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|[ Senate Amendment 001 ]||[ Senate Amendment 002 ]|
91_SB0646ham001 LRB9105880DHdvam02 1 AMENDMENT TO SENATE BILL 646 2 AMENDMENT NO. . Amend Senate Bill 646 as follows: 3 by replacing everything after the enacting clause with the 4 following: 5 "Section 5. The Illinois Health Facilities Planning Act 6 is amended by adding Sections 13.5, 13.9, 13.10, 13.15, 7 13.20,13.25, 13.30, 13.35, 13.40, 13.45, 13.50, 13.55, 13.60, 8 13.65, 13.70, 13.75, and 13.80 as follows: 9 (20 ILCS 3960/13.5 new) 10 Sec. 13.5. Health care cooperative agreements. The 11 General Assembly finds that the goals of controlling health 12 care costs and improving the quality of and access to health 13 care services will be significantly enhanced by cooperative 14 arrangements involving providers that would be prohibited by 15 State and federal antitrust laws if undertaken without 16 governmental involvement. The purpose of Sections 13.5 17 through 13.80 is to substitute regulation for competition by 18 creating an opportunity for the State to review proposed 19 arrangements and to approve them under certain prescribed 20 conditions and circumstances when an arrangement is likely to 21 result in lower costs, or greater access or improved quality, -2- LRB9105880DHdvam02 1 than would otherwise occur in the competitive health care 2 marketplace. The General Assembly intends that approval of 3 relationships be accompanied by appropriate conditions, 4 supervision, and regulation to protect against private abuses 5 of economic power, and that an arrangement or relationship 6 approved by the State Board and accompanied by appropriate 7 conditions, supervision, and regulation shall not be subject 8 to State or federal antitrust liability. The General 9 Assembly finds that the market for health care services is 10 extremely diverse in Illinois. Some parts of Illinois are 11 national destinations for tertiary health care services and 12 receive patients from throughout the United States and the 13 Western Hemisphere. Other regions of Illinois have 14 extraordinary rates of outmigration, with residents traveling 15 hundreds of miles, often out-of-state, for care. Providing 16 health care close to home is medically useful to a patient's 17 recovery, because visits of families and friends can improve 18 a patient's psycho-social capacity to cope with disease. 19 Providing incentives to increase quality care in areas 20 without it is desirable. 21 (20 ILCS 3960/13.9 new) 22 Sec. 13.9 Regional application. The provisions of this 23 law shall apply to any region in Illinois where the following 24 healthcare conditions exist: 25 (1) in any area of at least 25 contiguous counties 26 containing at least 20 facilities licensed under the 27 Hospital Licensing Act; and 28 (2) where during the calendar year preceding the 29 effective date of this amendatory Act of the 91st General 30 Assembly, no health care facility has been approved or 31 received a permit to establish neo-natal intensive care, 32 open-heart surgery, level-one trauma, or organ 33 transplantation; and -3- LRB9105880DHdvam02 1 (3) where at least 50% of residents receiving 2 open-heart surgery procedures at Illinois hospitals must 3 travel at least 75 miles; and 4 (4) where no Illinois university with a medical 5 school has a primary medical school campus within 100 6 miles of the most distant point in the region. 7 (20 ILCS 3960/13.10 new) 8 Sec. 13.10. Definitions. For the purposes of Sections 9 13.5 through 13.80, these terms are defined as follows: 10 "Access" means the financial, temporal, and geographic 11 availability of health care to individuals who need it. 12 "Applicant" means the party or parties to a cooperative 13 agreement for which a permit from the State Board is sought 14 under Sections 13.5 through 13.80. 15 "Cooperative Agreement" means an agreement among 2 or 16 more health care providers for the sharing, allocation, or 17 referral of patients, personnel, instructional programs, 18 support services, or facilities or medical, diagnostic, or 19 laboratory facilities or procedures or other services 20 customarily offered by health care providers or for any other 21 purpose authorized by the Illinois Health Facilities Planning 22 Act, including mergers, consolidations, or other 23 acquisitions. Only the following categories of cooperative 24 agreements shall be eligible for the anti-trust exemption and 25 immunity conferred under Sections 13.5 through 13.80 of this 26 Act: (1) agreements among 2 or more hospitals, provided that 27 the county medical society of each hospital is also a party 28 to the agreement; (2) agreements between or among physicians, 29 provided that one or more hospitals is also a party to or 30 third-party beneficiary of the agreement; and (3) multiple 31 agreements between or among classes of providers, provided 32 that such agreements are related to the provision of health 33 care services which is the subject of an agreement between or -4- LRB9105880DHdvam02 1 among 2 or more hospitals or that one or more hospitals is a 2 third-party beneficiary to such agreements. 