AB50: Bill Text

AB50,1133,12 (14) “Nondisclosure agreement” means a written agreement under the terms of which a licensee must refrain from disclosing partially, fully, directly, or indirectly to any person, other than another party to the written agreement or to a person specified in the agreement as a 3rd-party beneficiary of the agreement, any of the following:

AB50,1133,17 (a) A policy or practice that a party to the agreement required the licensee to use in patient care, other than individually identifiable health information that the licensee may not disclose under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, in effect on the effective date of this paragraph .... [LRB inserts date].

AB50,1133,20 (b) A policy, practice, or other information about or associated with the licensee’s employment, conditions of employment, or rate or amount of pay or other compensation.

AB50,1134,2 (c) Any other information the licensee possesses or to which the licensee has access by reason of the licensee’s employment by, or provision of services for or on behalf of, a party to the agreement, other than information that is subject to protection under applicable law as a trade secret of, or as otherwise proprietary to, another party to the agreement or to a person specified in the agreement as a third- party beneficiary of the agreement.

AB50,1134,8 (15) “Nondisparagement agreement” means a written agreement under which a licensee must refrain from making to a 3rd party a statement about another party to the agreement or about another person specified in the agreement as a 3rd-party beneficiary of the agreement, the effect of which causes or threatens to cause harm to the other party’s or person’s reputation, business relations, or other economic interests.

AB50,1134,9 (16) “Ownership or investment interest” means any of the following:

AB50,1134,11 (a) Direct or indirect possession of equity in the capital, stock, or profits totaling more than 5 percent of an entity.

AB50,1134,14 (b) Interest held by an investor or group of investors who engages in the raising or returning of capital and who invests, develops, or disposes of specified assets.

AB50,1134,18 (c) Interest held by a pool of funds by investors, including a pool of funds managed or controlled by private limited partnerships, if those investors or the management of that pool or private limited partnership employ investment strategies of any kind to earn a return on that pool of funds.

AB50,1134,22 (17) “Private equity fund” means a publicly traded or nonpublicly traded company that collects capital investments from individuals or entities and purchases a direct or indirect ownership share or controlling interest of a health care entity.

AB50,1135,7 (18) “Provider organization” means any corporation, partnership, business trust, association, or organized group of persons that is in the business of health care delivery or management, whether incorporated or not, that represents one or more health care providers in contracting with insurance carriers for the payments of health care services. “Provider organization” includes physician organizations, physician-hospital organizations, independent practice associations, provider networks, accountable care organizations, management services organizations, and any other organization that contracts with insurance carriers for payment for health care services.

AB50,1135,8 (19) “Significant equity investor” means any of the following:

AB50,1135,10 (a) Any private equity fund with a direct or indirect ownership or investment interest in a health care entity.

AB50,1135,13 (b) Any investor, group of investors, or other entity with a direct or indirect possession of equity in the capital, stock, or profits totaling more than 10 percent of a health care provider or provider organization.

AB50,1135,17 (c) Any private equity fund, investor, group of investors, or other entity with a direct or indirect controlling interest in a health care entity or that operates the business or substantially all of the property of a health care entity under a lease, management, or operating agreement.

AB50,2208 Section 2208. 150.992 of the statutes is created to read:

AB50,1135,24 150.992 Material change transactions. (1) Notice. (a) Any health care entity shall, before consummating any material change transaction, submit written notice to the department not fewer than 180 days before the date of the proposed material change transaction. The department shall promulgate rules to define, for purposes of this subchapter, what entities are considered health care entities and what constitutes a material change transaction.

AB50,1136,5 (b) Written notice shall include and contain the information the department determines is required. The health care entity may include any additional information supporting the written notice of the material change transaction. Notice is complete when the department determines that all required information has been received.

