§ 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.