Section 22-6-163

Legislative findings; rules; collaboration; approval of agreements and contracts; state action immunity; confidentiality of records; additional duties.

(a) The Legislature declares that collaboration among public payers, private health carriers, third party purchasers, and providers to identify appropriate service delivery systems and reimbursement methods in order to align incentives in support of integrated and coordinated health care delivery is in the best interest of the public. Collaboration pursuant to this article is to provide quality health care at the lowest possible cost to Alabama citizens who are Medicaid eligible. The Legislature, therefore, declares that this health care delivery system affirmatively contemplates the foreseeable displacement of competition, such that any anti-competitive effect may be attributed to the state's policy to displace competition in the delivery of a coordinated system of health care for the public benefit. In furtherance of this goal, the Legislature declares its intent to exempt from state anti-trust laws, and provide immunity from federal anti-trust laws through the state action doctrine to, collaborators, regional care organizations, and contractors that are carrying out the state's policy and regulatory program of health care delivery.

(b) The Medicaid Agency shall adopt rules to carry out the provisions of this section.

(c) Collaborators shall apply with the Medicaid Agency for a certificate in order to collaborate with other entities, individuals, or regional care organizations. The applicant shall describe what entities and persons with whom the applicant intends on collaborating or negotiating, the expected effects of the negotiated contract, and any other information the Medicaid Agency deems fit. The applicant shall certify that the bargaining is in good faith and necessary to meet the legislative intent stated herein. Before commencing cooperation or negotiations described in this section, an entity or individual shall possess a valid certificate.

(1) Upon a sufficient showing that the collaboration is in order to facilitate the development and establishment of the regional care organization or health care payment reforms, the Medicaid Agency shall issue a certificate allowing the collaboration.

(2) A certificate shall allow collective negotiations, bargaining, and cooperation among collaborators and regional care organizations.

(d) All agreements and contracts of regional care organizations that have received probationary or final certification shall be subject to review and/or approval by the Medicaid Agency.

(e) Should collaborators or a regional care organization be unable to reach an agreement, they may request that the Medicaid Agency intervene and facilitate negotiations.

(f) Notwithstanding any other law, the Medicaid Commissioner or the commissioner's designee may engage in any other appropriate state supervision necessary to promote state action immunity under state and federal anti-trust laws, and may inspect or request additional documentation to verify that the Medicaid laws are implemented in accordance with the legislative intent.

(g) The Medicaid Commissioner may convene collaborators and regional care organizations to facilitate the development and establishment of the regional care organizations and health care payment reforms.  Any participation by such entities and individuals shall be on a voluntary basis.

(h) The Medicaid Agency may do any or all of the following:

(1) Conduct a survey of the entities and individuals concerning payment and delivery reforms.

(2) Collect information from other persons to assist in evaluating the impact of any proposed agreement on the health care marketplace.

(3) Convene meetings at a time and place that is convenient for the entities and individuals.

(i) To the extent the collaborators and regional care organizations are participating in good faith negotiations, cooperation, bargaining, or contracting in ways that support the intent of establishment of the regional care organization or other health care payment reforms, those state-authorized collaborators and regional care organizations shall be exempt from the anti-trust laws under the state action immunity doctrine.

(j) All reports, notes, documents, statements, recommendations, conclusions, or other information submitted pursuant to this section, or created pursuant to this section, shall be privileged and confidential, and shall only be used in the exercise of the proper functions of the Medicaid Agency. These confidential records shall not be public records and shall not be subject to disclosure except under HIPAA. Any information subject to civil discovery or production shall be protected by a confidentiality agreement or order. Nothing contained herein shall apply to records made in the ordinary course of business of an individual, corporation, or entity. Documents otherwise available from original sources are not to be construed as immune from discovery or used in any civil proceedings merely because they were submitted pursuant to this section.  Nothing in this subsection or article shall apply to prohibit the disclosure of any information that is required to be released to the United States government or any subdivision thereof.  The Medicaid Agency, in its sole discretion, but with input from potential collaborators, may promulgate rules to make limited exceptions to this immunity and confidentiality for the disclosure of information. The exceptions created by the Medicaid Agency shall be narrowly construed.

(k) The Medicaid Agency shall actively monitor agreements approved under this article to ensure that a collaborator's or regional care organization's performance under the agreement remains in compliance with the conditions of approval.  Upon request and not less than annually, a collaborator or regional care organization shall provide information regarding agreement compliance. The Medicaid Agency may revoke the agreement upon a finding that performance pursuant to the agreement is not in substantial compliance with the terms of the contract.  Any entity or individual aggrieved by any final decision regarding contracts under this section that are approved by the Medicaid Agency, or presented to the Medicaid Agency, may take direct judicial appeal as provided for judicial review of final decisions in the Administrative Procedure Act.

(Act 2013-261, p. 686, §14; Act 2014-434, p. 1598, §1.)