An Act To Establish the Hospital and Health Care Provider Cooperation Act
Maine Legislature, Session 122, LD 2110
Committee: Health and Human Services

Legislative Document 
No. 2110 
S.P.852 
In Senate, April l3, 2006 
An Act To Establish the Hospital and Health Care Provider 
Cooperation Act 
Reported by Senator MAYO of Sagadahoc for the Joint Standing Committee on Health and 
Human Services pursuant to Public Law 2005, chapter 394, section 8. 
Reference to the Committee on Health and Human Services suggested and ordered printed 
under Joint Rule 218. 
Printed on recyc led paper 
JOY J. O'BRIEN 
Secretary of the Senate 
Be it enacted by the People of the State of Maine as follows: 
Sec. I. 22 MRSA c. 405-A is enacted to read: 
CHAPTER 405-A 
HOSPITAL AIm HEALTH CARE PROVIDER COOPERATION ACT 
§1841. Short title 
This chapter may be known and cited as "the Hospital and 
Health Care Provider Cooperation Act." 
§1842. 
Legislatiye findings and intent 
The Legislature finds that it is necessary and appropriate 
to 
encourage 
hospitals 
and 
other 
health 
care 
providers 
to 
cooperate and enter into agreements that will facilitate cost 
containment, 
improve quality of care and increase access 
to 
health care services. 
This Act provides processes for state 
review 
of 
overall 
public 
benefit, 
for 
approval 
through 
certificates of public advantage and for continuing supervision. 
It is the intent of the Legislature that a certificate of public 
advantage 
approved 
under 
this 
chapter 
provide 
state 
action 
immunity under applicable federal antitrust laws. 
§1843. 
Definitions 
As 
used in this 
chapter, 
unless 
the 
context 
otherwise 
indicates, the following terms have the following meanings. 
1. 
Cooperative agreement. "Cooperative agreement" means an 
agreement that names the parties to the agreement and describes 
the nature and scope of the cooperation for: 
A. 
The 
Sharing, 
allocation 
or 
referral 
of 
patients, 
personnel, instructional programs, medical or mental health 
services, 
support 
services 
or 
facilities 
or 
medical, 
diagnostic or laboratory facilities, 
procedures or other 
services traditionally offered by hospitals or health care 
providers: 
B. 
The coordinated negotiation and contracting with payors 
or employers: or 
C. 
The merger of 2 or more hospitals or 2 or more health 
care providers. 
A cooperative 
agreement 
under 
this 
chapter 
is 
an 
agreement 
between 2 or more hospitals or an agreement between 2 or more 
health 
care 
providers. 
An 
agreement 
between 
one 
or 
more 
Page l-LR3274(l) 
hospitals 
and 
one 
or 
more 
health care 
providers 
is 
not 
a 
cooperative agreement for the purposes of this chapter. 
2. 
Covered entity. 
"Covered entity" means a hospital or 
health care provider. 
3. 
Health care provider. "Health care provider" means 
a 
physician licensed under Title 32, chapter 36 or 48 and operating 
in this State 
and 
a 
corporation or business entity engaged 
primarily in the provision of physician health care services. 
4. 
Hospital. "Hospital" means: 
A. An acute care institution licensed and operating in this 
State as a hospital under section 1811 or the parent of such 
an institution: or 
B. A hospital subsidiary or hospital affiliate in the State 
that 
provides 
medical 
services 
or 
medically 
related 
diagnostic and laboratory services or engages in ancillary 
activities supporting those services. 
5. 
Merger. "Merger" means a transaction by which ownership 
or 
control 
over 
substantially all of 
the 
stock, 
assets 
or 
activities of one or more covered entities is placed under the 
control of another covered entity. 
A merger between one or more 
hospitals and one or more health care providers is not a merger 
for the purposes of this chapter. 
§1844. 
Certificate of public advantage 
1. 
Authority. 
A covered entity may negotiate and enter 
into a cooperative agreement with another covered entity and may 
file 
an 
application 
for 
a 
certificate 
of 
public 
advantage 
pursuant to this section. 
The approval of an application for a 
certificate of public advantage is governed by the standards of 
subsection 5. 
