GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

S	1 

SENATE BILL 9

Short Title:  Hospital Cooperation Act.	(Public)
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Sponsors: Senators Daniel; Perdue, Tally, and Seymour.
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Referred to:  Judiciary II.
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January 28, 1993

A BILL TO BE ENTITLED
AN ACT TO FACILITATE COOPERATIVE AGREEMENTS AMONG HOSPITALS.
The General Assembly of North Carolina enacts:
Section 1.  This act shall be known as the Hospital Cooperation Act of 1993.
Sec. 2.  Chapter 131E of the General Statutes is amended by adding the following new Article to read:
"ARTICLE 9A
"Certificate of Public Advantage.
"§ 131E-192.1.  Findings.
The General Assembly of North Carolina makes the following findings:
(1)	That technological and scientific developments in hospital care have enhanced the prospects for further improvement in the quality of care provided by North Carolina hospitals to North Carolina citizens.
(2)	That the cost of improved technology and improved scientific methods for the provision of hospital care contributes substantially to the increasing cost of hospital care.  Cost increases make it increasingly difficult for hospitals in rural areas of North Carolina to offer care.
(3)	That changes in federal and State regulations governing hospital operation and reimbursement have constrained the ability of hospitals to acquire and develop new and improved machinery and methods for the provision of hospital-related care.
(4)	That cooperative agreements among hospitals and between hospitals and others for the provision of hospital and hospital-related services may foster improvements in the quality of health care for North Carolina citizens, moderate increases in cost, improve access to needed services in rural areas of North Carolina, and enhance the likelihood that smaller hospitals in North Carolina will remain open in beneficial service to their communities.
(5)	That hospitals are often in the best position to identify and structure cooperative arrangements that enhance quality of care, improve access, and achieve cost-efficiency in the provision of care.
(6)	That federal and State antitrust laws may prohibit or discourage cooperative arrangements that are beneficial to North Carolina citizens despite their potential for or actual reduction in competition and that such agreements should be permitted and encouraged.
(7)	That because competition is important to the health care sector and some cooperative agreements may operate to the detriment of the public because of their anticompetitive effects, regulatory and judicial oversight of cooperative agreements is necessary to ensure that the benefits of cooperative agreements permitted and encouraged in North Carolina outweigh any disadvantages attributable to any reduction in competition likely to result from the agreements.
"§ 131E-192.2.  Definitions.
As used in this Article, unless the content clearly requires otherwise, the following terms have the meanings specified:
(1)	'Attorney General' means the Attorney General of the State of North Carolina or any attorney on his or her staff to whom the Attorney General delegates authority and responsibility to act pursuant to this Article;
(2)	'Cooperative agreement' means an agreement among two or more hospitals, or between a hospital and any other person or persons, for the sharing, allocation or referral of patients, personnel, instructional programs, support services and facilities, or medical, diagnostic or laboratory facilities, or procedures or other services traditionally offered by hospitals.  'Cooperative agreement' shall not include any agreement by which ownership over substantially all of the stock, assets, or activities of one or more previously licensed and operating hospitals is transferred;
(3)	'Department' means the North Carolina Department of Human Resources;
(4)	'Hospital' means any institution required to be licensed under Chapters 131E or 122C of the General Statutes;
(5)	'Person' means any physician or other natural person as well as any entity, corporate or political;
(6)	'State or federal antitrust laws' means any and all State or federal laws prohibiting monopolies or agreements in restraint of trade, including, but not limited to, North Carolina laws codified in Chapter 75 of the General Statutes and the federal Sherman Act, Clayton Act, and Federal Trade Commission Act.
"§ 131E.192.3.  Certificate of public advantage; application.
(a)	A hospital and any person who is a party to an agreement with a hospital may negotiate enter into, and conduct business pursuant to a cooperative agreement without being subject to damages, liability, or scrutiny under any State or federal antitrust law if a certificate of public advantage is issued for the cooperative agreement, or in the case of activities, to negotiate or enter into a cooperative agreement, if an application for a certificate of public advantage is filed.
(b)Parties to a cooperative agreement may apply to the Department for a certificate of public advantage governing that cooperative agreement.  The application must include an executed written copy of the cooperative agreement or letter of intent with respect to the agreement, a description of the nature and scope of the activities and cooperation in the agreement, any consideration passing to any party under the agreement, and any additional materials necessary to fully explain the agreement and its likely effects.  A copy of the application and all additional related materials shall be submitted to the Attorney General at the same time when application is made to the Department.
