsible for providing payment for health care services, includingthe worker's compensation division of the department of employment and anyself-insured entity;
(xiv) "Trade secrets" means proprietary data includinga formula, pattern, compilation, program, device, method, technique or processthat:
(A) Is supplied by the affected individual or organization tothe state;
(B) Is the subject of efforts by the individual or organizationthat 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 propermeans by other persons who can obtain economic value from its disclosure oruse.
35-24-103. Application for exception; exception absolute defense;liability limited; out-of-state applicants; consultation with attorney general;rulemaking authority granted.
(a) Providers, purchasers or any combination thereof, or thirdparty payors if in collaboration with a provider, wishing to engage in contracts,business or financial arrangements or other activities, practices orarrangements that might be construed to be violations of state or federalantitrust laws but which are in the best interests of the state and further thepolicies and goals of this chapter, may apply to the director for an exception.
(b) Except as provided under W.S. 35-24-115(e), approval of anapplication by the department is an absolute defense against any action understate and federal antitrust laws.
(c) The application and any information obtained by thedepartment under W.S. 35-24-104 through 35-24-110 that is not otherwiseavailable are not admissible in any civil or criminal proceeding brought by thedirector or any other person based on an antitrust claim, except:
(i) A proceeding brought under W.S. 35-24-115(e) based on anapplicant's failure to substantially comply with the terms of the application;or
(ii) A proceeding based on actions taken by the applicant priorto submitting the application, where the actions are acknowledged by theapplicant in the application.
(d) Providers, purchasers and third party payors not physicallylocated in this state who are registered to do business in this state areeligible to apply for an exception for arrangements in which they transactbusiness in this state.
(e) The department shall consult with the attorney general incarrying out duties and responsibilities under this chapter.
(f) The department shall promulgate rules and regulationsnecessary to carry out this chapter.
35-24-104. Application for exception; contents; notice; jointapplication; filing fee; confidentiality of trade secret information; extensionof time limitations.
(a) An application for approval of an antitrust exception shallinclude to the extent applicable:
(i) A descriptive title;
(ii) A table of contents;
(iii) Exact name of each party to the application and the addressof the principal business office of each party;
(iv) The name, address and telephone number of the personsauthorized to receive notices and communications with respect to theapplication;
(v) A verified statement by a responsible officer of each partyto the application attesting to the accuracy and completeness of the enclosedinformation;
(vi) Background information relating to the proposedarrangement, including:
(A) A description of the proposed arrangement, including a listof any services or products that are the subject of the proposed arrangement;
(B) An identification of any tangential services or productsassociated with the services or products that are the subject of the proposedarrangement;
(C) A description of the geographic territory involved in theproposed arrangement;
(D) If the geographic territory described under subparagraph(a)(vi)(C) of this section is different from the territory in which theapplicants 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 asubstantial share of consumers would consider substitutes for any service orproduct that is the subject of the proposed arrangement;
(F) Identification of any services or products of the proposedarrangement which are currently being offered, capable of being offered,utilized or capable of being utilized by other providers or purchasers in thegeographic territory described under subparagraph (a)(vi)(C) of this section;
(G) Identification of necessary action for other parties toenter the territory described under subparagraph (a)(vi)(C) of this section andcompete with the applicant under current market and regulatory conditions;
(H) A description of previous dealings between the parties tothe application;
(J) A detailed explanation of the projected effects includingexpected volume, change in price and increased revenue of the arrangement onthe current business of each party;
(K) The present market share of the parties to the applicationand of others affected by the proposed arrangement and projected market sharesafter implementation of the proposed arrangement;
(M) An explanation of why the projected levels of costs, accessor quality could not be achieved in the existing market without the proposedarrangement.
(vii) A detailed explanation of the effect of the transaction onquality, access, containment of health care costs and the promotion of acomprehensive health care system in the state, which shall to the extentapplicable, address the factors specified under W.S. 35-24-111(c) through (g).
(b) In addition to the information required under subsection(a) of this section, the application shall contain a written description of theproposed arrangement for purposes of publication. The applicant shall alsoprovide notice to the public and all interested persons making timely requestfor advanced notice of applications under this section. The notice shall beapproved by the director, shall include sufficient information to advise thepublic of the nature of the proposed arrangement and enable the public toprovide comments concerning the expected results of the arrangements and shalladvise that any person may provide written comments to the director, with acopy to the applicant, within thirty (30) days of the date of publication. Ifthe director determines that the submitted notice does not provide sufficient information,the director may after consultation with the applicant and the applicant agreeswith the amendment, amend the notice before publication or disapprove theapplication.
(c) For a proposed arrangement involving multiple parties, one(1) joint application shall be submitted on behalf of all parties to thearrangement.
(d) An application shall be accompanied by a filing fee to bedetermined by the department based upon the estimated cost of investigating,analyzing, reviewing and processing the application, including any contestedcase proceeding or appeal, in accordance with this chapter. The fee structureshall include a sliding scale based upon revenue generated by the partiesapplying for the exception during the preceding year. The annual renewal feeshall not exceed two thousand five hundred dollars ($2,500.00). Any unusedportion of the fee shall be refunded to the applicant. All fees collected bythe department under this subsection and W.S. 35-24-112(d) shall be depositedinto a separate account and will be available to reimburse department start-upcosts prior to submittal of the application. Expenditures from the accountshall be for expenses incurred by the department in administering this chapter.
(e) Trade secret information including information provided aspart of the application process and ongoing supervision, shall be protectedfrom disclosure in accordance with W.S. 16-4-203(d)(v). An applicant shalldesignate the information provided in the application which it considers to beprotected from disclosure in accordance with W.S. 16-4-203(d). The directorshall deny public access to any information so designated, subject to the rightof a person denied inspection to appeal to the district court in accordancewith the provisions of W.S. 16-4-203(f). Any information not so designatedshall be available for public inspection in accordance with the provisions ofW.S. 16-4-201 through 16-4-205.
(f) Upon a showing of good cause, the director may extend anyof the time limits prescribed under W.S. 35-24-106 through 35-24-110 at therequest of the applicant or another person.
35-24-105. 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, thedirector shall return the application and provide a written description of thedeficiencies in the application to the applicant. The applicant may completeor revise and resubmit the application.
(b) The director may decline to review any application relatingto arrangements already in effect before the submission of the application.
35-24-106. Notice of application; public comments; objections.
(a) The director shall publish notice of application proposalsrequired under W.S. 35-24-104(b) and provide notice to any person who hasrequested to be placed on a list to receive notice of applications. Thedirector may also notify and request comments from persons as authorized underW.S. 35-24-104(b). Copies of any request received shall be provided to theapplicant in sufficient time to enable a response as authorized undersubsection (b) of this section.
(b) Within twenty (20) days after notice is published, anyperson may mail to the director written comments with respect to theapplication. Comments may address what type of review procedure should befollowed or specifically request that the director conduct a contested case hearingregarding the proposed arrangement. Persons submitting comments shall providea copy of the comments to the applicant. The applicant may mail to the directorwritten responses to any comments within ten (10) days after the deadline formailing comments. The applicant shall also send a copy of the response to theperson submitting the comment.
(c) Any aggrieved party has the right to file writtenobjections to the application with the director within thirty (30) days afterthe date of publication. A person objecting shall submit a copy of theobjections to the applicant.
35-24-107. Determination of review procedure; criteria; right tohearing afforded.
(a) After the conclusion of the notice and comment periodprescribed under W.S. 35-24-106, the director shall subject to subsection (b)of this section, select one (1) of the three (3) review procedures specifiedunder W.S. 35-24-108 through 35-24-110. In determining which procedure to use,the director shall consider the following criteria:
(i) The size of the proposed arrangement in terms of number ofparties 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 thefactual record.
(b) Upon request by the applicant, timely filing of anobjection or a determination by the director, a contested case hearing shall beheld no later than thirty (30) days after the conclusion of the notice,objection and comment period under W.S. 35-24-106. The director may extend thethirty (30) day period for good cause. The director shall hold a publichearing as specified under W.S. 35-24-110.
35-24-108. Decision based upon written record.
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and instead of a limited hearing under W.S. 35-24-109, thedirector may issue a decision based on the application, the comments and theapplicant's responses to the comments, to the extent each is relevant. Inmaking the decision, the director may rely upon publicly available departmentof health data.
(b) A decision rendered under this section shall be in writingand specify the items in the written record relied upon in reachingconclusions. The applicant shall be notified of notice taken of judiciallycognizable facts as provided by W.S. 16-3-108(d).
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and in lieu of W.S. 35-24-108, the director may prior torendering a decision on any application, order a limited hearing. A copy ofthe order shall be mailed to the applicant and to all persons who havesubmitted comments or requested to be kept informed of the proceedingsinvolving the application. The order shall state the date, time and locationof the limited hearing and shall identify specific issues to be addressed atthe limited hearing, which may include the feasibility and desirability of one(1) or more alternatives to the proposed arrangement. The order shall requirethe applicant to submit written evidence in the form of affidavits andsupporting documents, addressing the issues identified within twenty (20) daysafter the date of the order. The order shall also state that any person mayarrange to receive a copy of the written evidence from the director, at theperson's expense, and may provide written comments on the evidence within forty(40) days after the date of the order. Any person providing written commentspursuant to this subsection shall provide a copy of the comments to theapplicant.
