Legislature(1999 - 2000)

04/04/2000 09:13 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 256(HES)                                                                               
"An Act relating to regulation of managed health care                                                                           
and allowing physicians to collectively negotiate with                                                                          
a health benefit plan that has substantial market                                                                               
power."                                                                                                                         
                                                                                                                                
                                                                                                                                
This was the third hearing for this bill in the Senate                                                                          
Finance Committee.                                                                                                              
                                                                                                                                
Co-Chair Torgerson noted written testimony dated March 31,                                                                      
2000, provided by the Department of Community and Economic                                                                      
Development that included a report entitled, "National Cost                                                                     
of Physician Anti-Trust Waivers". [Copy on file].                                                                               
                                                                                                                                
BOB LOHR, Director, Division of Insurance, Department of                                                                        
Community and Economic Development, testified via                                                                               
teleconference from Anchorage that he had reviewed the                                                                          
available cost studies related to this legislation and                                                                          
found the closest match was the analysis of pending                                                                             
congressional legislation, HR 1304, which was highly                                                                            
studied.                                                                                                                        
                                                                                                                                
Mr. Lohr gave detail on the background of the National Cost                                                                     
of Physician Anti-Trust Waivers report, which he found to                                                                       
be the most comprehensive study on the matter of collective                                                                     
negotiation for health care. He stated that the conclusion                                                                      
of the study was that there would likely be between $29 to                                                                      
$95 billion, or a five to 13 percent increase to private                                                                        
health insurance premiums with the passage of HR 1304. He                                                                       
noted that this increase is beyond the already dramatic                                                                         
increases due to the cost of health care.                                                                                       
                                                                                                                                
Mr. Lohr told the Committee that the study analyzed the                                                                         
impact of collective negotiations on the cost of services                                                                       
provided. He stated that this would be the primary factor                                                                       
in the increased premium costs. He said the second effect                                                                       
would be increased health care utilization, or the                                                                              
increased use of health services as a result of negotiated                                                                      
changes in the plan. The third effect, he stated would be                                                                       
the spillover affect on other health plans besides the                                                                          
managed care plans. He explained this was using the                                                                             
assumption that health care providers tend to provide one                                                                       
level of service rather than different levels of service                                                                        
according to the payment ability of each patient's                                                                              
insurance plan.                                                                                                                 
                                                                                                                                
Mr. Lohr pointed out that the study indicated that during                                                                       
the early years of the new federal law, the increases would                                                                     
be at the lower end of the predictions and in subsequent                                                                        
years, at the higher range.                                                                                                     
                                                                                                                                
Senator P. Kelly asked if the witness had studied the cost                                                                      
analysis done by Penn State University.                                                                                         
                                                                                                                                
Mr. Lohr responded that he had not seen that study.                                                                             
                                                                                                                                
Senator P. Kelly explained this study found that the                                                                            
Charles River study was full of unwarranted assumptions and                                                                     
questionable methodology.                                                                                                       
                                                                                                                                
Senator Green noted the first paragraph of the written                                                                          
testimony stating that the division opposed this bill                                                                           
because it was thought the bill would significantly                                                                             
increase health care costs. She wanted to know if the                                                                           
division would take the same position for all other                                                                             
potential legislation concerning insurance mandates and                                                                         
changes to the insurance industry that would impose similar                                                                     
standards to those proposed in this bill.                                                                                       
                                                                                                                                
Mr. Lohr promised the division would endeavor to assess the                                                                     
impact on insurance or health care costs of any proposed                                                                        
legislation. As to predicting a future position on a                                                                            
hypothetical bill, he said he would be difficult.                                                                               
                                                                                                                                
Senator Green challenged that a prediction was made on this                                                                     
bill.  She wanted to make sure that the same standard is                                                                        
applied to any other legislation.                                                                                               
                                                                                                                                
Senator Adams asked how the federal legislation                                                                                 
complemented this bill.                                                                                                         
                                                                                                                                
