Mass. Gen. Laws ch. 6D, § 13 – Notice of material changes to operations or governance structure of provider or provider organization; cost and market impact review

(a) Every provider or provider organization shall, before making any material change to its operations or governance structure, submit notice to the commission, the center and the attorney general of such change, not fewer than 60 days before the date of the proposed change. Material changes shall include, but not be limited to:
(i) significant expansions in a provider or provider organization's capacity;
(ii) a corporate merger, acquisition or affiliation of a provider or provider organization and a carrier;
(iii) mergers or acquisitions of hospitals or hospital systems;
(iv) acquisition of insolvent provider organizations;
(v) transactions involving a significant equity investor which result in a change of ownership or control of a provider or provider organization;
(vi) significant acquisitions, sales or transfers of assets including, but not limited to, real estate sale lease-back arrangements;
(vii) conversion of a provider or provider organization from a non-profit entity to a for-profit entity; and (viii) mergers or acquisitions of provider organizations which will result in a provider organization having a dominant market share in a given service or region.
Within 30 days of receipt of a completed notice filed under the commission's regulations, the commission shall conduct a preliminary review to determine whether the material change is likely to result in a significant impact on the commonwealth's ability to meet the health care cost growth benchmark established in section 9, or on the competitive market. If the commission finds that the material change is likely to have a significant impact on the commonwealth's ability to meet the health care cost growth benchmark, or on the competitive market, the commission may conduct a cost and market impact review under this section.
(b) In addition to the grounds for a cost and market impact review set forth in subsection (a), if the commission finds, based on the center's annual report under section 16 of chapter 12C, that the percentage change in total health care expenditures exceeded the health care cost growth benchmark in the previous calendar year, the commission may conduct a cost and market impact review of any provider organization identified by the center under section 18 of said chapter 12C.
(c)
1. (1) The commission shall initiate a cost and market impact review by sending the provider or provider organization notice of a cost and market impact review, which shall explain the basis for the review and the particular factors that the commission seeks to examine through the review. The provider or provider organization shall submit to the commission, within 21 days of the commission's notice, a written response to the notice, including, but not limited to, any information or documents sought by the commission that are described in the commission's notice. The commission may require that any provider, provider organization, significant equity investor, or other party involved in a given transaction submit documents and information in connection with a notice of material change or a cost and market impact review under this section. The commission shall keep confidential all nonpublic information and documents obtained under this section and shall not disclose the information or documents to any person without the consent of the provider or payer that produced the information or documents, except in a preliminary report or final report under this section if the commission believes that such disclosure should be made in the public interest after taking into account any privacy, trade secret or anti-competitive considerations. The confidential information and documents shall not be public records and shall be exempt from disclosure under clause Twenty-sixth of section 7 of chapter 4 or section 10 of chapter 66.
2. (2) For any material change involving a significant equity investor, the commission may specify certain information required to be submitted as part of the notice, including, but not limited to, information regarding the significant equity investor's capital structure, general financial condition, ownership and management structure and audited financial statements.
3. (3) The commission may also require, for a period of 5 years following the completion of a material change, that any provider or provider organization submit data and information necessary for the commission to assess the post-transaction impacts of a material change.
(d) A cost and market impact review may examine factors relating to the provider or provider organization's business and its relative market position, including, but not limited to:
(i) the provider or provider organization's size and market share within its primary service areas by major service category, and within its dispersed service areas;
(ii) the provider or provider organization's prices for services, including its relative price compared to other providers for the same services in the same market;
(iii) the provider or provider organization's health status adjusted total medical expense, including its health status adjusted total medical expense compared to similar providers;
(iv) the quality of the services provided by the provider or provider organization, including patient experience;
(v) provider cost and cost trends in comparison to total health care expenditures statewide;
(vi) the availability and accessibility of services similar to those provided, or proposed to be provided, through the provider or provider organization within its primary service areas and dispersed service areas;
(vii) the provider or provider organization's impact on competing options for the delivery of health care services within its primary service areas and dispersed service areas including, if applicable, the impact on existing service providers of a provider or provider organization's expansion, affiliation, merger or acquisition, to enter a primary or dispersed service area in which it did not previously operate;
(viii) the methods used by the provider or provider organization to attract patient volume and to recruit or acquire health care professionals or facilities;
(ix) the role of the provider or provider organization in serving at-risk, underserved and government payer patient populations, including those with behavioral, substance use disorder and mental health conditions, within its primary service areas and dispersed service areas;
(x) the role of the provider or provider organization in providing low margin or negative margin services within its primary service areas and dispersed service areas;
(xi) consumer concerns, including but not limited to, complaints or other allegations that the provider or provider organization has engaged in any unfair method of competition or any unfair or deceptive act or practice;
(xii) the size and market share of any corporate affiliates or significant equity investors of the provider or provider organization;
(xiii) the inventory of health care resources maintained by the department of public health, pursuant to section 25A of chapter 111;
(xiv) any related data or reports from the office of health resource planning, established in section 22; and (xv) any other factors that the commission determines to be in the public interest.
