H 71

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1H.71
2 Introduced by Representatives Bluemle of Burlington, Cordes of Bristol,
3Berbeco of Winooski, Black of Essex, Cina of Burlington,
4Goldman of Rockingham, and Page of Newport City
5 Referred to Committee on
6 Date:
7 Subject: Health; health care facilities; Green Mountain Care Board; Attorney
8General; health care entity transactions; corporate practice of
9medicine
10 Statement of purpose of bill as introduced: This bill proposes to require health
11 care entities to provide notice to the Green Mountain Care Board and Attorney
12 General before entering into certain types of transactions and would direct the
13 Board, in consultation with the Attorney General, to review certain proposed
14 transactions and approve, approve with conditions, or disapprove them. The
15 bill would prohibit corporations from practicing medicine or otherwise
16 interfering with health care providers’ professional judgment and clinical
17 decision making. The bill would also require public reporting on ownership
18 and control of certain health care entities.
19    An act relating to health care entity transaction oversight and clinical
20    decision making
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1 It is hereby enacted by the General Assembly of the State of Vermont:
2 Sec. 1. 18 V.S.A. chapter 226 is added to read:
3      CHAPTER 226. TRANSACTION OVERSIGHT AND CLINICAL
4DECISION MAKING
5Subchapter 1. General Provisions
6 § 9521. DEFINITIONS
7    As used in this chapter:
8(1) “Acquisition” means the direct or indirect purchase in any manner,
9 including by lease, transfer, exchange, option, receipt of a conveyance,
10 creation of a joint venture, or any other manner of purchase, such as by a
11 health care system, private equity group, hedge fund, publicly traded company,
12 real estate investment trust, management services organization, insurance
13 company, or a subsidiary of any of these entities, of a material amount of the
14 assets or operations of a health care entity.
15(2) “Affiliate” means:
16(A) a person who directly, indirectly, or through one or more
17 intermediaries, controls, is controlled by, or is under common control or
18 ownership of another person;
19(B) a person whose business is operated under a lease, management,
20 or operating agreement by another entity, or a person substantially all of whose
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1 property is operated under a management or operating agreement with that
2 other entity;
3(C) an entity that operates the business or substantially all of the
4 property of another entity under a lease, management, or operating agreement;
5 or
6(D) any out-of-state operations or corporate affiliate of an affiliate, as
7 defined in subdivision (A), (B), or (C) of this subdivision (2), including
8 significant equity investors, health care real estate investment trusts, and
9 management services organizations.
10(3) “Change of control” means an arrangement in which any other
11 person acquires direct or indirect control over the operations of a health care
12 entity in whole or in substantial part. As used in this subdivision,
13 “arrangement” includes any agreement, association, partnership, joint venture,
14 management services agreement, professional services agreement, health care
15 staffing company agreement, or other arrangement that results in a change of
16 governance or control of a health care entity or a department, subdivision, or
17 subsidiary of a health care entity.
18(4) “Control,” including “controlling,” “controlled by,” and “under
19 common control with,” means the direct or indirect power through ownership,
20 contractual agreement, or otherwise, to:
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1(A) vote more than 10 percent of any class of voting shares of a
2 health care entity; or
3(B) direct the actions or policies of the specified entity.
4(5) “Health care entity” means a health care provider, health care
5 facility, provider organization, pharmacy benefit manager as defined in section
6 3602 of this title, or health insurer as defined in section 9402 of this title that
7 offers a health insurance plan in this State.
8(6) “Health care facility” has the same meaning as in section 9432 of
9 this title.
10(7) “Health care provider” has the same meaning as in section 9402 of
11 this title.
12(8) “Health care services” has the same meaning as in section 9481 of
13 this title and includes all of the following:
14(A) inpatient, outpatient, habilitative, rehabilitative, dental, palliative,
15 therapeutic, supportive, nursing home, home health, mental health, and
16 substance use disorder services provided by a health care entity;
17(B) pharmacy services, including drugs, devices, and medical
18 supplies;
19(C) performance of functions to refer, arrange, and coordinate care;
20(D) durable medical equipment, diagnostic equivalent, surgical
21 devices, and infusion equipment; and
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1(E) technology associated with providing the services and equipment
2 set forth in subdivisions (A)–(D) of this subdivision (8), such as telehealth,
3 electronic health records, software, claims processing, and utilization systems.
4(9) “Health care staffing company” means a person engaged in the
5 business of providing or procuring health care personnel for temporary
6 employment or contracting by a health care facility, but does not include an
7 individual who independently provides the individual’s own services on a
8 temporary basis to health care facilities as an employee or contractor.
9(10) “Licensee” means an individual licensed in this State as a physician
10 pursuant to 26 V.S.A. chapter 23 or 33, as an advanced practice registered
11 nurse pursuant to 26 V.S.A. chapter 28, or as a physician assistant pursuant to
12 26 V.S.A. chapter 31 who is authorized to diagnose and treat in the applicable
13 clinical setting.
14(11) “Management services organization” means any organization or
15 entity that contracts with a health care provider or provider organization to
16 perform management or administrative services relating to, supporting, or
17 facilitating the provision of health care services.
18(12)(A) “Material change transaction” means any of the following,
19 occurring during a single transaction or in a series of related transactions
20 involving a health care entity within the State that has total assets, annual
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1 revenues, or anticipated annual revenues for new entities, of at least
2 $1,000,000.00, including both in-state and out-of-state assets and revenues:
3(i) a corporate merger including one or more health care entities;
4(ii) an acquisition of one or more health care entities, including
5 insolvent health care entities;
6(iii) any affiliation, arrangement, or contract that results in a
7 change of control for a health care entity;
8(iv) the formation of a partnership, joint venture, accountable care
9 organization, parent organization, or management services organization for the
10 purpose of administering contracts with health insurers, third-party
11 administrators, pharmacy benefit managers, or health care providers;
12(v) a sale, purchase, lease, affiliation, or transfer of control of a
13 board of directors or governing body of a health care entity;
14(vi) a real estate sale or lease agreement involving a material
15 amount of assets of a health care entity; or
16(vii) the closure of a health care facility, or the closure,
17 discontinuance, or significant reduction of any essential health service
18 provided by a health care entity that is either a provider organization or health
19 care facility or any new contracts or clinical or contractual affiliations that will
20 eliminate or significantly reduce essential services.
