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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY FRANKEL, DeLUCA, MICOZZIE, DERMODY, MARKOSEK, BARBIN, BOYD, B. BOYLE, BRADFORD, BRIGGS, V. BROWN, BURNS, BUXTON, CHRISTIANA, CONKLIN, D. COSTA, P. COSTA, DALEY, DEASY, DePASQUALE, DeWEESE, ELLIS, J. EVANS, EVANKOVICH, FABRIZIO, FREEMAN, GEIST, GERGELY, GIBBONS, GOODMAN, HALUSKA, HANNA, HARHAI, HARKINS, HARRIS, HORNAMAN, JOSEPHS, W. KELLER, KORTZ, KOTIK, KRIEGER, KULA, LONGIETTI, MAHER, MAHONEY, MANN, MARSHALL, MATZIE, MUNDY, MUSTIO, NEUMAN, M. O'BRIEN, PASHINSKI, PAYTON, PRESTON, RAVENSTAHL, READSHAW, REESE, SABATINA, SACCONE, SAINATO, SANTARSIERO, SHAPIRO, M. SMITH, SONNEY, STABACK, STURLA, VULAKOVICH, WAGNER, WHEATLEY, WHITE, YOUNGBLOOD AND DONATUCCI, OCTOBER 4, 2011 |
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| REFERRED TO COMMITTEE ON INSURANCE, OCTOBER 4, 2011 |
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| AN ACT |
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1 | Amending Title 40 (Insurance) of the Pennsylvania Consolidated |
2 | Statutes, in general regulation, providing for contract |
3 | negotiation; and making an editorial change. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Part II of Title 40 of the Pennsylvania |
7 | Consolidated Statutes is amended to read: |
8 | REGULATION OF INSURERS AND RELATED |
9 | PERSONS GENERALLY |
10 | [(Reserved)] |
11 | CHAPTER 31 |
12 | CONTRACT NEGOTIATION |
13 | Sec. |
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1 | 3101. Declaration of policy. |
2 | 3102. Definitions. |
3 | 3103. Good faith negotiations and dispute resolution. |
4 | 3104. Arbitration. |
5 | 3105. Arbitration criteria. |
6 | 3106. Arbitration timing and rules. |
7 | 3107. Prohibited conduct. |
8 | 3108. Enforcement and remedies. |
9 | 3109. Existing consent decrees and final orders. |
10 | § 3101. Declaration of policy. |
11 | The General Assembly finds and declares as follows: |
12 | (1) Property committed to charitable purposes should |
13 | have special protection under the law because it enjoys |
14 | tax‑exempt status and relieves the public burden by advancing |
15 | a specific charitable cause. |
16 | (2) Under current law, charitable assets may not be |
17 | diverted from the purposes for which they were donated, |
18 | granted or devised without obtaining an order from the court |
19 | specifying the disposition of the assets. |
20 | (3) Under current law, the Attorney General is empowered |
21 | to intervene and protect the public interest in regard to |
22 | property committed to a charitable purpose. |
23 | (4) Over the course of the last ten years, the Attorney |
24 | General has intervened in the proposed transfer of property |
25 | committed to charitable purposes and has imposed a |
26 | requirement for good faith negotiations between certain |
27 | health plans and health care facilities, including specialty |
28 | hospitals and networks, followed by binding arbitration. |
29 | (5) Tens of thousands of citizens of this Commonwealth |
30 | have made direct charitable contributions to tax-exempt, not- |
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1 | for-profit specialty hospitals and networks which enable the |
2 | provision by the hospitals and networks of critical health |
3 | care services to citizens of this Commonwealth. |
4 | (6) Every citizen of this Commonwealth makes an indirect |
5 | contribution to tax-exempt, not-for-profit specialty |
6 | hospitals and networks through government grants funded by |
7 | the payment of taxes. |
8 | (7) A not-for-profit specialty hospital or network which |
9 | has been granted tax-exempt status by the Commonwealth enjoys |
10 | a financial benefit not available to specialty hospitals or |
11 | networks which have not been granted that status, and this |
12 | financial benefit results in an economic advantage over its |
13 | competitors. |
14 | (8) In keeping with the intent of private donors of tax- |
15 | exempt, not-for-profit specialty hospitals and networks, |
16 | these hospitals and networks and their affiliated specialists |
17 | should be required to remain as accessible as possible to |
18 | every citizen of this Commonwealth, regardless of insurance |
19 | coverage. |
20 | (9) It is in the public interest that tax-exempt, not- |
21 | for-profit specialty hospitals and networks and their |
22 | affiliated specialists continue to be accessible, in the same |
23 | manner and to the same extent that they historically have |
24 | been accessible, to individuals residing in the geographic |
25 | areas served by the tax-exempt, not-for-profit hospitals and |
26 | networks and their affiliated specialists for medically |
27 | necessary specialty health services. |
28 | (10) A tax-exempt, not-for-profit specialty hospital or |
29 | network or its affiliated specialists that fail to negotiate |
30 | in good faith with a health plan or unreasonably refuse to |
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1 | come to an agreement with a health plan regarding |
2 | reimbursement rates violate the will of its donors and, in |
3 | doing so, engage in the unauthorized diversion of charitable |
4 | assets from the purposes for which the specialty hospital or |
5 | network received its tax-exempt status. |
6 | § 3102. Definitions. |
