Lawmakers hear all to add legal weight to health commission reports
Standing against legislation backed by the business and health insurance community as well as several hospital groups, the Massachusetts Hospital Association on Tuesday argued that state Health Policy Commission reports about the market impacts of proposed mergers should stand on their own.
Attorney General Maura Healey and House Majority Leader Ron Mariano argued in favor of giving the reports on the market impacts of proposed mergers greater legal weight at a hearing before the Legislature's Health Care Financing Committee.
Backed by the National Federation of Independent Business, Tufts Medical Center, Steward Health Care and others, the two Democrats are pushing for a change to the 2012 law aimed at limiting health care cost growth in part by establishing the commission to investigate and report on proposed mergers and acquisitions.
Healey described the legislation as designating the reports with a "rebuttable presumption," a legal term. That is a change from the language of the bill, which says the commission's reports should be "prima facie evidence" of a violation of the consumer protection statute.
The hospital association does not want a special designation given to the reports.
"Right now it stands upon its own merits," said Massachusetts Hospital Association General Counsel Timothy Gens. Gens said in an interview that there was a "clear majority" among the association's board, but not a unanimous vote, to oppose the legislation.
According to the hospital association's written evidence, current statute states that the commission's reports "may be evidence" for the attorney general to take legal action and said the process laid out in the 2012 law already allows for an "unprecedented level of scrutiny and regulation" of providers' operations and governance.
"Under the current law, if the report makes a strong case, then it will be given the appropriate weight in any subsequent action - thus there is no necessity to artificially boost every [cost and market impact review's] credibility," the association argued.
While Healey said the proposed legislation "clarifies" the status of the commission's reports, Mariano said it added needed "teeth" to the power of the commission created in 2012.
"We always felt that the HPC needed some teeth," Mariano said. He said, "We punted it and got the bill done without really installing any teeth."
The bill also has the backing of the Massachusetts Council of Community Hospitals, whose executive director, Steve Walsh, was House chairman of the Health Care Financing Committee during the passage of the 2012 cost containment law.
"The Health Policy Commission's decision today is written in pencil. This slight change to the law would allow that decision to be written in pen, and it would take away quite a bit of unnecessary bureaucratic and administrative steps along the way," Walsh said. Walsh said the council supports adding a rebuttable presumption, but found designating the commission's reports as prima facie evidence "went one step too far."
The Health Policy Commission has the power to refer decisions to the attorney general's office for additional action. Determining that acquisitions by the state's largest health provider Partners Healthcare would lead to greater costs, the commission referred a report on the proposal to former Attorney General Martha Coakley in February 2014.
Coakley came to an agreement with Partners that would have allowed the deal to go through, but after Healey took office threatening a lawsuit to block it, a state judge scrapped the deal in January.
"It was in a different procedural posture," Healey told the News Service of the Partners deal. She said if commission finds a deal would create a dominant market share, increase prices and affect total medical expenses it is "appropriate" to be able to go to court to block it.
Without passage of the bill, the attorney general would still have some authority to challenge a merger, Healey said.
"We believe we would still have authority to go into court to stop a transaction under [the Consumer Protection Act], but the point here is this makes it crystal clear," Healey told the News Service.
Healey said there is "consensus" around the legislation, which has the support of Lahey Health, the Massachusetts Association of Health Plans, Harvard Pilgrim Health Care, Beth Israel Deaconess Medical Center and the Retailers Association of Massachusetts. The health workers union 1199 SEIU supports the bill as does the Greater Boston Interfaith Organization, Healey said.
"This is a priority for our office," said Healey, who said it would help her office do its job and help create a "level playing field."
The attorney general said health care consolidations can sometimes push up costs without improving quality, thereby limiting access.
"It lifts up the voice of the Health Policy Commission," Rev. Burns Stanfield, president of the interfaith organization, said in an interview.
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