Or. Admin. R. 410-141-5280 - CCO ACQUISITIONS AND MERGERS: Determination Concerning Proposed Activity, Time For Decision, Grounds For Refusal
Current through Register Vol. 60, No. 12, December 1, 2021
(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 hearing 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 significant documents relating to the Form A. If any such
document contains information protected from disclosure by 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 Authority shall
make a determination concerning the proposed activity described in OAR
410-141-5260 within a period that begins 60 days before the effective date of
the activity. The Authority may refuse, after a public 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 contractual obligations to the Authority;
(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
Contract with the Authority; or
(vii) Satisfy the Authority's policy
priorities as required by its contract with the Authority 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
414.625(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 CCO's contractual obligations to the
Authority.
(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 objection and, if a hearing was held on the proposed
activity, shall resubmit the amendment at a hearing held under this section
unless the Authority finds that a hearing is not necessary to protect the
Members, shareholders or any other person the proposed activity affects.
(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. ยง
455.104.
(10) Within 60 days after receiving a notice
of approval or disapproval, any CCO or other party to a proposed activity,
including the CCO subject to the acquisition, may appeal the Authority's final
order as provided in ORS chapter 183. For purposes of the judicial review, the
specifications the Authority must set forth in the Authority's written notice
are the findings of fact and conclusions of law of the Authority.
(11) 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.
(12) 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, 414.615, 414.625, 414.635 & 414.651
Statutes/Other Implemented: ORS 414.610 - 414.685
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