3 "Cost" or "cost of health care" means the amount paid by 4 consumers or third-party payers for health care services or 5 products. 6 "Criteria" means the cost, access, and quality of health 7 care. 8 "Health care products or services" means products sold or 9 tertiary care services and such other primary, secondary, or 10 other health care services designed to facilitate the 11 provision of tertiary care rendered by a health care provider 12 within the scope of its license. 13 "Health care provider" or "provider" means any person 14 licensed by the State under: the Medical Practice Act of 15 1987; the Nursing and Advanced Practice Nursing Act; the 16 Respiratory Care Practice Act; the Illinois Dental Practice 17 Act; the Illinois Occupational Therapy Practice Act; the 18 Illinois Physical Therapy Act; the Hospital Licensing Act; 19 the Nursing Home Care Act; or the Ambulatory Surgical 20 Treatment Center Act. 21 "Person" means an individual, legal entity or affiliate. 22 "State Board" means the Illinois Health Facilities 23 Planning Board. 24 "Permitholder" means the party or parties to a 25 cooperative agreement for which a permit from the State Board 26 has been approved under Sections 13.5 through 13.80. 27 "Tertiary care" means the class of health care services 28 for the evaluation, diagnosis, and advanced treatment of any 29 disease. This includes but is not limited to congenital 30 anomalies, medical and surgical conditions, psychiatric 31 diagnosis, both normal and abnormal aging processes, and 32 trauma induced conditions. 33 (20 ILCS 3960/13.15 new) -5- LRB9105880DHdvam02 1 Sec. 13.15. Health care cooperative agreements and 2 goals. Acting by their boards of directors or boards of 3 trustees or as individuals, 2 or more health care providers 4 may enter into a cooperative agreement concerning the 5 allocation of health care equipment or health care services 6 among those health care providers that shall be designed to 7 achieve one or more of the following goals: 8 (1) Reducing health care costs for consumers. 9 (2) Improving access to health care services in 10 Illinois. 11 (3) Improving the quality of patient care in 12 Illinois. 13 (20 ILCS 3960/13.20 new) 14 Sec. 13.20. Approval of health care cooperative 15 agreements. 16 (a) Health care providers seeking to implement a 17 cooperative agreement that might be construed to be a 18 violation of State or federal antitrust laws but which is in 19 the best interest of the State and furthers the policies and 20 goals of this Act may apply for a permit from the State Board 21 as provided in this Section. This permit shall be in 22 addition to any permit or exemption required under any other 23 provisions of this Act. Nothing in this Act shall be 24 construed as requiring a health care provider to obtain 25 approval from the State Board of any cooperative agreement. 26 The decision to seek State Board approval of a cooperative 27 agreement shall be in the sole discretion of the health care 28 providers. No cooperative agreement between health care 29 providers implemented without first obtaining approval from 30 the State Board as provided in this Section shall be eligible 31 for any protection or immunity created by Section 13.65. 32 (b) Applications for a permit shall be in a form 33 prescribed by the State Board but shall contain at least the -6- LRB9105880DHdvam02 1 following: 2 (1) a descriptive title; 3 (2) a table of contents; 4 (3) names of each party to the application and the 5 address of the principal business office of each party; 6 (4) the name, address, and telephone number of the 7 persons authorized to receive notices and communications 8 with respect to the application; 9 (5) a verified statement by a responsible officer of 10 each party to the application attesting to the accuracy 11 and completeness of the enclosed information; 12 (6) background information relating to the proposed 13 agreement, including: 14 (A) a description of the proposed agreement, 15 including a list of any health care equipment or 16 health care services that are subject of the 17 proposed agreement; 18 (B) an identification of any tangential 19 equipment or services associated with the equipment 20 or services that are the subject of the proposed 21 agreement; 22 (C) a description of the geographic territory 23 involved in the proposed arrangement; 24 (D) if the geographic territory described in 25 item is different from the territory in which the 26 applicants have engaged in the type of business at 27 issue over the last 5 years, a description of how 28 and why the geographic territory differs; 29 (E) identification of all equipment or services 30 that a substantial share of consumers would consider 31 substitutes for an equipment or service that is the 32 subject of the proposed agreement; 33 (F) identification of whether any equipment or 34 services of the proposed agreement are currently -7- LRB9105880DHdvam02 1 being offered, capable of being offered, utilized, 2 or capable of being utilized by other providers or 3 purchasers in the geographic territory described in 4 item (C); 5 (G) identification of the steps necessary, 6 under current market and regulatory