2. 
Application for Qgrtificate. 
The application process 
for a certificate of public advantage is as follows. 
A. 
At least 45 days prior to filing an application for a 
certificate of public advantage for a merger, the parties to 
a merger agreement shall file a letter of intent with the 
department describing the proposed merger. 
Copies of the 
+etter of intent and all accompanying materials must be 
submitted to the Attorney General 
and to the Governor's 
Office of Health Policy and Finance at the time the letter 
of intent is filed with the department. 
B. 
The parties to a cooperative agreement shall file with 
the department an application for a certificate of public 
advantage with regard to the cooperative agreement and pay 
the application fee established under section 1851. 
C. 
The 
application must 
include 
a 
signed copy of 
the 
original 
cooperative 
agreement 
and 
must 
state 
all 
consideration passing to any party under the agreement. 
D. 
The parties to a 
cooperative agreement shall submit 
copies of the application and all the accompanying materials 
to the Attorney ·General and the Governor' s Office of Health 
Policy and Finance at the time they file the application 
with the department. 
Copies of the application and all accompanying materials filed by 
the 
applicant, 
public 
comments, 
records 
of 
the 
department 
maintained with regard to the application and copies of the 
letter of intent filed for a merger may be examined at an office 
of the department. 
3. 
Public notice. 
Within 10 business days of the filing of 
an application under this section, the department shall give 
public notice of the filing as follows. 
A. 
The department shall publish notice in a newspaper of 
general circulation in Kennebec County and in a newspaper 
published within the service area in which the proposed 
cooperative agreement would be effective. 
B. 
The department shall provide notice by mailing copies of 
the application and letter of intent, if any, to all persons 
who request notification from the department. 
C. 
Notice under this subsection must include: 
(1) 
A brief description of the proposal; 
(2) 
A description of the review process and schedule; 
gng 
(3) 
A statement of the availability of the application 
and records pertaining to it and letter of intent as 
provided in subsection 2. 
4. 
Procedure 
for 
department 
review. 
The 
following 
p-rocedures apply to review by the department of an application 
filed under this section. 
A. The department shall review and evaluate the application 
in accordance with the standards set forth in subsection 5. 
B. 
Any person may 
provide the 
department with written 
comments concerning the application within 30 days after the 
public notice in subsection 3, paragraph A. 
C. 
The department shall provide the Attorney General and 
the Governor's Office of Health Policy and Finance with 
copies 
of 
all 
comments 
from 
persons 
submitted 
under 
paragraph B. 
D. 
The department may hold a public hearing regarding an 
application 
in 
accordance 
with 
rules 
adopted 
by 
the 
department. 
E. The parties to a cooperative agreement may withdraw their 
application and thereby terminate all proceedings under this 
chapter as follows; 
(1) Without the approval of the department. any party 
or the Superior Court at any time prior to the filing 
of an answer or responsive pleading in a court action 
under section 1848, subsection 2 or prior to entry of a 
consent decree under section 1848. subsection 9; or 
(2) Without the approval of the department or any party 
at any time prior to the issuance of a final decision 
under paragraph G if a court action has not been filed 
under section 1848. subsection 2. 
F. The department shall issue a final decision to grant or 
deny an application for a certificate of public advantage 
under this section no less than 40 days and no more than 90 
days after the filing of the application. The department 
shall issue a preliminary decision at least 5 days prior to 
issuing 
the 
final 
decision. 
The 
preliminary 
and 
final 
decisions must be in writing and set forth the basis for the 
decisions. 
The 
department 
shall provide 
copies 
of 
the 
preliminary 
and 
final 
decisions 
to 
the 
applicants. 
the 
Office of the Attorney General, 
the Governor's Office of 
Health Policy and Finance and all persons who 
requested 
notification 
from 
the 
department 
under 
subsection 
3. 
paragraph B. 
5. 
Standards 
for 
approval of 
a 
certificate of public 
adVantage. 
The department shall issue a certificate of public 
advantage for a cooperative agreement if it determines that the 
applicants have demonstrated by a preponderance of the evidence 
that the likely benefits resulting from the agreement outweigh 
any disadvantages attributable to 
a 
reduction in competition 
likely to result from the agreement. 