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1(B) “Material change transaction” does not include any of the
2 following:
3(i) a clinical affiliation of health care entities formed solely for the
4 purpose of collaborating on clinical trials;
5(ii) graduate medical education programs;
6(iii) the mere offer of employment to, or hiring of, an individual
7 health care provider; or
8(iv) situations in which the health care entity directly, or indirectly
9 through one or more intermediaries, already controls, is controlled by, or is
10 under common control with, all other parties to the transaction, such as a
11 corporate restructuring.
12(13) “Medical practice” means a corporate entity or partnership
13 organized for the purpose of practicing medicine and permitted to practice
14 medicine in this State, including partnerships, professional corporations,
15 limited liability companies, and limited liability partnerships.
16(14) “Noncompetition agreement” means a written agreement between a
17 licensee and another person in which the licensee agrees that the licensee,
18 either alone or as an employee, associate, or affiliate of a third person, will not
19 compete with the other person in providing products, processes, or services
20 that are similar to the other person’s products, processes, or services for a
21 period of time or within a specified geographic area after termination of
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1 employment or termination of a contract under which the licensee supplied
2 goods to or performed services for the other person.
3(15) “Nondisclosure agreement” means a written agreement under the
4 terms of which a licensee must refrain from disclosing partially, fully, directly,
5 or indirectly to any person, other than another party to the written agreement or
6 to a person specified in the agreement as a third-party beneficiary of the
7 agreement:
8(A) a policy or practice that a party to the agreement required the
9 licensee to use in patient care, other than individually identifiable health
10 information that the licensee must not disclose under the Health Insurance
11 Portability and Accountability Act of 1996, Pub. L. No. 104-191;
12(B) a policy, practice, or other information about or associated with
13 the licensee’s employment, conditions of employment, or rate or amount of
14 pay or other compensation; or
15(C) any other information the licensee possesses or to which the
16 licensee has access by reason of the licensee’s employment by, or provision of
17 services for or on behalf of, a party to the agreement, other than information
18 that is subject to protection under applicable law as a trade secret of, or
19 otherwise proprietary to, another party to the agreement or to a person
20 specified in the agreement as a third-party beneficiary of the agreement.
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1(16) “Nondisparagement agreement” means a written agreement under
2 which a licensee must refrain from making to a third party a statement about
3 another party to the agreement or about another person specified in the
4 agreement as a third-party beneficiary of the agreement, the effect of which
5 causes or threatens to cause harm to the other party’s or person’s reputation,
6 business relations, or other economic interests.
7(17) “Ownership or investment interest” means any of the following:
8(A) direct or indirect possession of equity in the capital, stock, or
9 profits totaling more than five percent of an entity;
10(B) interest held by an investor or group of investors who engage in
11 the raising or returning of capital and who invest, develop, or dispose of
12 specified assets; or
13(C) interest held by a pool of funds by investors, including a pool of
14 funds managed or controlled by private limited partnerships, if those investors
15 or the management of that pool or private limited partnership employs
16 investment strategies of any kind to earn a return on that pool of funds.
17(18) “Private equity fund” means a publicly traded or nonpublicly traded
18 company that collects capital investments from individuals or entities and
19 purchases a direct or indirect ownership share or controlling interest of a health
20 care entity.
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1(19) “Provider organization” means any corporation, partnership,
2 business trust, association, or organized group of persons that is in the business
3 of health care delivery or management, whether incorporated or not, that
4 represents one or more health care providers in contracting with health insurers
5 for payment for health care services. The term includes physician
6 organizations, physician-hospital organizations, independent practice
7 associations, provider networks, accountable care organizations, management
8 services organizations, and any other organization that contracts with health
9 insurers for payment for health care services.
10(20) “Significant equity investor” means:
11(A) any private equity fund with a direct or indirect ownership or
12 investment interest in a health care facility;
13(B) an investor, group of investors, or other entity with a direct or
14 indirect possession of equity in the capital, stock, or profits totaling more than
15 10 percent of a provider or provider organization; or
16(C) any private equity fund, investor, group of investors, or other
17 entity with a direct or indirect controlling interest in a health care entity or that
18 operates the business or substantially all the property of a health care entity
19 under a lease, management, or operating agreement.
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1     Subchapter 2. Review of Proposed Health Care Facility Transactions
2 § 9525. NOTICE
3    (a) Notice required. Any health care entity shall, prior to consummating
4 any material change transaction, submit written notice to the Green Mountain
5 Care Board and the Attorney General not fewer than 180 days before the date
6 of the proposed material change transaction. Notice shall be considered
7 received on the first business day after the Green Mountain Care Board
8 determines that notice is complete.
9    (b) Contents of notice. Written notice shall include and contain the
10 information the Green Mountain Care Board and the Attorney General
11 determine is required. The health care entity may include any additional
12 information supporting the written notice of the material change transaction.
13 Notice is complete when the Green Mountain Care Board and the Attorney
14 General determine that all required information has been received.
15    (c) Confidentiality.
16(1) All information provided by the submitter as part of the notice shall
17 be available for public inspection and copying under the Public Records Act
18 unless the submitter designates specific documents or information as
19 confidential when submitting the notice and the Green Mountain Care Board
20 and the Attorney General concur with the designation in accordance with a
21 process established by the Green Mountain Care Board by rule. Information
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1 that is otherwise publicly available, or that has not been confidentially
2 maintained by the source, shall be considered public information.
