CO Code § 25.5-4-402.4 (2021)
2021 Colorado Code|Title 25.5 - Health Care Policy and Financing|Article 4 - Colorado Medical Assistance Act - General Medical Assistance|Part 4 - Providers - Reimbursement|§ 25.5-4-402.4. Hospitals - Healthcare Affordability and Sustainability Fee - Legislative Declaration - Colorado Healthcare Affordability and Sustainability Enterprise - Federal Waiver - Fund Created - Rules - Reports - Repeal

  Short title. The short title of this section is the “Colorado Healthcare Affordability and Sustainability Enterprise Act of 2017”.    Legislative declaration. The general assembly hereby finds and declares that:   The state and the providers of publicly funded medical services, and hospitals in particular, share a common commitment to comprehensive health-care reform;    Hospitals within the state incur significant costs by providing uncompensated emergency department care and other uncompensated medical services to low-income and uninsured populations;    This section is enacted as part of a comprehensive health-care reform and is intended to provide the following services and benefits to hospitals and individuals:   Providing a payer source for some low-income and uninsured populations who may otherwise be cared for in emergency departments and other settings in which uncompensated care is provided;    Reducing the underpayment to Colorado hospitals participating in publicly funded health insurance programs;    Reducing the number of persons in Colorado who are without health-care benefits;    Reducing the need of hospitals and other health-care providers to shift the cost of providing uncompensated care to other payers;    Expanding access to high-quality, affordable health care for low-income and uninsured populations; and    Providing the additional business services specified in subsection (4)(a)(IV) of this section to hospitals that pay the healthcare affordability and sustainability fee charged and collected as authorized by subsection (4) of this section by the Colorado healthcare affordability and sustainability enterprise created in subsection (3)(a) of this section;       The Colorado healthcare affordability and sustainability enterprise provides business services to hospitals when, in exchange for payment of healthcare affordability and sustainability fees by hospitals, it:   Obtains federal matching money and returns both the healthcare affordability and sustainability fee and the federal matching money to hospitals to increase reimbursement rates to hospitals for providing medical care under the state medical assistance program and the Colorado indigent care program and to increase the number of individuals covered by public medical assistance; and    Provides additional business services to hospitals as specified in subsection (4)(a)(IV) of this section;       It is necessary, appropriate, and in the best interest of the state to acknowledge that by providing the business services specified in subsections (2)(d)(I) and (2)(d)(II) of this section, the Colorado healthcare affordability and sustainability enterprise engages in an activity conducted in the pursuit of a benefit, gain, or livelihood and therefore operates as a business;    Consistent with the determination of the Colorado supreme court in 896 P.2d 859 (Colo. 1995), that the power to impose taxes is inconsistent with enterprise status under section 20 of article X of the state constitution, it is the conclusion of the general assembly that the healthcare affordability and sustainability fee charged and collected by the Colorado healthcare affordability and sustainability enterprise is a fee, not a tax, because the fee is imposed for the specific purposes of allowing the enterprise to defray the costs of providing the business services specified in subsections (2)(d)(I) and (2)(d)(II) of this section to hospitals that pay the fee and is collected at rates that are reasonably calculated based on the benefits received by those hospitals; and    So long as the Colorado healthcare affordability and sustainability enterprise qualifies as an enterprise for purposes of section 20 of article X of the state constitution, the revenues from the healthcare affordability and sustainability fee charged and collected by the enterprise are not state fiscal year spending, as defined in section 24-77-102 (17), or state revenues, as defined in section 24-77-103.6 (6)(c), and do not count against either the state fiscal year spending limit imposed by section 20 of article X of the state constitution or the excess state revenues cap, as defined in section 24-77-103.6 (6)(b)(I).       Colorado healthcare affordability and sustainability enterprise.   The Colorado healthcare affordability and sustainability enterprise, referred to in this section as the “enterprise”, is created. The enterprise is and operates as a government-owned business within the state department for the purpose of charging and collecting the healthcare affordability and sustainability fee, leveraging healthcare affordability and sustainability fee revenue to obtain federal matching money, and utilizing and deploying the healthcare affordability and sustainability fee revenue and federal matching money to provide the business services specified in subsections (2)(d)(I) and (2)(d)(II) of this section to hospitals that pay the healthcare affordability and sustainability fee.    The enterprise constitutes an enterprise for purposes of section 20 of article X of the state constitution so long as it retains the authority to issue revenue bonds and receives less than ten percent of its total revenues in grants from all Colorado state and local governments combined. So long as it constitutes an enterprise pursuant to this subsection (3)(b), the enterprise is not subject to any provisions of section 20 of article X of the state constitution.      