conditions, for 7 other parties to enter the territory described in 8 item (C) and compete with the applicant; 9 (H) a description of the previous history of 10 dealings between the parties to the application; 11 (I) a detailed explanation of the projected 12 effects, including expected volume, change in price, 13 and increased revenue, of the agreement on each 14 party's current businesses, both generally and the 15 aspects of the business directly involved in the 16 proposed agreement; 17 (J) the present market share of the parties to 18 the application and of others affected by the 19 proposed agreement and projected market shares after 20 implementation of the proposed agreement; 21 (K) a statement of why the projected levels of 22 cost, access, or quality could not be achieved in 23 the existing market without the proposed agreement; 24 (L) an explanation of how the agreement relates 25 to any Illinois healthcare plans for delivery of 26 health care; and 27 (M) a statement of any consideration received 28 or to be received by any party under the proposed 29 agreement; 30 (7) a detailed explanation or implementation plan 31 that states how and when the cooperative action 32 identified in the agreement will meet one or more of the 33 goals specified in Section 13.15, including how the 34 cooperative action will affect costs, access, and -8- LRB9105880DHdvam02 1 quality. The explanation must address the factors in 2 subsections (b), (c), and (d) of Section 13.35 to the 3 extent applicable; 4 (8) an explanation of the impact the agreement is 5 likely to have directly on the State, including the cost 6 of State employee health care, Medicaid costs, and 7 workers compensation costs; 8 (9) a copy of the proposed agreement; and 9 (10) a fee determined by the State Board, but in an 10 amount sufficient to cover the cost of processing 11 applications and the cost of periodic reviews and 12 supervision of the implementation of cooperative 13 agreements under Section 13.5. 14 (c) In addition to the information required in subsection 15 (b), the application must contain a written description of 16 the proposed agreement for purposes of publication in the 17 Illinois Register. The notice must include sufficient 18 information to advise the public of the nature of the 19 proposed arrangement and to enable the public to provide 20 meaningful comments concerning the expected results of the 21 agreement. The notice must also state that any person may 22 provide written comments to the State Board, with a copy to 23 the applicant, within 20 days after the notice's publication. 24 The State Board shall approve the notice before publication. 25 If the State Board determines that the submitted notice does 26 not provide sufficient information, the State Board may amend 27 the notice before publication and may consult with the 28 applicant in preparing the amended notice. The State Board 29 shall not publish an amended notice without the applicant's 30 approval. 31 (d) For a proposed agreement involving multiple parties, 32 one joint application must be submitted on behalf of all 33 parties to the agreement. 34 (e) Trade secret information, as defined in the Freedom -9- LRB9105880DHdvam02 1 of Information Act, shall be protected to the extent required 2 under that Act. 3 (f) State Board's authority to refuse to review. 4 (1) If the State Board determines that an 5 application is unclear, incomplete, or provides an 6 insufficient basis on which to base a decision, the State 7 Board may return the application. The applicant may 8 complete or revise the application and resubmit it. 9 (2) The State Board may decline to review any 10 application relating to arrangements already in effect 11 before the submission of the application. However, the 12 State Board shall review any application if the review 13 is expressly provided for in a settlement agreement 14 entered into before the enactment of this Section by the 15 applicant and the Attorney General. 16 (g) Upon the showing of good cause, the State Board may 17 extend any of the time limits stated in Sections 13.5 through 18 13.80 at the request of the applicant or the Attorney 19 General. 20 (h) No application for permit to implement a cooperative 21 agreement shall be accepted by the State Board under Sections 22 13.5 through 13.80 of this Act after June 30, 2001. 23 (20 ILCS 3960/13.25 new) 24 Sec. 13.25. Notice and comment. 25 (a) The State Board shall cause the notice described in 26 subsection (c) of Section 13.20 to be published in the 27 Illinois Register. The State Board may send a copy of the 28 notice to any person together with a request that the person 29 comment as provided under subsection (b). Copies of the 30 request must be provided to the applicant. 31 (b) Within 20 days after the notice is published, any 32 person may mail to the State Board written comments with 33 respect to the application. Persons submitting comments -10- LRB9105880DHdvam02 1 shall provide a copy of the comments to the applicant. The 2 applicant may mail to the State Board written responses to 3 any comments within 10 days after the deadline for mailing 4 such comments. The applicant shall send a copy of the 5 response to the person submitting the comment. 