AB50,1136,19 (c) All information provided by the submitter as part of the notice shall be treated as public record unless the submitter designates documents or information as confidential when submitting the notice and the department concurs with the designation in accordance with a process specified by the department by rule. Information that is otherwise publicly available, or that has not been confidentially maintained by the source, shall be considered public. The department shall maintain the confidentiality of all confidential information obtained in relation to a material change transaction, except that the department may share confidential information with other appropriate state agencies and departments to carry out their respective authorities under this section and may disclose any information to an expert or consultant under contract with the department, provided that the expert or consultant is bound by the same confidentiality requirements as the department. The confidential information and documents may not be treated as public records and are not subject to inspection or copying under s. 19.35.

AB50,1137,2 (d) The department shall post on its publicly available website information about the material change transaction no less than 30 days before the anticipated implementation of the material change transaction or, if the department is notified less than 30 days before the anticipated implementation, as soon as is practicable. The department shall include in the information posted on its website under this paragraph at least all of the following information regarding the material change transaction:

AB50,1137,4 1. A summary of the proposed transaction, including the identity of the parties to the transaction.

AB50,1137,6 2. A description of the groups or individuals likely to be affected by the transaction.

AB50,1137,9 3. Information about services currently provided by the health care entity, commitments by the health care entity to continue such services, and any services that will be reduced or eliminated.

AB50,1137,10 4. Details about any public hearings and how to submit comments.

AB50,1137,13 5. Any other information from the notice and other materials submitted by the health care entity that the attorney general or the department determines would be in the public interest, except for materials designated confidential under par. (c).

AB50,1137,16 (e) For purposes of calculating time periods under this section, notice shall be considered received on the first business day after the department determines that notice is complete.

AB50,1137,18 (2) Preliminary review. (a) Within 30 days after receiving notice as described in sub. (1), the department shall do one of the following:

AB50,1137,21 1. Approve the material change transaction and notify the health care entity in writing that a comprehensive review is not required for the material change transaction.

AB50,1137,24 2. Approve the material change transaction subject to conditions set by the department and notify the health care entity in writing of the conditions under which the transaction may be completed.

AB50,1138,3 3. Notify the health care entity in writing that the transaction is subject to a comprehensive review. The department may request additional information necessary to perform a comprehensive review under sub. (3).

AB50,1138,5 (b) Nothing in this section limits or infringes upon the existing authority of any state agency or the attorney general to review any transactions.

AB50,1138,9 (3) Comprehensive review process. (a) For purposes of this subsection, “market power” means possessing 30 percent or more market share in any line of service in the relevant geographic area or meeting other criteria that the department may define by rule.

AB50,1138,11 (b) A comprehensive review is required when any of the following applies to the material change transaction:

AB50,1138,13 1. The transaction will result in the transfer of assets valued above $20 million.

AB50,1138,15 2. The transaction occurs in a highly consolidated market for any line of services offered by any party to the material change transaction.

AB50,1138,17 3. The transaction will cause a significant change in market share such that any resulting health care entity possesses market power upon completion.

AB50,1138,20 4. The transaction will otherwise reduce competition, including effects of vertical or cross-market transactions among different product or geographic markets.

AB50,1138,22 5. Either party to the material change transaction possesses market power prior to the transaction.

AB50,1139,2 6. The department, at its sole discretion, determines that the material change transaction is likely to have a material impact on the cost of, quality of, equity of, or access to health care services in any region in the state.

AB50,1139,7 (c) No later than 90 days after determining a material change transaction is subject to a comprehensive review, the department shall conduct the review and shall conduct one or more public hearings or public meetings, one of which shall be in the county in which the health care entity is located, to hear comments from interested parties.

AB50,1139,16 (d) Not more than 90 days after determining that the material change transaction is subject to a comprehensive review under this subsection, the department shall produce a cost and market impact review report containing the findings and conclusions of the cost and market impact review, provided that the health care entity has complied with the requests for information or documents pursuant to this subsection within 21 days of the request or by a later date set by mutual agreement of the health care entity and the department. The cost and market impact review report shall be posted publicly and may not disclose confidential information.

AB50,1139,19 (e) The cost and market impact review may examine factors relating to the proposed material change transaction, transacting parties, and their relative market position, including any of the following:

AB50,1139,21 1. The market share of each transacting party and the likely effects of the material change transaction on competition.