7 | The following words and phrases when used in this chapter |
8 | shall have the meanings given to them in this section unless the |
9 | context clearly indicates otherwise: |
10 | "Affiliated specialist." A physician or other health care |
11 | professional or group of physicians or other health care |
12 | professionals that: |
13 | (1) has been granted privileges by a specialty hospital |
14 | or network to provide medical care to patients receiving |
15 | treatment at the specialty hospital or network; and |
16 | (2) has a practice owned directly or indirectly by: |
17 | (i) the specialty hospital or network referred to in |
18 | paragraph (1); or |
19 | (ii) a tax-exempt, not-for-profit corporation which |
20 | indirectly or directly owns or operates the specialty |
21 | hospital or network. |
22 | "Attorney General." The Office of Attorney General of the |
23 | Commonwealth. |
24 | "Commissioner." The Insurance Commissioner of the |
25 | Commonwealth. |
26 | "Health plan." An organized health-service purchasing |
27 | program. The term includes a health insurance or managed-care |
28 | plan which is offered by government, a for-profit or nonprofit |
29 | third-party payer, a health care provider or another entity. |
30 | "MSA." A metropolitan statistical area. |
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1 | "Specialty hospital or network." Any of the following: |
2 | (1) A tax-exempt, not-for-profit hospital which: |
3 | (i) is located in a county of the second class; and |
4 | (ii) specializes in providing women's health care, |
5 | the treatment of mental illness or pediatric acute care. |
6 | (2) Oncological consultation, referral, diagnostic, |
7 | treatment, rehabilitation or related services, coordinated or |
8 | provided directly through a clinical oncology care and |
9 | research network which is owned or operated directly or |
10 | indirectly by a tax-exempt, not-for-profit corporation |
11 | headquartered in a county of the second class. |
12 | (3) Inpatient or outpatient behavioral and mental health |
13 | services coordinated or provided in this Commonwealth by a |
14 | hospital referred to in paragraph (1), regardless of whether |
15 | the services are provided at the hospital or at another |
16 | facility located in this Commonwealth. |
17 | (4) The parent corporation of a hospital referred to in |
18 | paragraph (1) or a network referred to in paragraph (2), with |
19 | respect to all matters relating to the hospital or network |
20 | covered by this chapter. |
21 | (5) A facility to which a hospital referred to in |
22 | paragraph (1) or a network referred to in paragraph (2) |
23 | transfers a substantial portion of its services. |
24 | "Tax exempt." Possessing a valid exemption from the tax |
25 | imposed by Article II of the act of March 4, 1971 (P.L.6, No.2), |
26 | known as the Tax Reform Code of 1971. |
27 | § 3103. Good faith negotiations and dispute resolution. |
28 | (a) Negotiation.--A specialty hospital or network, its |
29 | affiliated specialists and a health plan shall negotiate in good |
30 | faith concerning all of the following: |
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1 | (1) Contracts for services at the specialty hospital or |
2 | network. |
3 | (2) Contracts with the affiliated specialists of the |
4 | specialty hospital or network. |
5 | (b) Dispute resolution.--A specialty hospital or network or |
6 | its affiliated specialists shall participate in the dispute |
7 | resolution process initiated by a health plan under this |
8 | section. The following shall apply: |
9 | (1) A health plan may initiate a dispute resolution |
10 | process by giving written notice to a specialty hospital or |
11 | network with which the health plan desires to contract or |
12 | continue to contract and its affiliated specialists. Notice |
13 | must be given as follows: |
14 | (i) Except as set forth in subparagraph (ii), at |
15 | least 90 days prior to the expiration of an existing |
16 | contract. |
17 | (ii) If the health plan does not have an existing |
18 | contract with the specialty hospital or network and its |
19 | affiliated specialists, at any time after the health plan |
20 | has notified the specialty hospital or network and its |
21 | affiliated specialists in writing of its interest in |
22 | negotiating a contract with the specialty hospital or |
23 | network and its affiliated specialists. |
24 | (2) The health plan sending the notice under paragraph |
25 | (1) and the specialty hospital or network and affiliated |
26 | specialists receiving the notice shall negotiate in good |
27 | faith toward a contract or renewal of an existing contract |
28 | for the specialty hospital's or network's services and the |
29 | services of its affiliated specialists. If a contract or a |
30 | renewal of an existing contract is not agreed upon within 90 |
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1 | days following notice under paragraph (1), section 3104 |
2 | (relating to arbitration) applies. |
3 | § 3104. Arbitration. |
4 | (a) Request.---At the conclusion of the dispute resolution |
5 | process described in section 3103 (relating to good faith |
6 | negotiations and dispute resolution), the following apply: |
7 | (1) The health plan may make a written request to the |
8 | commissioner for arbitration before an independent |
