Section 6.100
Authority
This rule is promulgated by the Health Care Authority under
the authority of
18 V.S.A. §§
9404(d)(2) and
9409(b).
Section 6.200 Scope and Purpose
Section
9406 of
Title 18 requires the Health Care Authority to establish a unified health care
budget on an annual basis. In preparing the budget each year, the Authority
will engage in discussions with representatives of many sectors of Vermont's
health care system, including but not limited to health care providers, so that
the budgeting process is based on as much information as possible. Individual
health care providers who wish to negotiate with the Authority may feel
constrained, however, from full participation for fear that their activities
will be deemed anticompetitive behavior subject to sanctions under applicable
antitrust laws. This rule allows health care providers to benefit from the
"state action immunity doctrine" under which a state may allow certain
anticompetitive behavior, so long as the behavior is clearly articulated and
actively supervised. To that end, this rule is designed to implement
18 V.S.A. §
9409(a) by governing the
creation of provider bargaining groups, clearly articulating the scope of the
matters that groups can negotiate with the Authority and the health care
purchasing pool, and providing for active supervision of all approved
activities by the state. Once approved under this rule, a provider bargaining
group will be able to engage in the types of negotiations authorized herein
without the threat of a challenge under the antitrust laws.
6.201 Applicability
This rule shall apply to health care providers negotiating,
or desiring to negotiate, with the Health Care Authority or the health care
purchasing pool any matters authorized under
18 V.S.A. §
9409(a).
6.202 Purpose
Section
9409
of Title 18 permits the Health Care Authority Board to approve the creation of
one or more provider bargaining groups, consisting of health care providers who
choose to participate in such groups. This rule defines the criteria governing
the formation and approval of provider bargaining groups and the activities
authorized by § 9409(a).
6.203 Definitions
(A) "Authority" means the Health Care
Authority established under
18 V.S.A. §
9403(a).
(B) "Board" means the board of the Authority
established under
18 V.S.A. §
9403(b).
(C) "Health care facility" means all
facilities and institutions, whether public or private, proprietary or
nonprofit, that offer diagnosis, treatment, inpatient or ambulatory care to two
or more unrelated persons. The term shall not apply to any facility operated by
religious groups relying solely on spiritual means through prayer or healing,
but includes all facilities and institutions included in
18 V.S.A. §
9432(10).
(D) "Health care provider" or "provider"
means a person, partnership or corporation, other than a facility or
institution, licensed or certified or authorized by law to provide professional
health care service in Vermont to an individual during that individual's
medical care, treatment or confinement.
(E) "Health care purchasing pool" or
"purchasing pool" means the purchasing pool established by the secretary of
administration pursuant to
18 V.S.A.
§
9413(a).
(F) "Provider bargaining group" means a group
of health care providers authorized under this rule to engage in negotiations
with the Authority and the purchasing pool.
(G) "Sector" means a part of the unified
health care budget as defined by the Authority.
(H) "Unified health care budget" means the
annual budget adopted by the Board pursuant to
18 V.S.A. §
9406(b).
Section 6.300 Formation
and Approval of Provider Bargaining Groups
6.301 Criteria Governing Approval as Provider
Bargaining Group
A group of health care providers may be approved by the
Authority as a provider bargaining group if the group seeking approval has
shown:
(A) Status as health care
providers: that all members of the proposed bargaining group are licensed,
certified or authorized by law to provide professional health care services in
the state of Vermont;
(B) Common
interest: that all members of the group are linked by a specified common
interest such that negotiations with them as a group, rather than as individual
providers, will be effective and efficient; for purposes of this rule, a
"common interest" could include, but is not limited to, being licensed in the
same profession, practicing in the same health care entity or facility, or
belonging to the same professional practice group;
(C) Nondiscrimination: that the proposed
bargaining group will not exclude from its membership health care providers who
share the common interest linking the group under subsection (B) of this
section;
(D) Authority to represent
members: that the group is represented by one or more individuals with express
authority to represent group members' interests before the Authority or the
purchasing pool;
(E) Unified health
care budget: that the group has, or will have, a significant effect on the
costs of one or more sectors of the unified health care budget and on resource
allocation consistent with the health resource management plan adopted under
18
V.S.A. §
9405; and
(F) Public interest: that the group is of
sufficient size and represents a sufficient sector or portion of health care
providers such that it will be in the public interest for the Authority or the
purchasing pool to engage in negotiations with it under
18 V.S.A. §
9409.
6.302 Application Procedure for Approval as
Provider Bargaining Group
(A) A group of
health care providers seeking approval as a provider bargaining group shall
file a written application (original and five copies) with the Authority. The
application shall set forth in detail how the proposed bargaining group meets
the criteria set forth in § 6.301, above.