In issuing a decision on an 
application for 
a 
certificate of public advantage under this 
section. the department shall make specific findings as to the 
nature and extent of any likely benefits and disadvantages found 
under this subsection. 
A. 
In evaluating the potential benefits of a 
cooperative 
agreement. the department shall consider whether one or more 
of the following benefits may result from the cooperative 
agreement; 
(1) 
Enhancement of the quality of care provided to 
citizens of the State; 
(2) Preservation of hospitals or health care providers 
and related facilities in geographical proximity to the 
communities traditionally served by those facilities; 
(3) Gains in the cost efficiency of services provided 
by the hospitals or others; 
(4) Improvements in the use of hospital or other health 
care resources and equipment; 
(5) 
Avoidance 
of 
duplication of hospital 
or 
other 
health care resources; and 
(6) Continuation or establishment of needed educational 
programs for health care providers. 
B. 
The 
department's 
evaluation 
of 
any 
disadvantages 
attributable to a reduction in competition likely to result 
from a cooperative agreement may include. but is not limited 
to, the following factors; 
(1) 
The extent of any likely adverse impact on the 
ability of health maintenance organizations, preferred 
provider 
organizations, 
managed health care 
service 
agents or other health care payors to negotiate optimal 
payment 
and 
service 
arrangements 
with hospitals 
or 
health care providers; 
(2) 
The extent of any disadvantages attributable to 
reduction in competition 
among 
covered entities 
or 
other persons furnishing goods or services to. or in 
competition with, 
covered entities that is likely to 
result directly 
or 
indirectly 
from 
the 
cooperative 
agreement: 
(3) The extent of any likely adverse impact on patients 
or clients in the quality, availability and price of 
health care services: 
(4) The extent of any likely adverse impact on the 
access 
of 
persons 
enrolled in in-state educational 
programs for health professions to existing or future 
clinical training programs: and 
(5) 
The availability of arrangements that are less 
restrictive 
to 
competition 
and 
achieve 
the 
same 
benefits or a more favorable balance of benefits over 
disadvantages 
attributable 
to 
any 
reduction 
in 
competition likely to result from the agreement. 
C. In evaluating a cooperative agreement under the standards 
in paragraphs A and B, 
the department shall consider the 
extent to which any likely disadvantages may be ameliorated 
by any reasonably enforceable conditions under subparagraph 
(1) and the extent to which the likely benefits or favorable 
balance of benefits over disadvantages may be enhanced by 
any 
reasonably enforceable 
conditions 
under 
subparagraph 
(2). 
Reasonably enforceable conditions are those conditions 
that 
the 
department 
determines 
are 
subject 
to 
future 
measurement or evaluation in order to assess compliance with 
those conditions. 
(1) In a certificate issued under this subsection, the 
department may include conditions reasonably necessary 
to ameliorate 
any likely disadvantages of the 
type 
specified in paragraph B. 
(2) In a certificate issued under this subsection, the 
department 
may 
include 
additional 
conditions, 
if 
proposed by the applicants, designed to achieve public 
benefits, which may include but are not limited to the 
benefits listed in paragraph A. 
D. 
In a certificate of public advantage issued under this 
subsection, the department may include a condition requiring 
the certificate holders to submit fees sufficient to fund 
expenses 
for 
consultants 
or experts 
necessary for 
the 
continuing supervision required under section 1845. These 
fees must be paid at the time of any review conducted under 
section 1845. The total amount charged to the certificate 
holders for continuing supervision may not exceed $5,000 for 
mergers involving hospitals with 50 or more beds and $2,500 
for all other cooperative agreements. 
6. Interyention. 
The Attorney General 
and the Governor's 
Office of Health Policy and Finance may intervene as a right in 
any proceeding under this chapter before the department. 
Except 
as provided in this subsection. intervention is governed by the 
provisions of Title 5. section 9054. 
7. 
Attorney General e~~nt. The Attorney General I11Qy 
file an action in Superior Court to enforce any final action 
taken by the department under this section. 