(b) The limited hearing shall be held before the director or adepartment staff member designated by the director. The director or hisdesignee shall question the applicant concerning the evidence submitted by theapplicant. The questions may address relevant issues identified in thecomments submitted in response to the written evidence or identified by thedepartment of health staff or discovered through publicly available departmentof health data. At the conclusion of the applicant's responses to the questions,any person who submitted comments about the applicant's written evidence maymake a statement addressing the applicant's responses to the questions. Thedirector or his designee may ask questions of any person making a statement. At the conclusion of all statements, the applicant may make a closingstatement.
(c) The director's decision after a limited hearing shall tothe extent each is relevant, be based upon the application, the comments, theapplicant's response to the comments, the applicant's written evidence, thecomments in response to the written evidence and the information presented atthe limited hearing. In making the decision, the director may rely on publiclyavailable department of health data.
35-24-110. Contested case hearing on application; procedure specified;recommendations and final decisions.
(a) If required by W.S. 35-24-107, the director shall order acontested case hearing. The director shall publish notice of the time, dateand location of the hearing in a newspaper of general circulation at least aweek prior to the hearing.
(b) The hearing shall be conducted in an impartial mannerpursuant to the Wyoming Administrative Procedure Act, applicable provisions ofthe Wyoming Rules of Civil Procedure and any rules for the conduct of contestedcases adopted by the director of the office of administrative hearings pursuantto W.S. 9-2-2203. The hearing shall be conducted by a hearing officer. Allfactual issues relevant to a decision shall be presented in the contestedcase. The attorney general may appear as a party. Additional aggrieved partiesmay appear to the extent permitted under W.S. 16-3-107. The record in thecontested case includes the application, the comments, the applicant's responseto the comments and any other evidence that is part of the record under theWyoming 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 provideda copy of the hearing officer's recommendation and the director's finaldecision.
35-24-111. Criteria for approving application; factors enumerated.
(a) The director shall not approve an application unless hedetermines the arrangement is more likely to result in a better overallpromotion of the quality of health care, access to health care, a lower costfor health care and the increased availability of a comprehensive health caresystem in the state, than would otherwise occur under existing marketconditions or conditions likely to develop without an exemption from state andfederal antitrust law. If a proposed arrangement appears likely to improvecertain criteria at the expense of other criteria, the director shall notapprove the application unless he determines improvements outweigh the negativeimpacts and the proposed arrangement, taken as a whole, is likely tosubstantially further the purposes of this chapter.
(b) In making a determination about cost, access, quality andthe promotion of a comprehensive health care system in the state, the directormay to the extent applicable, require the applicant to demonstrate or provideinformation 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 andpurchasers;
(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 orrestrains competition in ways not reasonably related to the purposes of thischapter; and
(vii) The financial condition of the applicant.
(c) The analysis of cost by the director shall consider theindividual consumer of health care and if a proposed arrangement will result incost-efficiencies in the services provided by the applicant. Cost-efficienciesto be realized by providers, group purchasers or other participants in thehealth care system also are relevant and shall be considered to the extent anyefficiencies are likely to directly or indirectly benefit the consumer. If anapplication is submitted by providers primarily paid by third party payors orpersons unaffiliated with the applicant, it is sufficient for the applicant toshow that cost savings are likely to be passed on to the unaffiliated thirdparty payors or persons and the applicants shall not be required to show thatthird party payors with whom the applicants are not affiliated will pass oncost savings to individuals receiving coverage through the third party payors. To the extent relevant and ascertainable, cost analysis may also include theimpact on overall employer premiums for health insurance. In makingdeterminations 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 onto the consumer and in what form;
(iii) The extent to which overall employer premium costs forhealth insurance will be decreased;
(iv) The extent to which the proposed arrangement is likely toresult in cost shifting by the applicant onto other payors or purchasers ofother products or services;
(v) The extent to which any cost shifting by the applicant islikely to be followed by other persons in the market;
(vi) The extent to which the proposed arrangement reducesoverall systemic cost shifting;
(vii) The current and anticipated supply and demand for any productsor services at issue;
(viii) The representations and guarantees of the applicant andtheir 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 theapplicant; and
(xii) Any other factors showing that the proposed arrangement isor is not likely to reduce costs.
(d) In making determinations as to access, the director shalldetermine the extent to which the:
(i) Utilization of needed health care services or products bythe intended targeted population is likely to increase or decrease. When aproposed arrangement is likely to increase access in one (1) geographic area bylowering prices or otherwise expanding supply, but limits access in anothergeographic area by removing service capabilities from that second area, thedirector shall require the applicant to articulate the criteria employed tobalance these effects;
(ii) Proposed arrangement is likely to make available a new andneeded service or product to a certain geographic area;
(iii) Proposed arrangement is likely to otherwise make healthcare services or products more financially or geographically available toconsumers, particularly persons in historically underserved populationsincluding indigent persons and unserved geographic areas; and
(iv) Proposed arrangement is likely to result in a widedistribution of appropriate health care services throughout the state.
(e) If the director determines that the proposed arrangement islikely to increase access and bases that determination on a projected increasein utilization, the director shall require the applicant to demonstrate thatthe increased utilization does not result in overutilization.
(f) In making determinations as to quality, the director shalldetermine 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 frequencyof treatment likely to lead to better outcomes;
(v) Result in more effective or efficient providercredentialing and licensing;
(vi) Result in increased or more effective use of clinicalpractice guidelines, quality assurance measures such as continued qualityimprovement and other outcome measurements;
(vii) Increase patient satisfaction; and
(viii) Have any other features likely to improve or reduce thequality of health care.
(g) Notwithstanding subsection (f) of this section, inevaluating if a proposed arrangement improves or reduces the quality of healthcare, the director shall preserve the confidentiality of quality managementfunctions involving health care facilities and peer review activities involvingprofessional standard review organizations as set forth in W.S. 35-2-910 and35-17-101 through 35-17-106.
(h) In making determinations as to whether a proposed arrangementcontributes to the promotion of a comprehensive health care system in thestate, the director shall determine the extent to which the arrangement islikely to:
(i) Promote the development of and access to a wide variety ofhealth care services and specialties in the state;
(ii) Minimize cost-shifting in which more lucrative patientpopulations and specialties are served at the expense of other patients andspecialties, resulting in fewer services available in the state; and
(iii) Promote access to appropriate health care services inlocations throughout the state.
35-24-112. Final decision; conditions for approval; findings; ongoingsupervision and reporting; renewal fees.
(a) The director shall issue a written decision approving ordisapproving the application.
(b) The director may condition approval on a modification ofall or part of the proposed arrangement to eliminate any restriction oncompetition that is not reasonably related to the goals of reducing cost orimproving access or quality. The director may also establish conditions forapproval that are reasonably necessary to protect against abuses of privateeconomic power and to ensure that the arrangement is appropriately supervisedand regulated by the state.
(c) The decision by the director approving or disapproving anapplication shall include specific findings of fact concerning cost, access andquality criteria and shall identify one (1) or more of these criteria as thebasis for the decision.
(d) The decision to approve an application shall requireperiodic submission of specific data by the applicant relating to cost, accessand quality and to the extent feasible, the applicant shall identify objectivestandards of cost, access and quality by which the success of the arrangementwill be measured. If the director determines that the scope of a particularproposed arrangement is such that the arrangement is certain to have neither apositive or negative impact on any one (1) of the criteria, the director maynot require the submission of data or establish an objective standard relatingto that criteria. An applicant shall submit a renewal fee together withinformation required under this subsection, in an amount determined by thedepartment subject to limitations imposed under W.S. 35-24-104(d). Revenuesfrom fees collected shall be deposited into the account established under W.S.35-24-104(d).
35-24-113. Judicial review.
Afterthe director has rendered a decision under W.S. 35-24-112 and in accordancewith W.S. 16-3-114, the applicant or any other aggrieved party may requestjudicial review of the director's decision by filing a petition for reviewwithin thirty (30) days in accordance with the Wyoming Administrative ProcedureAct. A determination under W.S. 35-24-107(a) shall not be raised as an issue onappeal.
35-24-114. Ongoing supervision following application approval;procedures; solicitation of public comment on arrangement impacts.
(a) The director shall appropriately supervise, monitor andregulate approved arrangements consistent with subsection (b) of this section.
(b) The decision approving the application shall specify a timeschedule for the submission of data by the applicant, which shall be at leastonce a year and shall identify the data required to be submitted. The directormay at any time require the submission of additional data or alter the timeschedule. Upon review of the data submitted, the director shall notify theapplicant on compliance of the arrangement with the initial decision orsubsequent orders. If the arrangement is not in compliance, the director shallidentify those respects in which the arrangement does not conform to the decision.