9 | arbitration panel. A copy of the request must be sent to the |
10 | specialty hospital or network and its affiliated specialists |
11 | with whom the health plan had been negotiating. The notice |
12 | must be accompanied by a written statement of the health plan |
13 | indicating the respective parties' last contract offers, a |
14 | description of issues that have been agreed to by all parties |
15 | and a description of issues still outstanding. |
16 | (2) Within ten days after receiving a copy of the notice |
17 | and statement, the specialty hospital or network and its |
18 | affiliated specialists shall notify the commissioner and the |
19 | health plan in writing of: |
20 | (i) their agreement with the health plan's |
21 | statement; or |
22 | (ii) their reasons for disagreement with the health |
23 | plan's statement. |
24 | (b) Determination.-- |
25 | (1) After review of the statement and responses |
26 | submitted under subsection (a), the commissioner shall do one |
27 | of the following: |
28 | (i) Appoint an arbitration panel under subsection |
29 | (c). |
30 | (ii) Reject a request for arbitration because the |
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1 | number and scope of disputed contract issues and terms |
2 | exceed the number and scope of the agreed upon contract |
3 | issues and terms. |
4 | (2) Upon a rejection under paragraph (1)(ii), all of the |
5 | following apply: |
6 | (i) The commissioner shall notify all parties of the |
7 | rejection and order them to engage in another 30 days of |
8 | negotiation. |
9 | (ii) Upon the expiration of the time period under |
10 | subparagraph (i) without resolution, all of the following |
11 | apply: |
12 | (A) The health plan shall notify the |
13 | commissioner in writing. |
14 | (B) The parties shall each submit the written |
15 | statement required under subsection (a), revised if |
16 | necessary, to reflect applicable changes resulting |
17 | from the additional period of negotiation. |
18 | (C) The commissioner shall appoint the |
19 | arbitration panel under subsection (c). |
20 | (c) Appointment of arbitration panel.--At the appropriate |
21 | time under subsection (b)(1)(i) or (2)(ii)(C), the commissioner |
22 | shall appoint five individuals to serve as an independent |
23 | arbitration panel: |
24 | (1) One member must be a representative of the specialty |
25 | hospital or network or one of its affiliated specialists. |
26 | (2) One member must be a representative of the health |
27 | plan. |
28 | (3) One member must be a representative of a local |
29 | business advocacy group from the geographic service territory |
30 | of the specialty hospital or network or affiliated |
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1 | specialist. The member under this paragraph must not: |
2 | (i) be employed by, be on the board of or be |
3 | granted staff privileges by the specialty hospital or |
4 | network, any of its affiliated specialists or the health |
5 | plan; or |
6 | (ii) act as a paid consultant or advisor to the |
7 | specialty hospital or network, any of its affiliated |
8 | specialists or the health plan. |
9 | (4) One member must be a representative of a local |
10 | community advocacy group from the geographic service |
11 | territory of the specialty hospital or network and its |
12 | affiliated specialists. The member under this paragraph must |
13 | not: |
14 | (i) be employed by, be on the board of or be |
15 | granted staff privileges by the specialty hospital or |
16 | network, any of its affiliated specialists or the health |
17 | plan; or |
18 | (ii) act as a paid consultant or advisor to the |
19 | specialty hospital or network, any of its affiliated |
20 | specialists or the health plan. |
21 | (5) One member must be a representative of a health care |
22 | consumer group from the geographic service territory of the |
23 | specialty hospital or network and its affiliated specialists. |
24 | The member under this paragraph must not: |
25 | (i) be employed by, be on the board of or be |
26 | granted staff privileges by the specialty hospital or |
27 | network, any of its affiliated specialists or the health |
28 | plan; or |
29 | (ii) act as a paid consultant or advisor to the |
30 | specialty hospital or network, any of its affiliated |
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1 | specialists or the health plan. |
2 | (d) Salary, experts and administrative support.-- |
3 | (1) Members of the arbitration panel shall not receive a |
4 | salary or any other compensation for their services. |
5 | (2) An arbitration panel may retain experts or |
6 | consultants as necessary. |
7 | (i) Eligibility to serve as an expert or consultant |
8 | is as follows: |
9 | (A) The individual must not be an employee of, |
10 | be a member of a board of or be granted staff |
11 | privileges by the specialty hospital or network, any |
12 | of its affiliated specialists or the health plan. |
13 | (B) Within five years immediately preceding |
14 | engagement, the individual must not have been an |
15 | employee of, have been a member of a board of or have |
16 | been granted staff privileges by the specialty |
17 | hospital or network, any of its affiliated |
18 | specialists or the health plan. |
19 | (ii) The cost of experts and consultants shall be |
20 | divided equally between: |
21 | (A) the health plan; and |