In the event that 
the Attorney General files an action pursuant to its separate 
authority 
outlined 
in 
section 
1848. 
pending 
department 
proceedings in accordance with this section are stayed pursuant 
to section 1848. subsection 2. 
§1845. 
Continuing supervision 
Continuing supervision of holders of certificates of public 
advantage under this chapter may consist of periodic reports. 
supervisory reviews and additional supervisory activities. 
1. 
Periodic report and superviso~ review. 
With regard to 
a certificate of public advantage approved under this chapter. 
the 
certificate 
holder 
shall 
report 
periodically 
to 
the 
department on the extent of the benefits realized and compliance 
with 
other 
terms 
and 
conditions 
of 
the 
certificate. 
The 
certificate holder shall submit copies of the report to the 
Attorney General and to the Governor's Office of Health Policy 
and Finance at the time the report is filed with the department. 
The Attorney General and the Governor's Office of Health Policy 
and Finance may submit to the department comments on the report 
filed under this subsection. 
The department shall consider any 
comments 
on 
the 
report 
from 
the 
Attorney 
General 
and 
the 
Governor's Office of Health Policy and Finance in the course of 
its evaluation of the certificate holder's report. 
Within 60 
days 
of 
receipt 
of 
the 
certificate 
holder's 
report. 
the 
department shall make findings regarding the report. including 
responses to any 
comments 
from the Attorney General 
and the 
Governor's Office of Health Policy and Finance. determine whether 
to institute additional supervisory activities under this section 
and notify the certificate holder. 
2. 
Additional supervisory activities. The 
prov~s~ons of 
this 
subsection 
apply 
to 
additional 
supervisory 
activities 
determined necessary under subsection 1. 
A. 
The 
department 
shall 
conduct 
additional 
supervisory 
activities whenever requested by the Attorney General or the 
Governor's Office of Health Policy and Finance. or whenever 
the 
department. 
in 
its 
discretion. 
determines 
those 
activities appropriate. and: 
(1) For certificates of public advantage not involving 
mergers, at least once in the first 18 months after the 
transaction described in the cooperative agreement has 
closed; and 
(2) 
For 
certificates of public 
advantage 
involving 
mergers, at least once between 12 and 30 months after 
the transaction described in the cooperative agreement 
has closed. 
B. 
In its discretion, the department may conduct additional 
supervisory activities by: 
(1) 
Soliciting and reviewing written submissions from 
the 
certificate holders, 
the 
Attorney 
General, 
the 
Governor's Office of Health Policy and Finance or the 
public; 
( 2) 
Conducting a hearing in accordance with Title 5, 
chapter 
375, 
subchapter 
and 
the 
department • s 
administrative hearings rules; or 
(3) 
Using any alternative procedures appropriate under 
the circumstances. 
C. 
The department shall notify the certificate holders if 
it intends to consider the imposition of 
any additional 
conditions or measures authorized under subsection 3. 
If 
the 
department 
notifies 
certificate 
holders 
under 
this 
paragraph, 
the 
certificate holders 
may 
request 
and 
are 
entitled to a hearing in accordance with Title 5, chapter 
375, subchapter 4. 
D. 
A 
decision 
of 
the 
department 
regarding 
additional 
supervisory activities is governed by the 
standards set 
forth in subsection 3. 
The 
burden of proof is on the 
parties seeking any remedial order. 
A remedial order may 
not issue unless the basis for it is established by 
a 
preponderance of the evidence. 
3. 
Standards governing additional supervisory activities. 
The provisions of this subsection govern the standards of any 
additional supervisory activities conducted under subsection 2. 
A. 
If 
the 
department 
determines 
in 
any 
additional 
supervisory activities conducted under subsection 2 that the 
certificate holders are not in substantial compliance with 
any conditions included in the certificate under section 
1844, subsection 5 or in a consent 
decre5L.~mtered into by 
the department. the department may at it.s. djli.cretion: 
( 1) Impose additional conditions to secure compliance 
with 
any conditions 
included in the certificate or 
consent decree: or 
(2) 
Issue notice to the certificate holders compelling 
compliance 
with 
any 
conditions 
included 
in 
the 
certificate or consent decree. 