Mr. Lohr gave a background of the congressional                                                                                 
legislation, also known as the Quality Health Care                                                                              
Coalition Act of 1999 and the Campbell Act after                                                                                
Representative Thomas Campbell, the sponsor. This bill, he                                                                      
explained would exempt health care professional from anti-                                                                      
trust laws when they negotiate with health plans over fees                                                                      
and other terms of any contract under which they provide                                                                        
health care items or services. He said the physicians would                                                                     
therefore be treated as any other group engaged in                                                                              
concerted action under the National Labor Relations Act.                                                                        
The physicians would also be exempted from the Sherman                                                                          
Anti-Trust Act and comparable state statute, he added.                                                                          
                                                                                                                                
JULIA COSTER, Assistant Attorney General, Commercial                                                                            
Section, Civil Division, Department of Law, testified via                                                                       
teleconference from Anchorage referencing Senate Health and                                                                     
Social Services committee substitute. She stated she would                                                                      
limit her comments to the collective bargaining issues                                                                          
proposed in the committee substitute. She said the                                                                              
department has serious legal and policy concerns with the                                                                       
collective bargaining because it may result in substantial                                                                      
harm to consumers in the form of increased health care cost                                                                     
and reduced health care options.                                                                                                
                                                                                                                                
Ms. Coster also voiced concerns about the level of state                                                                        
involvement provided in the bill, saying it may not be                                                                          
sufficient for active state supervision to immunize                                                                             
physicians from federal anti-trust enforcement.                                                                                 
                                                                                                                                
Ms. Coster stated that the department agrees with previous                                                                      
testimony given to the Committee by a representative of the                                                                     
US Federal Trade Commission (FTC) as well as two letter                                                                         
submitted by the federal agency regarding similar                                                                               
collective negotiating legislation in the State of Texas                                                                        
and in Washington DC. [Copies on file.]                                                                                         
                                                                                                                                
She referenced the FTC's prior investigations and                                                                               
enforcement actions that have found an increase in health                                                                       
care costs and a possible decrease in health care services                                                                      
where collective negotiation is allowed as potential harm                                                                       
to consumers.                                                                                                                   
                                                                                                                                
Ms. Coster agreed with Mr. Lohr's conclusion that costs                                                                         
would likely increase in Alaska if this legislation were                                                                        
passed.                                                                                                                         
                                                                                                                                
Ms. Coster pointed out that while there are two primary                                                                         
limits to collective bargaining contained in the bill,                                                                          
these limits are insufficient to protect consumers from                                                                         
substantial mark-ups. The first limitation, she said is the                                                                     
definition of "market share" as 15 percent, with the                                                                            
provision that any health care plan that has over 15                                                                            
percent of the market share could be subject to physicians                                                                      
forming a group for the purpose of collective negotiations.                                                                     
She explained the second limitation as where a health care                                                                      
plan has less than five percent of the market share, the                                                                        
physician group may not exceed 30 percent of the market in                                                                      
that service area.                                                                                                              
                                                                                                                                
Ms. Coster said these limitations are not based on accepted                                                                     
concepts of market power. For instance, she stated that a                                                                       
15 percent of the market is not ordinarily presumed to                                                                          
constitute market power. She also stressed that the                                                                             
limitation of physicians groups to 30 percent of the                                                                            
providers would not affect the group's ability to raise                                                                         
prices. She said these two factors could result in 100                                                                          
percent of physicians located within a geographic service                                                                       
area negotiating with a health care plan that is only five                                                                      
percent of the market share. She also talked about the                                                                          
impact a physicians group could have on a small health care                                                                     
provider.                                                                                                                       
                                                                                                                                
Ms. Coster next addressed the prohibition on boycotts and                                                                       
concerted actions by physicians saying that when                                                                                
negotiating on price terms, there is no affective                                                                               
prohibition on boycotting. She was unsure if the omitting                                                                       
of such a stipulation was an oversight or a deliberate                                                                          
action. She admitted that the bill does contain a provision                                                                     
for concerted actions, but was unsure if it was sufficient.                                                                     
                                                                                                                                
