OAR 410-141-3700: CCO Application and Contracting Procedures

(1) The Authority shall establish an application process for entities seeking contracts as CCOs, in conformity with this OAR 410-141-3700 and OAR 410-141-3705. The following definitions apply with respect to that application process: (a) “Applicant” means the entity submitting an application to be a CCO, or to enter into or amend a contract for coordinated care services; (b) “Application” means an applicant’s written response to a Request for Applications; (c) “Request for Applications (RFA)” means the document used for soliciting applications for a CCO, award of or amendment of a CCO services contract, or other objectives as the Authority may determine appropriate for procuring coordinated care services. (2) The Authority shall use the following RFA processes for CCO procurement and contracting: (a) The Authority shall provide public notice of every RFA on its website in a readily accessible manner. The RFA shall indicate how prospective applicants are made aware of addenda by posting notice of the RFA on the electronic system for notification to the public of Authority procurement opportunities or, upon request, by mailing notice of the availability of the RFA to persons that have expressed interest in the RFA; (b) The RFA process shall begin with a public notice that shall be communicated using the OregonBuys website, or a successor website utilized by the state. A public notice of an RFA shall identify the services the Authority is seeking, the designated service areas where services are requested, sample contracts, and how potential applicants can keep informed of RFA updates; (c) The RFA may specify that applicants must submit a letter of intent to the Authority within the specified time period. The letter of intent does not commit any applicant to apply. If a letter of intent is required, the Authority may not consider applications from applicants who fail to submit a timely letter of intent except as provided in the RFA; (d) The RFA may request applicants to appear at a public meeting to provide information about the application; (e) The RFA shall include, at a minimum, the elements required under OAR 410-141-3705, and shall request information from applicants to allow the Authority to engage in appropriate state supervision necessary to promote state action immunity under state and federal antitrust laws; (f) The Authority shall consider only applications that are responsive, completed as described in the RFA, and submitted in the time and manner described in the RFA. The RFA may require electronic submission of the application in accordance with OAR 137-047-0330, Electronic Procurements. If an electronic procurement process is used, applications shall be accepted only from applicants who accept the terms and conditions of the electronic method being used for application submission. (3) Readiness Reviews: (a) The Authority shall have discretion whether to have a readiness review process unless otherwise required by law and require successful completion of the readiness review as a condition to contracting; (b) If the Authority chooses to have a readiness review process and require successful completion as a condition to contracting, the process shall be described in the underlying procurement document or otherwise communicated to respondents during the procurement process; (c) Readiness review shall include those areas required by law and may also include other topics identified by the Authority; (d) The Authority reserves the right to request to provide updated information gleaned during the readiness review process throughout the term of the resulting contract(s) as needed for compliance monitoring and performance reviews. (4) The Authority shall determine that organizations meet the criteria for being CCOs as follows: (a) The Authority shall issue CCO contracts only to applicants that meet the criteria in OAR 410-141-3705, meet the RFA requirements, and provide the assurances specified in the RFA. The Authority shall determine if the applicant qualifies for being a CCO based on the application and any additional information and investigation that the Authority may require; (b) The Authority shall notify each applicant that applies for CCO status if it meets the criteria for being a CCO; (c) In selecting one or more CCOs to serve a geographic area, the Authority shall: (A) For members and potential members, optimize access to care and choice of providers, and where possible choice among CCOs; (B) For providers, optimize choice in contracting with CCOs; and (C) Allow more than one CCO to serve the geographic area if desirable to optimize access and choice under this subsection. (d) The Authority may determine that an applicant is potentially eligible for a CCO contract in accordance with paragraph (f) below. The Authority is not obligated to determine whether an applicant is potentially eligible for a CCO contract if, in its discretion, the Authority determines that sufficient applicants eligible for a CCO contract are available to attain the Authority’s objectives under the RFA; (e) The Authority may determine that an applicant is potentially eligible for a CCO contract if: (A) The Authority finds that the applicant is reasonably capable of meeting the operational and solvency requirements of the RFA within a specified period; and (B) The applicant enters into discussions with the Authority about areas of qualification that must be met before the applicant is operationally and financially eligible for a CCO contract. The Authority shall determine the date and required