3(2) The Green Mountain Care Board and the Attorney General shall
4 maintain the confidentiality of all confidential information that is obtained in
5 relation to a material change transaction, except that the Green Mountain Care
6 Board and the Attorney General may share confidential information with each
7 other to carry out their respective authorities under this chapter and may
8 disclose any information to an expert or consultant under contract with the
9 Green Mountain Care Board or the Attorney General, provided that the expert
10 or consultant is bound by the same confidentiality requirements as the Board
11 and the Attorney General.
12(3) Any information and documents determined to be confidential
13 pursuant to subdivision (1) of this subsection shall be exempt from public
14 inspection and copying under the Public Records Act and shall be kept
15 confidential.
16    (d) Public notice. Within 10 days after receiving written notice of a
17 material change transaction, the Green Mountain Care Board shall post on a
18 publicly available website information about the material change transaction,
19 including:
20(1) a summary of the proposed transaction, including the identity of the
21 parties to the transaction;
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1(2) an explanation of the groups or individuals likely to be impacted by
2 the transaction;
3(3) information about services currently provided by the health care
4 entity, commitments by the health care entity to continue such services, and
5 any services that will be reduced or eliminated;
6(4) details about any public hearings regarding the proposed transaction;
7(5) how to submit public comments regarding the proposed transaction;
8 and
9(6) any other information from the notice and other materials submitted
10 by the health care entity that the Green Mountain Care Board or the Attorney
11 General determines would be in the public interest, except for materials
12 designated confidential under subsection (c) of this section.
13 § 9526. PRELIMINARY REVIEW
14    (a) Within 30 days following receipt of a notice of material change
15 transaction as set forth in section 9525 of this chapter, and unless otherwise
16 provided in subsection (b) of this section, the Green Mountain Care Board, in
17 consultation with the Attorney General, shall do one of the following:
18(1) Approve the material change transaction and notify the health care
19 entity in writing that a comprehensive review is not required for the material
20 change transaction.
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1(2) Approve the material change transaction subject to conditions set by
2 the Green Mountain Care Board and notify the health care entity in writing of
3 the conditions under which the transaction may be completed.
4(3) Notify the health care entity in writing that the transaction is subject
5 to a comprehensive review. The Green Mountain Care Board or the Attorney
6 General, or both, may request additional information necessary to perform a
7 comprehensive review under section 9527 of this chapter.
8    (b)(1) A comprehensive review shall be required when any of the following
9 applies to the material change transaction:
10(A) the transaction will result in the transfer of assets valued above
11 $1,000,000.00;
12(B) the transaction occurs in a highly consolidated market for any
13 line of services offered by any party to the material change transaction;
14(C) the transaction will cause a significant change in market share,
15 such that any resulting health care entity possesses market power upon
16 completion;
17(D) the transaction will otherwise lessen competition, including
18 effects of vertical or cross-market transactions among different product or
19 geographic markets;
20(E) either party to the material change transaction possesses market
21 power prior to the transaction; or
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1(F) the Green Mountain Care Board or the Attorney General, or both,
2 at their sole discretion, determine that the material change transaction is likely
3 to have a material impact on the cost, quality, equity, or access to health care
4 services in any region in the state.
5(2) For purposes of this subsection, “market power” means possessing
6 30 percent or more of the market share in any line of service in the relevant
7 geographic area or under other criteria that the Green Mountain Care Board
8 may define by rule.
9    (c) Nothing in this section shall be deemed to limit or infringe upon the
10 existing authority of any State agency, including the Green Mountain Care
11 Board, the Department of Financial Regulation, the Department of Health, or
12 the Attorney General, to review any transactions.
13 § 9527. COMPREHENSIVE REVIEW PROCESS
14    (a) Not later than 90 days after determining that a transaction is subject to a
15 comprehensive review, the Green Mountain Care Board shall conduct one or
16 more public hearings or public meetings, one of which shall be in the county in
17 which the health care entity is located, to hear comments from interested
18 parties.
19    (b) The Green Mountain Care Board shall conduct a cost and market
20 impact review of the proposed transaction in consultation with the Attorney
21 General. The cost and market impact review shall examine factors relating to
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1 the proposed transaction, the transacting parties, and their relative market
2 position, including:
3(1) the market share of each transacting party and the likely effects of
4 the transaction on competition;
5(2) any previous transaction involving any transacting party, including
6 acquisitions of or mergers with similar health care providers, whether or not in
7 the same state;
8(3) the prices charged by any of the transacting parties for services,
9 including their relative prices compared to others’ prices for the same services
10 in the same geographic area;
11(4) the quality of the services provided by any health care provider or
12 providers that are party to the transaction, including patient experience;
13(5) the cost and cost trends of the transacting entities in comparison to
14 total health care expenditures statewide;
15(6) the availability and accessibility of services similar to those
16 provided, or proposed to be provided, through any provider or provider
17 organization that is party to the transaction within its primary service areas and
18 dispersed service areas;
19(7) the impact of the material change transaction on competing options
20 for the delivery of health care services within the transacting parties’ primary
21 service areas and dispersed service areas;
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1(8) the role of the transacting parties in serving at-risk, underserved, and
2 government payer patient populations;
3(9) the role of the transacting parties in providing low-margin or
4 negative-margin services within their primary service areas and dispersed
5 service areas;
6(10) any consumer concerns, including complaints or other allegations
7 that any provider or provider organization that is party to the transaction has
8 engaged in any unfair method of competition or any unfair or deceptive act or
9 practice;
10(11) the transaction parties’ compliance with prior conditions and legal
11 requirements related to competitive conduct, including compliance with
12 corporate practice of medicine requirements under subchapter 3 of this chapter
13 and reporting requirements regarding health care entity ownership and control
14 under subchapter 4 of this chapter;
15(12) the impact of the transaction on the clinical workforce, including
16 wages, staffing levels, supply, patient access, and continuity of patient-care
17 relationships;
18(13) the impact of any real estate sale or lease agreement related to the
19 transaction on the financial condition of each health care entity that is party to
20 the transaction and its ability to maintain patient care operations;
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1(14) in the case of a proposed closure or discontinuance of a health care
2 facility or any essential health services, the impact of the closure on health care
3 access, outcomes, costs, and equity for those in the health care facility’s
4 service area, and the health care facility’s plan for ensuring equitable access,
5 quality, affordability, and availability of essential health services within the
