AG Maura Healey backs bill giving more power to Massachusetts' Health Policy Commission


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By Shira Schoenberg

BOSTON — Massachusetts Attorney General Maura Healey and House Majority Leader Ron Mariano, D-Quincy, unveiled legislation on Tuesday that would give more power to Massachusetts' Health Policy Commission when it weighs in on hospital mergers and acquisitions.

"This bill gives more teeth to any referral from the Health Policy Commission to the attorney general's office," Healey said.

The Health Policy Commission is an independent state agency established by a 2012 health care cost containment law. Its job is to develop policies to reduce the growth in health care costs while improving the quality of care. One important role it plays is in analyzing the impact of hospital mergers.

Last winter, the Health Policy Commission issued a report finding that Partners HealthCare's plan to take over three other eastern Massachusetts hospitals would stifle competition and drive up health care costs. The commission referred the issue to then-Attorney General Martha Coakley, who negotiated a settlement with Partners that would have allowed the merger to proceed. The case went to court, however, and after Healey took office and weighed in against the deal, a judge blocked the merger.

The bill proposed by Healey and Mariano would not change the process the Health Policy Commission goes through in evaluating a merger. But it would define the commission's report as "prima facie evidence" to prove a violation of the state's consumer protection statute. That means that the attorney general could go to court to block a merger, using the consumer protection law, and the commission's report would be accepted as true unless it can be disproven by an opposing party.

"It doesn't mean we win the case. That's the starting point," Healey said. "But the burden is on the parties proposing the transaction to make their case that it isn't going to hurt consumers."

That is different from today, when the court can more easily dismiss the commission's recommendations if there are conflicting opinions, and when the attorney general must rely on an anti-trust law to bring a case against a merger.

Mariano said lawmakers who crafted the 2012 law always wanted to give greater weight to the Health Policy Commission's recommendations, but they were unable to get an enforcement provision drafted in time for it to be included in the original law.

"We just weren't able to get agreement on how to put in enforcement powers and make the Health Policy Commission even more relevant," Mariano said.

Healey and Mariano said the bill will help contain health care costs by making it easier for the attorney general to block mergers that would raise prices for consumers. They stressed that the bill would not lead to opposition to all mergers, only ones that the commission judges will give a provider dominant market power and lead to higher total medical expenses and higher than average prices for consumers.

Chairman of the Health Policy Commission Dr. Stuart Altman said the commission had not lobbied for the change. But, Altman said, "It makes sense in many dimensions."

"It essentially strengthens the linkages between us (and the Attorney General) in ways that I think are mutually beneficial," Altman said.

Altman said if the bill is passed, it would not change the way the commission conducts its investigations. "We like to believe we do a factual independent assessment of many of the major mergers and their implications," Altman said. "We were doing it before. We'll continue to do it."

Altman said the commission is not analyzing any mergers now that are at the level where they would be referred to the attorney general. But, he said, "Hopefully, (the bill) will be used in a way to make our system more competitive and hopefully lead to lower overall prices over future years."

Lora Pellegrini, president and CEO of the Massachusetts Association of Health Plans, said insurers support the bill because it is more likely to prevent situations where providers consolidate, then use their market clout to raise prices. "It makes it hard for health plans to negotiate contracts," Pellegrini said.

The Massachusetts Hospital Association has not yet taken a position on the bill.

"The bill substantially increases the authority of the Health Policy Commission and that is certainly worthy of public scrutiny and debate," said Hospital Association President and CEO Lynn Nicholas in a statement. "So we look forward to examining the proposed legislation and understanding the justification for the proposed increased power, how such power would be used, what benefits or potential unintended consequences it may lead to, and what assurances there will be that the rules for using it will be not only be fair to all, but also clear to all."

Nicholas pointed out that there are benefits of consolidation, because it can lead to improved care and greater efficiency. "During this critical time of change in healthcare, all share an interest in ensuring that providers are not sent confusing or mixed messages about the importance of integrating care and building networks of care," Nicholas said.

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