22 | (B) the specialty hospital or network and its |
23 | affiliated specialists. |
24 | (3) The department shall provide staff and |
25 | administrative support to the arbitration panel as necessary |
26 | for the panel to carry out its responsibilities under this |
27 | chapter. |
28 | (4) The arbitration panel shall not be subject to 65 |
29 | Pa.C.S. Ch. 7 (relating to open meetings) or to the act of |
30 | February 14, 2008 (P.L.6, No.3), known as the Right-to-Know |
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1 | Law. Notwithstanding this paragraph, the decision of the |
2 | arbitration panel shall be made available to the public upon |
3 | written request to the department and shall be posted on the |
4 | department's publicly accessible Internet website. |
5 | (e) Contract terms.--The arbitration panel shall determine |
6 | the terms under which the specialty hospital or network and its |
7 | affiliated specialists shall contract with the health plan. |
8 | § 3105. Arbitration criteria. |
9 | (a) Adoption of proposed contract.-- |
10 | (1) If only one party has presented terms of a proposed |
11 | contract to the other parties, the arbitration panel shall |
12 | adopt the terms of the proposed contract. |
13 | (2) If more than one party submits terms of a proposed |
14 | contract to the other parties, the following apply: |
15 | (i) The arbitration panel shall undertake a review |
16 | of all proposed contracts and additional information as |
17 | the panel deems necessary in making a decision. The |
18 | arbitration panel may not consider the extent to which a |
19 | health plan is or is not purchasing other hospital or |
20 | physician services from the specialty hospital or network |
21 | or its affiliated specialists or from any other hospital |
22 | in common ownership or operation with the specialty |
23 | hospital or network or its affiliated specialists. The |
24 | arbitration panel shall inform the parties of the |
25 | additional information that should be submitted, |
26 | including: |
27 | (A) Terms of the current contract between the |
28 | health plan and the specialty hospital or network or |
29 | its affiliated specialists. |
30 | (B) Historic contract reimbursement rates for |
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1 | the geographic area in this Commonwealth served by |
2 | the specialty hospital or network and its affiliated |
3 | specialists. This clause includes weighted average |
4 | rates of the hospitals in the area for all payers, |
5 | separately for each product line for which the health |
6 | plan is seeking a contract. |
7 | (C) Rate of inflation, as measured by the |
8 | Medical Care Portion of the Consumer Price Index, |
9 | since the current contract between the health plan |
10 | and the specialty hospital or network or its |
11 | affiliated specialists was entered into and the |
12 | extent to which a price increase incorporated into |
13 | the contract was less than the rate of inflation. |
14 | (D) Inflation factors in the geographic area in |
15 | this Commonwealth served by the specialty hospital or |
16 | network and its affiliated specialists for health |
17 | care and medical services. |
18 | (E) Average reimbursement rates for other |
19 | similar specialty hospitals or networks and their |
20 | affiliated specialists, as adjusted for the |
21 | difference in the cost of living between: |
22 | (I) the closest MSA; and |
23 | (II) the home MSA of each of the similar |
24 | specialty hospitals or networks or affiliated |
25 | specialists. |
26 | (F) Costs incurred by the specialty hospital or |
27 | network and its affiliated specialists in providing |
28 | services to its patients. |
29 | (G) Actuarial impact of a proposed contract or |
30 | reimbursement rates paid by the health plan and a |
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1 | comparison of the health plan reimbursement rates in |
2 | this Commonwealth and health plan reimbursement rates |
3 | in other parts of the country. |
4 | (H) Whether a reimbursement rate proposed by the |
5 | specialty hospital or network or its affiliated |
6 | specialists would subsidize a health plan owned or |
7 | operated by any tax-exempt, not-for-profit |
8 | corporation which owns or operates the specialty |
9 | hospital or network and the practice of the |
10 | affiliated specialists. |
11 | (I) Reimbursement rates paid by the health plan |
12 | at similar specialty hospitals or networks or to |
13 | similar affiliated specialists. |
14 | (J) Whether a proposed contract puts the |
15 | specialty hospital or network or its affiliated |
16 | specialists at risk of providing additional care |
17 | without additional compensation. |
18 | (K) Expected patient volume which will likely |
19 | result from the contract. |
20 | (ii) The arbitration panel may: |
21 | (A) adopt one of the proposed contracts; or |
22 | (B) impose other terms of a proposed contract. |
23 | § 3106. Arbitration timing and rules. |
24 | (a) Commencement and length of process.-- |
25 | (1) The arbitration process provided for under this |
26 | chapter shall commence within 20 days after appointment of |
27 | the members of the panel by the commissioner and may not |
28 | exceed three days of presentation and testimony by all |
29 | parties. |
30 | (2) The arbitration panel shall render a decision within |