6 service area; and
7(15) any other factors that the Green Mountain Care Board or the
8 Attorney General determines to be in the public interest.
9    (c)(1)(A) Each party to the proposed transaction shall provide to the Green
10 Mountain Care Board and the Attorney General:
11(i) a copy of the party’s audited financial statements and the
12 details of all other transactions related to the proposed transaction, such as
13 investments and loans to organizations in the party’s portfolio, as well as any
14 other information provided to the party’s investors regarding the proposed
15 transaction;
16(ii) information regarding any and all plans the party has to earn
17 investor returns, payouts, dividends, or related private payments during the
18 operation of and upon exit from the ownership of or contract with a health care
19 provider; and
20(iii) a plain language summary of all of the means by which the
21 party plans to generate profits related to the proposed transaction.
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1(B) All materials acquired by the Green Mountain Care Board and
2 Attorney General pursuant to subdivision (A) of this subdivision (c)(1) shall be
3 made available to the public except to the extent that a document or other item
4 would be exempt from public inspection and copying under the Public Records
5 Act.
6(2) The Green Mountain Care Board may request additional information
7 or documents from the transacting parties necessary to conduct a cost and
8 market impact review. Failure to respond or insufficient responses to requests
9 for information by transacting parties may result in the extension of the
10 deadline for the Green Mountain Care Board to complete the cost and market
11 impact review, the imposition of conditions for approval, or the disapproval of
12 the material change transaction.
13(3) The Office of the Health Care Advocate shall have the right to
14 receive copies of all materials related to the proposed transaction and the
15 comprehensive review and may submit comments for the Board’s
16 consideration. The Office of the Health Care Advocate shall not further
17 disclose any confidential or proprietary information provided to the Office
18 pursuant to this section.
19    (d) All confidential or otherwise nonpublic information and documents
20 produced or obtained under this section are exempt from public inspection and
21 copying under the Public Records Act and shall be kept confidential. The
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1 Green Mountain Care Board and the Attorney General shall not disclose the
2 confidential information or documents to any person other than the Office of
3 the Health Care Advocate without the consent of the party that produced the
4 confidential information or documents, except that the Green Mountain Care
5 Board and the Attorney General may disclose any information to any other
6 State agency and to an expert or consultant under contract with the Green
7 Mountain Care Board or the Attorney General, or both, to review the proposed
8 transaction, provided that the State agency, expert, or consultant is bound by
9 the same confidentiality requirements as the Green Mountain Care Board and
10 the Attorney General.
11    (e) The Green Mountain Care Board and the Attorney General may, in their
12 sole discretion:
13(1) contract with, consult, and receive advice from any State agency as
14 the Green Mountain Care Board or the Attorney General, or both, deems
15 appropriate; and
16(2) contract with experts or consultants to assist in reviewing the
17 proposed agreement or transaction.
18    (f)(1) Not more than 120 days after determining that the transaction is
19 subject to a comprehensive review under this section, the Green Mountain
20 Care Board shall produce a cost and market impact review report containing
21 the findings and conclusions of the cost and market impact review, provided
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1 that the health care entity has complied with the requests for information or
2 documents pursuant to this section within 21 days following the request or by a
3 later date set by mutual agreement of the health care entity and the Green
4 Mountain Care Board or the Attorney General, as applicable. The cost and
5 market impact review report shall be posted publicly and shall not disclose
6 confidential information.
7(2) The Green Mountain Care Board may adopt rules creating an
8 expedited process for conducting a cost and market impact review for
9 transactions resulting in a transfer of assets not to exceed $1,500,000.00 if
10 there are few competitive concerns or involving a distressed provider in danger
11 of closing, or both.
12    (g) The Green Mountain Care Board and the Attorney General shall be
13 entitled to charge their costs to the transacting parties for all actual, reasonable,
14 direct costs incurred in reviewing, evaluating, and making the determination
15 referred to in this section, including administrative costs and the costs of
16 contracted experts or consultants pursuant to subsection (e) of this section.
17 § 9528. APPROVAL AUTHORITY
18    (a)(1) The Green Mountain Care Board, in consultation with the Attorney
19 General, shall have discretion to approve, conditionally approve, or disapprove
20 of any material change transaction for which the Green Mountain Care Board
21 receives notice under section 9525 of this chapter. Any conditions imposed
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1 pursuant to this section shall specify a time period for compliance, an
2 expiration date, or that the condition applies indefinitely.
3(2) Notwithstanding subdivision (1) of this subsection, in the case of a
4 material change transaction involving a health insurer that would be subject to
5 review and approval by the Department of Financial Regulation, the Green
6 Mountain Care Board shall make a recommendation to the Department of
7 Financial Regulation based on the Green Mountain Care Board’s review
8 whether the transaction should be approved, disapproved, on conditionally
9 approved.
10    (b) The Green Mountain Care Board shall inform the health care entity of
11 its determination within 30 days following receipt of notice under section 9525
12 of this chapter or, in the case of comprehensive review, within 60 days
13 following the completion of the cost and market impact review. No proposed
14 material change transaction shall be completed before the Green Mountain
15 Care Board has informed the health care entity of its determination.
16    (c) In making its determination, Green Mountain Care Board, in
17 consultation with the Attorney General, may consider any factors that the
18 Board or the Attorney General deems relevant, including:
19(1) the likely impact, as described in the cost and market impact review
20 report where applicable, of the material change transaction on:
21(A) health care costs, prices, and affordability;
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1(B) the availability or accessibility of health care services to the
2 affected community;
3(C) provider cost trends and containment of total State health care
4 spending;
5(D) access to services in medically underserved areas;
6(E) rectifying historical and contemporary factors contributing to a
7 lack of health equities or access to services;
8(F) the functioning and competitiveness of the markets for health care
9 and health insurance;
10(G) the potential effects of the transaction on health outcomes,
11 quality, access, equity, or workforce, or a combination of these, for residents of
12 this State; and
13(H) the potential loss or change in access to essential services;
14(2) whether the material change transaction is contrary to or violates any
15 applicable law, including State antitrust laws, laws restricting the corporate
16 practice of medicine, and consumer protection laws;
17(3) whether the benefits of the transaction are likely to outweigh the
18 anticompetitive effects from the transaction; and
19(4) whether the transaction is in the public interest and advances the
20 principles set forth in section 9371 of this title.
