Section 33-03-31-05 - Departmental review1.Decision. The department shall issue a decision consisting of findings of fact and conclusions of law on the application for a certificate and an order either approving the application, not approving it, or approving it subject to terms and conditions. The decision of the department must be based upon the record, which must consist of all information and documentation filed with the department by the applicants and any interested persons in the proceeding, including responses to the department's information requests and testimony presented at the public hearing. 2.Criteria applicable to applications. North Dakota Century Code section 23-17.5-03 sets forth the standards by which the department is to measure whether the likely benefits to health care consumers resulting from the cooperative agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement. a. Potential benefits. In evaluating the potential benefits to health care consumers from a cooperative agreement, the department may consider the following criteria: (1) Enhancement of the quality of health care services. The department may consider the likely effect of the cooperative agreement on patient or client outcomes. The department may consider the standards and criteria used by the applicable professional accreditation or certification agencies or bodies or any other generally accepted quality measures. (2) Geographical proximity of health care facilities to the communities traditionally served. The department may consider the extent to which the cooperative agreement is likely to: (a) Make a new health care service or product available in a particular geographic area. (b) Prevent the closing or substantial downsizing of a health care facility or the elimination or reduction of a health care service that would otherwise be likely to occur without the cooperative agreement. (c) Preserve health care facilities or services in one community at the expense of health care facilities or services in another community. (3) Gains in cost efficiency. The department may consider the extent to which the proposed cooperative agreement is likely to result in: (a) Any cost savings to the applicants. (b) Any cost savings being passed on to the health care consumer. (c) Cost shifting through higher prices to other payers or purchasers of other products and services. (d) Reduced costs of regulation, both for the state and the applicants. (e) Any other result likely to reduce costs to health care consumers. (f) The extent to which any cost savings will be obtained at the expense of a degradation of the quality of medical products or services. (4) Improvements in the utilization of health care resources and equipment. (5) Avoidance of duplication of health care resources. The department may consider: (a) The extent to which the same or substitute products or services are available in the same community or geographic market. (b) Any excess capacity in the provision of the same or substitute products and services existing within the same community or geographical market. b. Potential disadvantages. In evaluating the disadvantages attributable to a reduction in competition that may result from a cooperative agreement, the department may consider: (1) The relevant product and geographic markets to which the agreement will be administered. In determining the relevant markets, the department may take into account elasticities of supply and demand and the ability of a hypothetical monopolist to profitably reduce output and increase price in a small but significant and nontransitory manner. (2) The existing market shares in the relevant product and geographic markets of the applicants, as well as any other parties operating within those markets. (3) The presence of actual or potential market entrants and ease or difficulty of market entry into the relevant product and geographic markets. (4) Whether or not the agreement results in the creation of a new product or one previously unavailable in the relevant geographic market. (5) The reasonably anticipated effect of the agreement on existing market structure. (6) The ways, if any, the agreement will promote competition in the relevant product and geographic markets. c. Conflict between objectives. In the event there is a conflict between or among the statutory standards for certification when applied to an application, the department shall address the conflict in its decision and state the reasons supporting the manner in which the department resolves the conflict. N.D. Admin Code 33-03-31-05
General Authority: NDCC 23-01-03, 28-32-02
Law Implemented: NDCC 23-17.5-02, 23-17.5-03