(c) An applicant receiving notification that an arrangement isnot in compliance may respond with additional data within thirty (30) days. The response may include a proposal and time schedule by which the applicantwill bring the arrangement into compliance with the initial decision orsubsequent orders. If the arrangement is not in compliance and the directorand the applicant cannot agree to the terms of bringing the arrangement intocompliance, the matter shall be set for hearing. The hearing shall be conductedas a contested case in the manner prescribed under W.S. 35-24-110. The hearingofficer shall issue a written recommendation to the director who shall issue afinal decision within thirty (30) days following issuance of the recommendation. A copy of the recommendation and final decision shall be provided to allparties to the contested case hearing. A final decision by the director issubject to judicial review in accordance with W.S. 16-3-114.
(d) The director shall publish notice two (2) years after thedate the initial application is approved and at two (2) year intervalsthereafter, soliciting comments from the public concerning the impact thearrangement has had on cost, access and quality. The director may requestadditional oral or written information from the applicant or from any othersource.
35-24-115. Revocation of approval; conditions; notice; public comment;hearing; revocation alternatives specified; liability of applicant.
(a) Subject to subsection (d) of this section, the directorshall revoke his initial approval of an application if the arrangement:
(i) Is not in substantial compliance with the terms of theapplication;
(ii) Is not in substantial compliance with the conditions ofapproval;
(iii) Has not and is not likely to substantially achieveimprovements in cost, access or quality or the promotion of a comprehensivehealth care system in the state as identified in the initial decision as thebasis for approval of the arrangement; or
(iv) Is not promoting reductions in cost and improvements inaccess and quality to the extent competition would do so due to changingconditions in the marketplace. Revocation under this paragraph shall beidentified in writing by the director together with reasons therefor.
(b) The director shall initiate a proceeding to revoke approvalby providing written notice to the applicant describing in detail the basis forthe proposed revocation. Notice of the proceeding shall be published andprovided to all interested parties in the manner and time specified under W.S.35-24-104(b), which shall request the submission of comments to the director.
(c) A proceeding to revoke an approval shall be conducted as acontested case proceeding upon the written request of the applicant. Theattorney general may appear as a party. The contested hearing shall beconducted in the manner prescribed by W.S. 35-24-110. Decisions of the directorin a proceeding to revoke approval are subject to judicial review in accordancewith W.S. 16-3-114.
(d) In deciding whether to revoke an approval, the directorshall consider the hardship the revocation may impose on the applicant and anypotential disruption of the market as a whole. The director shall also considerbased upon a demonstration by the applicant, if the arrangement can bemodified, restructured or regulated in a manner to remedy the problem uponwhich the revocation proceeding is based. Before approving an alternative torevocation that involves modifying or restructuring an arrangement, the directorshall publish notice stating that any person may comment on the proposedmodification or restructuring within twenty (20) days after publication of thenotice. The director shall not approve any modification or restructuring untilthe comment period has concluded. An approved modified or restructuredarrangement is subject to appropriate supervision in the manner provided underW.S. 35-24-114.
(e) An applicant that has had its approval revoked is notrequired to terminate the arrangement. The applicant cannot be held liableunder state or federal antitrust law for acts that occurred while the approvalwas in effect, except to the extent the applicant failed to substantiallycomply with terms of its application or failed to substantially comply withterms of the approval. The applicant is subject to state and federal antitrustlaw after the revocation becomes effective and may be held liable for acts thatoccur after the revocation.
35-24-116. Application of insurance code.
Nothingin this chapter shall relieve an applicant or recipient of an exception underthis chapter from applicable provisions of the Wyoming Insurance Code.
CHAPTER 24 - HEALTH CARE COOPERATIVE ARRANGEMENTS FORANTI-TRUST EXCEPTIONS
35-24-101. State health care policy; legislative findings anddeclarations.
(a) It is the policy of the state to promote:
(i) The quality of health care provided to the citizens ofWyoming;
(ii) Access to appropriate health care for all citizens of thestate, including citizens in historically underserved populations andunderserved 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 undersubsection (a) of this section will be significantly enhanced by cooperativearrangements including joint ventures and similar enterprises, and contractsamong health care providers and purchasers, and certain collaborativeagreements between third party payors and health care providers, that mightotherwise be prohibited by federal and state antitrust laws if undertakenwithout governmental involvement. The legislature declares that the formationand operation of cooperative arrangements be the subject of governmentregulation by the state and that state regulation be substituted for themarketplace and market competition. The legislature intends by provisions ofthis chapter, that approval of cooperative arrangements among health careproviders, purchasers and third party payors be accompanied by appropriateconditions and ongoing supervision and regulation of the operations of thecooperative arrangements, in order to protect against any abuses and toeffectively except the actions of approved and regulated cooperativearrangements from state and federal antitrust liability.
35-24-102. Definitions.
(a) As used in this chapter:
(i) "Access" means the financial, temporal orgeographic availability of health care to consumers;
(ii) "Aggrieved party" means any provider, purchaseror third-party payor including but not limited to any hospital, physician,allied health professional, health care provider or other person furnishinggoods or services to or in competition with hospitals, insurers, hospitalservice corporations, medical service corporations, preferred providerorganizations, health maintenance organizations or any employer or associationthat directly or indirectly provides health care benefits to its employees ormembers;
(iii) "Applicant" means a party to an agreement orbusiness arrangement for which approval is sought under this chapter;
(iv) "Cost" means the amount paid by consumers orthird party payors for health care services or products and the amount ofpremiums charged to consumers and employers for health insurance;
(v) "Criteria" means the costs, access and quality ofhealth care and the maintenance of a comprehensive health care system in thestate;
(vi) "Department" means the department of health;
(vii) "Director" means the director of the department;
(viii) "Exception" means a document issued by thedirector to parties who enter into a cooperative arrangement verifying that thedirector declares the purposes and objectives of the cooperative arrangementmeet the standards prescribed under this chapter and reflecting that thearrangement is excepted and immune from federal and state antitrust liability;
(ix) "Health care products" means medical equipmentwhether fixed or movable, used by a provider in the delivery of a health careservice;
(x) "Health care service" means any service providedby a health care provider licensed by the state which is generally reimbursedby medical assistance or third party coverage, but does not include retail,over-the-counter sales of nonprescription drugs and other retail sales ofhealth-related products not generally reimbursed by medical assistance andother third party coverage;
(xi) "Provider" means any person or health carefacility licensed, registered, certified, permitted or otherwise officiallyrecognized by this state to provide health care in the ordinary course ofbusiness or practice of a profession or if a freestanding outpatient facility,a facility fee is charged for health services provided, or any combination ofproviders described in this paragraph which engages in payment or reimbursementfunctions in connection with a coordinated program for the delivery andfinancing of health care, including health maintenance organizations which arewholly or partially owned and operated by providers;
(xii) "Purchaser" means a person or organization thatpurchases health care services on behalf of an identified group of persons,regardless of whether the cost of coverage or services is paid for by thepurchaser or by the persons receiving coverage or services;
(xiii) "Third party payor" means any insurer or otherentity responsible for providing payment for health care services, includingthe worker's compensation division of the department of employment and anyself-insured entity;
(xiv) "Trade secrets" means proprietary data includinga formula, pattern, compilation, program, device, method, technique or processthat:
(A) Is supplied by the affected individual or organization tothe state;
(B) Is the subject of efforts by the individual or organizationthat 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 propermeans by other persons who can obtain economic value from its disclosure oruse.
35-24-103. Application for exception; exception absolute defense;liability limited; out-of-state applicants; consultation with attorney general;rulemaking authority granted.
(a) Providers, purchasers or any combination thereof, or thirdparty payors if in collaboration with a provider, wishing to engage in contracts,business or financial arrangements or other activities, practices orarrangements that might be construed to be violations of state or federalantitrust laws but which are in the best interests of the state and further thepolicies and goals of this chapter, may apply to the director for an exception.
(b) Except as provided under W.S. 35-24-115(e), approval of anapplication by the department is an absolute defense against any action understate and federal antitrust laws.
(c) The application and any information obtained by thedepartment under W.S. 35-24-104 through 35-24-110 that is not otherwiseavailable are not admissible in any civil or criminal proceeding brought by thedirector or any other person based on an antitrust claim, except:
(i) A proceeding brought under W.S. 35-24-115(e) based on anapplicant's failure to substantially comply with the terms of the application;or
(ii) A proceeding based on actions taken by the applicant priorto submitting the application, where the actions are acknowledged by theapplicant in the application.
(d) Providers, purchasers and third party payors not physicallylocated in this state who are registered to do business in this state areeligible to apply for an exception for arrangements in which they transactbusiness in this state.
(e) The department shall consult with the attorney general incarrying out duties and responsibilities under this chapter.
(f) The department shall promulgate rules and regulationsnecessary to carry out this chapter.
35-24-104. Application for exception; contents; notice; jointapplication; filing fee; confidentiality of trade secret information; extensionof time limitations.