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1 | seven business days after the conclusion of the presentations |
2 | and testimony. |
3 | (3) The parties, by agreement, or the arbitration panel, |
4 | due to the complexity of the issues involved, may extend any |
5 | of the time periods under this subsection, except that the |
6 | rendering of a decision by the arbitration panel may not |
7 | occur later than 90 days following the appointment of the |
8 | members of the panel by the commissioner. |
9 | (b) Establishment of rules.--Once the arbitration process |
10 | has been invoked, the arbitration panel shall establish rules |
11 | for confidentiality, exchange and verification of information |
12 | and other procedures to ensure the fairness of the process for |
13 | all parties. |
14 | (c) Effect of decision.--The parties shall be bound by the |
15 | decision of the arbitration panel. |
16 | (d) Costs.--Each party shall bear the cost of its respective |
17 | presentations and testimony to the arbitration panel. |
18 | (e) Reimbursement rates during arbitration process.--The |
19 | following shall apply during the period commencing with the |
20 | appointment of the members to the arbitration panel by the |
21 | commissioner and ending with the rendering of the panel's |
22 | decision: |
23 | (1) An existing contract that is scheduled to expire by |
24 | its terms shall remain in full force and effect. If terms |
25 | that are different from those in the expiring contract are |
26 | imposed by the arbitration panel or are agreed to by the |
27 | parties, the new contract and terms shall be retroactive to |
28 | the day after the expiration date in the existing contract |
29 | and any change in reimbursement rates shall be adjusted |
30 | retroactively. |
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1 | (2) If the health plan does not have a contract with the |
2 | specialty hospital or network and its affiliated specialists, |
3 | the health plan shall pay, and the specialty hospital or |
4 | network or affiliated specialists shall accept as full |
5 | payment, for all services provided by the specialty hospital |
6 | or network and its affiliated specialists for which payment |
7 | has not already been made and accepted, an amount equal to |
8 | the average reimbursement rates for other similar specialty |
9 | hospitals or networks and their affiliated specialists as |
10 | adjusted for the difference in cost of living for the nearest |
11 | MSA as compared to the home MSA of each of the similar |
12 | specialty hospitals or networks and their affiliated |
13 | specialists. Upon entering into the contract imposed by the |
14 | arbitration panel, the amounts paid by the health plan shall |
15 | be adjusted retroactively to reflect the actual rates |
16 | contained in the contract. |
17 | (3) The following shall apply: |
18 | (i) If the arbitration panel imposes a reimbursement |
19 | rate that is different from the rate paid by the health |
20 | plan under this subsection, the resulting contract shall |
21 | provide for an appropriate credit or payment retroactive |
22 | to the date that the commissioner appoints the members of |
23 | the arbitration panel. |
24 | (ii) If the reimbursement rate paid under this |
25 | subsection is less than the reimbursement rate required |
26 | under the resulting contract, the health plan shall pay |
27 | interest to the specialty hospital or network and its |
28 | affiliated specialists on the difference. |
29 | (iii) If the reimbursement rate paid under this |
30 | subsection is greater than the reimbursement rate |
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1 | required under the resulting contract, the specialty |
2 | hospital or network and its affiliated specialists shall |
3 | pay interest to the health plan on the difference. |
4 | (iv) The interest rate payable under this paragraph |
5 | shall be equal to the average of the United States prime |
6 | lending rate offered by the three largest banks ranked by |
7 | total deposits in the nearest MSA as of the date of the |
8 | arbitration panel's decision. |
9 | § 3107. Prohibited conduct. |
10 | (a) Staff privileges.--A specialty hospital or network may |
11 | not condition the granting of staff privileges at the specialty |
12 | hospital or network on any of the following: |
13 | (1) Employment at a specialty hospital or network or |
14 | participation in a specific health plan owned or operated by |
15 | a tax-exempt, not-for-profit corporation that also owns or |
16 | operates the specialty hospital or network. |
17 | (2) Prohibiting a physician from practicing at other |
18 | facilities. |
19 | (3) The amount of business or patients a physician |
20 | brings or may bring to the specialty hospital or network, |
21 | unless the condition is directly related to quality‑of‑care |
22 | requirements. |
23 | (b) Nonexclusivity.-- |
24 | (1) A specialty hospital or network or any of its |
25 | affiliated specialists may not enter into a contract with a |
26 | health plan containing terms which prohibit either of the |
27 | following: |
28 | (i) the specialty hospital or network or any of its |
29 | affiliated specialists from contracting with any other |
30 | health plan for any services the specialty hospital or |