"§ 131E-192.4.  Procedure for review; standards for review.
(a)	The Department shall review the application in accordance with the standards set forth in subsection (b) and may hold a public hearing in accordance with rules adopted by the Department.  The Department shall determine whether the application should be granted or denied within 90 days of the date of filing of a complete application.
(b)	The Department shall determine that a certificate of public advantage should issue for a cooperative agreement if it determines that the applicant(s) has demonstrated by clear and convincing evidence that the likely benefits resulting from the agreement outweigh the likely disadvantages attributable to a reduction in competition that may result from the agreement.  In evaluating the potential benefits of a cooperative agreement, the Department shall consider whether one or more of the following benefits may result from the cooperative agreement:
(1)	Enhancement of the quality of hospital and hospital-related care provided to North Carolina citizens;
(2)	Preservation of hospital facilities in geographical proximity to the communities traditionally served by those facilities;
(3)	Lower costs or gains in the cost efficiency of hospital services;
(4)	Improvements in the utilization of hospital resources and equipment; and
(5)	Avoidance of duplication of hospital resources.
The Department's evaluation of potential disadvantages attributable to any reduction in competition likely to result from the agreement shall include, but need not be limited to the following factors:
(1)	The extent to which the agreement would reduce competition among the parties to the agreement and the likely effects thereof;
(2)	The extent to which the agreement is likely to have an adverse impact on the ability of health maintenance organizations, preferred provider organizations, managed health care service agents, or other health care payors to negotiate optimal payment and service arrangements with hospitals, physicians, allied health care professionals, or other health care providers;
(3)	The extent to which the agreement is likely to result in a reduction in competition among physicians, allied health professionals, other health care providers, or other persons furnishing goods or services to, or in competition with, hospitals;
(4)	The extent to which the agreement is likely to have an adverse impact on patients in the quality, availability, and price of health care services; and
(5)	The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition likely to result from the agreement.
"§ 131E-192.5.  Issuance of a certificate.
If the Department determines that the likely benefits of a cooperative agreement outweigh the likely disadvantages attributable to reduction of competition as a result of the agreement, and the Attorney General has not stated any objection to issuance of a certificate during the 90-day review period, the Department shall issue a certificate of public advantage for the cooperative agreement at the conclusion of the 90-day review period.  Such certificate shall include any conditions of operation under the agreement that the Department, in consultation with the Attorney General, determines to be appropriate in order to ensure that the activities engaged in pursuant to the agreement are consistent with this Article.
"§ 131E-192.6.  Objection by Attorney General.
If the Attorney General is not persuaded that the likely advantages of the agreement will outweigh the likely disadvantages of any reduction of competition resulting from the agreement, the Attorney General may, within the 90-day review period, state an objection to the issuance of a certificate of public advantage.  Notice of the objection shall be provided in writing to the applicant, together with a general explanation of the concerns of the Attorney General.  The parties may attempt to reach agreement with the Attorney General on modifications to the agreement or to conditions in the certificate so that the Attorney General no longer objects to issuance of a certificate.  If the Attorney General withdraws the objection and the Department maintains its determination that a certificate should be issued, the Department shall issue a certificate of public advantage with any appropriate conditions as soon as practicable following withdrawal of the objection.
"§ 131E-192.7.  Judicial review.
Any applicant or other person aggrieved by a decision to issue or not issue a certificate of public advantage is entitled to judicial review of the action or inaction in Superior Court in Wake County.  Suit for judicial review under this subsection shall be filed within 30 days of notice of the decision to issue or deny issuance of the certificate, or expiration of the 90-day review period.  To prevail in any action for judicial review brought under this section, the proponent of the certificate must establish by clear and convincing evidence that the likely advantages of the agreement outweigh the likely disadvantages attributable to reduction of competition.
"§ 131E-192.8.  Record keeping.
The Department shall maintain on file all cooperative agreements for which certificates of public advantage are in effect and a copy of the certificate, including any conditions imposed.  Any party to a cooperative agreement who terminates an agreement shall file a notice of termination with the Department within 30 days after termination.
"§ 131E-192.9.  Change of circumstances after issuance of certificate.