(B) The Authority shall review the
application and, within fifteen working days, notify the applicant either that
the application is complete or that additional information is required.
(1) Applicants shall respond to requests for
additional information within fifteen working days. Failure of an applicant to
do so may, in the discretion of the Board, be considered a withdrawal of the
application. An applicant's response time may be extended by the Authority for
good cause shown.
(2) The Authority
shall review additional information filed in response to its request and,
within fifteen working days, notify the applicant either that the application
is complete or that additional information is still required. Further requests
for information under this section shall be subject to the same review and
response guidelines as the original request for additional
information.
(3) If the Authority
fails to notify the applicant in a timely manner that an application is either
complete or incomplete under this subsection, the application shall be deemed
to be complete on the sixteenth working day after the date the application was
filed or the last information was received, whichever is later.
(C) When an application has been
deemed complete, the Authority shall fully review the application under the
criteria established in § 6.301 of this rule.
(1) The Authority may in its discretion
schedule a hearing on the completed application, at which time the applicant,
and other parties, at the discretion of the Board, will be given the
opportunity to present support for the application and the Board will have the
opportunity to inquire into the merits of the application.
(2) The applicant may request such a hearing
before the Board at the time it files its application or at any time before the
application is deemed complete.
(3)
A hearing under this subsection is an informal process designed to give the
applicant and the Board the opportunity to discuss the merits of the
application. It is not a "contested case" as that term is used in the Vermont
Administrative Procedure Act and is not subject to the provisions of that
act.
(D) The Authority
shall complete its review and the Board shall make a decision either to approve
or to deny the application within forty-five days of the date the application
was deemed complete, or within sixty days if a hearing was requested by the
applicant or scheduled by the Authority. For purposes of this rule, the
completion date is either the date that notification is sent to the applicant
that the application is complete, or the date established under §
6.302(B)(3), above.
(E) The
Authority may, in its discretion, issue a conditional approval to a provider
bargaining group, including limitations on the matters that a group will be
authorized to negotiate under
18 V.S.A. §
9409 and this rule.
6.303 Effect of Approval as Provider
Bargaining Group
Once approved, a provider bargaining group may, subject to
any limitations imposed under § 6.302(E) of this rule, participate in the
activities set forth in § 6.400 of this rule for three years or until its
approval is revoked, whichever is earlier.
6.304 Review and Extension or Revocation of
Approval as Provider Bargaining Group
(A) The
Authority shall review each provider bargaining group's qualifications under
the criteria established in § 6.301 of this rule at least three months
before a group's approval expires. If the Authority is satisfied that the group
continues to meet the criteria, it may extend the bargaining group's approval
for another three years; otherwise, it will allow the group's approval to
expire.
(B) The Authority may, upon
notice, review a provider bargaining group's qualifications under this rule at
any time before its approval expires if it has reason to believe that the group
may no longer meet the criteria in § 6.301. If the Authority is satisfied
that the group continues to meet the criteria, it may either extend the
bargaining group's approval for another three years from the time of the
review, or allow the original three-year period to continue to elapse, in which
case the group will be subject to an additional review in accordance with
§ 6.304(A), above. If the Authority finds, after a review conducted under
this section, that a group no longer satisfies the criteria for recognition as
a provider bargaining group, it shall revoke the group's approval effective
immediately.
Section
6.400 Scope of Authorized Activities
6.401 Once approved in accordance with §
6.300 of this rule, a provider bargaining group is authorized:
(A) to negotiate with the Authority
(1) the establishment or definition of the
sectors of the health care system separately identified in the unified health
care budget;
(2) the methods or
processes used by the Board in allocating resources among the
sectors;
(3) the economic
indicators used by the Board to define the parameters of the rate of growth in
the cost of the health care system and its sectors;
(4) processes and criteria for responding to
exceptional and unforeseen circumstances affecting the system and its
sectors;
(5) the establishment of
the total amounts to be paid for services provided by the system and its
sectors; and
(6) any matter related
to the reimbursement of health care providers under the unified health care
budget; and
(B) to
negotiate with the purchasing pool
(1)
contracts for the delivery of health care services, including agreements
securing discounts for regular, bulk payments to providers and agreements
establishing uniform provider reimbursement; and
(2) any matter related to the reimbursement
of health care providers by the purchasing pool.
6.402 Nothing in this section shall be
construed to authorize a provider bargaining group to engage in any activities
other than those specified in
18 V.S.A. §
9409(a) and in § 6.401
of this rule.
Section
6.500 Procedures for Authorized Activities
6.501 Negotiations with the Authority Related
to Sectors of the Unified Health Care Budget
(A) On or before October 1 of each year, the
Authority shall notify all provider bargaining groups that negotiations will
begin for the adoption of the next fiscal year's unified health care budget.