Ms. Coster stated that another area of concern is the                                                                           
provision in the bill that relates to community issues                                                                          
under the State Action Doctrine. In order to obtain                                                                             
immunity from federal prosecution, she said, state                                                                              
officials must actively supervise the process and ensure                                                                        
competitive conduct. She cautioned that the courts have set                                                                     
high standards for this activity. She explained that the                                                                        
courts have ruled that the state agency must have and                                                                           
exercise ultimate control over the challenge conduct and to                                                                     
exercise sufficient independent judgement and control so                                                                        
that the details of the rates and prices have been                                                                              
established and is the product of deliberate state                                                                              
intervention. An agreement by the parties is not sufficient                                                                     
to prevent anti-trust actions, she stressed. She went into                                                                      
more detail about the requirements of the state to oversee                                                                      
the negotiation process. She added that the legislation                                                                         
fails to place the burden of proof on the parties that                                                                          
propose a contract but instead on the Attorney General's                                                                        
Office. However, she admonished, the time frame allotted                                                                        
for state review was not adequate and the legislation does                                                                      
not provide the Department of Law with any of the                                                                               
information necessary to make an analysis nor any                                                                               
investigative authority to obtain that information.                                                                             
                                                                                                                                
Co-Chair Torgerson stated his intent to adopt a proposed                                                                        
committee substitute as a working draft.                                                                                        
                                                                                                                                
Senator P. Kelly suggested taking from the previous                                                                             
testimony, all the warnings of potential problems and                                                                           
instead to focus on the actual detriments to constituents.                                                                      
He compared the statements to the tort reform arguments                                                                         
heard during a previous legislative session when that                                                                           
matter was being considered.                                                                                                    
                                                                                                                                
Senator P. Kelly returned to his earlier reference to the                                                                       
Penn State University study that questioned the findings of                                                                     
the study cited by the Division of Insurance. He then                                                                           
clarified that the FTC as an agency, did not testify on                                                                         
this bill but rather an individual who works at the                                                                             
commission gave testimony. Therefore, Senator P. Kelly                                                                          
surmised that the FTC has not stated a pro or con position                                                                      
on the legislation.                                                                                                             
                                                                                                                                
Senator P. Kelly pointed out letter from the Department of                                                                      
Law, which listed concerns with the bill. [Copy on file.]                                                                       
He also noted letter from the Division of Legislative Legal                                                                     
and Research Services that disputes many of the claims of                                                                       
the Department of Law. [Copy on file.]                                                                                          
                                                                                                                                
Senator P. Kelly suggested simply placing a sunset clause                                                                       
on this legislation to see what would actually happen. He                                                                       
warned of the results of the mergers of many large                                                                              
insurance companies. He felt that doctors should be allowed                                                                     
to speak out for the benefit of their patients and should                                                                       
not have to chose between salary and their ethics oath. He                                                                      
asserted that every argument made against this bill is                                                                          
refuted in some way.                                                                                                            
                                                                                                                                
Senator Adams agreed with the suggestion of a sunset                                                                            
clause. He asked if this bill would change the services or                                                                      
goods delivered to consumers in Alaska by federal medical                                                                       
programs. He stressed that it was difficult for him to                                                                          
understand the effect this legislation would have on                                                                            
Alaskans as well as the amount of funds needed from the                                                                         
state.                                                                                                                          
                                                                                                                                
Mr. Lohr responded that the bill would change the price of                                                                      
goods and services delivered in Alaska. If the prices did                                                                       
not increase, he wondered what the point of the bill would                                                                      
be with regards to increased market leverage.                                                                                   
                                                                                                                                
Senator Adams asked what impact this bill would have on                                                                         
federal programs.                                                                                                               
                                                                                                                                