(e) The commission shall make factual findings and issue a preliminary report on the cost and market impact review. In the report, the commission shall identify any provider or provider organization that meets all of the following criteria:
(i) the provider or provider organization has, or likely will have as a result of the proposed material change, a dominant market share for the services it provides;
(ii) the provider or provider organization charges, or likely will charge as a result of the proposed material change, prices for services that are materially higher than the median prices charged by comparable providers for the same services in the same market; and (iii) the provider or provider organization has, or likely will have as a result of the proposed material change, a health status adjusted total medical expense that is materially higher than the median total medical expense of comparable providers in the same market.
(f) Within 30 days after issuance of a preliminary report, the provider or provider organization may respond in writing to the findings in the report. The commission shall then issue its final report. The commission shall refer to the attorney general its report on any provider or provider organization that meets all 3 criteria under subsection (e). The commission shall issue its final report on the cost and market impact review within 185 days from the date that the provider or provider organization has submitted a completed notice to the commission; provided, that the provider or provider organization has certified substantial compliance with the commission's requests for data and information pursuant to subsection (c) within 21 days of the commission's notice, or by a later date set by mutual agreement of the provider or provider organization and the commission.
(g) Nothing in this section shall prohibit a proposed material change under subsection (a); provided, however, that any proposed material change shall not be completed:
(i) until at least 30 days after the commission has issued its final report; or (ii) if the attorney general brings an action under chapter 93A or any other law related to the material change, while such action is pending and prior to a final judgment being issued by a court of competent jurisdiction, whichever is later.
(h) When the commission, under subsection (f), refers a report on a provider or provider organization to the attorney general, the attorney general may:
(i) conduct an investigation to determine whether the provider or provider organization engaged in unfair methods of competition or anti-competitive behavior in violation of chapter 93A or any other law;
(ii) report to the commission in writing the findings of the investigation and a conclusion as to whether the provider or provider organization engaged in unfair methods of competition or anti-competitive behavior in violation of chapter 93A or any other law; and (iii) if appropriate, take action under chapter 93A or any other law to protect consumers in the health care market. The commission's final report may be evidence in any such action.
1. (i) Nothing in this section shall limit the authority of the attorney general to protect consumers in the health care market under any other law.
2. (j) The commission shall adopt regulations for conducting cost and market impact reviews and for administering this section. These regulations shall include definitions of material change and non-material change, primary service areas, dispersed service areas, dominant market share, materially higher prices and materially higher health status adjusted total medical expenses, and any other terms as necessary to provide market participants with appropriate notice. These regulations may identify filing thresholds in connection with this section; provided, however, that any financial threshold identified by the commission shall be adjusted annually based on any inflation index established by the United States Department of Health and Human Services or similarly reliable national index, as set forth by the commission. All regulations promulgated by the commission shall comply with chapter 30A.
3. (k) Nothing in this section shall limit the application of other laws or regulations that may be applicable to a provider or provider organization, including laws and regulations governing insurance.
4. (l) Upon issuance of its final report pursuant to subsection (f), the commission shall provide a copy of said final report to the department of public health. The final report shall be included in the written record and considered by the department of public health during its review of an application for determination of need and considered where relevant in connection with licensure or other regulatory actions involving the provider or provider organization.