Section 83-2.2 - Certificate of Public Advantage

83-2.2 Certificate of Public Advantage.

(a) Effect. Parties that have received a Certificate of Public Advantage issued by the Department shall be provided state action immunity under federal antitrust laws and immunity from private claims under state antitrust laws and may negotiate, enter into, and conduct business pursuant to, a Cooperative Agreement or a planning process covered by a duly issued Certificate of Public Advantage. The Attorney General may seek relief under state antitrust law after:

(i) consulting with the Department, the mental hygiene agencies as appropriate, and the parties to the Certificate of Public Advantage; and

(ii) providing the parties with a reasonable opportunity to modify their conduct or Agreement, if the challenged conduct is inconsistent with or beyond the scope of the Certificate of Public Advantage or if the Attorney General determines that the anticompetitive effects of the parties’ conduct or business arrangement outweigh the benefits of the conduct or business arrangement.

(b) Application.

(1) Parties to a Cooperative Agreement or planning process may apply to the Department for a Certificate of Public Advantage governing that Cooperative Agreement or planning process. The application must be submitted in a format determined by the Department and shall be provided by the Department to the Attorney General and, as appropriate, the mental hygiene agencies.

(2) The application for a Certificate of Public Advantage governing a Cooperative Agreement must include a copy of the Cooperative Agreement, any related agreements or side letters (including a description of any related oral agreement), a description of the nature and scope of the activities and cooperation included in the Cooperative Agreement, a full description of any consideration passing to any party under the Cooperative Agreement and any additional documentation or information required by the Department.

(3) The application for a Certificate of Public Advantage governing a planning process must include a detailed letter of intent with respect to the potential Cooperative Agreement, a description of the nature and scope of the activities and cooperation likely to be included in the potential Cooperative Agreement and any additional documentation or information required by the Department.

(4) The applicants must supply any additional documentation or information requested by the Department within 30 days, or any other stated time frame of such request, or must obtain from the Department an extension of the time in which to provide such documentation or information which is requested during the review of the application. Any request for an extension of time shall set forth reasons why such documentation or information could not be obtained within the prescribed time. The granting of a request for an extension shall be at the discretion of the Department.

(5) Failure to provide such documentation or information within the time prescribed or as extended by the Department shall constitute an abandonment or withdrawal of the application without any further action from the Department, the Attorney General, mental hygiene agencies as appropriate, or the Public Health and Health Planning Council.

(c) To the extent that the Cooperative Agreement contemplates activities that are subject to certificate of need or other approval or notice submission requirements pursuant to law or regulation, the parties shall also submit the required applications or notices.

Effective Date: 
Wednesday, December 17, 2014
Doc Status: 
Complete