6 (20 ILCS 3960/13.30 new) 7 Sec. 13.30. Attorney General; review; recommendation. 8 (a) Upon receipt of an application for permit to 9 implement a cooperative agreement, the State Board shall 10 submit the application to the Attorney General for review. 11 The Attorney General may review the application and may 12 recommend to the State Board, in writing, the approval or 13 denial of the application. If the Attorney General 14 recommends to the State Board the denial of an application, 15 the Attorney General shall state the reasons for that 16 recommendation. 17 (b) The State Board shall consider any recommendation by 18 the Attorney General in deciding whether to approve or deny 19 the application. 20 (20 ILCS 3960/13.35 new) 21 Sec. 13.35. Criteria for issuance of permit. 22 (a) The State Board may issue a permit to implement a 23 cooperative agreement if the State Board determines that the 24 applicant has demonstrated by clear and convincing evidence 25 that: 26 (1) one or more of the goals specified in Section 27 13.15 are more likely to be met by implementing the 28 proposed cooperative agreement than would otherwise occur 29 under existing market conditions or conditions likely to 30 develop without an exemption or immunity from State and 31 federal antitrust law; and 32 (2) that the benefits resulting from the agreement -11- LRB9105880DHdvam02 1 are likely to outweigh the disadvantages that may result 2 from the agreement, and that predatory pricing will not 3 occur. In the event that a proposed arrangement appears 4 likely to improve one or more of the criteria at the 5 expense of another one or more of the criteria, the State 6 Board shall consider whether the proposed arrangement, 7 taken as a whole, is likely to substantially further the 8 purposes of this Act. In making such a determination, 9 the State Board may employ a cost-benefit analysis. 10 (3) In making a determination about cost, access, 11 and quality, the State Board may consider the following 12 factors, to the extent relevant: 13 (A) whether the proposal is compatible with 14 cost containment or plans of the State Board. 15 (B) market structure: 16 (i) actual and potential sellers and 17 buyers or providers and purchasers; 18 (ii) actual and potential consumers; 19 (iii) geographic market area; 20 (iv) new delivery mechanisms; and 21 (v) entry conditions; 22 (C) current market conditions; 23 (D) the historical behavior of the market; 24 (E) performance of other similar arrangements; 25 (F) whether the proposal unnecessarily 26 restrains competition or restrains competition in 27 ways not reasonably related to the purposes of this 28 Act; 29 (G) whether competition as it currently exists 30 in the market is likely to produce better results in 31 terms of cost, access and quality; and 32 (H) the financial condition of the applicant. 33 (b) The State Board's analysis of cost must focus on the 34 individual consumer of health care. Cost savings to be -12- LRB9105880DHdvam02 1 realized by providers, health carriers, group purchasers, or 2 other participants in the health care system, are relevant 3 only to the extent that the savings are likely to be passed 4 on to the consumer. Where an application is submitted by 5 providers who are paid primarily by third party payers 6 unaffiliated with the applicant, however, it is sufficient 7 for the applicant to show that cost savings are likely to be 8 passed on to the unaffiliated third party payers; the 9 applicants do not have the burden of proving that third party 10 payers with whom the applicants are not affiliated will pass 11 on cost savings to individuals receiving coverage through the 12 third party payers. In making determinations as to costs, 13 the State Board may consider, among others: 14 (1) the cost savings likely to result to the 15 applicant; 16 (2) the extent to which the cost savings are likely 17 to be passed on to the consumer and in what form; 18 (3) the extent to which the proposed arrangement is 19 likely to result in cost shifting by the applicant on to 20 other payers or purchasers of other products or services; 21 (4) the extent to which the cost shifting by the 22 applicant is likely to be followed by other persons in 23 the market; 24 (5) the current and anticipated supply and demand 25 for any products or services at issue; 26 (6) the representations and guarantees of the 27 applicant and their enforceability; 28 (7) likely effectiveness of regulation by the State 29 Board; 30 (8) inferences to be drawn from market structure; 31 (9) the cost of regulation, both for the State and 32 for the applicant; and 33 (10) any other factors tending to show that the 34 proposed arrangement is or is not likely to reduce cost. -13- LRB9105880DHdvam02 1 (c) In making determinations as to access, the State 2 Board may consider, among others: 3 (1) the extent to which the utilization of needed 4 health care services or products by the intended targeted 5 population is likely to increase or decrease; when a 6 proposed arrangement is likely to increase access in one 7 geographic