AB50,1139,24 2. Any previous material change transaction involving any transacting party, including acquisitions or mergers of similar health care providers, whether or not in the same state.

AB50,1140,3 3. The prices charged by each transacting party for services, including their relative prices compared to others’ prices for the same services in the same geographic area.

AB50,1140,5 4. The quality of the services provided by any health care provider party to the material change transaction, including patient experience.

AB50,1140,7 5. The cost and cost trends of any health care entity party in comparison to total health care expenditures statewide.

AB50,1140,10 6. The availability and accessibility of services similar to those provided, or proposed to be provided, through any health care provider or provider organization party within its primary service areas and dispersed service areas.

AB50,1140,13 7. The impact of the material change transaction on competing options for the delivery of health care services within the primary service areas and dispersed service areas of the transacting parties.

AB50,1140,15 8. The role of the transacting parties in serving at-risk, underserved, and government-payer patient populations.

AB50,1140,17 9. The role of the transacting parties in providing low-margin or negative- margin services within its primary service areas and dispersed service areas.

AB50,1140,20 10. Consumer concerns, including complaints or other allegations that any provider or provider organization party has engaged in any unfair method of competition or any unfair or deceptive act or practice.

AB50,1140,24 11. The parties’ compliance with prior conditions and legal requirements related to competitive conduct, including compliance with s. 150.994, reporting requirements regarding health care entity ownership and control under s. 150.996, or restrictions on anticompetitive contracting provisions.

AB50,1141,3 12. The impact of the material change transaction on the clinical workforce, including wages, staffing levels, supply, patient access, and continuity of patient- care relationships.

AB50,1141,6 13. The impact of a real estate sale or lease agreement on the financial condition of any health care entity party and its ability to maintain patient care operations.

AB50,1141,11 14. In the case of a proposed closure or discontinuance of a health care facility or any essential health services, the impact of the closure on health care access, outcomes, costs, and equity for those in the health care facility’s service area and the health care facility’s plan for ensuring equitable access, quality, affordability, and availability of essential health services within the service area.

AB50,1141,13 15. Any other factors that the department determines, by rules promulgated by the department, to be in the public interest.

AB50,1141,19 (f) The department may request additional information or documents from the transacting parties necessary to conduct a cost and market impact review. Failure to respond or insufficient responses to requests for information by transacting parties may result in the extension of the deadline for the department to complete the cost and market impact review, the imposition of conditions for approval, or the disapproval of the material change transaction.

AB50,1142,5 (g) The department shall keep confidential all nonpublic information and documents obtained under this subsection and may not disclose the confidential information or documents to any person without the consent of the party that produced the confidential information or documents, except that the department may disclose any information to an expert or consultant under contract with the department to review the proposed transaction, provided that the expert or consultant is bound by the same confidentiality requirements as the department. The confidential information and documents and work product of the department may not be treated as public records and shall be exempt from inspection or copying under s. 19.35.

AB50,1142,6 (h) The department may, in its sole discretion:

AB50,1142,9 1. Contract with, consult, and receive advice from any state agency on those terms and conditions that the department determines are appropriate with regard to reviewing a proposed material change transaction.

AB50,1142,11 2. Contract with experts or consultants to assist in reviewing a proposed material change transaction.

AB50,1142,16 (i) The department shall be entitled to charge costs to or receive reimbursement from the transacting parties for all actual, reasonable, direct costs incurred in reviewing, evaluating, and making the determination referred to in this subsection, including administrative costs and costs of contracted experts or consultants in par. (h).

AB50,1142,21 (4) Approval authority. (a) The department may at its discretion approve, conditionally approve, or disapprove of any material change transaction for which the department receives notice under sub. (1). Any conditions imposed under this subsection shall specify a time period for compliance, an expiration date, or that the condition applies indefinitely.

AB50,1143,2 (b) The department shall inform the health care entity of the determination within 30 days of notice under sub. (2), or in the case of comprehensive review, within 60 days of the completion of the cost and market impact review. No proposed material change transaction may be completed before the department has informed the health care entity of the determination.

