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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,
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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;
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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).
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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.)".