area, by lowering prices or otherwise 8 expanding supply, but limits access in another geographic 9 area by removing service capabilities from that second 10 area, the State Board shall articulate the criteria 11 employed to balance these effects; 12 (2) the extent to which the proposed arrangement is 13 likely to make available a new and needed service or 14 product to a certain geographic area; and 15 (3) the extent to which the proposed arrangement is 16 likely to otherwise make healthcare services or products 17 more financially or geographically available to persons 18 who need them. If the State Board determines that the 19 proposed arrangement is likely to increase access and 20 bases that determination on a projected increase in 21 utilization, the State Board shall also determine and 22 make a specific finding that the increase in utilization 23 does not reflect overutilization. 24 (d) In making determinations as to quality, the State 25 Board may consider, among others, the extent to which the 26 proposed arrangement is likely to: 27 (1) decrease morbidity and mortality; 28 (2) result in faster convalescence; 29 (3) result in fewer hospital days; 30 (4) permit providers to attain needed experience or 31 frequency of treatment, likely to lead to better 32 outcomes; 33 (5) increase patient satisfaction; 34 (6) results in modern health care facilities; and -14- LRB9105880DHdvam02 1 (7) have any other features likely to improve or 2 reduce the quality of health care. 3 (20 ILCS 3960/13.40 new) 4 Sec. 13.40. Decision. 5 (a) The State Board shall issue a written decision 6 approving or denying the application for permit. The State 7 Board may condition approval on a modification of all or part 8 of the proposed arrangement to eliminate any restriction on 9 competition that is not reasonably related to the goals of 10 reducing cost or improving access or quality. The State 11 Board may also establish conditions for approval that are 12 reasonably necessary to protect consumers against predatory 13 pricing, insufficient competition, or other abuses of private 14 economic power and to ensure that the arrangement is 15 appropriately supervised and regulated by the State. 16 (b) The State Board's decision shall make specific 17 findings of fact concerning the cost, access, and quality 18 criteria and identify one or more of those criteria as the 19 basis for the decision. 20 (c) A decision approving an application for permit shall 21 require the submission of specific data and reports 22 concerning the implementation of the agreement, including how 23 the agreement is accomplishing its goals, data relating to 24 cost, access, and quality, and to the extent feasible, 25 identify objective standards of cost, access, and quality by 26 which the success of the arrangement will be measured. If 27 the State Board determines that the scope of a particular 28 proposed arrangement is such that the arrangement is certain 29 to have neither a positive or negative impact on one or 2 of 30 the criteria, however, the State Board's decision need not 31 require the submission of data or establish an objective 32 standard relating to those criteria. The submission of the 33 data and reports shall be required at least annually. The -15- LRB9105880DHdvam02 1 Attorney General shall receive copies of any reports received 2 by the State Board. 3 (20 ILCS 3960/13.45 new) 4 Sec. 13.45. Appeal. The decision of the State Board to 5 approve or deny a permit to implement a cooperative agreement 6 is subject to the provisions of the Administrative Review 7 Law. 8 (20 ILCS 3960/13.50 new) 9 Sec. 13.50. Supervision after approval. 10 (a) The State Board shall supervise, monitor, and 11 regulate approved agreements. 12 (b) The State Board shall review data submitted 13 periodically by the permit holder. The permit issued by the 14 State Board shall set forth the time schedule for the 15 submission of data, which shall be at least once a year. The 16 permit shall identify the data that must be submitted, 17 although the State Board may subsequently require the 18 submission of additional data or alter the time schedule. 19 Upon review of the data submitted, the State Board shall 20 notify the permitholder of whether the agreement or its 21 implementation is in compliance with the permit. If the 22 agreement or its implementation is not in compliance with the 23 permit, the State Board shall identify those respects in 24 which the agreement or its implementation does not conform to 25 the permit. The State Board may require the submission of 26 information from any other market participant. A permit 27 holder receiving notification that an agreement or its 28 implementation is not in compliance has 30 days in which to 29 respond with additional data. The response may include a 30 proposal and a time schedule by which the permitholder will 31 bring the agreement or its implementation into compliance 32 with the permit. If the agreement or its implementation is -16- LRB9105880DHdvam02 1 not in compliance and the State Board and the permitholder 2 cannot agree to the terms for bringing the agreement or its 3 implementation into compliance, the matter shall be set for a 4 hearing before a hearing officer appointed by the State 5 Board. The hearing shall be held in accordance with the 6 provisions of Section 10 of this Act. The State Board shall 7 publish notice in the Illinois Register 2 years after the 8 date of issuance of a permit approving an application, and at 9 2 year intervals thereafter, soliciting comments from the 10 public concerning the impact that the agreement or its 11 implementation has had on cost, access, and quality. The 12 State Board may request additional oral or written 13 information from the permitholder or from any other source. 