The repeal of the hospital provider fee program, as it existed pursuant to section 25.5-4-402.3 before its repeal, effective July 1, 2017, by Senate Bill 17-267, enacted in 2017, and the creation of the Colorado healthcare affordability and sustainability enterprise as a new enterprise to charge and collect a new healthcare affordability and sustainability fee as authorized by subsection (4) of this section and provide healthcare affordability and sustainability fee-funded business services to hospitals that replace and supplement services previously funded by hospital provider fees is the creation of a new government-owned business that provides business services to hospitals as a new enterprise for purposes of section 20 of article X of the state constitution, does not constitute the qualification of an existing government-owned business as an enterprise for purposes of section 20 of article X of the state constitution or section 24-77-103.6 (6)(b)(II), and, therefore, does not require or authorize adjustment of the state fiscal year spending limit calculated pursuant to section 20 of article X of the state constitution or the excess state revenues cap, as defined in section 24-77-103.6 (6)(b)(I). (c) (I) The repeal of the hospital provider fee program, as it existed pursuant to section 25.5-4-402.3 before its repeal, effective July 1, 2017, by Senate Bill 17-267, enacted in 2017, and the creation of the Colorado healthcare affordability and sustainability enterprise as a new enterprise to charge and collect a new healthcare affordability and sustainability fee as authorized by subsection (4) of this section and provide healthcare affordability and sustainability fee-funded business services to hospitals that replace and supplement services previously funded by hospital provider fees is the creation of a new government-owned business that provides business services to hospitals as a new enterprise for purposes of section 20 of article X of the state constitution, does not constitute the qualification of an existing government-owned business as an enterprise for purposes of section 20 of article X of the state constitution or section 24-77-103.6 (6)(b)(II), and, therefore, does not require or authorize adjustment of the state fiscal year spending limit calculated pursuant to section 20 of article X of the state constitution or the excess state revenues cap, as defined in section 24-77-103.6 (6)(b)(I).    Notwithstanding subsection (3)(c)(I) of this section, because the repeal of the hospital provider fee program, as it existed pursuant to section 25.5-4-402.3 before its repeal by Senate Bill 17-267, enacted in 2017, will allow the state to spend more general fund money for general governmental purposes than it would otherwise be able to spend below the excess state revenues cap, as defined in section 24-77-103.6 (6)(b)(I), it is appropriate to restrain the growth of government by lowering the base amount used to calculate the excess state revenues cap for the 2017-18 state fiscal year by two hundred million dollars.       The enterprise's primary powers and duties are:   To charge and collect the healthcare affordability and sustainability fee as specified in subsection (4) of this section;    To leverage healthcare affordability and sustainability fee revenue collected to obtain federal matching money, working with or through the state department and the state board to the extent required by federal law or otherwise necessary;    To expend healthcare affordability and sustainability fee revenue, matching federal money, and any other money from the healthcare affordability and sustainability fee cash fund as specified in subsections (4) and (5) of this section;    To issue revenue bonds payable from the revenues of the enterprise;    To enter into agreements with the state department to the extent necessary to collect and expend healthcare affordability and sustainability fee revenue;    To engage the services of private persons or entities serving as contractors, consultants, and legal counsel for professional and technical assistance and advice and to supply other services related to the conduct of the affairs of the enterprise, including the provision of additional business services to hospitals as specified in subsection (4)(a)(IV) of this section; and    To adopt and amend or repeal policies for the regulation of its affairs and the conduct of its business consistent with the provisions of this section.    Provide a business service to hospitals by increasing the number of individuals covered by public medical assistance and thereby reducing the amount of uncompensated care that the hospitals must provide;    Pay the administrative costs to the enterprise in implementing and administering this section subject to the limitation that administrative costs of the enterprise are limited to three percent of the enterprise's expenditures based on a methodology approved by the office of state planning and budgeting and the staff of the joint budget committee of the general assembly; and    Provide or contract for or arrange the provision of additional business services to hospitals by:       The enterprise shall exercise its powers and perform its duties as if the same were transferred to the state department by a type 2 transfer, as defined in section 24-1-105.       Healthcare affordability and sustainability fee.   For the fiscal year commencing July 1, 2017, and for each fiscal year thereafter, the enterprise is authorized to charge and collect a healthcare affordability and sustainability fee, as described in 42 CFR 433.68 (b), on outpatient and inpatient services provided by all licensed or certified hospitals, referred to in this section as “hospitals”, for the purpose of obtaining federal financial participation under the state medical assistance program as described in this article 4 and articles 5 and 6 of this title 25.5, referred to in this section as the “state medical assistance program”, and the Colorado indigent care program described in part 1 of article 3 of this title 25.5, referred to in this section as the “Colorado indigent care program”. If the amount of healthcare affordability and sustainability fee revenue collected exceeds the federal net patient revenue-based limit on the amount of such fee revenue that may be collected, requiring repayment to the federal government of excess federal matching money received, hospitals that received such excess federal matching money shall be responsible for repaying the excess federal money and any associated federal penalties to the federal government. The enterprise shall use the healthcare affordability and sustainability fee revenue to:   The state medical assistance program; and    The Colorado indigent care program; (II.3) (A) For state fiscal years 2019-20, 2020-21, and any subsequent fiscal years, as long as the increased reimbursements and payments pursuant to the federal “Families First Coronavirus Response Act”, Pub.L. 116-127, and the “American Rescue Plan Act of 2021”, Pub.L. 116-260, are still available only, offset general fund expenditures for the state medical assistance program.  (II.5) Repealed.    Consulting with hospitals to help them improve both cost efficiency and patient safety in providing medical services and the clinical effectiveness of those services;    Advising hospitals regarding potential changes to federal and state laws and regulations that govern the provision of and reimbursement paid for medical services under the programs administered pursuant to this article 4 and articles 5 and 6 of this title 25.5;    Providing coordinated services to hospitals to help them adapt and transition to any new or modified performance tracking and payment systems for the programs administered pursuant to this article 4 and articles 5 and 6 of this title 25.5, which may include data sharing, telehealth coordination and support, establishment of performance metrics, benchmarking to such metrics, and clinical and administrative process consulting and other appropriate services;    Providing any other services to hospitals that aid them in efficiently and effectively participating in the programs administered pursuant to this article 4 and articles 5 and 6 of this title 25.5; and    Providing funding for, and in cooperation with the state department and hospitals supporting the implementation of, a health-care delivery system reform incentive payments program as described in subsection (8) of this section.          The enterprise shall recommend for approval and establishment by the state board the amount of the healthcare affordability and sustainability fee that it intends to charge and collect. The state board must establish the final amount of the fee by rules promulgated in accordance with article 4 of title 24. The state board shall not establish any amount that exceeds the federal limit for such fees. The state board may deviate from the recommendations of the enterprise, but shall express in writing the reasons for any deviations. In establishing the amount of the fee and in promulgating the rules governing the fee, the state board shall:   Consider recommendations of the enterprise;    Establish the amount of the healthcare affordability and sustainability fee so that the amount collected from the fee and federal matching funds associated with the fee are sufficient to pay for the items described in subsection (4)(a) of this section, but nothing in this subsection (4)(b)(II) requires the state board to increase the fee above the amount recommended by the enterprise; and    For the 2017-18 fiscal year, establish the amount of the healthcare affordability and sustainability fee so that the amount collected from the fee is approximately equal to the sum of the amounts of the appropriations specified for the fee in the general appropriation act, Senate Bill 17-254, enacted in 2017, and any other supplemental appropriation act.         In accordance with the redistributive method set forth in 42 CFR 433.68 (e)(1) and (e)(2), the enterprise, acting in concert with or through an agreement with the state department if required by federal law, may seek a waiver from the broad-based healthcare affordability and sustainability fee requirement or the uniform healthcare affordability and sustainability fee requirement, or both. In addition, the enterprise, acting in concert with or through an agreement with the state department if required by federal law, shall seek any federal waiver necessary to fund and, in cooperation with the state department and hospitals, support the implementation of a health-care delivery system reform incentive payments program as described in subsection (8) of this section. Subject to federal approval and to minimize the financial impact on certain hospitals, the enterprise may exempt from payment of the healthcare affordability and sustainability fee certain types of hospitals, including but not limited to: (c) (I) In accordance with the redistributive method set forth in 42 CFR 433.68 (e)(1) and (e)(2), the enterprise, acting in concert with or through an agreement with the state department if required by federal law, may seek a waiver from the broad-based healthcare affordability and sustainability fee requirement or the uniform healthcare affordability and sustainability fee requirement, or both. In addition, the enterprise, acting in concert with or through an agreement with the state department if required by federal law, shall seek any federal waiver necessary to fund and, in cooperation with the state department and hospitals, support the implementation of a health-care delivery system reform incentive payments program as described in subsection (8) of this section. Subject to federal approval and to minimize the financial impact on certain hospitals, the enterprise may exempt from payment of the healthcare affordability and sustainability fee certain types of hospitals, including but not limited to:   Psychiatric hospitals, as licensed by the department of public health and environment;    Hospitals that are licensed as general hospitals and certified as long-term care hospitals by the department of public health and environment;    Critical access hospitals that are licensed as general hospitals and are certified by the department of public health and environment under 42 CFR part 485, subpart F;    Inpatient rehabilitation facilities; or    Hospitals specified for exemption under 42 CFR 433.68 (e).       In determining whether a hospital may be excluded, the enterprise shall use one or more of the following criteria:   A hospital that is located in a rural area;    A hospital with which the state department does not contract to provide services under the state medical assistance program;    A hospital whose inclusion or exclusion would not significantly affect the net benefit to hospitals paying the healthcare affordability and sustainability fee; or    A hospital that must be included to receive federal approval.       The enterprise may reduce the amount of the healthcare affordability and sustainability fee for certain hospitals to obtain federal approval and to minimize the financial impact on certain hospitals. In determining for which hospitals the enterprise may reduce the amount of the healthcare affordability and sustainability fee, the enterprise shall use one or more of the following criteria:   The hospital is a type of hospital described in subsection (4)(c)(I) of this section;    The hospital is located in a rural area;    The hospital serves a higher percentage than the average hospital of persons covered by the state medical assistance program, medicare, or commercial insurance or persons enrolled in a managed care organization;    The hospital does not contract with the state department to provide services under the state medical assistance program;    If the hospital paid a reduced healthcare affordability and sustainability fee, the reduced fee would not significantly affect the net benefit to hospitals paying the healthcare affordability and sustainability fee; or    The hospital is required not to pay a reduced healthcare affordability and sustainability fee as a condition of federal approval.       