Or. Admin. Code § 410-141-5280 - CCO ACQUISITIONS AND MERGERS: Determination Concerning Proposed Activity, Time For Decision, Grounds For Refusal
(1) Prior to approving or disapproving the
proposed activity, the Authority shall engage the public, Oregon's Medicaid
Advisory Committee, and the Community Advisory Councils of the CCO. The
Authority's engagement of the public shall include the following, coordinated
with DCBS where efficient:
(a) Seeking
recommendations by the Community Advisory Councils of the CCO regarding persons
who should be notified;
(b) A
public listening session in each service area of the CCO;
(c) A public comment period;
(d) An opportunity to provide input on a
draft of the Authority's detailed analyses described under subsection
(4);
(e) Seeking feedback from the
Medicaid Advisory Committee; and
(f) Posting on the Authority's web site of
the Form A and supporting documentation relating to the Form A. If any such
document contains information protected from disclosure by OAR 410-141-5278,
state or federal law or protected from disclosure as a trade secret, as defined
in ORS 192.345, including compensation
paid to providers by the CCO, then the Authority shall redact the document
pursuant to ORS 192.338.
(2) The effective date of the activity shall
not be allowable until 60 days after the Authority has rendered a determination
concerning the proposed activity described in OAR
410-141-5260.. The Authority may
refuse, after a contested case hearing, to approve a proposed activity if:
(a) The activity is contrary to law or would
result in a prohibited combination of risks or classes of insurance;
(b) The activity is inequitable or unfair to
the Members or shareholders of any CCO involved in, or to any other person
affected by, the proposed activity. However, in connection with an acquisition
of the CCO's voting securities from the CCO's shareholders, the Authority shall
evaluate whether the proposed acquisition is fair to the shareholders of the
CCO to be acquired only with respect to any shareholders that are unaffiliated
with the acquiring party or parties and that would remain after the acquisition
is completed;
(c) The activity
would substantially reduce;
(A) The security
of and service to be rendered to Members of any CCO involved in the proposed
activity or would otherwise prejudice the interests of such Members or other
Oregonians;
(B) Access to and
quality of health care for Oregonians, or would substantially increase the cost
of health care for Oregonians, including health care outside of the Medicaid
program; or
(C) The ability of any
CCO involved in the proposed activity to:
(i)
Perform its obligations described in the CCO Contract;
(ii) Innovate, coordinate care, provide
value, and deliver high-quality services;
(iii) Demonstrate commitment to addressing
health disparities and inequities;
(iv) Be strongly connected to the community
served by the CCO, including the CCO's community advisory council, community
health improvement plan, and the Authority requirements to engage with the
community;
(v) Provide services
cost effectively and within cost growth limits imposed by the Authority or the
state;
(vi) Support social
determinants of health in the community served by the CCO, as required by its
CCO Contract; or
(vii) Satisfy the
Authority's policy priorities as required by its CCO Contract or as adopted by
the Oregon Health Policy Board.
(d) The activity provides for a foreign or
alien CCO to be an acquiring party, and the Authority further finds that the
CCO cannot satisfy the requirements of this state for transacting the CCO
business that would be affected by the activity;
(e) The activity or the completion of the
activity would substantially diminish competition in this state or tend to
create a monopoly. An activity that the Authority determines would
substantially diminish competition in this state or tend to create a monopoly
may be approved if within a specific period of time a party removes the basis
upon which the Authority would have otherwise disapproved the
activity;
(f) After the change of
control or ownership, the CCO to which the activity described in OAR
410-141-5260 applies would not
be able to satisfy the requirements for receiving a CCO Contract to transact
the line or lines of business for which the CCO is currently
authorized;
(g) The financial
condition of any acquiring party might jeopardize the financial stability of
the CCO;
(h) The plans or proposals
that the acquiring party has to liquidate the CCO, sell the CCO's assets or
consolidate or merge the CCO with any person, or to make any other material
change in the CCO's business or corporate structure or management, are unfair
and unreasonable to the CCO's Members and not in the public interest;
(i) The competence, experience and integrity
of the persons that would control the operation of the CCO are such that
permitting the activity or permitting completion of the activity would not be
in the interest of the CCO's Members and the public;
(j) Any CCO involved in the activity or any
acquiring party does not comply with, or the activity presents a substantial
risk that any such CCO or acquiring party will not comply with:
(A) ORS
414.572(2),
with respect to the CCO's governing body;
(B) 42 C.F.R. Part 438, Subpart H or
42 C.F.R.
438.808, with respect to the CCO's ownership,
control and affiliations;
(C)
Minimum medical loss ratio requirements;
(D) Any other applicable law; or
(E) The obligations described in the CCO
Contract.