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1 | network and its affiliated specialists provide; or |
2 | (ii) the health plan from contracting with any other |
3 | health care provider for the types of services the |
4 | specialty hospital or network and its affiliated |
5 | specialists provide. |
6 | (2) A specialty hospital or network may not prohibit |
7 | physicians who have privileges at the specialty hospital or |
8 | network and who are not employees of the specialty hospital |
9 | or network from providing services to any other hospital, |
10 | hospital network, health plan or integrated delivery system. |
11 | (c) Nontying provisions.-- |
12 | (1) A health plan may not be required to contract with |
13 | another health care facility under common ownership with a |
14 | specialty hospital or network or its affiliated specialists |
15 | as a condition of contracting with the specialty hospital or |
16 | network or for the services of its affiliated specialists. |
17 | (2) A specialty hospital or network or any of its |
18 | affiliated specialists may not require a hospital, health |
19 | system or other provider to have a contract with a health |
20 | plan owned or operated by the specialty hospital or network, |
21 | any of its affiliated specialists or any of its affiliates as |
22 | a condition of accepting patients referred by the hospital, |
23 | health system or other provider. |
24 | (3) A specialty hospital or network or any of its |
25 | affiliated specialists may not require that a hospital, |
26 | health system or other provider agree not to contract with |
27 | certain health plans as a condition to accepting patients |
28 | referred by the hospital, health system or other provider. |
29 | (d) Discrimination.--A specialty hospital or network or any |
30 | of its affiliated specialists may not discriminate against a |
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1 | patient based upon the location of the patient's residence, the |
2 | patient's health plan or the patient's choice of physician. A |
3 | specialty hospital or network or any of its affiliated |
4 | specialists may not discriminate, in the provision of medically |
5 | necessary services or the release of medical records or |
6 | information about patients who receive treatment or services |
7 | from the specialty hospital or network or its affiliated |
8 | specialists, against health plans, physicians or other medical |
9 | providers based on ownership or employment of health plans, |
10 | physicians or other medical providers. |
11 | (e) Use of most favored nation provisions.--A specialty |
12 | hospital or network or any of its affiliated specialists may not |
13 | enter into a contract with a health plan on terms that include a |
14 | most favored nations clause. |
15 | (f) Participation in dispute resolution or arbitration.--A |
16 | specialty hospital or network or any of its affiliated |
17 | specialists may not refuse or fail to participate and cooperate |
18 | in the dispute resolution process under section 3103 (relating |
19 | to good faith negotiations and dispute resolution) or the |
20 | arbitration process under section 3104 (relating to arbitration) |
21 | once it has received a notice from a health plan under those |
22 | sections. |
23 | (g) Compliance with arbitration decision.--A specialty |
24 | hospital or network or any of its affiliated specialists or a |
25 | health plan may not refuse or fail to enter into or renew a |
26 | contract under the terms imposed by the arbitration panel under |
27 | section 3106 (relating to arbitration timing and rules) or to |
28 | comply with any other order or decision of the arbitration |
29 | panel. |
30 | § 3108. Enforcement and remedies. |
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1 | (a) Enforcement.-- |
2 | (1) The Attorney General shall have the power and duty |
3 | to enforce the provisions of this chapter, including the |
4 | authority to issue civil investigative demands under |
5 | subsection (b), institute proceedings under subsection (c) |
6 | and to take any other actions as may be necessary to |
7 | ascertain and investigate alleged violations or anticipated |
8 | violations of this chapter. |
9 | (2) The Attorney General shall develop a complaint |
10 | procedure for any person wishing to report a suspected |
11 | violation or anticipated violation of this chapter and shall |
12 | post the procedure on its publicly accessible Internet |
13 | website. |
14 | (3) Nothing contained in this section shall be construed |
15 | to limit the regulatory or investigative authority of the |
16 | Attorney General or any other department, agency or |
17 | instrumentality of the Commonwealth whose functions might |
18 | relate to persons or matters falling within the scope of this |
19 | chapter. |
20 | (b) Civil investigative demand.-- |
21 | (1) If the Attorney General has reason to believe that |
22 | any person may be in possession, custody or control of |
23 | documentary material relevant to an investigation under this |
24 | chapter, the Attorney General may issue in writing and serve |
25 | upon the person a civil investigative demand requiring the |
26 | production of the material for examination. |
27 | (2) Each demand shall: |
28 | (i) state the nature of the conduct constituting the |
29 | alleged violation which is under investigation, the |
