Tennessee Attorney General Seeks Applications, Nominations for COPA Monitor Role

The Hospital Cooperation Act of 1993, Tenn. Code Ann. §§ 68-11-1303, et seq. (the “Act”), establishes that “it is the policy of this State, in certain instances, to displace competition among hospitals with regulation... and to actively supervise that regulation to the fullest extent required by law, in order to promote cooperation and coordination among hospitals in the provision of health services and to provide state action immunity from federal and state antitrust law to the fullest extent possible to those hospitals issued a certificate of public advantage.”

On January 31, 2018, the Tennessee Department of Health (the “Department”) issued a Certificate of Public Advantage (the “COPA”) to Ballad Health, a Tennessee nonprofit public benefit corporation (“Ballad”) and the common parent entity of Mountain States Health Alliance, a Tennessee nonprofit public benefit corporation, and Wellmont Health System, a Tennessee nonprofit public benefit corporation.

As a condition to the issuance of the COPA, on January 31, 2018, the Department and the COPA Parties executed the Terms of Certification Governing the Certificate of Public Advantage Issued to Ballad Health Pursuant to the Cooperative Agreement (including all Exhibits and Addenda thereto, and as may be amended from time to time, the “TOC”), which, among other things, outlines the terms and conditions under which the Department, the Attorney General, and their respective appointed agents and independent contractors shall actively and continuously supervise Ballad to evaluate the existence of continued Public Advantage.

Since the issuance of the COPA in favor of Ballad, the State of Tennessee has engaged a COPA Monitor to assist the Department and the Attorney General in the active and continued supervision of Ballad, pursuant to the terms set forth in the TOC and the Act. The COPA Monitor is not an employee of the Department or the Attorney General. Rather, the Monitor serves as an independent consultant.

The State is accepting applications and referrals of persons who are interested or may be qualified to serve as the COPA Monitor. Interested persons should submit their curriculum vitae and a statement of interest and qualifications to kevin.kreutz@ag.tn.gov and chandler.jennings@ag.tn.gov.

The duties of the COPA Monitor are set forth in Exhibit F to the Terms of Certification, and include but are not limited to the following:

Reviewing reports from Ballad for completeness and compliance with the COPA and the terms of certification
Reviewing semi-annual reports of the COPA compliance officer concerning complaints related to the COPA or the terms of certification;
Conducting audits to verify information provided in required reports and/or to determine compliance with the COPA and terms of certification;
Reviewing and making recommendations to the commissioner concerning any requests for modification of any provision of the COPA and the terms of certification submitted by Ballad;
Reporting on a regular basis to the department any findings of noncompliance or any areas where Ballad is not achieving target outcomes and/or is failing to meet the index scores needed to demonstrate continued public advantage, along with any recommendations of enforcement mechanisms; and
Providing an annual report to the department within 30 days of the local advisory council report that should include index scores, updates on compliance with the COPA and the terms of certification, the status of existing corrective actions, any recommended enforcement mechanisms, any additional findings of the COPA monitor and any other information requested by the department.