Mr. Lohr said he would have to research before offering an                                                                      
assessment. He said he would provide that information to                                                                        
the Committee.                                                                                                                  
                                                                                                                                
Senator P. Kelly asked for a direct assessment on general                                                                       
cost increases as well. He noted the claim that the costs                                                                       
would rise was based on a study that has been found to be                                                                       
at fault.                                                                                                                       
                                                                                                                                
Mr. Lohr thought the Charles River study did provide a                                                                          
clear statement on its assumptions and methodology, which                                                                       
allows it to be criticized.  He said that other testimony                                                                       
presented to the Committee regarding cross-impacts was                                                                          
based on non-germane studies and provided no information                                                                        
about the studies themselves or the methods employed.                                                                           
Therefore, he said those claims were more difficult to                                                                          
assess.                                                                                                                         
                                                                                                                                
Co-Chair Torgerson asked if the witness had the Penn State                                                                      
University study.                                                                                                               
                                                                                                                                
Mr. Lohr did not, but would obtain a copy.                                                                                      
                                                                                                                                
Co-Chair Torgerson asked if the proposed committee                                                                              
substitute, LS-1291\I, incorporated all previously                                                                              
submitted amendments except for Amendment #1.                                                                                   
                                                                                                                                
Senator P. Kelly explained that the committee substitute                                                                        
does incorporate the amendments but that it does not                                                                            
provide for a sunset date. He detailed the changes                                                                              
beginning with Section 2, which was removed in the                                                                              
committee substitute. He noted this language was present in                                                                     
a similar House bill that addressed contracts between                                                                           
doctors and insurance providers.                                                                                                
                                                                                                                                
Senator P. Kelly stated that throughout the committee                                                                           
substitute, references to the commissioner of the                                                                               
Department of Natural Resources was changed to the                                                                              
Department of Law.                                                                                                              
                                                                                                                                
Senator P. Kelly continued that a new subsection was added                                                                      
to provide for active state oversight of the contract                                                                           
negotiations as required by the States Action Doctrine.                                                                         
                                                                                                                                
Senator P. Kelly pointed out that a cleanup was made in                                                                         
last page of the bill, which he said was not germane to the                                                                     
legislation. He did not detail what language was removed.                                                                       
                                                                                                                                
Senator P. Kelly next stated the committee substitute added                                                                     
clarification to the description of the substantial market                                                                      
power within the geographic service area. This allows the                                                                       
legislation to more individualize the grouping of                                                                               
physicians into their own service area to the market power                                                                      
of the insurance companies within that area, he explained.                                                                      
He said this was to avoid grouping of all physicians in the                                                                     
state into one large group.                                                                                                     
                                                                                                                                
Senator P. Kelly relayed that there was some question over                                                                      
the covered lives and the total population in the                                                                               
geographical service area.  He said language was inserted                                                                       
in the committee substitute on page three, lines 20 and 24,                                                                     
to give a more defined number.                                                                                                  
                                                                                                                                
Senator P. Kelly concluded with a comment about the sunset                                                                      
clause. [Indiscernible]                                                                                                         
                                                                                                                                
Senator P. Kelly commented that the biggest concerns                                                                            
addressed in the committee substitute were switching the                                                                        
contract portion to the Department of Law and the matter of                                                                     
the geographic service areas.                                                                                                   
                                                                                                                                
Senator P. Kelly moved to adopt the committee substitute,                                                                       
LS-1291\I, as a work draft.                                                                                                     
                                                                                                                                
Senator Adams would not object to adoption but asked for                                                                        
time to review the committee substitute before reporting                                                                        
from Committee. He said he preferred a sunset clause of two                                                                     
or three years rather than five years to give the                                                                               
legislature a chance to review impacts on consumers and, if                                                                     
necessary, take action at an earlier time.                                                                                      
                                                                                                                                