The enterprise may change how it pays hospital reimbursement or quality incentive payments, or both, in whole or in part, under the authority of a federal waiver if the total reimbursement to hospitals is equal to or above the federal upper payment limit calculation under the waiver.       The enterprise may alter the process prescribed in this subsection (4) to the extent necessary to meet the federal requirements and to obtain federal approval.      The enterprise shall establish policies on the calculation, assessment, and timing of the healthcare affordability and sustainability fee. The enterprise shall assess the healthcare affordability and sustainability fee on a schedule to be set by the enterprise board as provided in subsection (7)(d) of this section. The periodic healthcare affordability and sustainability fee payments from a hospital and the enterprise's reimbursement to the hospital under subsections (5)(b)(I) and (5)(b)(II) of this section are due as nearly simultaneously as feasible; except that the enterprise's reimbursement to the hospital is due no more than two days after the periodic healthcare affordability and sustainability fee payment is received from the hospital. The healthcare affordability and sustainability fee must be imposed on each hospital even if more than one hospital is owned by the same entity. The fee must be prorated and adjusted for the expected volume of service for any year in which a hospital opens or closes. (e) (I) The enterprise shall establish policies on the calculation, assessment, and timing of the healthcare affordability and sustainability fee. The enterprise shall assess the healthcare affordability and sustainability fee on a schedule to be set by the enterprise board as provided in subsection (7)(d) of this section. The periodic healthcare affordability and sustainability fee payments from a hospital and the enterprise's reimbursement to the hospital under subsections (5)(b)(I) and (5)(b)(II) of this section are due as nearly simultaneously as feasible; except that the enterprise's reimbursement to the hospital is due no more than two days after the periodic healthcare affordability and sustainability fee payment is received from the hospital. The healthcare affordability and sustainability fee must be imposed on each hospital even if more than one hospital is owned by the same entity. The fee must be prorated and adjusted for the expected volume of service for any year in which a hospital opens or closes.    The enterprise is authorized to refund any unused portion of the healthcare affordability and sustainability fee. For any portion of the healthcare affordability and sustainability fee that has been collected by the enterprise but for which the enterprise has not received federal matching funds, the enterprise shall refund back to the hospital that paid the fee the amount of that portion of the fee within five business days after the fee is collected.    The enterprise shall establish requirements for the reports that hospitals must submit to the enterprise to allow the enterprise to calculate the amount of the healthcare affordability and sustainability fee. Notwithstanding the provisions of part 2 of article 72 of title 24 or subsection (7)(f) of this section, information provided to the enterprise pursuant to this section is confidential and is not a public record. Nonetheless, the enterprise may prepare and release summaries of the reports to the public.       A hospital shall not include any amount of the healthcare affordability and sustainability fee as a separate line item in its billing statements.    The state board shall promulgate any rules pursuant to the “State Administrative Procedure Act”, article 4 of title 24, necessary for the administration and implementation of this section. Prior to submitting any proposed rules concerning the administration or implementation of the healthcare affordability and sustainability fee to the state board, the enterprise shall consult with the state board on the proposed rules as specified in subsection (7)(d) of this section.       Healthcare affordability and sustainability fee cash fund.ARPA home- and community-based services account.   Any healthcare affordability and sustainability fee collected pursuant to this section by the enterprise must be transmitted to the state treasurer, who shall credit the fee to the healthcare affordability and sustainability fee cash fund, which fund is hereby created and referred to in this section as the “fund”. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund. The state treasurer shall invest any money in the fund not expended for the purposes specified in subsection (5)(b) of this section as provided by law. Money in the fund shall not be transferred to any other fund and shall not be used for any purpose other than the purposes specified in this subsection (5) and in subsection (4) of this section.    