If after 30 days the 
department determines that the notice was not effective 
in 
securing 
compliance 
with 
the 
conditions, 
the 
department 
may 
impose 
any 
additional 
measures 
authorized 
by 
law 
to 
compel 
compliance 
with 
the 
conditions, 
or 
seek 
a 
court 
order 
revoking 
the 
certificate in accordance with subsection 4. 
B. 
The 
department 
may 
impose 
additional 
conditions 
to 
ameliorate any disadvantages attributable to any reduction 
in 
competition, 
or 
seek 
a 
court 
order 
revoking 
the 
certificate 
in 
accordance 
with 
subsection 
4, 
if 
the 
department 
determines 
in 
any 
additional 
supervisory 
activities conducted under subsection 2 that, as a result of 
changed 
or 
unanticipated 
circumstances, 
the 
benefits 
resulting 
from 
the 
activities 
authorized 
under 
the 
certificate 
and 
the 
unavoidable 
costs 
of 
revoking 
the 
certificate are outweighed by disadvantages attributable to 
a 
reduction in competition resulting from the activities 
authorized under 
the certificate. 
For 
purposes 
of this 
paragraph, 
"unanticipated 
circumstances" 
includes 
the 
failure to realize anticipated benefits of the agreement or 
the 
realization of 
unanticipated anticompetitive effects 
from the agreement. 
4. 
Action 
to 
revoke 
certificate. 
The 
department 
is 
authorized to seek a court order revoking a certificate of public 
advantage 
under 
the 
circumstances specified in subsection 
3, 
paragraph A, 
subparagraph (2) or subsection 3, paragraph B. 
In 
any such action the standards for adjudication to be applied by 
the court are the same as in section 1848, subsections 5 and 6. 
In 
assessing 
disadvantages 
attributable 
to 
a 
reduction 
in 
competition likely to result from the agreement. the court may 
draw 
upon 
the 
determinations 
of 
federal 
and 
Maine 
courts 
concerning unreasonable restraint of trade under 15 United States 
Code, Sections 1 and 2 and Title 10, sections 1101 and 1102. 
The 
department's burden of proof is the Same as that for the Attorney 
General in an action under section 1848, subsections 5 and 6. 
5. 
Attorney General enforcement. 
The Attorney General may 
file an action in Superior Court to enforce any final action 
taken by the department as a result of additional supervisory 
proceedings under this section. 
In the event that the Attorney 
General 
files 
an 
action pursuant 
to its separate 
authority 
Qutlined in section 1848, any pending department proceedings are 
stayed pursuant to section 1848, subsection 7. 
6. 
Fees and costs. 
If the department prevails in an action 
under this section, the department and the Attorney General are 
entitled to 
an 
award of the 
reasonable costs of deposition 
transcr ipts incurred in the course of the action and reasonable 
attorney's fees, expert witness fees and court costs incurred in 
the action. 
§1846. 
Record keeping 
The department shall maintain records of all applications 
for a certificate of public advantage, together with the records 
of all submissions, comments, reports and department proceedings 
with respect to those applications, certificates approved by the 
department, 
continuing supervision 
and 
any 
other 
proceedings 
under this chapter. 
§1847. Judicial review of department action 
An applicant, certificate holder or intervenor aggrieved by 
a final decision of the department in granting or denying an 
application for a certificate of public advantage, refusing to 
act 
on 
an 
application or 
imposing 
additional 
conditions 
or 
measures with regard to a certificate of public advantage is 
entitled to judicial review of the final decision in accordance 
with the Maine Administrative Procedure Act. 
§1848. 
Attorney General authority 
1. 
Investigative powers. 
The Attorney General, at any time 
after an application or letter of intent is filed under section 
1844, subsection 2, may reguire by subpoena the attendance and 
testimony 
of 
witnesses 
and 
the 
production 
of 
documents 
in 
Kennebec 
County, 
or 
the 
county in which the applicants are 
located, for the purpose of investigating whether the cooperative 
agreement satisfies the standards set forth in section 1844, 
subsection 5. All documents produced and testimony given to the 
Attorney General are confidential. The Attorney General may seek 
an order from the Superior Court compelling compliance with a 
subpoena issued under this section. 
2. 
Court action; time limits. 