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1    (d) The Green Mountain Care Board shall not approve a material change
2 transaction if any of the following conditions is met:
3(1) the transaction would give a party ownership of the core business
4 operations of an essential community provider, as defined in 45 C.F.R.
5 § 156.235;
6(2) the transaction involves financing the acquisition of a health care
7 entity through the use of debt that will become an obligation of one or more of
8 the health care entities that are party to the transaction;
9(3) the transaction involves issuing dividends or other shareholder
10 returns financed by debt that will become an obligation of one or more of the
11 health care entities that are party to the transaction;
12(4) the transaction involves entering into any contract or other service or
13 purchasing arrangement with an affiliated legal entity, except for a contract or
14 arrangement to provide services or products, or both, that are necessary to
15 accomplish the legitimate health care purposes of the relevant health care
16 entity and the contract or arrangement provides for compensation or
17 reimbursement that is consistent with the fair market value of the services
18 rendered or products delivered; or
19(5) the transaction would result in one or more health care entities that
20 does not accept, or that places limitations on, patients covered by Medicaid,
21 original Medicare, or Medicare Advantage.
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1    (e) Nothing in this section shall be construed to limit or alter any existing
2 authority of the Attorney General or any other State agency to enforce any
3 other law, including State or federal antitrust law, or to review transactions
4 involving nonprofit entities.
5 § 9529. POST-TRANSACTION OVERSIGHT
6    (a) Enforcement by the Office of the Attorney General.
7(1) The Attorney General may subpoena any records necessary to
8 enforce any provisions of this chapter or to investigate suspected violations of
9 any provisions of this chapter or any conditions imposed by conditional
10 approval pursuant to section 9528 of this chapter. The Attorney General may
11 audit the books, documents, records, and data of any entity that is subject to a
12 conditional approval under section 9528 of this chapter to monitor compliance
13 with the conditions.
14(2)(A) The Attorney General may enforce any requirement of this
15 chapter and any conditions imposed by a conditional approval pursuant to
16 section 9528 of this chapter to the fullest extent provided by law, including
17 damages. In addition to any legal remedies the Attorney General may have,
18 the Attorney General shall be entitled to specific performance, injunctive
19 relief, and other equitable remedies a court deems appropriate for any
20 violations or imminent violation of any requirement of this chapter or breach
21 of any of the conditions and shall be entitled to recover the Office of the
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1 Attorney General’s attorney’s fees and costs incurred in remedying each
2 violation.
3(B) In addition to the remedies set forth in subdivision (A) of this
4 subdivision (a)(2), the Attorney General may impose administrative penalties
5 for any violation of this chapter or of any conditions imposed pursuant to a
6 conditional approval under section 9528 of this chapter and may rescind or
7 deny approval for any other past, pending, or future material change
8 transactions involving the health care entity or an affiliate.
9(3) Nothing in this subsection shall be deemed to narrow, abrogate, or
10 otherwise alter the authority of the Attorney General to prosecute violations of
11 antitrust or consumer protection requirements.
12    (b) Compliance monitoring. In order to effectively monitor ongoing
13 compliance with the terms and conditions of any transaction subject to prior
14 notice, approval, or conditional approval under this chapter, the Green
15 Mountain Care Board and the Attorney General may, in their sole discretion,
16 conduct a review or audit and may contract with experts and consultants to
17 assist in this regard.
18    (c) Annual reporting. Annually following the completion of the material
19 change transaction approved or conditionally approved by the Green Mountain
20 Care Board after a comprehensive review under section 9527 of this chapter,
21 the health care entity or other person that acquired direct or indirect control
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1 over the health care entity shall submit a report to the Green Mountain Care
2 Board and the Attorney General that:
3(1) demonstrates compliance with conditions placed on the transaction,
4 if any;
5(2) analyzes cost trends and cost growth trends of the parties to the
6 transaction; and
7(3) analyzes any changes or effects of the transaction on patient access,
8 availability of services, workforce, quality, or equity.
9    (d) Costs. The Green Mountain Care Board and the Attorney General shall
10 be entitled to charge costs to the transacting parties for all actual, reasonable,
11 and direct costs incurred in monitoring ongoing compliance with the terms and
12 conditions of the sale or transfer of assets, including contractor and
13 administrative costs.
14Subchapter 3. Prohibition on Corporate Practice of Medicine
15 § 9531. CORPORATE PRACTICE OF MEDICINE PROHIBITED
16    (a) It is unlawful for an individual, corporation, partnership, or
17 any other entity without a license under 26 V.S.A. chapter 23 or 33 to own a
18 medical practice, employ licensees, or otherwise engage in the practice of
19 medicine.
20    (b) Notwithstanding subsection (a) of this section, an individual,
21 corporation, partnership, or any other entity without a license under 26 V.S.A.
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1 chapter 23 or 33 that is permitted to employ licensees under section 9532 of
2 this chapter shall not indirectly or directly interfere with, control, or otherwise
3 direct the professional judgment or clinical decisions of a licensee.
4 § 9532. CORPORATE ENTITIES PERMITTED TO EMPLOY
5PHYSICIANS
6    (a) A medical practice organized for the purpose of practicing medicine
7 may employ physicians and engage in the practice of medicine only if all of
8 the following conditions are met:
9(1) Licensees who are licensed in this State to practice medicine must
10 hold the majority of each class of shares that are entitled to vote.