14 (c) The State Board shall utilize the results of its 15 market supervision activities in determining whether to 16 approve new entry under Section 6 of the Act. If the State 17 Board determines that new entry would be beneficial, it shall 18 publish such notice in the Illinois Register. 19 (20 ILCS 3960/13.55 new) 20 Sec. 13.55 Revocation. 21 (a) The State Board may revoke a permit to implement a 22 cooperative agreement if it finds by clear and convincing 23 evidence that: 24 (1) Any of the following circumstances exist: 25 (A) the agreement or its implementation is not 26 in substantial compliance with the terms of the 27 application; 28 (B) the agreement or its implementation is not 29 in substantial compliance with the conditions of 30 approval; 31 (C) the agreement has not and is not likely to 32 substantially achieve the improvements in cost, 33 access, or quality identified in the permit as the -17- LRB9105880DHdvam02 1 basis for The State Board approval of the agreement; 2 (D) the benefits resulting from the agreement 3 do not outweigh the disadvantages attributable to 4 any reduction in competition; 5 (E) the conditions in the market place have 6 changed to such an extent that competition would 7 promote reductions in cost and improvements in 8 access and quality better than does the agreement at 9 issue; in order to revoke on the basis that 10 conditions in the marketplace have changed, the 11 State Board shall identify specific changes in the 12 marketplace and articulate why those changes warrant 13 revocation; 14 (F) the parties to the agreement fail to submit 15 periodic progress reports requested by the State 16 Board; 17 (G) materially misleading information was 18 submitted in the application; or 19 (H) the parties have failed to implement the 20 agreement with due diligence; and 21 (2) The parties to the agreement have failed to 22 provide reasonable proposals for alternatives to 23 revocation and have rejected modifications to or 24 restructuring of the agreement identified by the State 25 Board pursuant to subsection(d)of this Section. 26 (b) If a party to an agreement that is the subject of a 27 permit seeks to terminate its participation in the agreement, 28 the party shall file a notice of termination with the State 29 Board at least 30 days prior to the proposed effective date 30 of the termination. Upon receipt of a notice of termination, 31 The State Board may institute revocation proceedings. If all 32 parties seek to terminate the agreement, the parties shall 33 file a notice of termination at least 30 days prior to the 34 proposed effective date of the termination. The notice shall -18- LRB9105880DHdvam02 1 include the reasons for the termination and shall demonstrate 2 compliance with all applicable permit conditions. 3 (c) The State Board shall begin a proceeding to revoke a 4 permit to implement a cooperative agreement by providing 5 written notice to the permitholder describing in detail the 6 basis for the proposed revocation. Notice of the proceeding 7 must be published in the Illinois Register. The notice must 8 invite the submission of comments to the State Board. 9 (d) In deciding whether to revoke a permit to implement a 10 cooperative agreement, the State Board shall take into 11 account the hardship that the revocation may impose on the 12 applicant and any potential disruption of the market as a 13 whole. The State Board shall not revoke an approval if the 14 agreement can be modified, restructured, or regulated so as 15 to remedy the problem upon which the revocation proceeding is 16 based. The permit holder may submit proposals for 17 alternatives to revocation. Before approving an alternative 18 to revocation that involves modifying or restructuring an 19 agreement, the State Board shall publish notice in the 20 Illinois Register that any person may comment on the proposed 21 modification or restructuring within 20 days after 22 publication of the notice. The State Board shall not approve 23 the modification or restructuring until the comment period 24 has concluded. An approved modified or restructured 25 agreement is subject to supervision under Section 13.50. 26 (e) The permit holder cannot be held liable under State 27 or federal antitrust law for acts that occurred while the 28 permit was in effect, except to the extent that the 29 permitholder failed to substantially comply with the terms of 30 the permit. The permitholder is fully subject to State and 31 federal antitrust law after the revocation becomes effective 32 and may be held liable for acts that occur after the 33 revocation. -19- LRB9105880DHdvam02 1 (20 ILCS 3960/13.60 new) 2 Sec. 13.60. Recordkeeping. The State Board shall 3 maintain a file of all arrangements for which approval orders 4 are issued and that remain in effect. 