The Attorney General may 
seek to enjoin the operation of a cooperative agreement for which 
an application for a certificate of public advantage has been 
filed by filing suit against the parties to the cooperative 
agreement in Superior Court. The Attorney General may file an 
action before or after the department acts on the application for 
a certificate: however, the action must be brought no later than 
days following the department's approval of an application for 
a certificate of public advantage. After the filing of a court 
action under this subsection, the department may not take any 
further action under this chapter and the time periods specified 
for departmental action under section 1844, 
subsection 4 are 
tolled until the court action is dismissed by the Attorney 
General or the Superior Court orders the department to take 
further action. 
3. 
Automatic stay. 
Upon the filing of a complaint in an 
action 
under 
subsection 
2, 
the 
department's 
approval 
of 
a 
certificate of public advantage, if previously issued, must be 
stayed unless the court orders otherwise or until the action is 
concluded. 
The applicant for 
a certificate may apply to the 
Superior Court for relief from that stay. 
Relief may be granted 
only 
upon 
showing of 
compelling 
justification. 
The 
Attorney 
General may apply to the court for any temporary or preliminary 
relief to enjoin the implementation of the cooperative agreement 
pending final disposition of the case. 
4. 
Standard for adjudication. 
In an action brought under 
subsection 2, the applicant for a certificate of public advantage 
bears 
the burden of establishing by 
a 
preponderance of 
the 
evidence that, in accordance with section 1844, subsection 5, the 
likely benefits resulting from the cooperative agreement and any 
conditions proposed by the applicants outweigh any disadvantages 
attributable to a reduction in competition that may result from 
the 
agreement. 
In assessing 
disadvantages 
attributable 
to 
a 
reduction in competition likely to result from the agreement, the 
court may 
draw upon the determinations of federal 
and Maine 
courts concerning unreasonable restraint of trade under 15 United 
States Code, Sections 1 and 2 and Title 10, sections 1101 and 
1102. 
5. 
Ongoing 
evaluation 
of 
benefits. 
If, 
at 
any 
time 
following 
the 
40-day period 
specified in subsection 
2, 
the 
Attorney 
General 
determines 
that, 
as 
a 
result 
of 
changed 
circumstances 
or 
unanticipated 
circumstances, 
the 
benefits 
resulting. from a certified cooperative agreement or a consent 
decree 
entered 
under 
subsection 
do 
not 
outweigh 
any 
disadvantages 
attributable 
to 
a 
reduction 
in 
competition 
resulting from the agreement, the Attorney General may file suit 
in the Superior Court seeking to revoke the certificate of public 
advantage. The standard for"adjudication for an action to revoke 
brought under this subsection is as follows. 
A. Except as provided in paragraph a, in an action brought 
under this subsection, the Attorney General has the burden 
Page ll-LR3274(1} 
of establishing by a preponderance of the evidence that. as 
a 
result 
of 
changed 
circumstances 
or 
unanticipated 
circumstances. the benefits resulting from the cooperative 
agreement 
and 
the 
unavoidable 
costs 
of 
revoking 
the 
certificate are outweighed by disadvantages attributable to 
a reduction in competition resulting from the agreement. For 
purposes of this paragraph. 
"unanticipated circumstances" 
includes the failure to realize anticipated benefits of the 
agreement 
or 
the 
realization 
of 
unanticipated 
anticompetitive effects from the agreement. 
B. 
In 
an action brought 
under this subsection. 
if the 
Attorney General first establishes by a prgponderance of the 
evidence that the departmgnt's certification was obtained as 
a result of material misrepresentation to the department or 
thg Attorney General or as thg result of coercion. threats 
or 
intimidation 
toward 
any 
party 
to 
the 
cooperative 
agregment. then thg partigs to the agreement bear the burden 
of establishing by clear and convincing evidgnce that the 
benefits resulting from the agreement and the unavoidable 
costs of revoking thg agreement outweigh the disadvantages 
attributable to any reduction in competition resulting from 
the agreement. 
6. 
Enforcement of conditions. 
Conditions 
and 
measures 
included in a certificate of public advangtage may be enforced 
according to this subsection. 