The Authority may, in its discretion, furnish copies of its proposed unified
health care budget, including the sectors to be included in the budget, if any,
to the groups at that time.
(B) On
or before November 1, if the Authority has furnished provider bargaining groups
with copies of a proposed budget, each group shall file with the Authority, in
writing, its response to the proposed budget, and shall furnish copies of its
response to all other provider bargaining groups approved under this rule. The
Authority shall conduct at least one public hearing on the responses filed by
provider bargaining groups.
(C)
Between November 2 and March 1, the Authority shall meet with provider
bargaining groups to negotiate any matter authorized by
18 V.S.A. §
9409(a) and Section 6.401 of
this rule relating to the unified health care budget, including the
reimbursement of sectors once defined. If in the course of these negotiations
the Authority and a provider bargaining group reach agreement as to the
reimbursement of the health care providers represented by the bargaining group,
on or before July 1 the Authority may enter into a nonbinding reimbursement
contract with the group.
(D) If the
provider bargaining groups and the Authority do not agree on resolution of the
matters being negotiated, including the designation and establishment of
appropriate sectors within the unified health care budget, any such issue shall
be referred to an arbitration panel no later than March 1.
(1) The arbitration panel shall consist of
one member chosen by the Health Care Authority, one member chosen by the
provider bargaining groups involved in the dispute, and one member to be chosen
by the first two panel members.
(2)
The arbitration panel shall review the matters in dispute and make a
recommendation as to resolution of those matters to the Board within thirty
days, but in no event later than April 1.
(3) Nothing in these rules shall be construed
to limit the Board's authority to reject the recommendation or decision of the
arbitration panel or to limit the Board's authority under
18 V.S.A. §
9406 to establish the unified health care
budget.
(E) The Authority
may elect to hold one or more public hearings between March 1 and April 30
relating to the results of its negotiations with provider bargaining groups on
the proposed unified health care budget.
6.502 General Negotiations with the Authority
as to Provider Reimbursement
The Authority shall meet with a provider bargaining group,
from time to time, at its discretion or at the request of the group, to
negotiate any matter related to the reimbursement, under the unified health
care budget, of the health care providers represented by the group, and may
enter into a nonbinding contract with the group as to
reimbursement.
6.503
Purchasing Pool
The purchasing pool shall meet with a provider bargaining
group from time to time, at its discretion or at the request of the group, to
negotiate any matter related to contracts with the pool for the delivery of
health care services by the health care providers represented by the group and
the reimbursement of such health care providers by the purchasing pool, and may
enter into a contract with the group as to reimbursement.
6.504 Timelines
The timelines established in Section 6.501 of this rule may
be changed by the Authority as necessary to accommodate the activities of the
Authority in establishing a unified health care budget from year to year. Any
such change shall be effective thirty days after notice by the Authority to all
approved provider bargaining groups. Notice shall be sent by first-class mail
and is deemed given on the date mailed. A copy of such change shall be filed at
the same time with the Secretary of State's office.
Section 6.600 Active Oversight of Authorized
Activities
The Authority shall actively monitor and oversee the
activities engaged in by provider bargaining groups. Such active monitoring and
oversight shall consist of at least the following:
(A) No provider bargaining group shall engage
in negotiations with the Authority or the purchasing pool until the group has
applied for status as, and been approved as, a provider bargaining group
pursuant to § 6.300 of this rule.
(B) The Authority, as set forth in §
6.304 of this rule, shall periodically review each provider bargaining group to
ensure that the group continues to meet the criteria required for the
establishment and approval of a provider bargaining group.
(C) The Authority shall actively participate
in all negotiations with provider bargaining groups, either singly or jointly,
to ensure that any anticompetitive activities are in conformity with and within
the scope of the legislative mandate of
18 V.S.A. §
9409 authorizing the creation and activities
of provider bargaining groups.
(D)
This rule shall not be construed as requiring the Authority to accept the
position of any provider bargaining group. In addition, as stated in §
6.501(D)(3) of this rule, the Board has the discretion to reject any
recommendation or decision of an arbitration panel called upon to assist the
Board and provider bargaining groups to resolve disputes among them.
(E) If a contract for provider reimbursement
is negotiated between the Authority and a provider bargaining group or between
the purchasing pool and a provider bargaining group, the contract shall not
take effect unless approved by the Board upon a finding that it is consistent
with the unified health care budget and the health resource management plan
adopted under
18
V.S.A. §
9405 and that the contract is
consistent with the public good of the state of Vermont.Staturoty Authority: 18
V.S.A. C.221, §§ 9404 and 9409