All money in the fund is subject to federal matching as authorized under federal law and, subject to annual appropriation by the general assembly, shall be expended by the enterprise for the following purposes:   To maximize the inpatient and outpatient hospital reimbursements to up to the upper payment limits as defined in 42 CFR 447.272 and 42 CFR 447.321;    To increase hospital reimbursements under the Colorado indigent care program to up to one hundred percent of the hospital's costs of providing medical care under the program;    To pay the quality incentive payments provided in section 25.5-4-402 (3);    Subject to available revenue from the healthcare affordability and sustainability fee and federal matching funds, to expand eligibility for public medical assistance by:   Increasing the eligibility level for parents and caretaker relatives of children who are eligible for medical assistance, pursuant to section 25.5-5-201 (1)(m), from sixty-one percent to one hundred thirty-three percent of the federal poverty line;    Increasing the eligibility level for children and pregnant women under the children's basic health plan to up to two hundred fifty percent of the federal poverty line;    Providing eligibility under the state medical assistance program for a childless adult or an adult without a dependent child in the home, pursuant to section 25.5-5-201 (1)(p), who earns up to one hundred thirty-three percent of the federal poverty line; and    Providing a buy-in program in the state medical assistance program for disabled adults and children whose families have income of up to four hundred fifty percent of the federal poverty line;       To provide continuous eligibility for twelve months for children enrolled in the state medical assistance program;    To pay the enterprise's actual administrative costs of implementing and administering this section, including but not limited to the following costs:   Administrative expenses of the enterprise;    The enterprise's actual costs related to implementing and maintaining the healthcare affordability and sustainability fee, including personal services, operating, and consulting expenses;    The enterprise's actual costs for the changes and updates to the medicaid management information system for the implementation of subsections (5)(b)(I) to (5)(b)(III) of this section;    The enterprise's personal services and operating costs related to personnel, consulting services, and for review of hospital costs necessary to implement and administer the increases in inpatient and outpatient hospital payments made pursuant to subsection (5)(b)(I) of this section, increases in the Colorado indigent care program payments made pursuant to subsection (5)(b)(II) of this section, and quality incentive payments made pursuant to subsection (5)(b)(III) of this section;    The enterprise's actual costs for the changes and updates to the Colorado benefits management system and medicaid management information system to implement and maintain the expanded eligibility provided for in subsections (5)(b)(IV) and (5)(b)(V) of this section;    The enterprise's personal services and operating costs related to personnel necessary to implement and administer the expanded eligibility for public medical assistance provided for in subsections (5)(b)(IV) and (5)(b)(V) of this section, including but not limited to administrative costs associated with the determination of eligibility for public medical assistance by county departments; and    The enterprise's personal services, operating, and systems costs related to expanding the opportunity for individuals to apply for public medical assistance directly at hospitals or through another entity outside the county departments, in connection with section 25.5-4-205, that would increase access to public medical assistance and reduce the number of uninsured served by hospitals;       To offset the loss of any federal matching money due to a decrease in the certification of the public expenditure process for outpatient hospital services for medical services premiums that were in effect as of July 1, 2008;    Subject to any necessary federal waivers being obtained, to provide funding for a health-care delivery system reform incentive payments program as described in subsection (8) of this section; (VIII.3) (A) For state fiscal years 2019-20, 2020-21, and any subsequent fiscal years, as long as the increased reimbursements and payments pursuant to the federal “Families First Coronavirus Response Act”, Pub.L. 116-127, and the “American Rescue Plan Act of 2021”, Pub.L. 116-260, are still available only, and regardless of when this federal money is made available, the amount in excess of the fifty percent federal financial participation generated by increased reimbursements and payments appropriated for use in subsections (5)(b)(I) to (5)(b)(III) of this section pursuant to the federal “Families First Coronavirus Response Act”, Pub.L. 116-127, or any amendment thereto, to offset general fund expenditures for the state medical assistance program.  (VIII.5) Repealed.  (VIII.7) (A) For state fiscal year 2020-21 only, one hundred sixty-one million dollars shall be appropriated to offset general fund expenditures for the state medical assistance program.    To provide additional business services to hospitals as specified in subsection (4)(a)(IV) of this section.       ARPA home- and community-based services account.   There is created the “ARPA home- and community-based services account” within the fund, referred to in this subsection (5)(c) as the “ARPA account”. Notwithstanding any other provision of this section to the contrary, money in the ARPA account as a result of fund savings and federal matching dollars must be used in accordance with section 9817 of the federal “American Rescue Plan Act of 2021”, Pub.L. 117-2, as amended, referred to in this section as “ARPA”, to implement or supplement the implementation of home- and community-based services under the medical assistance program pursuant to the provisions of part 18 of article 6 of this title 25.5.    (A) On June 30, 2021, the state treasurer shall transfer nineteen million eight hundred thirty thousand nine hundred eighteen dollars from the fund to the ARPA account.    The state treasurer shall credit all interest and income derived from the money in the ARPA account to the fund.    Money in the ARPA account is subject to annual appropriation by the general assembly consistent with the purposes specified in this section and ARPA, and pursuant to part 18 of article 6 of this title 25.5.    Money in the ARPA account remains in the ARPA account until the end of the spending period authorized under ARPA, at which time money remaining in the ARPA account becomes part of the fund.    This subsection (5)(c) is repealed, effective July 1, 2025.          Appropriations.     