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91_SB0646sam001
LRB9105880MWgcam02
1 AMENDMENT TO SENATE BILL 646
2 AMENDMENT NO. . Amend Senate Bill 646 by replacing
3 the title with the following:
4 "AN ACT concerning health care providers, amending named
5 Acts."; and
6 by replacing everything after the enacting clause with the
7 following:
8 "Section 5. The Illinois Health Facilities Planning Act
9 is amended by adding Sections 13.5, 13.9, 13.10, 13.15,
10 13.20, 13.25, 13.30, and 13.35 as follows:
11 (20 ILCS 3960/13.5 new)
12 Sec. 13.5. Health care provider cooperative agreements.
13 The General Assembly finds that the goals of controlling
14 health care costs and improving the quality of and access to
15 health care services will be significantly enhanced by some
16 cooperative arrangements involving providers or purchasers
17 that would be prohibited by State and federal antitrust laws
18 if undertaken without governmental involvement. Both
19 currently and historically Illinois, other states, and the
20 United States have determined that unrestricted marketplace
21 competition is unlikely to produce the optimum mix of cost,
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1 access, and quality which can be achieved in health care.
2 The purpose of Sections 13.5 through 13.35 is to create an
3 opportunity for the State to review proposed arrangements and
4 to substitute regulation for competition when an arrangement
5 is likely to result in lower costs, or greater access or
6 improved quality, than would otherwise occur in the
7 competitive marketplace. The General Assembly intends that
8 approval of relationships be accompanied by appropriate
9 conditions, supervision, and regulation to protect against
10 private abuses of economic power, and that an arrangement or
11 relationship approved by the State Board and accompanied by
12 appropriate conditions, supervision, and regulation shall not
13 be subject to State or federal antitrust liability.
14 The General Assembly finds that the market for health
15 care services is extremely diverse in Illinois. Some parts
16 of Illinois are national destinations for tertiary health
17 care services and receive patients from throughout the United
18 States and the Western Hemisphere. Other regions of Illinois
19 have extraordinary rates of outmigration, with residents
20 travelling hundreds of miles, often out-of-state, for care.
21 Providing health care close to home is medically useful to a
22 patient's recovery, because visits of families and friends
23 can improve a patient's psycho-social capacity to cope with
24 disease. Providing incentives to increase quality care in
25 areas without it is desirable.
26 (20 ILCS 3960/13.9 new)
27 Sec. 13.9. Regional application.
28 (a) The provisions of this law shall apply to any region
29 in Illinois where the following health care conditions exist:
30 (1) in any area of at least 25 contiguous counties
31 containing at least 20 facilities licensed under the
32 Hospital Licensing Act; and
33 (2) where during the calendar year preceding the
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1 effective date of this amendatory Act of the 91st General
2 Assembly, no facility has been approved or received a
3 permit to establish neo-natal intensive care, open-heart
4 surgery, level-one trauma, or organ transplantation; and
5 (3) where at least 50% of residents receiving
6 open-heart surgery procedures at Illinois hospitals must
7 travel at least 75 miles; and
8 (4) where no Illinois university with a medical
9 school has a primary medical school campus within 100
10 miles of the most distant point in the region.
11 (b) For purposes of this law, health care providers
12 shall include any institution or individual licensed by the
13 state under: the Medical Practice Act of 1987; the Podiatric
14 Medical Practice Act of 1987; the Nursing and Advanced
15 Practice Nursing Act; the Illinois Optometric Practice Act of
16 1987; the Respiratory Care Practice Act; the Illinois Dental
17 Practice Act; the Illinois Occupational Therapy Practice Act;
18 the Illinois Physical Therapy Act; the Hospital Licensing
19 Act; the Nursing Home Care Act; or the Ambulatory Surgical
20 Treatment Center Act.
21 (20 ILCS 3960/13.10 new)
22 Sec. 13.10. Health care provider cooperative agreements;
23 goals. Acting by their boards of directors or boards of
24 trustees or as individuals, 2 or more health care providers
25 may enter into a cooperative agreement concerning the
26 allocation of health care equipment or health care services
27 among those health care providers. The agreement shall not
28 involve price-fixing or predatory pricing and shall be
29 designed to achieve one or more of the following goals:
30 (1) Reducing health care costs for Illinois
31 consumers.
32 (2) Improving access to health care services in
33 Illinois.
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1 (3) Improving the quality of patient care in
2 Illinois.
3 (20 ILCS 3960/13.15 new)
4 Sec. 13.15. Health care provider cooperative agreements;
5 approval.
6 (a) No cooperative agreement between health care
7 providers implemented without first obtaining approval from
8 the State Board as provided in this Section shall be eligible
9 for any protection or immunity created by Section 13.30.
10 (b) Health care providers desiring to implement a
11 cooperative agreement authorized under Section 13.10 may
12 apply to the State Board for approval of the agreement.