AB50,1143,5 (c) In making the determination under this subsection, the department may consider any factors that the department determines to be relevant, including any of the following:

AB50,1143,7 1. The likely impact, as described in the cost and market impact review report, where applicable, of the material change transaction on any of the following:

AB50,1143,8 a. Health care costs, prices, and affordability.

AB50,1143,10 b. The availability or accessibility of health care services to the affected community.

AB50,1143,12 c. Health care provider cost trends and containment of total state health care spending.

AB50,1143,13 d. Access to services in medically underserved areas.

AB50,1143,15 e. Rectifying historical and contemporary factors contributing to a lack of health equities or access to services.

AB50,1143,17 f. The functioning and competitiveness of the markets for health care and health insurance.

AB50,1143,19 g. The potential effects of the material change transaction on health outcomes, quality, access, equity, or workforce for residents of this state.

AB50,1143,20 h. The potential loss of or change in access to essential services.

AB50,1143,23 2. Whether the material change transaction is contrary to or violates any applicable law, including state antitrust laws, laws restricting the corporate practice of medicine, or consumer protection laws.

AB50,1144,2 3. Whether the benefits of the transaction are likely to outweigh any anticompetitive effect from the transaction.

AB50,1144,3 4. Whether the transaction is in the public interest.

AB50,1144,6 (d) This subsection does not limit or alter any existing authority of the attorney general or any state agency to enforce any other law, including state or federal antitrust law, or to review nonprofit transactions.

AB50,1144,10 (5) Post-transaction oversight. (a) Enforcement by the attorney general. 1. The attorney general may subpoena any records necessary to enforce any provisions of this section or to investigate suspected violations of any provisions of this section or any conditions imposed by conditional approval pursuant to sub. (4).

AB50,1144,18 2. The attorney general may enforce any requirement of this section and any conditions imposed by a conditional approval pursuant to sub. (4) to the fullest extent provided by law, including damages. In addition to any legal remedies the attorney general may have, the attorney general shall be entitled to specific performance, injunctive relief, and other equitable remedies a court deems appropriate for any violations or imminent violation of any requirement of this section or breach of any of the conditions and shall be entitled to recover its attorney fees and costs incurred in remedying each violation.

AB50,1144,24 3. In addition to the remedies set forth in subd. 2., any person who violates this section or of any conditions imposed pursuant to a conditional approval under sub. (4) is subject to a forfeiture of $10,000 per day, which the attorney general may seek to recover by action on behalf of the state. The attorney general may also rescind or deny approval for any other past, pending, or future material change transactions involving the health care entity or an affiliate.

AB50,1145,3 4. Nothing in this paragraph shall narrow, abrogate, or otherwise alter the authority of the attorney general to prosecute violations of antitrust or consumer protection requirements.

AB50,1145,6 (b) Enforcement by the department. 1. The department may audit the books, documents, records, and data of any entity that is subject to a conditional approval under sub. (4) to monitor compliance with the conditions.

AB50,1145,10 2. Any entity that violates any provision of this section, any rules adopted pursuant thereto, or any condition imposed pursuant to a conditional approval under sub. (4) shall be subject to a forfeiture of $10,000 per day for any violation of this section.

AB50,1145,13 3. The department may refer any entity to the attorney general to review for enforcement of any noncompliance with this section and any conditions imposed by conditional approval pursuant to sub. (4).

AB50,1145,18 (c) Monitoring. In order to effectively monitor ongoing compliance with the terms and conditions of any material change transaction subject to prior notice, approval, or conditional approval under sub. (4), the department may, in its sole discretion, conduct a review or audit and may contract with experts and consultants to assist in this regard.

AB50,1146,2 (d) Reporting. One year, 2 years, and 5 years following the completion of the material change transaction approved or conditionally approved by the department after a comprehensive review under sub. (3), and upon future intervals determined at the discretion of the department, the health care entity or any person, corporation, partnership, or other entity that acquired direct or indirect control over the health care entity shall submit reports to the department that do all of the following:

AB50,1146,4 1. Demonstrate compliance with conditions placed on the material change transaction, if any.