(a) An application for approval of an antitrust exception shallinclude to the extent applicable:
(i) A descriptive title;
(ii) A table of contents;
(iii) Exact name of each party to the application and the addressof the principal business office of each party;
(iv) The name, address and telephone number of the personsauthorized to receive notices and communications with respect to theapplication;
(v) A verified statement by a responsible officer of each partyto the application attesting to the accuracy and completeness of the enclosedinformation;
(vi) Background information relating to the proposedarrangement, including:
(A) A description of the proposed arrangement, including a listof any services or products that are the subject of the proposed arrangement;
(B) An identification of any tangential services or productsassociated with the services or products that are the subject of the proposedarrangement;
(C) A description of the geographic territory involved in theproposed arrangement;
(D) If the geographic territory described under subparagraph(a)(vi)(C) of this section is different from the territory in which theapplicants 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 asubstantial share of consumers would consider substitutes for any service orproduct that is the subject of the proposed arrangement;
(F) Identification of any services or products of the proposedarrangement which are currently being offered, capable of being offered,utilized or capable of being utilized by other providers or purchasers in thegeographic territory described under subparagraph (a)(vi)(C) of this section;
(G) Identification of necessary action for other parties toenter the territory described under subparagraph (a)(vi)(C) of this section andcompete with the applicant under current market and regulatory conditions;
(H) A description of previous dealings between the parties tothe application;
(J) A detailed explanation of the projected effects includingexpected volume, change in price and increased revenue of the arrangement onthe current business of each party;
(K) The present market share of the parties to the applicationand of others affected by the proposed arrangement and projected market sharesafter implementation of the proposed arrangement;
(M) An explanation of why the projected levels of costs, accessor quality could not be achieved in the existing market without the proposedarrangement.
(vii) A detailed explanation of the effect of the transaction onquality, access, containment of health care costs and the promotion of acomprehensive health care system in the state, which shall to the extentapplicable, address the factors specified under W.S. 35-24-111(c) through (g).
(b) In addition to the information required under subsection(a) of this section, the application shall contain a written description of theproposed arrangement for purposes of publication. The applicant shall alsoprovide notice to the public and all interested persons making timely requestfor advanced notice of applications under this section. The notice shall beapproved by the director, shall include sufficient information to advise thepublic of the nature of the proposed arrangement and enable the public toprovide comments concerning the expected results of the arrangements and shalladvise that any person may provide written comments to the director, with acopy to the applicant, within thirty (30) days of the date of publication. Ifthe director determines that the submitted notice does not provide sufficient information,the director may after consultation with the applicant and the applicant agreeswith the amendment, amend the notice before publication or disapprove theapplication.
(c) For a proposed arrangement involving multiple parties, one(1) joint application shall be submitted on behalf of all parties to thearrangement.
(d) An application shall be accompanied by a filing fee to bedetermined by the department based upon the estimated cost of investigating,analyzing, reviewing and processing the application, including any contestedcase proceeding or appeal, in accordance with this chapter. The fee structureshall include a sliding scale based upon revenue generated by the partiesapplying for the exception during the preceding year. The annual renewal feeshall not exceed two thousand five hundred dollars ($2,500.00). Any unusedportion of the fee shall be refunded to the applicant. All fees collected bythe department under this subsection and W.S. 35-24-112(d) shall be depositedinto a separate account and will be available to reimburse department start-upcosts prior to submittal of the application. Expenditures from the accountshall be for expenses incurred by the department in administering this chapter.
(e) Trade secret information including information provided aspart of the application process and ongoing supervision, shall be protectedfrom disclosure in accordance with W.S. 16-4-203(d)(v). An applicant shalldesignate the information provided in the application which it considers to beprotected from disclosure in accordance with W.S. 16-4-203(d). The directorshall deny public access to any information so designated, subject to the rightof a person denied inspection to appeal to the district court in accordancewith the provisions of W.S. 16-4-203(f). Any information not so designatedshall be available for public inspection in accordance with the provisions ofW.S. 16-4-201 through 16-4-205.
(f) Upon a showing of good cause, the director may extend anyof the time limits prescribed under W.S. 35-24-106 through 35-24-110 at therequest of the applicant or another person.
35-24-105. 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, thedirector shall return the application and provide a written description of thedeficiencies in the application to the applicant. The applicant may completeor revise and resubmit the application.
(b) The director may decline to review any application relatingto arrangements already in effect before the submission of the application.
35-24-106. Notice of application; public comments; objections.
(a) The director shall publish notice of application proposalsrequired under W.S. 35-24-104(b) and provide notice to any person who hasrequested to be placed on a list to receive notice of applications. Thedirector may also notify and request comments from persons as authorized underW.S. 35-24-104(b). Copies of any request received shall be provided to theapplicant in sufficient time to enable a response as authorized undersubsection (b) of this section.
(b) Within twenty (20) days after notice is published, anyperson may mail to the director written comments with respect to theapplication. Comments may address what type of review procedure should befollowed or specifically request that the director conduct a contested case hearingregarding the proposed arrangement. Persons submitting comments shall providea copy of the comments to the applicant. The applicant may mail to the directorwritten responses to any comments within ten (10) days after the deadline formailing comments. The applicant shall also send a copy of the response to theperson submitting the comment.
(c) Any aggrieved party has the right to file writtenobjections to the application with the director within thirty (30) days afterthe date of publication. A person objecting shall submit a copy of theobjections to the applicant.
35-24-107. Determination of review procedure; criteria; right tohearing afforded.
(a) After the conclusion of the notice and comment periodprescribed under W.S. 35-24-106, the director shall subject to subsection (b)of this section, select one (1) of the three (3) review procedures specifiedunder W.S. 35-24-108 through 35-24-110. In determining which procedure to use,the director shall consider the following criteria:
(i) The size of the proposed arrangement in terms of number ofparties 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 thefactual record.
(b) Upon request by the applicant, timely filing of anobjection or a determination by the director, a contested case hearing shall beheld no later than thirty (30) days after the conclusion of the notice,objection and comment period under W.S. 35-24-106. The director may extend thethirty (30) day period for good cause. The director shall hold a publichearing as specified under W.S. 35-24-110.
35-24-108. Decision based upon written record.
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and instead of a limited hearing under W.S. 35-24-109, thedirector may issue a decision based on the application, the comments and theapplicant's responses to the comments, to the extent each is relevant. Inmaking the decision, the director may rely upon publicly available departmentof health data.
(b) A decision rendered under this section shall be in writingand specify the items in the written record relied upon in reachingconclusions. The applicant shall be notified of notice taken of judiciallycognizable facts as provided by W.S. 16-3-108(d).
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and in lieu of W.S. 35-24-108, the director may prior torendering a decision on any application, order a limited hearing. A copy ofthe order shall be mailed to the applicant and to all persons who havesubmitted comments or requested to be kept informed of the proceedingsinvolving the application. The order shall state the date, time and locationof the limited hearing and shall identify specific issues to be addressed atthe limited hearing, which may include the feasibility and desirability of one(1) or more alternatives to the proposed arrangement. The order shall requirethe applicant to submit written evidence in the form of affidavits andsupporting documents, addressing the issues identified within twenty (20) daysafter the date of the order. The order shall also state that any person mayarrange to receive a copy of the written evidence from the director, at theperson's expense, and may provide written comments on the evidence within forty(40) days after the date of the order. Any person providing written commentspursuant to this subsection shall provide a copy of the comments to theapplicant.
(b) The limited hearing shall be held before the director or adepartment staff member designated by the director. The director or hisdesignee shall question the applicant concerning the evidence submitted by theapplicant. The questions may address relevant issues identified in thecomments submitted in response to the written evidence or identified by thedepartment of health staff or discovered through publicly available departmentof health data. At the conclusion of the applicant's responses to the questions,any person who submitted comments about the applicant's written evidence maymake a statement addressing the applicant's responses to the questions. Thedirector or his designee may ask questions of any person making a statement. At the conclusion of all statements, the applicant may make a closingstatement.
(c) The director's decision after a limited hearing shall tothe extent each is relevant, be based upon the application, the comments, theapplicant's response to the comments, the applicant's written evidence, thecomments in response to the written evidence and the information presented atthe limited hearing. In making the decision, the director may rely on publiclyavailable department of health data.
35-24-110. Contested case hearing on application; procedure specified;recommendations and final decisions.
(a) If required by W.S. 35-24-107, the director shall order acontested case hearing. The director shall publish notice of the time, dateand location of the hearing in a newspaper of general circulation at least aweek prior to the hearing.
(b) The hearing shall be conducted in an impartial mannerpursuant to the Wyoming Administrative Procedure Act, applicable provisions ofthe Wyoming Rules of Civil Procedure and any rules for the conduct of contestedcases adopted by the director of the office of administrative hearings pursuantto W.S. 9-2-2203. The hearing shall be conducted by a hearing officer. Allfactual issues relevant to a decision shall be presented in the contestedcase. The attorney general may appear as a party. Additional aggrieved partiesmay appear to the extent permitted under W.S. 16-3-107. The record in thecontested case includes the application, the comments, the applicant's responseto the comments and any other evidence that is part of the record under theWyoming 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 provideda copy of the hearing officer's recommendation and the director's finaldecision.