30 | applicable provision of law and the connection between |
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1 | the documentary material demanded and the conduct under |
2 | investigation; |
3 | (ii) describe the class of documentary material to |
4 | be produced with sufficient definiteness and certainty to |
5 | permit the material to be fairly identified; |
6 | (iii) state the demand is returnable immediately |
7 | upon receipt or prescribe a return date which will |
8 | provide a reasonable time period within which the |
9 | material demanded may be assembled and made available for |
10 | inspection and copying or reproduction; |
11 | (iv) identify an investigator to whom the material |
12 | shall be made available; and |
13 | (v) contain the following statement printed |
14 | conspicuously at the top of the demand: |
15 | You have the right to seek the assistance of an |
16 | attorney and he may represent you in all phases of |
17 | the investigation of which this civil investigative |
18 | demand is a part. |
19 | (3) A demand may not do any of the following: |
20 | (i) Contain a requirement which would be held to be |
21 | unreasonable if contained in a subpoena duces tecum |
22 | issued by any court in connection with a grand jury |
23 | investigation of the alleged violation. |
24 | (ii) Require the production of documentary evidence |
25 | which would be privileged from disclosure if demanded by |
26 | a subpoena duces tecum issued by a court in connection |
27 | with a grand jury investigation of the alleged violation. |
28 | (4) Service of a demand or a petition filed under this |
29 | section shall be made in the manner prescribed by the |
30 | Pennsylvania Rules of Civil Procedure for service of writs |
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1 | and complaints. |
2 | (5) A verified return by the individual serving a demand |
3 | or petition setting forth the manner of the service shall be |
4 | prima facie proof of the service. In the case of service by |
5 | registered or certified mail, the return shall be accompanied |
6 | by the return post office receipt of delivery of the demand. |
7 | (6) A person upon whom a demand issued under this |
8 | subsection has been duly served shall make the material |
9 | available for inspection and copying or reproduction to the |
10 | identified investigator at the principal place of business of |
11 | the person, or at any other place as the investigator and the |
12 | person may agree or as a court may direct, on the return date |
13 | specified in the demand. The person may, with the agreement |
14 | of the investigator, substitute copies of all or any part of |
15 | the material for the originals. |
16 | (7) The following shall apply: |
17 | (i) The investigator to whom documentary material is |
18 | delivered shall take physical possession of it and shall |
19 | be responsible for the use for which it is made and for |
20 | its return under paragraph (8) or (9). |
21 | (ii) The investigator may cause the preparation of |
22 | copies of the material as required for official use. |
23 | (iii) While in the possession of the investigator, |
24 | no material produced shall be available for examination |
25 | without the consent of the person who produced the |
26 | material by a person other than the investigator or a |
27 | representative of the Attorney General. |
28 | (iv) Documentary material in the possession of the |
29 | investigator shall be available for examination by the |
30 | person who produced the material or a duly authorized |
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1 | representative of the person, subject to reasonable terms |
2 | and conditions as prescribed by the Attorney General. |
3 | (8) Upon completion of the investigation for which |
4 | documentary material was produced under this subsection and |
5 | any case or proceeding arising from the investigation, the |
6 | investigator shall return to the person who produced the |
7 | material all of the material other than copies made under |
8 | paragraph (6) which have not passed into the control of any |
9 | court or grand jury through introduction into the record of |
10 | the case or proceeding. |
11 | (9) If documentary material has been produced by a |
12 | person under this subsection for use in an investigation and |
13 | no case or proceeding arising from the investigation has been |
14 | instituted within a reasonable time after completion of the |
15 | examination and analysis of all evidence assembled in the |
16 | course of the investigation, the person shall be entitled, |
17 | upon written demand made upon the Attorney General, to the |
18 | return of all documentary material, other than copies made |
19 | under paragraph (6), produced by the person. |
20 | (10) The following shall apply: |
21 | (i) Within 20 days after the service of the demand |
22 | upon a person, or at any time before the return date |
23 | specified in the demand, whichever period is shorter, the |
24 | person may file in Commonwealth Court and serve upon the |
25 | Attorney General a petition for an order of the court |
26 | modifying or setting aside the demand. |
27 | (ii) The time allowed for compliance with the demand |
28 | in whole or in part as deemed proper and ordered by the |
29 | court shall not run during the pendency of the petition |