Senator P. Kelly commented that the next legislature has                                                                        
the ability to repeal this law if it were shown to be                                                                           
detrimental. Secondly, he stated the health care market is                                                                      
evolving. He stressed that Health Management Organizations                                                                      
(HMO) could begin doing business in the state in the next                                                                       
few years and if the sunset clause were enacted before the                                                                      
arrival of HMOs the problem of payment to physicians could                                                                      
arise again.                                                                                                                    
                                                                                                                                
Senator Leman asked if the committee substitute adequately                                                                      
addressed the concerns about market share raised by the                                                                         
Department of Law.                                                                                                              
                                                                                                                                
Senator P. Kelly asserted that he thought the matter of                                                                         
market share was adequately addressed in the committee                                                                          
substitute.  He commented that he felt that the entire                                                                          
state could be considered one market share. However, he                                                                         
said the committee substitute narrowed the scope to the                                                                         
area within the market that the physicians actually                                                                             
practicing. He qualified that for some specialties, such as                                                                     
cardiology, the practicing area for a physician could                                                                           
encompass the whole state, but that that issue was                                                                              
addressed in the committee substitute.                                                                                          
                                                                                                                                
There was no objection and the committee substitute,                                                                            
Version "I" was adopted as a workdraft.                                                                                         
                                                                                                                                
Senator P. Kelly verified that the proposed amendments #1                                                                       
through #5 were included in the committee substitute.                                                                           
                                                                                                                                
AT EASE 10:43 AM / 10:46 AM                                                                                                     
                                                                                                                                
Co-Chair Torgerson noted remaining bills scheduled on the                                                                       
day's agenda, SB 289 and SB 290, would not be heard at this                                                                     
meeting.                                                                                                                        
                                                                                                                                
Co-Chair Torgerson noted a new fiscal note for SB 290 was                                                                       
distributed to members to fund pupil transportation at the                                                                      
full amount requested of $5,079,900.                                                                                            
                                                                                                                                
Debate resumed on SB 256.                                                                                                       
                                                                                                                                
Senator P. Kelly told the Committee that Becky Cerney,                                                                          
Director of State Legislation, American Medical Association                                                                     
was available on teleconference from Chicago, Illinois to                                                                       
address any of the questions raised.                                                                                            
                                                                                                                                
AT EASE 10:47 AM                                                                                                                
                                                                                                                                
Amendment #6: This amendment deletes "geographic"                                                                               
everywhere it appears in the committee substitute. The                                                                          
term, "geographic service area" now reads, "service area".                                                                      
                                                                                                                                
Senator P. Kelly moved for adoption and explained the                                                                           
amendment is to address concerns voiced by the Department                                                                       
of Law and the Division of Legal and Research Services.                                                                         
                                                                                                                                
Without objection, the amendment was ADOPTED.                                                                                   
                                                                                                                                
Co-Chair Torgerson stated his intent to allow members a                                                                         
couple of days to review the committee substitute before                                                                        
the Committee takes further action.                                                                                             
                                                                                                                                
Senator Adams requested information on how the states of                                                                        
Washington and Oregon handle collective negotiating by                                                                          
physicians. He wanted to know what fees could be negotiated                                                                     
under the other's provisions.                                                                                                   
                                                                                                                                
Senator P. Kelly clarified there is a difference between                                                                        
collective bargaining, which applies to labor unions and                                                                        
collective negotiating. He stated that the physicians under                                                                     
this legislation would not be allowed to engage in the same                                                                     
activities as collective bargaining units. He suggested                                                                         
that members mentally replace "collective negotiating"                                                                          
whenever they hear "collective bargaining" in discussions                                                                       
about this bill.                                                                                                                
                                                                                                                                
Co-Chair Torgerson ordered the bill HELD in Committee.                                                                          
ADJOURNED                                                                                                                       
                                                                                                                                
Senator Torgerson adjourned the meeting at 10:51 AM.                                                                            
SFC-00 (7) 04/03/00                                                                                                             

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