13 Applications for approval shall be in a form prescribed by
14 the State Board but shall contain at least the following:
15 (1) A copy of the proposed agreement.
16 (2) An implementation plan that states how and when
17 the cooperative action identified in the agreement will
18 meet one or more of the goals specified in Section 13.10.
19 Each application shall be accompanied by a fee determined
20 by the State Board, but in an amount sufficient to cover
21 the cost of processing applications and the cost of
22 periodic reviews of the implementation of cooperative
23 agreements under Section 13.20.
24 (c) The State Board shall adopt rules for the operation
25 of this Act under the Illinois Administrative Procedure Act.
26 The General Assembly finds that the current health care
27 situation constitutes an emergency for purposes of the
28 Illinois Administrative Procedure Act. Therefore, the State
29 Board may implement the provisions of Section 13.5 through
30 13.30 by emergency rulemaking under the Illinois
31 Administrative Procedure Act.
32 (d) The rules shall require applicants to provide
33 substantial evidence in the application demonstrating that
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1 quality cost or access improvements cannot be accomplished by
2 the applicants without the agreement.
3 (e) Upon receiving a staff review as provided by the
4 rules, the State Board may approve an agreement if it finds
5 by substantial evidence that its implementation will lead to
6 the improvements in cost, access, or quality described in the
7 application, that these improvements are likely to outweigh
8 any probable negative results, and that predatory pricing
9 will not occur.
10 (f) The State Board may condition its approval of
11 cooperative agreements with terms it finds necessary to
12 protect consumers from predatory pricing or insufficient
13 competition.
14 (20 ILCS 3960/13.20 new)
15 Sec. 13.20. Health care provider cooperative agreements;
16 periodic review. The State Board shall require from the
17 parties to a cooperative agreement periodic progress reports
18 concerning the implementation of the agreement.
19 (20 ILCS 3960/13.25 new)
20 Sec. 13.25. Health care provider cooperative agreements;
21 rescinding approval. If the State Board finds that any of the
22 following circumstances exist, it may issue a decision
23 rescinding its approval of a hospital cooperative agreement:
24 (1) The parties to the agreement fail to submit
25 periodic progress reports requested by the State Board;
26 (2) Materially misleading information was submitted
27 in the application;
28 (3) The parties have failed to implement the
29 agreement with due diligence;
30 (4) The agreement has failed to accomplish its
31 purposes as described in the application; or
32 (5) The State Board has subsequently found by clear
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1 and convincing evidence that negative results
2 substantially outweigh benefits.
3 (20 ILCS 3960/13.30 new)
4 Sec. 13.30. Health care provider cooperative agreements;
5 antitrust exception.
6 (a) Neither this subsection nor any other provision of
7 this Act is intended to confer, and does not confer,
8 authority to engage in agreements, tacit, implied, or
9 express, which are not submitted to the State Board for
10 approval if those agreements are in violation of State or
11 federal antitrust laws. Conduct seemingly pursuant to
12 provisions of this law done without the good faith intention
13 to accomplish an agreement approved by the State Board is not
14 entitled to the protections and immunities of Section 13.30.
15 (b) It is the intent of Section 13.5 through this
16 Section to require the State, through the State Board, to
17 provide direction, supervision, and control over cooperative
18 agreements approved under Section 13.15. To achieve the
19 goals specified in Section 13.10, this State direction,
20 supervision, and control will provide immunity from any civil
21 or criminal liability under the Illinois Antitrust Act and
22 State-action immunity under federal antitrust laws to (i)
23 health care providers, their governing board members, and
24 their officers, agents, and employees who take authorized
25 actions to implement a cooperative agreement approved under
26 Section 13.15 and (ii) health care providers' governing board
27 members who participate in discussions or negotiations
28 concerning the allocation of health care equipment or health
29 care services as authorized under Section 13.10.
30 (20 ILCS 3960/13.35 new)
31 Sec. 13.35. Health care providers' cooperative
32 agreements; Attorney General action. Nothing in Sections
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1 13.5 through 13.30 shall limit the authority of the Attorney
2 General to initiate an action to enforce the civil or
3 criminal liability provisions of the Illinois Antitrust Act
4 if the Attorney General determines that a health care
5 provider, the members of its governing board, or its
6 officers, agents, or employees have exceeded the scope of the
7 actions authorized under those Sections.
