Tenn. Comp. R. & Regs. 1200-38-01-.03 - TERMS OF CERTIFICATION

All COPAs shall be governed by terms of certification. The terms of certification shall include:

(1) Charges.
(a) Parties to a Cooperative Agreement who have applied to the Department for a COPA shall pay all charges incurred in the examination of the Application and, in the event the COPA is approved, all charges incurred for the review and ongoing supervision of the Cooperative Agreement, including all expenses of the Department, including, but not limited to, experts and examiners employed in the review and ongoing supervision of the Application and COPA.
(b) The compensation of the Department, experts and examiners designated by the Commissioner for examining the Cooperative Agreement and all records shall be fixed by the Commissioner at an amount commensurate with usual compensation for like services.
(c) The Department shall develop a formula to include charges incurred in the examination of the Application and charges incurred for review and ongoing supervision and invoice COPA Applicants and holders Department's costs at a regular interval.
(2) Evaluation of the Application by the Department that demonstrates Public Advantage in accordance with the standards set forth in these rules.
(a) Benefits to include:
1. Enhancement of the quality of Hospital and hospital-related care provided to Tennessee citizens;
2. Preservation of hospital facilities in geographical proximity to the communities traditionally served by those facilities;
3. Gains in the cost containment and cost-efficiency of services provided by the Hospitals involved;
4. Improvements in the utilization of Hospital resources and equipment;
5. Avoidance of duplication of Hospital resources;
6. Demonstration of population health improvement of the region served according to criteria set forth in the Cooperative Agreement and approved by the Department;
7. The extent to which medically underserved populations have access to and are projected to utilize the proposed services; and
8. Any other benefits that may be identified.
(b) Disadvantages to include:
1. The extent of any likely adverse impact on the ability of health maintenance organizations, preferred provider organizations, managed health care organizations or other healthcare payers to negotiate appropriate payment and service arrangements with Hospitals, physicians, allied healthcare professionals or other healthcare providers;
2. The extent of any reduction in competition among physicians, allied health professionals, other healthcare providers or other persons furnishing goods or services to, or in competition with, hospitals that is likely to result directly or indirectly from the Cooperative Agreement;
3. The extent of any likely adverse impact on (i) patients in the quality and availability of healthcare services and (ii) patients and payers in the price of healthcare services; and
4. The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition likely to result from the Cooperative Agreement.
(3) Ongoing Supervision through the use of an Index tracking demonstration of Public Advantage.
(a) An Index will be created and used for the Department to evaluate the proposed and continuing Public Advantage of the COPA,
(b) The Index will include measures of the cognizable benefits and disadvantages in the following categories:
1. Population Health;
2. Access to Health Services;
3. Economic; and
4. Other Cognizable Benefits.
(c) Each category may be comprised of Measures for subcategories of the Index which shall be recommended separately by the Advisory Group and the parties to the Cooperative Agreement for the COPA. The Department retains exclusive authority to add to, modify, or to accept or reject recommendations when creating the Index.
(d) The Department shall establish a baseline score at the outset of the Index composition to allow for the future demonstration of a Public Advantage. Subsequently, established ranges for the score should demonstrate whether:
1. Advantage is clear and convincing; the COPA continues in effect,
2. Advantage is not clear and convincing; a modification to the Cooperative Agreement under the terms of certification will be necessary,
3. Advantage is not evident; COPA is terminated.
(e) Advisory Group
1. Recommendations. The Advisory Group shall recommend to the Commissioner Measures to be considered for inclusion in an Index to objectively track the Public Advantage of a Cooperative Agreement.
2. Meetings. The Advisory Group shall hold at least four (4) meetings with stakeholders to obtain community input and comment, with guidance from the Department.
(i) All meetings shall be open in accordance with T.C.A. §§ 8-44-101 through 8-44-111.
(ii) One (1) meeting shall provide for comment from internal stakeholders, such as persons employed by or agents of the parties to the Cooperative Agreement, its affiliates, contractors or vendors, staff clinicians or other persons deriving income from their activities with any of the parties to the Cooperative Agreement.
(iii) One (1) meeting shall provide for comment from external stakeholders, such as competing health care providers, non-staff clinicians, payers including self-insured employers, governmental agencies, nongovernmental agencies, and other parties who derive income from health or health care services or are who are not employed or affiliated with and do not derive income from the parties to the Cooperative Agreement.
(iv) One (1) meeting shall provide for comment from other members of the community not represented in the internal or external stakeholder groups, including, current or potential patients, customers or other entities who are not affiliated, competing with or otherwise contracting with the parties to the Cooperative Agreement.
(v) The final meeting shall be open to all persons expressing an interest in the Cooperative Agreement and shall be held following the completion of the Advisory Group's recommendation of Measures to be considered for inclusion in the Index.
(vi) The Advisory Group, in consultation and with the approval of the Department, may elect to alter the number and composition of the meetings previously described.
(vii) The Department may provide guidance to the Advisory Group.
3. Completion of Duties.
(i) The Advisory Group's service shall conclude when the Department receives the Advisory Group's recommendation of Measures proposed for inclusion in the Index.
(ii) The Commissioner shall have the authority to convene, change the composition of, dismiss and reconvene the Advisory Group if necessary.
(4) A commitment to pass on or reinvest a portion of cost savings and efficiencies gained through the Cooperative Agreement to the citizens in the affected geographic service area.
(5) Additional conditions of reporting and operations determined by the Department to demonstrate Public Advantage.


Tenn. Comp. R. & Regs. 1200-38-01-.03
Emergency rule filed July 14, 2015; effective through January 10, 2016. New rule filed October 6, 2015; effective January 4, 2016. Amendments filed December 10, 2018; effective 3/10/2019.

Authority: T.C.A. §§ 68-11-1303 and 68-11-1307.

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