documentation and written assurances required from the applicant; (C) If the Authority determines that an applicant potentially eligible for a CCO contract does not meet the criteria for a CCO contract within the time announced in the RFA for contract award, the Authority may: (i) Offer a CCO contract at a future date to a potentially eligible CCO that the Authority identified during the same period it made the determination for all other applicants (as described in subsections (a) – (c) and (f) of this section (4) of this rule) to a specific RFA. The offer of a CCO contract at a future date that is permitted under this rule shall be subject to the potentially eligible CCO applicant demonstrating to the Authority’s satisfaction that the applicant is eligible for a CCO contract within the scope of and subject to the requirements of the RFA; or (ii) Inform the applicant that it is not eligible for a CCO contract. (f) The Authority shall enter into a new contract(s) or contract renewal with a CCO only if the CCO meets the criteria for being a CCO and the Authority determines that the contract(s) would be within the scope of the RFA and consistent with the purposes and effective administration of the Oregon Integrated and Coordinated Health Care Delivery System that includes but is not limited to: (A) The capacity of any existing CCO in the region compared to the capacity of an additional CCO for the number of potential enrollees in the addenda; and (B) The number of CCOs in the region. (5) The application is the applicant’s offer to enter into a contract(s) and is a firm offer for the period specified in the RFA. The Authority’s award of the contract(s) constitutes acceptance of the offer and binds the applicant to the contract: (a) Except to the extent the applicant is authorized to propose certain terms and conditions pursuant to the RFA, an applicant may not make its offer contingent on the Authority’s acceptance of any terms or conditions other than those contained in the RFA; (b) The Authority may enter into negotiation with applicants concerning potential capacity and enrollment in relation to other available or potentially available capacity, the number of potential enrollees within the service area, and other factors identified in the RFA; (c) The Authority may award multiple contracts or make a single award or limited number of awards to meet the Authority’s needs, including but not limited to adequate capacity for the potential enrollees in the service area, maximizing the availability of coordinated care services, and achieving the objectives in the RFA; and (d) Subject to any limitations in the RFA, the Authority may execute a contract renewal for CCO services by amending an existing contract or issuing a replacement contract without issuing a new RFA. (6) Disclosure of application contents and release of information: (a) Except for the letter of intent to apply, information may not be disclosed to any applicant or the public until the award date, unless otherwise specified in the RFA and allowed by law. The “award date” refers to the date on which the Authority acts on the applications by issuing or denying certification and by awarding or not awarding contracts. No information may be given to any applicant or the public relative to its standing with other applicants before the award date except under the following circumstances: (A) The information in the application may be shared with the Authority, DCBS, Oregon Health Insurance Marketplace, PEBB, OEBB, PERS, CMS, and those individuals involved in the application review and evaluation process; and (B) Information may be provided by the applicant to the public as part of a public review process. (b) Application information may be disclosed on the award date, except for information that has been clearly identified and labeled confidential in the manner specified in the RFA if the Authority determines it meets the disclosure exemption requirements. (7) The Authority shall interpret and apply this rule to satisfy federal procurement and contracting requirements in addition to state requirements applicable to contracts with CCOs. The Authority must seek and receive federal approval of CCO contracts funded by federal funds. (8) Except where inconsistent with the preceding sections of this rule, the Authority adopts the following Department of Justice (DOJ) Model Public Contract Rules (as in effect on June 30, 2018) to govern RFAs and contracting with CCOs: (a) General Provisions Related to Public Contracting: OARs 137-046-0100, 137-046-0110, and 137-046-0400 through 137-046-0480; (b) Public Procurements for Goods or Services: OARs 137-047-0100, 137-047-0260 through 137-047-0670, 137-047-700 to 137-047-0760 (excluding provisions governing judicial review), and 137-047-0800; (c) In applying the DOJ Model Rules to RFAs under this rule: (A) An application is a proposal under the DOJ Model Rules; (B) An RFA is an RFP under the DOJ Model Rules; (C) Certification as a CCO is pre-qualification under the DOJ Model Rules if the Authority requires certification as a condition to contract; (D) Provisions of the Public Contracting Code referenced in the DOJ Model Rules are incorporated herein; (E) Definitions in the DOJ Model Rules govern this rule except where a term is defined in section (1) of this rule. (9) Judicial review of the Authority’s decisions relating to a solicitation protest, certification, or contract award is governed by the Oregon Administrative Procedures Act (APA). The RFA may establish when an Authority decision may be considered a final order for purposes of APA review.