President and
Chief Executive Officer / October 7, 2016
Commissioner Monica Bharel, MD, MPH
Massachusetts department of Public Health
250 Washington Street
Boston, MA
105 CMR 100.000: Determination of Need
Dear Commissioner Bharel,
On behalf of our physicians, nurses, caregivers and the entire Beth Israel Deaconess Medical Center (BIDMC) community, I am writing to express our appreciation to you and the Department of Public Health (Department) staff for an extraordinary and historic effort to redraft the critical Determination of Need (DoN) regulations and to ensure that the proposed regulations capture the ongoing vision and promise of health care reform in Massachusetts.
We thank you for the opportunity to provide comments and particularly appreciated your early outreach efforts to the broader hospital and provider communities to learn more about the challenges we face in an era of tremendous change and delivery system transformation throughout health care.
We are grateful that many of the suggestions proposed by the hospital community were incorporated into the Department’s draft regulations, and we look forward to offering some additional thoughts below.
Systems of Care
We appreciate the Department’s focus on health systems and your intent to understand the broader needs of various health systems and the patients we are privileged to serve. We have offered some clarifications to the definitions for the Department’s consideration, in order to ensure that BIDMC may file DoN applications for BIDMC and for our community hospital affiliates, given our unique corporate organization and the limitations of our ACO, Beth Israel Deaconess Care Organization (BIDCO).
Ambulatory Surgery Centers
We are grateful that the Department’s proposal contemplates renewed opportunities for our community hospitals and the opportunity for new clinical partnerships between hospitals, physician groups and ambulatory surgery centers. These partnerships have been critical to our delivery system transformation efforts, and have benefitted our patients throughout the Commonwealth. We look forward to working with the Department to ensure continued stability of our low-cost, high value community providers; to foster greater opportunities for high quality patient care and services in these low-cost community settings; and to review the range of options for such clinical affiliations. It is especially important that our commitment to serving patients who rely on MassHealth and those without health insurance or ability to pay is recognized and considered as these regulations are further developed.
Mergers and Acquisitions
We strongly support the Department’s efforts to align two government regulatory processes that are critical to providers as we seek to expand our clinical affiliations and partnerships in a number of different ways.
We respectfully suggest, however, that in response to a Cost and Market Impact Review (CMIR) by the Health Policy Commission (HPC), that the Department take action only in those circumstances in which the HPC’s findings require a referral of their report to the Office of the Attorney General (AGO); that any action by the Department must also take into account any subsequent action by the AGO; and that the Department’s response to such report or action by the AGO should be reflected, in the Department’s discretion, as additional conditions associated with the DoN.
It is important both to provider organizations and the Department that clear and objective standards govern this aspect of the proposed DoN process.
It also ensures that the Department and the Commonwealth are appropriately focused on those transactions that have been referred to the Office of the Attorney General due to a strong likelihood of significant adverse consequences in the market as determined by key HPC findings: that the provider organization is found to have a dominant market share for the services it provides; that it charges prices for services that are materially higher than the median prices charged by all other providers for the same services in the same market; and that the provider has a health status adjusted total medical expense (TME) that is materially higher than the median TME for all other providers for the same service in the same market.
Conservation Projects
We are grateful to the Department for recognizing the number of deferred maintenance projects undertaken by hospitals, and strongly support the Department’s proposal to eliminate such projects from the DoN program. We urge the Department to consider our obligations to “modernize” to some extent by bringing such projects up to code and into compliance with key building guidelines whenever possible and appropriate.
Review and Analysis of Need
We appreciate the Department’s reduction of DoN factors and support the Department’s vision of a more streamlined application process that is relevant to the current environment and creates greater accountability from provider organizations to the Commonwealth and the public. As health care delivery systems continue to take shape in our Commonwealth, however, and market dynamics continue to re-align clinical affiliations and shift more care to appropriate and lower-cost settings, we urge the Department to broaden its view to extend beyond current patient panels and to consider those opportunities for lower cost providers to identify and serve the unmet medical and behavioral health needs of patients in communities across the Commonwealth.
Mandatory Conditions of Approval
As noted above, we strongly agree with the Department’s efforts to ensure greater accountability to the Department and the Commonwealth on the terms and conditions of an approved DoN project. We respectfully urge the Department, however, to engage in continued dialogue and collaboration with providers in order to achieve our shared goals, while limiting more punitive action and monetary penalties to provider organizations that fail to act in good faith with respect to their obligations and commitments under the DoN.
Community Health Initiatives (CHIs)
As the Department embarks on a series of listening sessions on CHIs and community engagement, we look forward to continued dialogue and participation in those discussions. We are strongly supportive of the Department’s goal of meeting statewide health priorities, while also recognizing the underlying needs of the communities we serve as identified in our Community Health Needs Assessments (CHNAs) and implemented through our community benefit programs. From a public health perspective, this is the most critical aspect of a successful DoN program, and we are enormously excited about the potential for deeper alignment between statewide and community goals. We are particularly grateful for the Department’s desire to respond to the social determinants of health in our Commonwealth, and we look forward to working with the Department as sub-regulatory guidance is developed.
At this juncture, it is important to note that the administrative demands on community benefit programs is intensifying given our current program requirements and reporting obligations. It is critical that the Department continue to work with the provider community to ensure that precious community benefit resources are not unnecessarily diverted to administrative expenses in order to allow providers to meet significant new regulatory requirements. We are hopeful that the Department will work with the provider community in the coming days on creative and innovative solutions that reduce significant administrative inefficiencies across the health care sector, increase transparency throughout this process, and accomplish our shared public health goals.
Concluding Thoughts
In closing, we want to thank the Department for the great number of provisions in the proposed regulation that directly respond to concerns that have been expressed by hospitals over many years. We also wish echo many of the comments, suggestions and concerns expressed to the Department by our industry partners, including the Conference of Boston Teaching Hospitals (COBTH), the Massachusetts Hospital Association (MHA), and the Massachusetts Council of Community Hospitals (MCCH).
We look forward to working with you and all the key stakeholders to re-design and implement a Determination of Need (DoN) program that is a model for the nation and reflects the enormous strides we have made in achieving the promise of health care reform in the Commonwealth.
Again, thank you for the opportunity to comment, and we look forward to working with you and the Department staff in the coming days and weeks.
Very truly yours,
Kevin Tabb, MD
Attachments
ATTACHMENT
100.100: Definitions
Applicant means the Provider Organization that files the application for determination of need with the Department for, or on behalf of, the health care Entity seeking a Notice of Determination of Need for a proposed project pursuant to 105 CMR 100.000. In instances where there is no Provider Organization, or where the Provider Organization is owned, completely or partially, directly or indirectly, by such Entity, “Applicant” shall mean the health care Entity which files the application for determination of need with the Department for itself, or on behalf of an Affiliate seeking a notice of determination of need for a proposed project pursuant to 105 CMR 100.000.
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