35-24-111. Criteria for approving application; factors enumerated.
(a) The director shall not approve an application unless hedetermines the arrangement is more likely to result in a better overallpromotion of the quality of health care, access to health care, a lower costfor health care and the increased availability of a comprehensive health caresystem in the state, than would otherwise occur under existing marketconditions or conditions likely to develop without an exemption from state andfederal antitrust law. If a proposed arrangement appears likely to improvecertain criteria at the expense of other criteria, the director shall notapprove the application unless he determines improvements outweigh the negativeimpacts and the proposed arrangement, taken as a whole, is likely tosubstantially further the purposes of this chapter.
(b) In making a determination about cost, access, quality andthe promotion of a comprehensive health care system in the state, the directormay to the extent applicable, require the applicant to demonstrate or provideinformation 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 andpurchasers;
(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 orrestrains competition in ways not reasonably related to the purposes of thischapter; and
(vii) The financial condition of the applicant.
(c) The analysis of cost by the director shall consider theindividual consumer of health care and if a proposed arrangement will result incost-efficiencies in the services provided by the applicant. Cost-efficienciesto be realized by providers, group purchasers or other participants in thehealth care system also are relevant and shall be considered to the extent anyefficiencies are likely to directly or indirectly benefit the consumer. If anapplication is submitted by providers primarily paid by third party payors orpersons unaffiliated with the applicant, it is sufficient for the applicant toshow that cost savings are likely to be passed on to the unaffiliated thirdparty payors or persons and the applicants shall not be required to show thatthird party payors with whom the applicants are not affiliated will pass oncost savings to individuals receiving coverage through the third party payors. To the extent relevant and ascertainable, cost analysis may also include theimpact on overall employer premiums for health insurance. In makingdeterminations 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 onto the consumer and in what form;
(iii) The extent to which overall employer premium costs forhealth insurance will be decreased;
(iv) The extent to which the proposed arrangement is likely toresult in cost shifting by the applicant onto other payors or purchasers ofother products or services;
(v) The extent to which any cost shifting by the applicant islikely to be followed by other persons in the market;
(vi) The extent to which the proposed arrangement reducesoverall systemic cost shifting;
(vii) The current and anticipated supply and demand for any productsor services at issue;
(viii) The representations and guarantees of the applicant andtheir 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 theapplicant; and
(xii) Any other factors showing that the proposed arrangement isor is not likely to reduce costs.
(d) In making determinations as to access, the director shalldetermine the extent to which the:
(i) Utilization of needed health care services or products bythe intended targeted population is likely to increase or decrease. When aproposed arrangement is likely to increase access in one (1) geographic area bylowering prices or otherwise expanding supply, but limits access in anothergeographic area by removing service capabilities from that second area, thedirector shall require the applicant to articulate the criteria employed tobalance these effects;
(ii) Proposed arrangement is likely to make available a new andneeded service or product to a certain geographic area;
(iii) Proposed arrangement is likely to otherwise make healthcare services or products more financially or geographically available toconsumers, particularly persons in historically underserved populationsincluding indigent persons and unserved geographic areas; and
(iv) Proposed arrangement is likely to result in a widedistribution of appropriate health care services throughout the state.
(e) If the director determines that the proposed arrangement islikely to increase access and bases that determination on a projected increasein utilization, the director shall require the applicant to demonstrate thatthe increased utilization does not result in overutilization.
(f) In making determinations as to quality, the director shalldetermine 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 frequencyof treatment likely to lead to better outcomes;
(v) Result in more effective or efficient providercredentialing and licensing;
(vi) Result in increased or more effective use of clinicalpractice guidelines, quality assurance measures such as continued qualityimprovement and other outcome measurements;
(vii) Increase patient satisfaction; and
(viii) Have any other features likely to improve or reduce thequality of health care.
(g) Notwithstanding subsection (f) of this section, inevaluating if a proposed arrangement improves or reduces the quality of healthcare, the director shall preserve the confidentiality of quality managementfunctions involving health care facilities and peer review activities involvingprofessional standard review organizations as set forth in W.S. 35-2-910 and35-17-101 through 35-17-106.
(h) In making determinations as to whether a proposed arrangementcontributes to the promotion of a comprehensive health care system in thestate, the director shall determine the extent to which the arrangement islikely to:
(i) Promote the development of and access to a wide variety ofhealth care services and specialties in the state;
(ii) Minimize cost-shifting in which more lucrative patientpopulations and specialties are served at the expense of other patients andspecialties, resulting in fewer services available in the state; and
(iii) Promote access to appropriate health care services inlocations throughout the state.
35-24-112. Final decision; conditions for approval; findings; ongoingsupervision and reporting; renewal fees.
(a) The director shall issue a written decision approving ordisapproving the application.
(b) The director may condition approval on a modification ofall or part of the proposed arrangement to eliminate any restriction oncompetition that is not reasonably related to the goals of reducing cost orimproving access or quality. The director may also establish conditions forapproval that are reasonably necessary to protect against abuses of privateeconomic power and to ensure that the arrangement is appropriately supervisedand regulated by the state.
(c) The decision by the director approving or disapproving anapplication shall include specific findings of fact concerning cost, access andquality criteria and shall identify one (1) or more of these criteria as thebasis for the decision.
(d) The decision to approve an application shall requireperiodic submission of specific data by the applicant relating to cost, accessand quality and to the extent feasible, the applicant shall identify objectivestandards of cost, access and quality by which the success of the arrangementwill be measured. If the director determines that the scope of a particularproposed arrangement is such that the arrangement is certain to have neither apositive or negative impact on any one (1) of the criteria, the director maynot require the submission of data or establish an objective standard relatingto that criteria. An applicant shall submit a renewal fee together withinformation required under this subsection, in an amount determined by thedepartment subject to limitations imposed under W.S. 35-24-104(d). Revenuesfrom fees collected shall be deposited into the account established under W.S.35-24-104(d).
35-24-113. Judicial review.
Afterthe director has rendered a decision under W.S. 35-24-112 and in accordancewith W.S. 16-3-114, the applicant or any other aggrieved party may requestjudicial review of the director's decision by filing a petition for reviewwithin thirty (30) days in accordance with the Wyoming Administrative ProcedureAct. A determination under W.S. 35-24-107(a) shall not be raised as an issue onappeal.
35-24-114. Ongoing supervision following application approval;procedures; solicitation of public comment on arrangement impacts.
(a) The director shall appropriately supervise, monitor andregulate approved arrangements consistent with subsection (b) of this section.
(b) The decision approving the application shall specify a timeschedule for the submission of data by the applicant, which shall be at leastonce a year and shall identify the data required to be submitted. The directormay at any time require the submission of additional data or alter the timeschedule. Upon review of the data submitted, the director shall notify theapplicant on compliance of the arrangement with the initial decision orsubsequent orders. If the arrangement is not in compliance, the director shallidentify those respects in which the arrangement does not conform to the decision.
(c) An applicant receiving notification that an arrangement isnot in compliance may respond with additional data within thirty (30) days. The response may include a proposal and time schedule by which the applicantwill bring the arrangement into compliance with the initial decision orsubsequent orders. If the arrangement is not in compliance and the directorand the applicant cannot agree to the terms of bringing the arrangement intocompliance, the matter shall be set for hearing. The hearing shall be conductedas a contested case in the manner prescribed under W.S. 35-24-110. The hearingofficer shall issue a written recommendation to the director who shall issue afinal decision within thirty (30) days following issuance of the recommendation. A copy of the recommendation and final decision shall be provided to allparties to the contested case hearing. A final decision by the director issubject to judicial review in accordance with W.S. 16-3-114.
(d) The director shall publish notice two (2) years after thedate the initial application is approved and at two (2) year intervalsthereafter, soliciting comments from the public concerning the impact thearrangement has had on cost, access and quality. The director may requestadditional oral or written information from the applicant or from any othersource.
35-24-115. Revocation of approval; conditions; notice; public comment;hearing; revocation alternatives specified; liability of applicant.
(a) Subject to subsection (d) of this section, the directorshall revoke his initial approval of an application if the arrangement:
(i) Is not in substantial compliance with the terms of theapplication;
(ii) Is not in substantial compliance with the conditions ofapproval;
(iii) Has not and is not likely to substantially achieveimprovements in cost, access or quality or the promotion of a comprehensivehealth care system in the state as identified in the initial decision as thebasis for approval of the arrangement; or
(iv) Is not promoting reductions in cost and improvements inaccess and quality to the extent competition would do so due to changingconditions in the marketplace. Revocation under this paragraph shall beidentified in writing by the director together with reasons therefor.