30 | in the court. The petition shall specify each ground upon |
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1 | which the petitioner relies in seeking the relief and may |
2 | be based upon a failure of the demand to comply with this |
3 | subsection or upon a constitutional or other legal right |
4 | or privilege of the person. |
5 | (11) Subject to paragraph (10), if a person fails to |
6 | comply with a civil investigative demand duly served upon the |
7 | person under this subsection or if satisfactory copying or |
8 | reproduction of the material cannot be done and the person |
9 | refuses to surrender the material, the Attorney General may |
10 | file in Commonwealth Court and serve upon the person a |
11 | petition for an order of the court for the enforcement of the |
12 | demand. |
13 | (12) If the Attorney General is in custody or control of |
14 | documentary material delivered by a party in compliance with |
15 | a demand, the person may file in Commonwealth Court and serve |
16 | upon the Attorney General a petition for an order of the |
17 | court requiring the performance of a duty imposed under this |
18 | subsection. |
19 | (13) If a petition is filed under paragraph (10), (11) |
20 | or (12), the court shall have jurisdiction to hear and |
21 | determine the matter presented and, after a hearing at which |
22 | all parties are represented, to enter an order to carry out |
23 | this subsection. |
24 | (14) If an individual refuses, on the basis of the |
25 | person's Fifth Amendment privilege against self- |
26 | incrimination, to comply with a civil investigative demand |
27 | issued under this subsection, the Attorney General may invoke |
28 | 42 Pa.C.S. § 5947 (relating to immunity of witnesses). |
29 | (c) Civil remedies.-- |
30 | (1) Commonwealth Court shall have jurisdiction to |
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1 | prevent, restrain and remedy violations of this chapter by |
2 | issuing appropriate orders, including: |
3 | (i) Ordering a person who has been found to be in |
4 | violation of section 3107(a), (b), (c), (d) or (e) |
5 | (relating to prohibited conduct) to immediately cease and |
6 | desist from engaging in any such conduct. |
7 | (ii) Ordering a person who has been found to be in |
8 | violation of section 3107(f) to immediately commence full |
9 | participation in the dispute resolution or arbitration |
10 | process and to continue to participate until completion |
11 | of the process. |
12 | (iii) Ordering the immediate implementation of the |
13 | contract terms contained in the arbitration panel's |
14 | decision or order, regardless of whether the contract is |
15 | executed by the person who has been found to be in |
16 | violation of section 3107(g). |
17 | (iv) Enjoining the conduct of a person found to have |
18 | demonstrated intent to violate section 3107. |
19 | (v) Any other order as the court deems necessary or |
20 | appropriate under the circumstances. |
21 | (2) In addition to any other remedy provided for under |
22 | this section or ordered by the court, the court shall order |
23 | the following: |
24 | (i) The revocation of the tax-exempt status of a |
25 | specialty hospital or network and its tax-exempt, not- |
26 | for-profit corporate parent if the court finds that the |
27 | specialty hospital or network or any of its affiliated |
28 | specialists have violated section 3107. If the court |
29 | revokes the tax-exempt status of an entity under this |
30 | subparagraph, neither the specialty hospital or network |
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1 | nor its tax-exempt, not-for-profit corporate parent |
2 | shall, after the revocation, be deemed to be an |
3 | institution of purely public charity under the act of |
4 | November 26, 1997 (P.L.508, No.55), known as the |
5 | Institutions of Purely Public Charity Act. |
6 | (ii) Costs and expenses, including a reasonable sum |
7 | for attorney fees, to the Attorney General for any |
8 | proceeding instituted by the Attorney General under this |
9 | section in which the Attorney General prevails, payable |
10 | by the person found to be in violation or anticipated |
11 | violation of section 3107 (relating to prohibited |
12 | conduct). |
13 | § 3109. Existing consent decrees and final orders. |
14 | Nothing in this chapter shall be interpreted to invalidate |
15 | any part of a consent decree or final order that establishes an |
16 | arbitration process between a specialty hospital or network and |
17 | its affiliated specialists or any other health care facility and |
18 | a health plan agreed to or issued prior to June 30, 2011, as |
19 | long as the terms of the consent decree or final order are in |
20 | full force and effect. If a conflict exists between a provision |
21 | of this chapter and a provision of the consent decree or final |
22 | order, the provision of the consent decree or final order shall |
23 | prevail as long as the terms of the consent decree or final |
24 | order are in full force and effect. |
25 | Section 2. The addition of 40 Pa.C.S. Ch. 31 shall apply to |
26 | contracts negotiated, expiring or proposed to be terminated on |
27 | and after the effective date of this section. |
28 | Section 3. This act shall take effect immediately. |
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