35-24-111. Criteria for approving application; factors enumerated.

(a) The director shall not approve an application unless he determines the arrangement is more likely to result in a better overall promotion of the quality of health care, access to health care, a lower cost for health care and the increased availability of a comprehensive health care system in the state, than would otherwise occur under existing market conditions or conditions likely to develop without an exemption from state and federal antitrust law. If a proposed arrangement appears likely to improve certain criteria at the expense of other criteria, the director shall not approve the application unless he determines improvements outweigh the negative impacts and the proposed arrangement, taken as a whole, is likely to substantially further the purposes of this chapter.

(b) In making a determination about cost, access, quality and the promotion of a comprehensive health care system in the state, the director may to the extent applicable, require the applicant to demonstrate or provide information for purposes of considering:

(i) If the proposal includes provisions for cost containment;

(ii) Market structure, including:

(A) Actual and potential sellers and buyers or providers and purchasers;

(B) Actual and potential consumers;

(C) Geographic market area; and

(D) Entry conditions.

(iii) Current market conditions;

(iv) The historical behavior of the market;

(v) Performance of other similar arrangements;

(vi) If the proposal unnecessarily restrains competition or restrains competition in ways not reasonably related to the purposes of this chapter; and

(vii) The financial condition of the applicant.

(c) The analysis of cost by the director shall consider the individual consumer of health care and if a proposed arrangement will result in cost-efficiencies in the services provided by the applicant. Cost-efficiencies to be realized by providers, group purchasers or other participants in the health care system also are relevant and shall be considered to the extent any efficiencies are likely to directly or indirectly benefit the consumer. If an application is submitted by providers primarily paid by third party payors or persons unaffiliated with the applicant, it is sufficient for the applicant to show that cost savings are likely to be passed on to the unaffiliated third party payors or persons and the applicants shall not be required to show that third party payors with whom the applicants are not affiliated will pass on cost savings to individuals receiving coverage through the third party payors. To the extent relevant and ascertainable, cost analysis may also include the impact on overall employer premiums for health insurance. In making determinations as to costs, the director shall determine the extent to which:

(i) The cost savings likely to result to the applicant;

(ii) The extent to which cost savings are likely to be passed on to the consumer and in what form;

(iii) The extent to which overall employer premium costs for health insurance will be decreased;

(iv) The extent to which the proposed arrangement is likely to result in cost shifting by the applicant onto other payors or purchasers of other products or services;

(v) The extent to which any cost shifting by the applicant is likely to be followed by other persons in the market;

(vi) The extent to which the proposed arrangement reduces overall systemic cost shifting;

(vii) The current and anticipated supply and demand for any products or services at issue;

(viii) The representations and guarantees of the applicant and their enforceability;

(ix) Effectiveness of regulation by the director;

(x) Inferences to be drawn from market structure;

(xi) The cost of regulation, both for the state and for the applicant; and

(xii) Any other factors showing that the proposed arrangement is or is not likely to reduce costs.

(d) In making determinations as to access, the director shall determine the extent to which the:

(i) Utilization of needed health care services or products by the intended targeted population is likely to increase or decrease. When a proposed arrangement is likely to increase access in one (1) geographic area by lowering prices or otherwise expanding supply, but limits access in another geographic area by removing service capabilities from that second area, the director shall require the applicant to articulate the criteria employed to balance these effects;

(ii) Proposed arrangement is likely to make available a new and needed service or product to a certain geographic area;

(iii) Proposed arrangement is likely to otherwise make health care services or products more financially or geographically available to consumers, particularly persons in historically underserved populations including indigent persons and unserved geographic areas; and

(iv) Proposed arrangement is likely to result in a wide distribution of appropriate health care services throughout the state.

(e) If the director determines that the proposed arrangement is likely to increase access and bases that determination on a projected increase in utilization, the director shall require the applicant to demonstrate that the increased utilization does not result in overutilization.

(f) In making determinations as to quality, the director shall determine the extent to which the proposed arrangement is likely to:

(i) Decrease morbidity and mortality;

(ii) Result in faster convalescence;

(iii) Result in fewer hospital days;

(iv) Permit providers to attain needed experience or frequency of treatment likely to lead to better outcomes;

(v) Result in more effective or efficient provider credentialing and licensing;

(vi) Result in increased or more effective use of clinical practice guidelines, quality assurance measures such as continued quality improvement and other outcome measurements;

(vii) Increase patient satisfaction; and

(viii) Have any other features likely to improve or reduce the quality of health care.

(g) Notwithstanding subsection (f) of this section, in evaluating if a proposed arrangement improves or reduces the quality of health care, the director shall preserve the confidentiality of quality management functions involving health care facilities and peer review activities involving professional standard review organizations as set forth in W.S. 35-2-910 and 35-17-101 through 35-17-106.

(h) In making determinations as to whether a proposed arrangement contributes to the promotion of a comprehensive health care system in the state, the director shall determine the extent to which the arrangement is likely to:

(i) Promote the development of and access to a wide variety of health care services and specialties in the state;

(ii) Minimize cost-shifting in which more lucrative patient populations and specialties are served at the expense of other patients and specialties, resulting in fewer services available in the state; and

(iii) Promote access to appropriate health care services in locations throughout the state.