(b) The director shall initiate a proceeding to revoke approvalby providing written notice to the applicant describing in detail the basis forthe proposed revocation. Notice of the proceeding shall be published andprovided to all interested parties in the manner and time specified under W.S.35-24-104(b), which shall request the submission of comments to the director.
(c) A proceeding to revoke an approval shall be conducted as acontested case proceeding upon the written request of the applicant. Theattorney general may appear as a party. The contested hearing shall beconducted in the manner prescribed by W.S. 35-24-110. Decisions of the directorin a proceeding to revoke approval are subject to judicial review in accordancewith W.S. 16-3-114.
(d) In deciding whether to revoke an approval, the directorshall consider the hardship the revocation may impose on the applicant and anypotential disruption of the market as a whole. The director shall also considerbased upon a demonstration by the applicant, if the arrangement can bemodified, restructured or regulated in a manner to remedy the problem uponwhich the revocation proceeding is based. Before approving an alternative torevocation that involves modifying or restructuring an arrangement, the directorshall publish notice stating that any person may comment on the proposedmodification or restructuring within twenty (20) days after publication of thenotice. The director shall not approve any modification or restructuring untilthe comment period has concluded. An approved modified or restructuredarrangement is subject to appropriate supervision in the manner provided underW.S. 35-24-114.
(e) An applicant that has had its approval revoked is notrequired to terminate the arrangement. The applicant cannot be held liableunder state or federal antitrust law for acts that occurred while the approvalwas in effect, except to the extent the applicant failed to substantiallycomply with terms of its application or failed to substantially comply withterms of the approval. The applicant is subject to state and federal antitrustlaw after the revocation becomes effective and may be held liable for acts thatoccur after the revocation.
35-24-116. Application of insurance code.
Nothingin this chapter shall relieve an applicant or recipient of an exception underthis chapter from applicable provisions of the Wyoming Insurance Code.
CHAPTER 24 - HEALTH CARE COOPERATIVE ARRANGEMENTS FORANTI-TRUST EXCEPTIONS
35-24-101. State health care policy; legislative findings anddeclarations.
(a) It is the policy of the state to promote:
(i) The quality of health care provided to the citizens ofWyoming;
(ii) Access to appropriate health care for all citizens of thestate, including citizens in historically underserved populations andunderserved 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 undersubsection (a) of this section will be significantly enhanced by cooperativearrangements including joint ventures and similar enterprises, and contractsamong health care providers and purchasers, and certain collaborativeagreements between third party payors and health care providers, that mightotherwise be prohibited by federal and state antitrust laws if undertakenwithout governmental involvement. The legislature declares that the formationand operation of cooperative arrangements be the subject of governmentregulation by the state and that state regulation be substituted for themarketplace and market competition. The legislature intends by provisions ofthis chapter, that approval of cooperative arrangements among health careproviders, purchasers and third party payors be accompanied by appropriateconditions and ongoing supervision and regulation of the operations of thecooperative arrangements, in order to protect against any abuses and toeffectively except the actions of approved and regulated cooperativearrangements from state and federal antitrust liability.
35-24-102. Definitions.
(a) As used in this chapter:
(i) "Access" means the financial, temporal orgeographic availability of health care to consumers;
(ii) "Aggrieved party" means any provider, purchaseror third-party payor including but not limited to any hospital, physician,allied health professional, health care provider or other person furnishinggoods or services to or in competition with hospitals, insurers, hospitalservice corporations, medical service corporations, preferred providerorganizations, health maintenance organizations or any employer or associationthat directly or indirectly provides health care benefits to its employees ormembers;
(iii) "Applicant" means a party to an agreement orbusiness arrangement for which approval is sought under this chapter;
(iv) "Cost" means the amount paid by consumers orthird party payors for health care services or products and the amount ofpremiums charged to consumers and employers for health insurance;
(v) "Criteria" means the costs, access and quality ofhealth care and the maintenance of a comprehensive health care system in thestate;
(vi) "Department" means the department of health;
(vii) "Director" means the director of the department;
(viii) "Exception" means a document issued by thedirector to parties who enter into a cooperative arrangement verifying that thedirector declares the purposes and objectives of the cooperative arrangementmeet the standards prescribed under this chapter and reflecting that thearrangement is excepted and immune from federal and state antitrust liability;
(ix) "Health care products" means medical equipmentwhether fixed or movable, used by a provider in the delivery of a health careservice;
(x) "Health care service" means any service providedby a health care provider licensed by the state which is generally reimbursedby medical assistance or third party coverage, but does not include retail,over-the-counter sales of nonprescription drugs and other retail sales ofhealth-related products not generally reimbursed by medical assistance andother third party coverage;
(xi) "Provider" means any person or health carefacility licensed, registered, certified, permitted or otherwise officiallyrecognized by this state to provide health care in the ordinary course ofbusiness or practice of a profession or if a freestanding outpatient facility,a facility fee is charged for health services provided, or any combination ofproviders described in this paragraph which engages in payment or reimbursementfunctions in connection with a coordinated program for the delivery andfinancing of health care, including health maintenance organizations which arewholly or partially owned and operated by providers;
(xii) "Purchaser" means a person or organization thatpurchases health care services on behalf of an identified group of persons,regardless of whether the cost of coverage or services is paid for by thepurchaser or by the persons receiving coverage or services;
(xiii) "Third party payor" means any insurer or otherentity responsible for providing payment for health care services, includingthe worker's compensation division of the department of employment and anyself-insured entity;
(xiv) "Trade secrets" means proprietary data includinga formula, pattern, compilation, program, device, method, technique or processthat:
(A) Is supplied by the affected individual or organization tothe state;
(B) Is the subject of efforts by the individual or organizationthat 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 propermeans by other persons who can obtain economic value from its disclosure oruse.
35-24-103. Application for exception; exception absolute defense;liability limited; out-of-state applicants; consultation with attorney general;rulemaking authority granted.
(a) Providers, purchasers or any combination thereof, or thirdparty payors if in collaboration with a provider, wishing to engage in contracts,business or financial arrangements or other activities, practices orarrangements that might be construed to be violations of state or federalantitrust laws but which are in the best interests of the state and further thepolicies and goals of this chapter, may apply to the director for an exception.
(b) Except as provided under W.S. 35-24-115(e), approval of anapplication by the department is an absolute defense against any action understate and federal antitrust laws.
(c) The application and any information obtained by thedepartment under W.S. 35-24-104 through 35-24-110 that is not otherwiseavailable are not admissible in any civil or criminal proceeding brought by thedirector or any other person based on an antitrust claim, except:
(i) A proceeding brought under W.S. 35-24-115(e) based on anapplicant's failure to substantially comply with the terms of the application;or
(ii) A proceeding based on actions taken by the applicant priorto submitting the application, where the actions are acknowledged by theapplicant in the application.
(d) Providers, purchasers and third party payors not physicallylocated in this state who are registered to do business in this state areeligible to apply for an exception for arrangements in which they transactbusiness in this state.
(e) The department shall consult with the attorney general incarrying out duties and responsibilities under this chapter.
(f) The department shall promulgate rules and regulationsnecessary to carry out this chapter.
35-24-104. Application for exception; contents; notice; jointapplication; filing fee; confidentiality of trade secret information; extensionof time limitations.
(a) An application for approval of an antitrust exception shallinclude to the extent applicable:
(i) A descriptive title;
(ii) A table of contents;
(iii) Exact name of each party to the application and the addressof the principal business office of each party;
(iv) The name, address and telephone number of the personsauthorized to receive notices and communications with respect to theapplication;
(v) A verified statement by a responsible officer of each partyto the application attesting to the accuracy and completeness of the enclosedinformation;
(vi) Background information relating to the proposedarrangement, including:
(A) A description of the proposed arrangement, including a listof any services or products that are the subject of the proposed arrangement;
(B) An identification of any tangential services or productsassociated with the services or products that are the subject of the proposedarrangement;
(C) A description of the geographic territory involved in theproposed arrangement;
(D) If the geographic territory described under subparagraph(a)(vi)(C) of this section is different from the territory in which theapplicants 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 asubstantial share of consumers would consider substitutes for any service orproduct that is the subject of the proposed arrangement;
(F) Identification of any services or products of the proposedarrangement which are currently being offered, capable of being offered,utilized or capable of being utilized by other providers or purchasers in thegeographic territory described under subparagraph (a)(vi)(C) of this section;
(G) Identification of necessary action for other parties toenter the territory described under subparagraph (a)(vi)(C) of this section andcompete with the applicant under current market and regulatory conditions;
(H) A description of previous dealings between the parties tothe application;
(J) A detailed explanation of the projected effects includingexpected volume, change in price and increased revenue of the arrangement onthe current business of each party;
(K) The present market share of the parties to the applicationand of others affected by the proposed arrangement and projected market sharesafter implementation of the proposed arrangement;
(M) An explanation of why the projected levels of costs, accessor quality could not be achieved in the existing market without the proposedarrangement.