11(2) Licensees who are licensed in this State to practice medicine must
12 comprise a majority of the directors.
13(3) All officers except the secretary and treasurer, if any, must be
14 licensees who are licensed in this State to practice medicine. The same
15 individual may hold any two or more offices.
16    (b) Notwithstanding any provision of subsection (a) of this section to the
17 contrary, the following entities may employ physicians and engage in the
18 practice of medicine:
19(1) federally qualified health centers;
20(2) rural health clinics;
21(3) free and referral clinics;
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1(4) nonprofit hospitals;
2(5) hospitals and other health care facilities owned or operated, or both,
3 by the State;
4(6) ambulatory surgical centers; and
5(7) school-based health clinics, including student health centers at
6 postsecondary schools.
7 § 9533. REGULATION OF CONTRACTS BETWEEN MEDICAL
8PRACTICES AND MANAGEMENT SERVICES
9ORGANIZATIONS
10    (a) Prohibition on straw ownership.
11(1) Each licensee owner of a medical practice shall exhibit meaningful
12 ownership of the medical practice.
13(2) Meaningful ownership means that each licensee owner is duly
14 licensed and present in this State and is substantially engaged in delivering
15 medical care or managing the medical practice, or both.
16    (b) Prohibition on dual ownership or interests.
17(1) Except as provided in subdivision (2) of this subsection, a
18 shareholder, director, or officer of a medical practice shall not do any of the
19 following:
20(A) own or control shares in, serve as a director or officer of, be an
21 employee of or an independent contractor with, or otherwise participate in
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1 managing both the medical practice and a management services organization
2 with which the medical practice has a contract; or
3(B) receive substantial compensation or remuneration from a
4 management services organization in return for ownership or management of
5 the medical practice.
6(2) Subdivision (1) of this subsection shall not apply to the shareholders,
7 directors, or officers of a medical practice if the medical practice owns a
8 majority of the interest in the management services organization or separate
9 legal entity.
10    (c) Prohibition on stock transfer restriction agreements.
11(1) A medical practice shall not transfer or relinquish control over the
12 sale, the restriction of the sale, or the encumbrance of the sale of the medical
13 practice’s shares or assets.
14(2) A medical practice shall not transfer or relinquish control over the
15 issuing of shares of stock in the medical practice, in a subsidiary of the medical
16 practice or an entity affiliated with the medical practice, or the paying of
17 dividends.
18    (d) Prohibition on restrictive covenants.
19(1) Noncompetition agreements.
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1(A) Except as provided in subdivision (B) of this subdivision (d)(1), a
2 noncompetition agreement between a licensee and another person is void and
3 unenforceable.
4(B) Notwithstanding subdivision (A) of this subdivision (d)(1), a
5 noncompetition agreement between a licensee and another person is valid and
6 enforceable if the licensee is a shareholder or member of the other person or
7 otherwise owns or controls an ownership or membership interest that is
8 equivalent to 25 percent or more of the entire ownership or membership
9 interest that exists in the other person.
10(2) Nondisclosure and nondisparagement agreements.
11(A) Except as provided in subdivision (B) of this subdivision (d)(2), a
12 nondisclosure agreement or nondisparagement agreement between a licensee
13 and a management services organization is void and unenforceable.
14(B) Subdivision (A) of this subdivision (d)(2) shall not be deemed to
15 limit or otherwise affect any cause of action that:
16(i) a party to, or third-party beneficiary of, the agreement may
17 have with respect to a statement of a licensee that constitutes libel, slander, a
18 tortious interference with contractual relations, or another tort for which the
19 party has a cause of action against the licensee; and
20(ii) does not depend upon or derive from a breach or violation of
21 an agreement described in subdivision (1) of this subsection (d).
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1    (e) Limitations on advertising. It is unlawful for a management services
2 organization or other legal entity that is not the medical practice to advertise
3 the medical practice’s services under the name of the entity that is not the
4 medical practice.
5    (f) Prohibition on relinquishing control of medical practice.
6(1) A medical practice shall not, by means of a contract or other
7 agreement or arrangement, by providing in the medical practice’s articles of
8 incorporation or bylaws, by forming a subsidiary or affiliated entity, or by
9 other means, relinquish control over or otherwise transfer de facto control over
10 any of the medical practice’s administrative, business, or clinical operations
11 that may affect clinical decision making or the nature or quality of medical
12 care that the medical practice delivers.
13(2) Conduct prohibited under subdivision (1) of this subsection
14 includes relinquishing ultimate decision-making authority over:
15(A) hiring or termination, setting work schedules and compensation,
16 or otherwise specifying terms of employment of employees who are licensed to
17 practice medicine in this State or who are licensed in this State as a physician
18 assistant or advanced practice registered nurse;
19(B) the disbursement of revenue generated from physician fees and
20 other revenue generated by physician services;
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1(C) collaboration and negotiation with hospitals and other health care
2 facilities in which the licensees of the medical practice may deliver clinical
3 care, including controlling licensee schedules as a means of discipline;
4(D) setting staffing levels, or specifying the period of time that a
5 licensee may spend with a patient, for any location that serves patients;
6(E) making diagnostic coding decisions;
7(F) setting clinical standards or policies;
8(G) setting policies for patient, client, or customer billing and
9 collection;
10(H) setting the prices, rates, or amounts the medical practice charges
11 for a licensee’s services; or
12(I) negotiating, executing, performing, enforcing, or terminating
13 contracts with third-party payers or persons who are not employees of the
14 medical practice.
15(3) The conduct described in subdivision (2) of this subsection does not
16 prohibit:
17(A) collection of quality metrics as required by law or in accordance
18 with an agreement to which the medical practice is a party; or
19(B) setting criteria for reimbursement under a contract between the
20 medical practice and an insurer or a payer or entity that otherwise reimburses
21 the medical practice for providing medical care.