Except as otherwise provided in subsection (6)(b)(I.5) or (6)(b)(I.7) of this section, the healthcare affordability and sustainability fee is to supplement, not supplant, general fund appropriations to support hospital reimbursements. General fund appropriations for hospital reimbursements shall be maintained at the level of appropriations in the medical services premium line item made for the fiscal year commencing July 1, 2008; except that general fund appropriations for hospital reimbursements may be reduced if an index of appropriations to other providers shows that general fund appropriations are reduced for other providers. If the index shows that general fund appropriations are reduced for other providers, the general fund appropriations for hospital reimbursements shall not be reduced by a greater percentage than the reductions of appropriations for the other providers as shown by the index. (a) (I) Except as otherwise provided in subsection (6)(b)(I.5) or (6)(b)(I.7) of this section, the healthcare affordability and sustainability fee is to supplement, not supplant, general fund appropriations to support hospital reimbursements. General fund appropriations for hospital reimbursements shall be maintained at the level of appropriations in the medical services premium line item made for the fiscal year commencing July 1, 2008; except that general fund appropriations for hospital reimbursements may be reduced if an index of appropriations to other providers shows that general fund appropriations are reduced for other providers. If the index shows that general fund appropriations are reduced for other providers, the general fund appropriations for hospital reimbursements shall not be reduced by a greater percentage than the reductions of appropriations for the other providers as shown by the index.    If general fund appropriations for hospital reimbursements are reduced below the level of appropriations in the medical services premium line item made for the fiscal year commencing July 1, 2008, the general fund appropriations will be increased back to the level of appropriations in the medical services premium line item made for the fiscal year commencing July 1, 2008, at the same percentage as the appropriations for other providers as shown by the index. The general assembly is not obligated to increase the general fund appropriations back to the level of appropriations in the medical services premium line item in a single fiscal year, and such increases may occur over nonconsecutive fiscal years.    For purposes of this subsection (6)(a), the “index of appropriations to other providers” or “index” means the average percent change in reimbursement rates through appropriations or legislation enacted by the general assembly to home health providers, physician services, and outpatient pharmacies, excluding dispensing fees. The state board, after consultation with the enterprise board, is authorized to clarify this definition as necessary by rule.       If the revenue from the healthcare affordability and sustainability fee is insufficient to fully fund all of the purposes described in subsection (5)(b) of this section:   The general assembly is not obligated to appropriate general fund revenues to fund such purposes;  (I.3) Repealed.  (I.5) (A) The amount in excess of the fifty percent federal financial participation generated by increased reimbursements and payments appropriated for use in subsections (5)(b)(I) to (5)(b)(III) of this section pursuant to the federal “Families First Coronavirus Response Act”, Pub.L. 116-127, or any amendment thereto, shall be appropriated to offset general fund expenditures for the state medical assistance program. (I.7) (A) One hundred sixty-one million dollars of revenue from the healthcare affordability and sustainability fee shall be used first to offset general fund expenditures for the state medical assistance program.    The hospital provider reimbursement and quality incentive payment increases described in subsections (5)(b)(I) to (5)(b)(III) of this section and the costs described in subsection (5)(b)(VI) of this section shall be fully funded using revenue from the healthcare affordability and sustainability fee and federal matching funds before any eligibility expansion is funded; and    (A) If the state board promulgates rules that expand eligibility for medical assistance to be paid for pursuant to subsection (5)(b)(IV) of this section, and the state department thereafter notifies the enterprise board that the revenue available from the healthcare affordability and sustainability fee and the federal matching funds will not be sufficient to pay for all or part of the expanded eligibility, the enterprise board shall recommend to the state board reductions in medical benefits or eligibility so that the revenue will be sufficient to pay for all of the reduced benefits or eligibility. After receiving the recommendations of the enterprise board, the state board shall adopt rules providing for reduced benefits or reduced eligibility for which the revenue will be sufficient and shall forward any adopted rules to the joint budget committee. Notwithstanding the provisions of section 24-4-103 (8) and (12), following the adoption of rules pursuant to this subsection (6)(b)(III)(A), the state board shall not submit the rules to the attorney general and shall not file the rules with the secretary of state until the joint budget committee approves the rules pursuant to subsection (6)(b)(III)(B) of this section.       Notwithstanding any other provision of this section, if, after receipt of authorization to receive federal matching funds for money in the fund, the authorization is withdrawn or changed so that federal matching funds are no longer available, the enterprise shall cease collecting the healthcare affordability and sustainability fee and shall repay to the hospitals any money received by the fund that is not subject to federal matching funds.       Colorado healthcare affordability and sustainability enterprise board.     Except as otherwise provided in subsection (7)(a)(II) of this section, the enterprise board consists of thirteen members appointed by the governor, with the advice and consent of the senate, as follows: (a) (I) Except as otherwise provided in subsection (7)(a)(II) of this section, the enterprise board consists of thirteen members appointed by the governor, with the advice and consent of the senate, as follows:   Five members who are employed by hospitals in Colorado, including at least one person who is employed by a hospital in a rural area, one person who is employed by a safety-net hospital for which the percent of medicaid-eligible inpatient days relative to its total inpatient days is equal to or greater than one standard deviation above the mean, and one person who is employed by a hospital in an urban area;    One member who is a representative of a statewide organization of hospitals;    One member who represents a statewide organization of health insurance carriers or a health insurance carrier licensed pursuant to title 10 and who is not a representative of a hospital;    One member of the health-care industry who does not represent a hospital or a health insurance carrier;    One member who is a consumer of health care and who is not a representative or an employee of a hospital, health insurance carrier, or other health-care industry entity;    One member who is a representative of persons with disabilities, who is living with a disability, and who is not a representative or an employee of a hospital, health insurance carrier, or other health-care industry entity;    One member who is a representative of a business that purchases or otherwise provides health insurance for its employees; and    Two employees of the state department.    