5 (20 ILCS 3960/13.65 new) 6 Sec. 13.65. Antitrust exemption. Health care provider 7 cooperative agreements; antitrust exemption. 8 (a) Neither this subsection nor any other provision of 9 this Act is intended to confer, and does not confer, 10 authority to engage in agreements, tacit, implied, or 11 express, which are not submitted to the State Board for 12 approval if those agreements are in violation of State or 13 federal antitrust laws. Conduct seemingly pursuant to 14 provisions of this law done without the good faith intention 15 to accomplish an agreement approved by the State Board is not 16 entitled to the protections and immunities of this Section. 17 (b) It is the intent of Sections 13.5 through 13.80 to 18 require the State, through the State Board and the Attorney 19 General, to provide direction, supervision, and control over 20 cooperative agreements approved under Section 13.35. To 21 achieve the goals specified in Section 13.15, this State 22 direction, supervision, and control will provide immunity 23 from any civil or criminal liability under the Illinois 24 Antitrust Act and State-action immunity under federal 25 antitrust laws to (i) health care providers, their governing 26 board members, and their officers, agents, and employees who 27 take authorized actions to implement a cooperative agreement 28 approved under Section 13.35 and (ii) health care providers' 29 governing board members who participate in discussions or 30 negotiations concerning the allocation of health care 31 equipment or health care services as authorized under Section 32 13.15. -20- LRB9105880DHdvam02 1 (20 ILCS 3960/13.70 new) 2 Sec. 13.70. Health care cooperative agreements; Attorney 3 General action. The Attorney General shall have all the 4 powers necessary or convenient for the representation and 5 protection of the public interest in all proceedings under 6 Section 13.5 through 13.80, including without limitation, the 7 right to intervene as a party or otherwise participate in any 8 proceeding under those Sections. Nothing in Sections 13.5 9 through 13.80 shall limit the authority of the Attorney 10 General to initiate an action to enforce the civil or 11 criminal liability provisions of the Illinois Antitrust Act 12 if the Attorney General determines that a health care 13 provider, the members of its governing board, or its 14 officers, agents, or employees have exceeded the scope of the 15 actions authorized under those Sections. 16 (20 ILCS 3960/13.75 new) 17 Sec. 13.75. Rulemaking. The State Board shall adopt 18 rules for the operation of this Act under the Illinois 19 Administrative Procedure Act. The General Assembly finds 20 that the current healthcare situation constitutes an 21 emergency for purposes of the Illinois Administrative 22 Procedure Act. Therefore, the State Board may implement the 23 provisions of Sections 13.5 through 13.80 by emergency 24 rulemaking under the Illinois Administrative Procedure Act. 25 (20 ILCS 3960/13.80 new) 26 Sec. 13.80. Investigations. The State Board, at any 27 time after an application is filed or approved under Sections 28 13.5 through 13.80, may require by subpoena the attendance 29 and testimony of witnesses and the production of documents 30 for the purpose of investigating whether the cooperative 31 agreement satisfies the standards set forth in Sections 13.5 32 through 13.80. The State Board may seek a court order -21- LRB9105880DHdvam02 1 compelling compliance with a subpoena issued under this 2 Section. 3 Section 10. The Illinois Antitrust Act is amended by 4 changing Section 5 as follows: 5 (740 ILCS 10/5) (from Ch. 38, par. 60-5) 6 Sec. 5. No provisions of this Act shall be construed to 7 make illegal: 8 (1) the activities of any labor organization or of 9 individual members thereof which are directed solely to labor 10 objectives which are legitimate under the laws of either the 11 State of Illinois or the United States; 12 (2) the activities of any agricultural or horticultural 13 cooperative organization, whether incorporated or 14 unincorporated, or of individual members thereof, which are 15 directed solely to objectives of such cooperative 16 organizations which are legitimate under the laws of either 17 the State of Illinois or the United States; 18 (3) the activities of any public utility, as defined in 19 Section 3-105 of the Public Utilities Act to the extent that 20 such activities are subject to a clearly articulated and 21 affirmatively expressed State policy to replace competition 22 with regulation, where the conduct to be exempted is actively 23 supervised by the State itself; 24 (4) The activities of a telecommunications carrier, as 25 defined in Section 13-202 of the Public Utilities Act, to the 26 extent those activities relate to the provision of 27 noncompetitive telecommunications services under the Public 28 Utilities Act and are subject to the