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1(4) A medical practice may relinquish or transfer control over the
2 medical practice’s administrative, business, or clinical operations that will not
3 affect clinical decision making or the nature or quality of medical care that the
4 medical practice delivers, provided that the medical practice executes a
5 shareholder agreement exclusively between or among and for the benefit of a
6 majority of shareholders who are physicians licensed in this State to practice
7 medicine and the shareholder agreement.
8 § 9534. PROTECTIONS FOR EMPLOYED LICENSEES
9    (a) Application. The provisions set forth in this section apply to licensees
10 who are employed by, or who provide health care services under contract with,
11 an unlicensed person, corporation, or other entity under section 9532 of this
12 chapter.
13    (b) Prohibition on restrictive covenants.
14(1) Noncompetition agreements. A noncompetition agreement between
15 a licensee and an employer or other entity is void and unenforceable.
16(2) Nondisclosure and nondisparagement agreements.
17(A) Except as provided in subdivision (B) of this subdivision (b)(2), a
18 nondisclosure agreement or nondisparagement agreement between a licensee
19 and an employer or other entity is void and unenforceable.
20(B) Subdivision (A) of this subdivision (b)(2) shall not be deemed to
21 limit or otherwise affect any cause of action that:
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1(i) a party to, or third-party beneficiary of, the agreement may
2 have with respect to a statement of a licensee that constitutes libel, slander, a
3 tortious interference with contractual relations, or another tort for which the
4 party has a cause of action against the licensee; and
5(ii) does not depend upon or derive from a breach or violation of
6 an agreement described in subdivision (1) of this subsection (b).
7    (c) Prohibition on directing licensee’s professional judgment or clinical
8 decisions. Conduct prohibited under subsection 9531(b) of this chapter
9 includes controlling, either directly or indirectly, through discipline,
10 punishment, threats, adverse employment actions, coercion, retaliation,
11 excessive pressure, or otherwise, any one or more of the following:
12(1) the period of time a licensee may spend with a patient, including the
13 time permitted for a licensee to triage patients in the emergency department or
14 evaluate admitted patients;
15(2) the period of time within which a licensee must discharge a patient;
16(3) the clinical status of a patient, including whether the patient should
17 be admitted to inpatient status, whether the patient should be kept in
18 observation status, whether the patient should receive palliative care, and
19 whether and where the patient should be referred upon discharge, such as a
20 skilled nursing facility;
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1(4) the diagnoses, diagnostic terminology, or codes that are entered into
2 the medical record by the licensee;
3(5) the range of clinical orders available to licensees, including by
4 configuring the medical record to prohibit or significantly limit the options
5 available to the licensee; or
6(6) any other action specified by rule to constitute impermissible
7 interference or control over the clinical judgment and decision making of a
8 licensee.
9 Subchapter 4. Transparency in Ownership and Control of Health Care Entities
10 § 9541. REPORTING OF OWNERSHIP AND CONTROL OF HEALTH
11CARE ENTITIES
12    (a) Except as otherwise provided in subsection (b) of this section, each
13 health care entity shall report to the Green Mountain Care Board at least once
14 every two years and upon the consummation of a material change transaction
15 involving the entity, in a form and manner required by the Board, the following
16 information:
17(1) the health care entity’s legal name;
18(2) the health care entity’s business address;
19(3) the locations of the health care entity’s operations;
20(4) the health care entity’s business identification numbers, as
21 applicable, including:
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1(A) taxpayer identification number (TIN);
2(B) national provider identifier (NPI);
3(C) employer identification number (EIN);
4(D) Centers for Medicare and Medicaid Services certification number
5 (CCN);
6(E) National Association of Insurance Commissioners (NAIC)
7 identification number;
8(F) a personal identification number associated with a license issued
9 by the Department of Financial Regulation; and
10(G) a pharmacy benefit manager identification number associated
11 with a licensed issued to a pharmacy benefit manager in this State;
12(5) the name and contact information of a representative of the health
13 care entity;
14(6) the name, business address, and business identification numbers
15 listed in subdivision (4) of this subsection for each person who, with respect to
16 the relevant health care entity:
17(A) has an ownership or investment interest;
18(B) has a controlling interest;
19(C) is a management services organization; or
20(D) is a significant equity investor;
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1(7) a current organizational chart showing the business structure of the
2 health care entity, including:
3(A) any entity listed in subdivision (6) of this subsection (a);
4(B) affiliates, including entities that control or are under common
5 control as the health care entity; and
6(C) subsidiaries;
7(8) for a health care entity that is a provider organization or a health care
8 facility:
9(A) the affiliated health care providers identified by name, license
10 type, specialty, NPI, and other applicable identification number listed in
11 subdivision (4) of this subsection (a); the address of each health care provider’s
12 principal practice location; and whether the health care provider is employed or
13 contracted by the entity; and
14(B) the name and address of affiliated health care facilities by license
15 number, license type, and capacity;
16(9) the names; NPI, if applicable; and compensation of:
17(A) the members of the health care entity’s governing board, board of
18 directors, or similar governance body;
19(B) any entity that is owned or controlled by, affiliated with, or under
20 common control as the health care entity; and
21(C) any entity listed in subdivision (6) of this subsection (a); and
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1(10) comprehensive financial reports of the health care entity and any
2 ownership and control entities, including audited financial statements, cost
3 reports, annual costs, annual receipts, realized capital gains and losses,
4 accumulated surplus, and accumulated reserves.
5    (b) The following health care entities are exempt from the reporting
6 requirements set forth in subsection (a) of this section:
7(1) a health care entity that is an independent provider organization,
8 without any ownership or control entities, consisting of two or fewer
9 physicians; provided, however, that if such health care entity experiences a
10 material change transaction under subchapter 2 of this chapter, the health care
11 entity is subject to reporting under subsection (a) of this section upon the
12 consummation of the transaction; and
13(2) a health care provider or provider organization that is owned or
14 controlled by another health care entity, if the health care provider organization
15 is shown in the organizational chart submitted under subdivision (a)(7) of this
16 section and the controlling health care entity reports all the information
17 required under subsection (a) of this section on behalf of the controlled or
18 owned entity; provided, however, that health care facilities are not subject to
19 this exemption.