(vii) A detailed explanation of the effect of the transaction onquality, access, containment of health care costs and the promotion of acomprehensive health care system in the state, which shall to the extentapplicable, address the factors specified under W.S. 35-24-111(c) through (g).
(b) In addition to the information required under subsection(a) of this section, the application shall contain a written description of theproposed arrangement for purposes of publication. The applicant shall alsoprovide notice to the public and all interested persons making timely requestfor advanced notice of applications under this section. The notice shall beapproved by the director, shall include sufficient information to advise thepublic of the nature of the proposed arrangement and enable the public toprovide comments concerning the expected results of the arrangements and shalladvise that any person may provide written comments to the director, with acopy to the applicant, within thirty (30) days of the date of publication. Ifthe director determines that the submitted notice does not provide sufficient information,the director may after consultation with the applicant and the applicant agreeswith the amendment, amend the notice before publication or disapprove theapplication.
(c) For a proposed arrangement involving multiple parties, one(1) joint application shall be submitted on behalf of all parties to thearrangement.
(d) An application shall be accompanied by a filing fee to bedetermined by the department based upon the estimated cost of investigating,analyzing, reviewing and processing the application, including any contestedcase proceeding or appeal, in accordance with this chapter. The fee structureshall include a sliding scale based upon revenue generated by the partiesapplying for the exception during the preceding year. The annual renewal feeshall not exceed two thousand five hundred dollars ($2,500.00). Any unusedportion of the fee shall be refunded to the applicant. All fees collected bythe department under this subsection and W.S. 35-24-112(d) shall be depositedinto a separate account and will be available to reimburse department start-upcosts prior to submittal of the application. Expenditures from the accountshall be for expenses incurred by the department in administering this chapter.
(e) Trade secret information including information provided aspart of the application process and ongoing supervision, shall be protectedfrom disclosure in accordance with W.S. 16-4-203(d)(v). An applicant shalldesignate the information provided in the application which it considers to beprotected from disclosure in accordance with W.S. 16-4-203(d). The directorshall deny public access to any information so designated, subject to the rightof a person denied inspection to appeal to the district court in accordancewith the provisions of W.S. 16-4-203(f). Any information not so designatedshall be available for public inspection in accordance with the provisions ofW.S. 16-4-201 through 16-4-205.
(f) Upon a showing of good cause, the director may extend anyof the time limits prescribed under W.S. 35-24-106 through 35-24-110 at therequest of the applicant or another person.
35-24-105. 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, thedirector shall return the application and provide a written description of thedeficiencies in the application to the applicant. The applicant may completeor revise and resubmit the application.
(b) The director may decline to review any application relatingto arrangements already in effect before the submission of the application.
35-24-106. Notice of application; public comments; objections.
(a) The director shall publish notice of application proposalsrequired under W.S. 35-24-104(b) and provide notice to any person who hasrequested to be placed on a list to receive notice of applications. Thedirector may also notify and request comments from persons as authorized underW.S. 35-24-104(b). Copies of any request received shall be provided to theapplicant in sufficient time to enable a response as authorized undersubsection (b) of this section.
(b) Within twenty (20) days after notice is published, anyperson may mail to the director written comments with respect to theapplication. Comments may address what type of review procedure should befollowed or specifically request that the director conduct a contested case hearingregarding the proposed arrangement. Persons submitting comments shall providea copy of the comments to the applicant. The applicant may mail to the directorwritten responses to any comments within ten (10) days after the deadline formailing comments. The applicant shall also send a copy of the response to theperson submitting the comment.
(c) Any aggrieved party has the right to file writtenobjections to the application with the director within thirty (30) days afterthe date of publication. A person objecting shall submit a copy of theobjections to the applicant.
35-24-107. Determination of review procedure; criteria; right tohearing afforded.
(a) After the conclusion of the notice and comment periodprescribed under W.S. 35-24-106, the director shall subject to subsection (b)of this section, select one (1) of the three (3) review procedures specifiedunder W.S. 35-24-108 through 35-24-110. In determining which procedure to use,the director shall consider the following criteria:
(i) The size of the proposed arrangement in terms of number ofparties 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 thefactual record.
(b) Upon request by the applicant, timely filing of anobjection or a determination by the director, a contested case hearing shall beheld no later than thirty (30) days after the conclusion of the notice,objection and comment period under W.S. 35-24-106. The director may extend thethirty (30) day period for good cause. The director shall hold a publichearing as specified under W.S. 35-24-110.
35-24-108. Decision based upon written record.
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and instead of a limited hearing under W.S. 35-24-109, thedirector may issue a decision based on the application, the comments and theapplicant's responses to the comments, to the extent each is relevant. Inmaking the decision, the director may rely upon publicly available departmentof health data.
(b) A decision rendered under this section shall be in writingand specify the items in the written record relied upon in reachingconclusions. The applicant shall be notified of notice taken of judiciallycognizable facts as provided by W.S. 16-3-108(d).
(a) If a contested case hearing is not required pursuant toW.S. 35-24-107(b) and in lieu of W.S. 35-24-108, the director may prior torendering a decision on any application, order a limited hearing. A copy ofthe order shall be mailed to the applicant and to all persons who havesubmitted comments or requested to be kept informed of the proceedingsinvolving the application. The order shall state the date, time and locationof the limited hearing and shall identify specific issues to be addressed atthe limited hearing, which may include the feasibility and desirability of one(1) or more alternatives to the proposed arrangement. The order shall requirethe applicant to submit written evidence in the form of affidavits andsupporting documents, addressing the issues identified within twenty (20) daysafter the date of the order. The order shall also state that any person mayarrange to receive a copy of the written evidence from the director, at theperson's expense, and may provide written comments on the evidence within forty(40) days after the date of the order. Any person providing written commentspursuant to this subsection shall provide a copy of the comments to theapplicant.
(b) The limited hearing shall be held before the director or adepartment staff member designated by the director. The director or hisdesignee shall question the applicant concerning the evidence submitted by theapplicant. The questions may address relevant issues identified in thecomments submitted in response to the written evidence or identified by thedepartment of health staff or discovered through publicly available departmentof health data. At the conclusion of the applicant's responses to the questions,any person who submitted comments about the applicant's written evidence maymake a statement addressing the applicant's responses to the questions. Thedirector or his designee may ask questions of any person making a statement. At the conclusion of all statements, the applicant may make a closingstatement.
(c) The director's decision after a limited hearing shall tothe extent each is relevant, be based upon the application, the comments, theapplicant's response to the comments, the applicant's written evidence, thecomments in response to the written evidence and the information presented atthe limited hearing. In making the decision, the director may rely on publiclyavailable department of health data.
35-24-110. Contested case hearing on application; procedure specified;recommendations and final decisions.
(a) If required by W.S. 35-24-107, the director shall order acontested case hearing. The director shall publish notice of the time, dateand location of the hearing in a newspaper of general circulation at least aweek prior to the hearing.
(b) The hearing shall be conducted in an impartial mannerpursuant to the Wyoming Administrative Procedure Act, applicable provisions ofthe Wyoming Rules of Civil Procedure and any rules for the conduct of contestedcases adopted by the director of the office of administrative hearings pursuantto W.S. 9-2-2203. The hearing shall be conducted by a hearing officer. Allfactual issues relevant to a decision shall be presented in the contestedcase. The attorney general may appear as a party. Additional aggrieved partiesmay appear to the extent permitted under W.S. 16-3-107. The record in thecontested case includes the application, the comments, the applicant's responseto the comments and any other evidence that is part of the record under theWyoming 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 provideda copy of the hearing officer's recommendation and the director's finaldecision.
35-24-111. Criteria for approving application; factors enumerated.
(a) The director shall not approve an application unless hedetermines the arrangement is more likely to result in a better overallpromotion of the quality of health care, access to health care, a lower costfor health care and the increased availability of a comprehensive health caresystem in the state, than would otherwise occur under existing marketconditions or conditions likely to develop without an exemption from state andfederal antitrust law. If a proposed arrangement appears likely to improvecertain criteria at the expense of other criteria, the director shall notapprove the application unless he determines improvements outweigh the negativeimpacts and the proposed arrangement, taken as a whole, is likely tosubstantially further the purposes of this chapter.
(b) In making a determination about cost, access, quality andthe promotion of a comprehensive health care system in the state, the directormay to the extent applicable, require the applicant to demonstrate or provideinformation 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 andpurchasers;
(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 orrestrains competition in ways not reasonably related to the purposes of thischapter; and
(vii) The financial condition of the applicant.