(k) The
activity or completing the activity is likely to be hazardous or prejudicial to
members of the CCO, other Medicaid members, or the insurance-buying
public;
(l) The activity or
completing the activity is likely to reduce the CCO's demonstrated commitment
to addressing health disparities and inequities, create or increase disparities
or inequities, or make it more difficult to achieve health equity in the
state;
(m) The activity is subject
to other material and reasonable objections.
(3) If the Authority does not approve the
activity, then the activity may not proceed, without regard to whether DCBS has
approved it. If the activity is subject to approval by DCBS, then:
(a) The Authority shall work in concert with
DCBS to jointly analyze the proposed acquisition;
(b) The Authority may rely on DCBS as to
grounds that are common to the DCBS approval and the Authority
approval;
(c) The Authority shall
exercise independent judgment as to grounds for the Authority's approval that
are not grounds for DCBS approval; and
(d) The Authority shall approve the activity
only if DCBS also approves the activity and shall do so concurrently.
(4) The Authority may disapprove,
approve, or approve with conditions a proposed acquisition. OHA shall publish
detailed analyses justifying OHA's decisions. If the Authority disapproves the
proposed activity, the Authority shall promptly notify, in writing, the CCO and
each acquiring party involved in the proposed activity, specifying the bases,
factors and reasons for the disapproval and giving the CCO and each acquiring
party that filed the statement relating to the proposed activity an opportunity
to amend the statement, if possible, to obviate the Authority's
objections.
(5) If the Authority
determines that a party that proposes to acquire control of a CCO must maintain
or restore the CCO's capital to a level required under the laws and rules of
this state, the Authority shall make and communicate the determination to the
acquiring party not later than 60 days after the acquiring party files the
statement required under OAR
410-141-5265.
(6) The acquiring party or parties that filed
Form A under OAR 410-141-5265 shall file any
amendment to Form A that responds to the Authority's disapproval and, if a
contested case hearing was held on the proposed activity pursuant to OAR
410-141-5275, shall resubmit the
amendment to the Authority no later than 30 days following the date of the
Authority's order.
(7) The
Authority may retain at the acquiring party's expense any actuaries,
accountants and other experts not otherwise a part of the Authority's staff as
the Authority may reasonably need to assist the Authority in reviewing the
proposed activity.
(8) The
Authority may establish the effective date of an activity to which OAR
410-141-5260 applies in the
order that approves the activity.
(9) If the Authority issues a notice of
approval, the acquiring party and the CCO must submit to the Authority the
disclosures required by 42
C.F.R. §
455.104.
(10) Not later than the 30th day after
consummation of an activity described in OAR
410-141-5260, the acquiring
party shall submit to the Authority a statement that the activity has been
consummated. The statement must be made under the oath of the presiding officer
of the board of directors of the acquiring party.
(11) Not later than one year after
consummation of an activity described in OAR
410-141-5260, the CCO subject to
the acquisition shall submit to the Authority a retrospective review of the
transaction. The retrospective review shall include analyses of the following
(with any relevant supporting documentation, and with specific regard to each
of the paragraphs of OAR
410-141-5265(5)(L)):
(a) The extent to which the business plans
for the CCO after the proposed activity, as submitted to the Authority in
response to OAR 410-141-5265(5)(L),
have been realized; and
(b) The
explanation for, and the CCO's planned rectification of, any respect in which
those business plans have not been realized.
Notes
Statutory/Other Authority: ORS 413.042, 414.572, 414.591 & 414.605
Statutes/Other Implemented: ORS 414.570-414.686 & 415.001-415.430
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