A. If the certificate holders in a cooperative agreement not 
involving a merger are not in substantial compliance with 
the 
conditions 
included 
in 
the 
certificate 
of 
public 
advantage under section 1844. 
subsection 
or 
a 
consent 
decree entered under subsection 9 or with the conditions or 
measures added pursuant to additional supervisory activities 
under section 1845. subsection 3. the Attorney General may 
seek an order from the Superior Court compelling compliance 
with 
such 
conditions 
or 
measures 
or 
other 
appropriate 
eguitable remedies. If the Superior Court grants such relief 
and that relief is not effective in securing compliance with 
the conditions or measures. the Superior Court may impose 
additional eguitable remedies. 
including the exercise of 
civil contempt powers. or may revoke the certificate upon a 
determination that advantages to be gained by reVOking the 
certificate outweigh the unavoidable costs resulting from a 
revocation of the certificate. 
B. 
If the certificate holders in a cooperative agreement 
involving a merger are not in substantial compliance with 
the 
conditions 
included 
in 
the 
certificate 
of 
public 
advantage under section 1844. 
subsection 
or a 
consent 
decree entered under subsection 9 or with the conditions or 
measures added pursuant to additional supervisory activities 
under section 1845, subsection 3, the Attorney General may 
seek an order from the Superior Court compelling compliance 
with such conditions or measures. If the certificate holders 
to the merger fail to comply with any court order compelling 
compliance with such conditions or measures, the Superior 
Court may 
impose additional equitable remedies to secure 
compliance with its orders, including the exercise of civil 
contempt powers 
or appointment of 
a 
receiver. 
If these 
additional measures are not effective in securing compliance 
with the conditions or measures 
and the Superior Court 
determines that the advantages to be gained by divestiture 
outweigh the unavoidable costs of requiring divestiture, the 
Superior 
Court 
may 
revoke 
the 
certificate 
and 
order 
divestiture of assets. 
C. 
In an action brought under this subsection, the Attorney 
General has the burden of proving by a preponderance of the 
evidence the basis for any equitable remedies requested by 
the Attorney General and adopted by the Superior Court. 
7. 
Effect of court action. 
After the filing of a court 
action under subsection 5 or 6, the department may not take any 
further action under this chapter until the court action is 
dismissed by the Attorney General or the Superior Court orders 
the department to take further action. 
8. 
Fees and costs. If the Attorney General prevails in an 
action 
under 
this 
section, 
the 
Attorney 
General 
and 
the 
department are entitled to an award of the reasonable costs of 
deposition 
transcripts 
incurred 
in 
the 
course 
of 
the 
investigation 
or 
litigation 
and 
reasonable 
attorney's 
fees, 
expert witness fees and court costs incurred in litigation. 
9. 
Resolution b,y consent decree. The Superior Court may 
resolve any action brought by the Attorney General under this 
chapter by entering an order with the consent of the parties. The 
consent decree may contain any conditions authorized by section 
1844, 
subsection 
5, 
paragraph 
C 
or 
conditions 
or 
measures 
authorized under section 1845, subsection 3. 
A consent decree 
under this subsection may not be filed with the Superior Court 
until 30 days after the filing of the application under section 
1844, subsection 2. Upon the entry of such an order, the parties 
to the cooperative agreement have the protection specified in 
section 1849 and the cooperative agreement has the effectiveness 
specified in section 1849. 
§1849. 
Effect of filing an application under this chapter; 
applicability 
Page l3-LR3274(1) 
1. 
Validity 
of 
certified 
coo.peratiye 
agreements. 
NQtwithstanding Title 5. chapter 10: Title 10. chapter 201: Qr 
any Qther provision of law. a cooperative agreement for which a 
certificate Qf public advantage has been issued is a 
lawful 
agreement. Notwithstanding Title 5. chapter 10j Title 10. chapter 
~lj or 
any 
Qther 
prQv~s~on of 
law. 
if the parties 
to 
a 
cooperative agreement file an application for a certificate Qf 
public advantage governing the agreement with the department. the 
conduct 
of 
the parties 
in negotiating 
and entering 
intQ 
a 
cooperative agreement is lawful conduct. This subsection does not 
provide immunity to any persQn for conduct in negotiating and 
entering into a cQQperative agreement fQr which an applicatiQn 
fQr a certificate of public advantage is nQt filed. 