jurisdiction of the 29 Illinois Commerce Commission or to the activities of 30 telephone mutual concerns referred to in Section 13-202 of 31 the Public Utilities Act to the extent those activities 32 relate to the provision and maintenance of telephone service -22- LRB9105880DHdvam02 1 to owners and customers; 2 (5) the activities (including, but not limited to, the 3 making of or participating in joint underwriting or joint 4 reinsurance arrangement) of any insurer, insurance agent, 5 insurance broker, independent insurance adjuster or rating 6 organization to the extent that such activities are subject 7 to regulation by the Director of Insurance of this State 8 under, or are permitted or are authorized by, the Insurance 9 Code or any other law of this State; 10 (6) the religious and charitable activities of any 11 not-for-profit corporation, trust or organization established 12 exclusively for religious or charitable purposes, or for both 13 purposes; 14 (7) the activities of any not-for-profit corporation 15 organized to provide telephone service on a mutual or 16 co-operative basis or electrification on a co-operative 17 basis, to the extent such activities relate to the marketing 18 and distribution of telephone or electrical service to owners 19 and customers; 20 (8) the activities engaged in by securities dealers who 21 are (i) licensed by the State of Illinois or (ii) members of 22 the National Association of Securities Dealers or (iii) 23 members of any National Securities Exchange registered with 24 the Securities and Exchange Commission under the Securities 25 Exchange Act of 1934, as amended, in the course of their 26 business of offering, selling, buying and selling, or 27 otherwise trading in or underwriting securities, as agent, 28 broker, or principal, and activities of any National 29 Securities Exchange so registered, including the 30 establishment of commission rates and schedules of charges; 31 (9) the activities of any board of trade designated as a 32 "contract market" by the Secretary of Agriculture of the 33 United States pursuant to Section 5 of the Commodity Exchange 34 Act, as amended; -23- LRB9105880DHdvam02 1 (10) the activities of any motor carrier, rail carrier, 2 or common carrier by pipeline, as defined in the Common 3 Carrier by Pipeline Law of the Public Utilities Act, to the 4 extent that such activities are permitted or authorized by 5 the Act or are subject to regulation by the Illinois Commerce 6 Commission; 7 (11) the activities of any state or national bank to the 8 extent that such activities are regulated or supervised by 9 officers of the state or federal government under the banking 10 laws of this State or the United States; 11 (12) the activities of any state or federal savings and 12 loan association to the extent that such activities are 13 regulated or supervised by officers of the state or federal 14 government under the savings and loan laws of this State or 15 the United States; 16 (13) the activities of any bona fide not-for-profit 17 association, society or board, of attorneys, practitioners of 18 medicine, architects, engineers, land surveyors or real 19 estate brokers licensed and regulated by an agency of the 20 State of Illinois, in recommending schedules of suggested 21 fees, rates or commissions for use solely as guidelines in 22 determining charges for professional and technical services; 23 (14) Conduct involving trade or commerce (other than 24 import trade or import commerce) with foreign nations unless: 25 (a) such conduct has a direct, substantial, and 26 reasonably foreseeable effect: 27 (i) on trade or commerce which is not trade or 28 commerce with foreign nations, or on import trade or 29 import commerce with foreign nations; or 30 (ii) on export trade or export commerce with 31 foreign nations of a person engaged in such trade or 32 commerce in the United States; and 33 (b) such effect gives rise to a claim under the 34 provisions of this Act, other than this subsection (14). -24- LRB9105880DHdvam02 1 (c) If this Act applies to conduct referred to in 2 this subsection (14) only because of the provisions of 3 paragraph (a)(ii), then this Act shall apply to such 4 conduct only for injury to export business in the United 5 States which affects this State; or 6 (15) the activities of a unit of local government or 7 school district and the activities of the employees, agents 8 and officers of a unit of local government or school district 9 ; or 10 (16) the activities of a health care provider and the 11 activities of its governing board members and its officers, 12 agents, and employees in discussing, negotiating, entering 13 into, or implementing a cooperative agreement concerning the 14 allocation of health care equipment or health care services 15 resulting in one or more proposals or agreements that are 16 approved by the State Board, or if submitted to the State 17 Board might reasonably have been approved, as authorized 18 under Sections 13.5 through 13.80 of the Illinois Health 19 Facilities Planning Act. 20 (Source: P.A. 90-185, eff. 7-23-97; 90-561, eff. 12-16-97.)".
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