To determine the timing and method by which the enterprise assesses the healthcare affordability and sustainability fee and the amount of the fee;       The initial members of the enterprise board are the members of the hospital provider fee oversight and advisory board that was created and existed pursuant to section 25.5-4-402.3 (6), prior to July 1, 2017, and such members shall serve on and after July 1, 2017, for the remainder of the terms for which they were appointed as members of the advisory board. The powers, duties, and functions of the hospital provider fee oversight and advisory board are transferred by a type 3 transfer, as defined in section 24-1-105, to the enterprise, and the hospital provider fee oversight and advisory board is abolished.    The governor shall consult with representatives of a statewide organization of hospitals in making the appointments pursuant to subsections (7)(a)(I)(A) and (7)(a)(I)(B) of this section. No more than six members of the enterprise board may be members of the same political party.    Members of the enterprise board serve at the pleasure of the governor. All terms are for four years. A member who is appointed to fill a vacancy shall serve the remainder of the unexpired term of the former member.    The governor shall designate a chair from among the members of the enterprise board appointed pursuant to subsections (7)(a)(I)(A) to (7)(a)(I)(G) of this section. The enterprise board shall elect a vice-chair from among its members.    If requested by the health and human services committee of the senate or the public health care and human services committee of the house of representatives, or any successor committees, to consult with the committees on any legislation that may impact the healthcare affordability and sustainability fee or hospital reimbursements established pursuant to this section;    To determine changes in the healthcare affordability and sustainability fee that increase the number of hospitals benefitting from the uses of the healthcare affordability and sustainability fee described in subsections (5)(b)(I) to (5)(b)(IV) of this section or that minimize the number of hospitals that suffer losses as a result of paying the healthcare affordability and sustainability fee;    To recommend to the state department reforms or changes to the inpatient hospital and outpatient hospital reimbursements and quality incentive payments made under the state medical assistance program to increase provider accountability, performance, and reporting;    To direct and oversee the enterprise in seeking, in concert with or through an agreement with the state department if required by federal law, any federal waiver necessary to fund and, in cooperation with the state department and hospitals, support the implementation of a health-care delivery system reform incentive payments program as described in subsection (8) of this section;    To recommend to the state department the schedule and approach to the implementation of subsections (5)(b)(IV) and (5)(b)(V) of this section;    If money in the fund is insufficient to fully fund all of the purposes specified in subsection (5)(b) of this section, to recommend to the state board changes to the expanded eligibility provisions described in subsection (5)(b)(IV) of this section;    To prepare the reports specified in subsection (7)(e) of this section;    To monitor the impact of the healthcare affordability and sustainability fee on the broader health-care marketplace;    To establish requirements for the reports that hospitals must submit to the enterprise to allow the enterprise to calculate the amount of the healthcare affordability and sustainability fee; and    To perform any other duties required to fulfill the enterprise board's charge or those assigned to it by the state board or the executive director.       Members of the enterprise board serve without compensation but must be reimbursed from money in the fund for actual and necessary expenses incurred in the performance of their duties pursuant to this section.    The enterprise board may contract for a group facilitator to assist the members of the enterprise board in performing their required duties.    The enterprise board has, at a minimum, the following duties:    On or before January 15, 2018, and on or before January 15 each year thereafter, the enterprise board shall submit a written report to the health and human services committee of the senate and the public health care and human services committee of the house of representatives, or any successor committees, the joint budget committee of the general assembly, the governor, and the state board. The report shall include, but need not be limited to:   The recommendations made to the state board pursuant to this section;    A description of the formula for how the healthcare affordability and sustainability fee is calculated and the process by which the healthcare affordability and sustainability fee is assessed and collected;    An itemization of the total amount of the healthcare affordability and sustainability fee paid by each hospital and any projected revenue that each hospital is expected to receive due to:   The increased reimbursements made pursuant to subsections (5)(b)(I) and (5)(b)(II) of this section and the quality incentive payments made pursuant to subsection (5)(b)(III) of this section; and    The increased eligibility described in subsections (5)(b)(IV) and (5)(b)(V) of this section;       An itemization of the costs incurred by the enterprise in implementing and administering the healthcare affordability and sustainability fee;    Estimates of the differences between the cost of care provided and the payment received by hospitals on a per-patient basis, aggregated for all hospitals, for patients covered by each of the following:   Medicaid;    Medicare; and    All other payers; and       A summary of:   The efforts made by the enterprise, acting in concert with or through an agreement with the state department if required by federal law, to seek any federal waiver necessary to fund and, in cooperation with the state department and hospitals, support the implementation of a health-care delivery system reform incentive payments program as described in subsection (8) of this section; and    The progress actually made by the enterprise, in cooperation with the state department and hospitals, towards the goal of implementing such a program.  (e.5) The enterprise board shall calculate the estimates described in subsection (7)(e)(V) of this section by using appropriate information provided to the state department by hospitals and any state department analysis of that information.             The enterprise is subject to the open meetings provisions of the “Colorado Sunshine Act of 1972”, contained in part 4 of article 6 of title 24, and the “Colorado Open Records Act”, part 2 of article 72 of title 24. (f) (I) The enterprise is subject to the open meetings provisions of the “Colorado Sunshine Act of 1972”, contained in part 4 of article 6 of title 24, and the “Colorado Open Records Act”, part 2 of article 72 of title 24.    For purposes of the “Colorado Open Records Act”, part 2 of article 72 of title 24, and except as may otherwise be provided by federal law or regulation or state law, the records of the enterprise are public records, as defined in section 24-72-202 (6), regardless of whether the enterprise receives less than ten percent of its total annual revenues in grants, as defined in section 24-77-102 (7), from all Colorado state and local governments combined.    The enterprise is a public entity for purposes of part 2 of article 57 of title 11.          Health-care delivery system reform incentive payments program - funding and implementation. The enterprise, acting in concert with or through an agreement with the state department if required by federal law, shall seek any federal waiver necessary to fund and, in cooperation with the state department and hospitals, support the implementation, no earlier than October 1, 2019, of a health-care delivery system reform incentive payments program that will improve health-care access and outcomes for individuals served by the state department while efficiently utilizing available financial resources. Such a program must, at a minimum:   Include an initial planning phase to:   Assess needs; and    Develop achievable outcome-based metrics to be used to measure progress towards program goals, including the goals of health-care delivery system integration, improved patient outcomes, and more efficient provision of care; and       Address the following focus areas:   Care coordination and care transition management;    Integration of physical and behavioral health-care services;    Chronic condition management;    Targeted population health; and    Data-driven accountability and outcome measurement.          Nicholl v. E-470 Public Highway Authority,  (a) (I) Provide a business service to hospitals by increasing reimbursement to hospitals for providing medical care under:    (B) This subsection (4)(a)(II.3) is repealed, effective December 31, 2024.   (B) This subsection (5)(b)(VIII.3) is repealed, effective December 31, 2024.    (B) This subsection (5)(b)(VIII.7) is repealed, effective December 31, 2021.   (B) This subsection (6)(b)(I.5) is repealed, effective December 31, 2024.    (B) This subsection (6)(b)(I.7) is repealed, effective December 31, 2021.   History. Source: L. 2017: Entire section added,(SB 17-267), ch. 267, p. 1448, § 17, effective July 1. L. 2018: IP(5)(b) amended,(SB 18-195), ch. 173, p. 1205, § 1, effective July 1. L. 2019: (7)(e.5) added,(HB 19-1001), ch. 52, p. 177, § 1, effective August 2. L. 2020: (5)(b)(VIII) and (6)(a)(I) amended and (4)(a)(II.5), (5)(b)(VIII.5), and (6)(b)(I.3) added,(HB 20-1361), ch. 161, p. 756, § 2, effective June 29; (5)(b)(VIII) and (6)(a)(I) amended and (4)(a)(II.3), (5)(b)(VIII.3), and (6)(b)(I.5) added,(HB 20-1385), ch. 173, p. 795, § 2, effective June 29; IP(4)(a), (5)(b)(VIII), and (6)(a)(I) amended and (4)(a)(II.5), (5)(b)(VIII.7), and (6)(b)(I.7) added,(HB 20-1386), ch. 210, p. 1023, § 1, effective June 30. L. 2021: (4)(a)(II.3), (5)(b)(VIII.3), and (6)(b)(I.5)(B) amended,(SB 21-213), ch. 88, p. 363, § 2, effective May 4; (4)(a)(II.5), (5)(b)(VIII.5), and (6)(b)(I.3) repealed and (6)(a)(I) amended,(SB 21-211), ch. 86, p. 358, § 2, effective May 4; (5)(c) added,(SB 21-286), ch. 395, p. 2626, § 2, effective June 30.    Editor's note:    Section 34 of chapter 267 (SB 17-267), Session Laws of Colorado 2017, provides that the section of the act adding this section does not take effect if the centers for medicare and medicaid services determine that the amendments do not comply with federal law. For more information, see SB 17-267. (L. 2017, p. 1478.) The executive director of the department of health care policy and financing did not notify the revisor of statutes by June 1, 2017, of such determination; therefore, this section took effect July 1, 2017.    Amendments to subsection (6)(a)(I) by HB 20-1361, HB 20-1385, and HB 20-1386 were harmonized.    Subsection (4)(a)(II.5) was added in HB 20-1361. It was superseded by the addition of subsection (4)(a)(II.5) in HB 20-1386.     Cross references:   For the legislative declaration in SB 17-267, see section 1 of chapter 267, Session Laws of Colorado 2017.   ANNOTATION   Foundations and members of foundations lacked standing to contest the constitutionality of the healthcare affordability and sustainability fee program created in this section as violative of the Taxpayer's Bill of Rights (TABOR) and on other grounds. The members lacked taxpayer standing generally and under the citizen-suit provision of TABOR because hospitals, not taxpayers, made required payments to the program, and there was therefore no clear nexus between their taxpayer status and the fee. The members lacked individual standing because the program affected health care consumers only indirectly, and the members therefore suffered no direct and individualized injury. The foundations lacked associational standing because the members did not otherwise have standing to sue in their own right. TABOR Found. v. Colo. Dept. of Health Care Policy & Fin., 2020 COA 156 , __ P.3d __.