2. 
Validity of cooperative agreements determined not in 
public interest. 
In an action by the Attorney General under 
section 1848. subsectiQn 2. if the Superior Court determines that 
the applicants have nQt established by a prepQnderance Qf the 
evidence that the likely benefits resulting from a cooperative 
agreement 
outweigh 
any 
disadvantages 
attributable 
to 
any 
potential reduction in competition resulting from the agreement, 
the cooperative agreement is invalid and has no further force or 
effect when the judgment becQmes final after the time fQr appeal 
has expired or the judgment of the Superior Court is affirmed on 
appeal. 
3. 
Other laws, rules and regulations. 
This chapter does 
not exempt cQvered entities frQm cQmpliance with laws governing 
certificates 
of 
need 
Qr 
Qther 
applicable 
laws. 
rules 
and 
regulations. 
4. 
Contract disputes. 
A dispute between parties to 
a 
~ooperative agreement concerning its meaning or terms is governed 
by normal principles of contract law. 
5. 
Termination; surrender. 
This chapter does not prohibit 
certificate hQlders from terminating their cQoperative agreement 
by mutual agreement, consent decree or court determination or by 
surrendering 
their 
certificate 
of 
public 
advantage 
to 
the 
department. 
Any certificate holder that terminates the agreement 
shall file a notice of termination with the department within 30 
days 
after 
termination, 
surrender 
the 
certificate of 
public 
advantage and 
submit copies to the Attorney General 
and the 
Governor's Office of Health Policy and Finance at the time the 
notice of termination is submitted to the department. 
§1850. 
AsseSSment 
Except 
for 
state-operated 
mental 
health hospitals, 
any 
hospital licensed by the department is subject to an annual 
assessment under this chapter. The department shall determine and 
collect the assessment. 
The amount of the assessment must be 
based upon each hospital's gross patient service revenue. For any 
fiscal year, the aggregate amount raised by assessment may not 
exceed $200,000. 
The department shall deposit funds collected 
under 
this 
section into 
a 
dedicated 
revenue 
account. 
Funds 
remaining in the account at the end of each fiscal year do not 
lapse but carry forward into subseguent years. Funds deposited 
into the account must be allocated to carry out the purposes of 
this chapter. 
SI8SI. Application fee 
The application fee for a certificate of public advantage is 
governed by this section. 
The application fee for a certificate 
of 
public 
advantag~that involves 
a 
merger 
of 
or 
more 
hospitals, each of which has 50 or more beds, is $10,000. 
The 
application fee for a certificate of public advantage for all 
other cooperative agreements is $2,500. 
The department shall 
deposit all funds received under this section and section 1844, 
subsection 5 into a nonlapsing dedicated revenue account to be 
used only by the Attorney General for the payment of the cost of 
experts 
and consultants in connection with 
reviews 
conducted 
under this chapter. 
§18S2. 
Rulfflllakin9 
The department shall adopt rules to carry out the purposes 
of this chapter. 
Rules adopted pursuant to this section are 
routine technical rules as defined in Title 5, 
chapter 
375, 
subchapter 2-A. 
Sec. 2. 22 MRSA c. 405-D. as amended, is repealed. 
Sec.3. Effective date. 
This Act takes effect January 1, 2007. 
SUMMARY 
This bill repeals the Hospital Cooperation Act of 1992. 
It 
enacts the Hospital and Health Care Provider Cooperation Act to 
provide a mechanism that hospitals and health care providers may 
use to provide state action immunity under federal antitrust laws 
when 
hospitals 
enter 
into' cooperative 
agreements 
with 
other 
hospitals 
and 
health 
care 
providers 
enter 
into 
cooperative 
agreements with other health care providers. 
The bill sets the 
application 
fees 
for 
hospital 
and 
health 
care 
provider 
applications for certificates of public advantage. 
The bill 
maintains the same assessments as are in the current Hospital 
Cooperation Act of 1992. 
The bill contains an effective date of 
January 1, 2007.