(c) The analysis of cost by the director shall consider theindividual consumer of health care and if a proposed arrangement will result incost-efficiencies in the services provided by the applicant. Cost-efficienciesto be realized by providers, group purchasers or other participants in thehealth care system also are relevant and shall be considered to the extent anyefficiencies are likely to directly or indirectly benefit the consumer. If anapplication is submitted by providers primarily paid by third party payors orpersons unaffiliated with the applicant, it is sufficient for the applicant toshow that cost savings are likely to be passed on to the unaffiliated thirdparty payors or persons and the applicants shall not be required to show thatthird party payors with whom the applicants are not affiliated will pass oncost savings to individuals receiving coverage through the third party payors. To the extent relevant and ascertainable, cost analysis may also include theimpact on overall employer premiums for health insurance. In makingdeterminations 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 onto the consumer and in what form;
(iii) The extent to which overall employer premium costs forhealth insurance will be decreased;
(iv) The extent to which the proposed arrangement is likely toresult in cost shifting by the applicant onto other payors or purchasers ofother products or services;
(v) The extent to which any cost shifting by the applicant islikely to be followed by other persons in the market;
(vi) The extent to which the proposed arrangement reducesoverall systemic cost shifting;
(vii) The current and anticipated supply and demand for any productsor services at issue;
(viii) The representations and guarantees of the applicant andtheir 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 theapplicant; and
(xii) Any other factors showing that the proposed arrangement isor is not likely to reduce costs.
(d) In making determinations as to access, the director shalldetermine the extent to which the:
(i) Utilization of needed health care services or products bythe intended targeted population is likely to increase or decrease. When aproposed arrangement is likely to increase access in one (1) geographic area bylowering prices or otherwise expanding supply, but limits access in anothergeographic area by removing service capabilities from that second area, thedirector shall require the applicant to articulate the criteria employed tobalance these effects;
(ii) Proposed arrangement is likely to make available a new andneeded service or product to a certain geographic area;
(iii) Proposed arrangement is likely to otherwise make healthcare services or products more financially or geographically available toconsumers, particularly persons in historically underserved populationsincluding indigent persons and unserved geographic areas; and
(iv) Proposed arrangement is likely to result in a widedistribution of appropriate health care services throughout the state.
(e) If the director determines that the proposed arrangement islikely to increase access and bases that determination on a projected increasein utilization, the director shall require the applicant to demonstrate thatthe increased utilization does not result in overutilization.
(f) In making determinations as to quality, the director shalldetermine 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 frequencyof treatment likely to lead to better outcomes;
(v) Result in more effective or efficient providercredentialing and licensing;
(vi) Result in increased or more effective use of clinicalpractice guidelines, quality assurance measures such as continued qualityimprovement and other outcome measurements;
(vii) Increase patient satisfaction; and
(viii) Have any other features likely to improve or reduce thequality of health care.
(g) Notwithstanding subsection (f) of this section, inevaluating if a proposed arrangement improves or reduces the quality of healthcare, the director shall preserve the confidentiality of quality managementfunctions involving health care facilities and peer review activities involvingprofessional standard review organizations as set forth in W.S. 35-2-910 and35-17-101 through 35-17-106.
(h) In making determinations as to whether a proposed arrangementcontributes to the promotion of a comprehensive health care system in thestate, the director shall determine the extent to which the arrangement islikely to:
(i) Promote the development of and access to a wide variety ofhealth care services and specialties in the state;
(ii) Minimize cost-shifting in which more lucrative patientpopulations and specialties are served at the expense of other patients andspecialties, resulting in fewer services available in the state; and
(iii) Promote access to appropriate health care services inlocations throughout the state.
35-24-112. Final decision; conditions for approval; findings; ongoingsupervision and reporting; renewal fees.
(a) The director shall issue a written decision approving ordisapproving the application.
(b) The director may condition approval on a modification ofall or part of the proposed arrangement to eliminate any restriction oncompetition that is not reasonably related to the goals of reducing cost orimproving access or quality. The director may also establish conditions forapproval that are reasonably necessary to protect against abuses of privateeconomic power and to ensure that the arrangement is appropriately supervisedand regulated by the state.
(c) The decision by the director approving or disapproving anapplication shall include specific findings of fact concerning cost, access andquality criteria and shall identify one (1) or more of these criteria as thebasis for the decision.
(d) The decision to approve an application shall requireperiodic submission of specific data by the applicant relating to cost, accessand quality and to the extent feasible, the applicant shall identify objectivestandards of cost, access and quality by which the success of the arrangementwill be measured. If the director determines that the scope of a particularproposed arrangement is such that the arrangement is certain to have neither apositive or negative impact on any one (1) of the criteria, the director maynot require the submission of data or establish an objective standard relatingto that criteria. An applicant shall submit a renewal fee together withinformation required under this subsection, in an amount determined by thedepartment subject to limitations imposed under W.S. 35-24-104(d). Revenuesfrom fees collected shall be deposited into the account established under W.S.35-24-104(d).
35-24-113. Judicial review.
Afterthe director has rendered a decision under W.S. 35-24-112 and in accordancewith W.S. 16-3-114, the applicant or any other aggrieved party may requestjudicial review of the director's decision by filing a petition for reviewwithin thirty (30) days in accordance with the Wyoming Administrative ProcedureAct. A determination under W.S. 35-24-107(a) shall not be raised as an issue onappeal.
35-24-114. Ongoing supervision following application approval;procedures; solicitation of public comment on arrangement impacts.
(a) The director shall appropriately supervise, monitor andregulate approved arrangements consistent with subsection (b) of this section.
(b) The decision approving the application shall specify a timeschedule for the submission of data by the applicant, which shall be at leastonce a year and shall identify the data required to be submitted. The directormay at any time require the submission of additional data or alter the timeschedule. Upon review of the data submitted, the director shall notify theapplicant on compliance of the arrangement with the initial decision orsubsequent orders. If the arrangement is not in compliance, the director shallidentify those respects in which the arrangement does not conform to the decision.
(c) An applicant receiving notification that an arrangement isnot in compliance may respond with additional data within thirty (30) days. The response may include a proposal and time schedule by which the applicantwill bring the arrangement into compliance with the initial decision orsubsequent orders. If the arrangement is not in compliance and the directorand the applicant cannot agree to the terms of bringing the arrangement intocompliance, the matter shall be set for hearing. The hearing shall be conductedas a contested case in the manner prescribed under W.S. 35-24-110. The hearingofficer shall issue a written recommendation to the director who shall issue afinal decision within thirty (30) days following issuance of the recommendation. A copy of the recommendation and final decision shall be provided to allparties to the contested case hearing. A final decision by the director issubject to judicial review in accordance with W.S. 16-3-114.
(d) The director shall publish notice two (2) years after thedate the initial application is approved and at two (2) year intervalsthereafter, soliciting comments from the public concerning the impact thearrangement has had on cost, access and quality. The director may requestadditional oral or written information from the applicant or from any othersource.
35-24-115. Revocation of approval; conditions; notice; public comment;hearing; revocation alternatives specified; liability of applicant.
(a) Subject to subsection (d) of this section, the directorshall revoke his initial approval of an application if the arrangement:
(i) Is not in substantial compliance with the terms of theapplication;
(ii) Is not in substantial compliance with the conditions ofapproval;
(iii) Has not and is not likely to substantially achieveimprovements in cost, access or quality or the promotion of a comprehensivehealth care system in the state as identified in the initial decision as thebasis for approval of the arrangement; or
(iv) Is not promoting reductions in cost and improvements inaccess and quality to the extent competition would do so due to changingconditions in the marketplace. Revocation under this paragraph shall beidentified in writing by the director together with reasons therefor.
(b) The director shall initiate a proceeding to revoke approvalby providing written notice to the applicant describing in detail the basis forthe proposed revocation. Notice of the proceeding shall be published andprovided to all interested parties in the manner and time specified under W.S.35-24-104(b), which shall request the submission of comments to the director.
(c) A proceeding to revoke an approval shall be conducted as acontested case proceeding upon the written request of the applicant. Theattorney general may appear as a party. The contested hearing shall beconducted in the manner prescribed by W.S. 35-24-110. Decisions of the directorin a proceeding to revoke approval are subject to judicial review in accordancewith W.S. 16-3-114.
(d) In deciding whether to revoke an approval, the directorshall consider the hardship the revocation may impose on the applicant and anypotential disruption of the market as a whole. The director shall also considerbased upon a demonstration by the applicant, if the arrangement can bemodified, restructured or regulated in a manner to remedy the problem uponwhich the revocation proceeding is based. Before approving an alternative torevocation that involves modifying or restructuring an arrangement, the directorshall publish notice stating that any person may comment on the proposedmodification or restructuring within twenty (20) days after publication of thenotice. The director shall not approve any modification or restructuring untilthe comment period has concluded. An approved modified or restructuredarrangement is subject to appropriate supervision in the manner provided underW.S. 35-24-114.
(e) An applicant that has had its approval revoked is notrequired to terminate the arrangement. The applicant cannot be held liableunder state or federal antitrust law for acts that occurred while the approvalwas in effect, except to the extent the applicant failed to substantiallycomply with terms of its application or failed to substantially comply withterms of the approval. The applicant is subject to state and federal antitrustlaw after the revocation becomes effective and may be held liable for acts thatoccur after the revocation.
35-24-116. Application of insurance code.
Nothingin this chapter shall relieve an applicant or recipient of an exception underthis chapter from applicable provisions of the Wyoming Insurance Code.