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1 § 9542. SHARING OF OWNERSHIP INFORMATION TO IMPROVE
2TRANSPARENCY
3    (a) Information provided under this section shall be public information and
4 shall not be considered confidential, proprietary, or a trade secret; provided,
5 however, that any individual health care provider’s taxpayer ID that is also the
6 individual’s Social Security number shall be exempt from public inspection
7 and copying under the Public Records Act and shall be kept confidential.
8    (b) On or before February 1, 2027, and every two years thereafter, the
9 Green Mountain Care Board shall post on its website a report with respect to
10 the previous two-year period, including:
11(1) the number of health care entities reporting for such year,
12 disaggregated by the business structure of each specified entity;
13(2) the names, addresses, business structure of any entities with an
14 ownership or controlling interest in each health care entity;
15(3) any change in ownership or control for each health care entity;
16(4) any change in the tax identification number of a health care entity;
17(5) as applicable, the name, address, tax identification number, and
18 business structure of other affiliates under common control, subsidiaries, and
19 management services entities as the health care entity, including the business
20 type and the tax identification number of each; and
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1(6) an analysis of trends in horizontal and vertical consolidation,
2 disaggregated by business structure and provider type.
3    (c) The Green Mountain Care Board may share information reported under
4 this subchapter with the Attorney General, other State agencies, and other State
5 officials to reduce or avoid duplication in reporting requirements or to facilitate
6 oversight or enforcement pursuant to the Vermont law, or both, and any tax
7 identification numbers that are individual Social Security numbers may be
8 shared with the Attorney General, other State agencies, and other State
9 officials who agree to maintain the confidentiality of such information. The
10 Board may, in consultation with the relevant State agencies, merge similar
11 reporting requirements where appropriate.
12 § 9543. ADMINISTRATION AND ENFORCEMENT
13    (a)(1) The Board shall also specify the format and content of reports
14 required under this subchapter and impose penalties for noncompliance.
15(2) Board may require additional reporting of data or information that it
16 determines is necessary to better protect the public’s interest in monitoring the
17 financial conditions, organizational structure, business practices, and market
18 share of each registered health care entity.
19    (b) The Board may assess and collect from health care entities its
20 reasonable costs in overseeing and implementing this subchapter.
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1    (c) The Board is authorized to audit and inspect the records of any health
2 care entity that has failed to submit complete information pursuant to this
3 subchapter or if the Board has reason to question the accuracy or completeness
4 of the information submitted pursuant this subchapter.
5    (d) The Board shall conduct annual audits of a random sample of health
6 care entities to verify compliance with, accuracy of, and completeness of the
7 reported information pursuant to this subchapter.
8    (e) If a health care entity fails to provide a complete report under section
9 9541 of this chapter, or submits a report containing false information, the
10 entity shall be subject to a civil penalty as determined by the Attorney General.
11Subchapter 5. Enforcement of Chapter
12 § 9547. ENFORCEMENT OF CHAPTER
13    (a) Enforcement by Attorney General.
14(1) The Attorney General may subpoena any records necessary to
15 enforce any provisions of this chapter or to investigate suspected violations of
16 any provisions of this chapter or any conditions imposed by conditional
17 approval pursuant to the material transactions review process.
18(2)(A) The Attorney General may enforce any requirement of this
19 chapter and any conditions imposed by a conditional approval pursuant to the
20 material transactions review process to the fullest extent provided by law,
21 including damages. In addition to any legal remedies the Attorney General
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1 may have, the Attorney General shall be entitled to specific performance,
2 injunctive relief, and other equitable remedies a court deems appropriate for
3 any violations or imminent violation of any requirement of this chapter or any
4 violations or breach of any of the conditions and shall be entitled to recover the
5 attorney’s fees and costs incurred in remedying each violation.
6(B) In addition to the remedies set forth in subdivision (A) of this
7 subdivision (a)(2), the Attorney General may impose administrative penalties
8 for violations of this chapter or of any conditions imposed pursuant to a
9 conditional approval and may rescind or deny approval for any other past,
10 pending, or future material change transactions involving the health care entity
11 or an affiliate.
12(3) Nothing in this subsection shall narrow, abrogate, or otherwise alter
13 the authority of the Attorney General to prosecute violations of antitrust or
14 consumer protection requirements.
15    (b) Administrative enforcement.
16(1) Any entity that violates any provision of this chapter or any rules
17 adopted pursuant this chapter may be subject to administrative penalties
18 imposed by the Green Mountain Care Board.
19(2) The Green Mountain Care Board may disapprove any transaction or
20 agreement that violates this chapter.
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1(3) The Green Mountain Care Board may refer any entity to the
2 Attorney General to review for enforcement of any noncompliance with this
3 chapter or rules adopted pursuant to this chapter.
4    (c) Private right of action.
5(1) Any person aggrieved by a violation of this chapter may bring an
6 action in the Civil Division of the Superior Court without exhaustion of any
7 alternative administrative remedies provided in this chapter.
8(2) If the court finds that the respondent has intentionally violated any
9 provision of this chapter or any rule adopted pursuant to this chapter, it may
10 award actual damages, punitive damages, or other equitable relief, or a
11 combination of these.
12 § 9548. RULEMAKING
13    The Green Mountain Care Board and the Attorney General, as applicable,
14 shall adopt rules as needed to implement the provisions of this chapter,
15 including establishing what:
16(1) constitutes a “material” change transaction, which shall include any
17 changes to health care services or line of business that affects competition or
18 access in one or more geographic regions of the State;
19(2) it means to acquire direct or indirect control over a health care entity
20 in whole or in substantial part;
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1(3) constitutes a “significant reduction” and “essential health services”;
2 and
3(4) information is required for notice of a material change transaction
4 pursuant to section 9525 of this chapter.
5 Sec. 2. EFFECTIVE DATE
6    This act shall take effect on July 1, 2025.
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