If at any time following the issuance of a certificate of public advantage, the Department or the Attorney General has questions concerning whether circumstances have changed so that the benefits or likely benefits resulting from a cooperative agreement for which a certificate of public advantage has issued may no longer outweigh the disadvantages or likely disadvantages attributable to a reduction in competition resulting from the agreement, the Department shall advise the parties to the agreement for which the certificate was issued, and request any information necessary to complete a review of the matter.
"§ 131E-192.10.  Periodic reports required.
(a)	During the time that a certificate is in effect, a report of activities pursuant to the cooperative agreement must be filed every two years with the Department on or by the anniversary day on which the certificate was issued. A report shall contain a description of the activities conducted pursuant to the agreement, the nature and scope of the activities pursuant to the agreement anticipated for the next two years, the likely effect of those activities, and any additional information requested by the Department.  A copy of each periodic report shall be submitted to the Attorney General at the same time that it is filed with the Department.
(b)	Failure to file periodic reports required by this section after notice of default, or failure to provide information requested pursuant to a reexamination of the matter pursuant to G.S. 131E-192.9 are grounds for the Attorney General to seek to have the certificate cancelled pursuant to G.S. 131E-192.11.
(c)	The Department shall review each periodic report and information submitted in response to a request pursuant to G.S. 131E-201 to determine whether the advantages or likely advantages of the cooperative agreement continue to outweigh the disadvantages or likely disadvantages of any reduction in competition from the agreement, and to determine what, if any, changes in the conditions of the certificate should be made.  Within 30 days of the filing of a periodic report, the Department shall determine whether the certificate should remain in effect and whether any changes to the conditions in the certificate should be made.  If the Department determines that the certificate should remain in effect and the Attorney General has not stated any objection to the certificate remaining in effect during the 30-day review period, the certificate shall remain in effect, subject to any changes in the conditions of the certificate imposed by the Department.  The parties shall be notified in writing of any changes in the conditions of the certificate.  If the Department determines that the advantages or likely advantages of the agreement and the unavoidable costs of terminating the agreement do not continue to outweigh the disadvantages or likely disadvantages of any reduction in competition from the agreement, or if the Attorney General objects to the certificate remaining in effect, the Department shall notify the parties to the agreement in writing of its determination or the objections of the Attorney General, and shall provide a summary of any concerns of the Department or Attorney General to the parties.
"§ 131E-192.11.  Action to cancel certificate.
If the parties to the agreement are unable to cure the concerns of the Department or the Attorney General concerning the agreement, the Attorney General may bring suit in Superior Court of Wake County on behalf of the Department or on its own behalf to cancel the certificate.  To prevail in the action, the Attorney General must establish by clear and convincing evidence that as a result of changed circumstances, the benefits resulting from the agreement are outweighed by the disadvantages attributable to reduction in competition resulting from the agreement or that the parties to the agreement have unreasonably refused to provide information to the Department or the Attorney General that would permit their review of the matter.
"§ 131E-192.12.  Fees for applications and periodic reports.
An administrative fee shall be charged for filing of an application for a certificate of public advantage in the amount of $      .  An administrative fee in the amount of $     shall be charged for each periodic report.
"§ 131E-192.13.  Authority of Attorney General.
The Attorney General shall have such powers as are necessary to conduct review of applications for certificates of public advantage and periodic reports filed in connection therewith and to bring such actions in Superior Court of Wake County as are specified in this Article.
"§ 131E-192.14.  Effects of certificate of public advantage; other laws.
(a)	Activities conducted pursuant to a cooperative agreement for which a certificate of public advantage has been issued are immunized from challenge or scrutiny under any State or federal antitrust laws.  In addition, conduct in negotiating and entering into a cooperative agreement for which an application for a certificate of public advantage is filed shall be immune from challenge or scrutiny under any state or federal antitrust laws, regardless of whether a certificate is issued.
(b)	Nothing in this Article shall exempt hospitals or other health care providers from compliance with laws governing certificate of need, licensure or other regulatory requirements.
(c)	Any dispute among the parties to cooperative agreement concerning its meaning or terms is governed by normal principles of contract law."
Sec. 3.  G.S. 131E-7(b) reads as rewritten:
"(b)	A municipality or a public hospital may contract with or enter into any arrangement with other public hospitals or municipalities of this or other states, the State of North Carolina, federal or public agencies, or with any person, private organization or nonprofit corporation or association for the provision of health care.  The municipality or public hospital may pay for or contribute its share of the cost of any such contract or arrangement from revenues available for these purposes, including revenues rising from the provision of health care."
Sec. 4.  This act is effective upon ratification.