8 Section 10. The Illinois Antitrust Act is amended by
9 changing Section 5 as follows:
10 (740 ILCS 10/5) (from Ch. 38, par. 60-5)
11 Sec. 5. No provisions of this Act shall be construed to
12 make illegal:
13 (1) the activities of any labor organization or of
14 individual members thereof which are directed solely to labor
15 objectives which are legitimate under the laws of either the
16 State of Illinois or the United States;
17 (2) the activities of any agricultural or horticultural
18 cooperative organization, whether incorporated or
19 unincorporated, or of individual members thereof, which are
20 directed solely to objectives of such cooperative
21 organizations which are legitimate under the laws of either
22 the State of Illinois or the United States;
23 (3) the activities of any public utility, as defined in
24 Section 3-105 of the Public Utilities Act to the extent that
25 such activities are subject to a clearly articulated and
26 affirmatively expressed State policy to replace competition
27 with regulation, where the conduct to be exempted is actively
28 supervised by the State itself;
29 (4) The activities of a telecommunications carrier, as
30 defined in Section 13-202 of the Public Utilities Act, to the
31 extent those activities relate to the provision of
32 noncompetitive telecommunications services under the Public
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1 Utilities Act and are subject to the jurisdiction of the
2 Illinois Commerce Commission or to the activities of
3 telephone mutual concerns referred to in Section 13-202 of
4 the Public Utilities Act to the extent those activities
5 relate to the provision and maintenance of telephone service
6 to owners and customers;
7 (5) the activities (including, but not limited to, the
8 making of or participating in joint underwriting or joint
9 reinsurance arrangement) of any insurer, insurance agent,
10 insurance broker, independent insurance adjuster or rating
11 organization to the extent that such activities are subject
12 to regulation by the Director of Insurance of this State
13 under, or are permitted or are authorized by, the Insurance
14 Code or any other law of this State;
15 (6) the religious and charitable activities of any
16 not-for-profit corporation, trust or organization established
17 exclusively for religious or charitable purposes, or for both
18 purposes;
19 (7) the activities of any not-for-profit corporation
20 organized to provide telephone service on a mutual or
21 co-operative basis or electrification on a co-operative
22 basis, to the extent such activities relate to the marketing
23 and distribution of telephone or electrical service to owners
24 and customers;
25 (8) the activities engaged in by securities dealers who
26 are (i) licensed by the State of Illinois or (ii) members of
27 the National Association of Securities Dealers or (iii)
28 members of any National Securities Exchange registered with
29 the Securities and Exchange Commission under the Securities
30 Exchange Act of 1934, as amended, in the course of their
31 business of offering, selling, buying and selling, or
32 otherwise trading in or underwriting securities, as agent,
33 broker, or principal, and activities of any National
34 Securities Exchange so registered, including the
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1 establishment of commission rates and schedules of charges;
2 (9) the activities of any board of trade designated as a
3 "contract market" by the Secretary of Agriculture of the
4 United States pursuant to Section 5 of the Commodity Exchange
5 Act, as amended;
6 (10) the activities of any motor carrier, rail carrier,
7 or common carrier by pipeline, as defined in the Common
8 Carrier by Pipeline Law of the Public Utilities Act, to the
9 extent that such activities are permitted or authorized by
10 the Act or are subject to regulation by the Illinois Commerce
11 Commission;
12 (11) the activities of any state or national bank to the
13 extent that such activities are regulated or supervised by
14 officers of the state or federal government under the banking
15 laws of this State or the United States;
16 (12) the activities of any state or federal savings and
17 loan association to the extent that such activities are
18 regulated or supervised by officers of the state or federal
19 government under the savings and loan laws of this State or
20 the United States;
21 (13) the activities of any bona fide not-for-profit
22 association, society or board, of attorneys, practitioners of
23 medicine, architects, engineers, land surveyors or real
24 estate brokers licensed and regulated by an agency of the
25 State of Illinois, in recommending schedules of suggested
26 fees, rates or commissions for use solely as guidelines in
27 determining charges for professional and technical services;
28 (14) Conduct involving trade or commerce (other than
29 import trade or import commerce) with foreign nations unless:
30 (a) such conduct has a direct, substantial, and
31 reasonably foreseeable effect:
32 (i) on trade or commerce which is not trade or
33 commerce with foreign nations, or on import trade or
34 import commerce with foreign nations; or
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1 (ii) on export trade or export commerce with
2 foreign nations of a person engaged in such trade or
3 commerce in the United States; and
4 (b) such effect gives rise to a claim under the
5 provisions of this Act, other than this subsection (14).
6 (c) If this Act applies to conduct referred to in
7 this subsection (14) only because of the provisions of
8 paragraph (a)(ii), then this Act shall apply to such
9 conduct only for injury to export business in the United
10 States which affects this State; or
11 (15) the activities of a unit of local government or
12 school district and the activities of the employees, agents
13 and officers of a unit of local government or school district
14 ; or
15 (16) the activities of a health care provider and the
16 activities of its governing board members and its officers,
17 agents, and employees in discussing, negotiating, entering
18 into, or implementing a cooperative agreement concerning the
19 allocation of health care equipment or health care services
20 resulting in one or more proposals or agreements that are
21 approved by the Board, or if submitted to the Board might
22 reasonably have been approved, as authorized under Sections
23 13.5 through 13.35 of the Illinois Health Facilities Planning
24 Act.
25 (Source: P.A. 90-185, eff. 7-23-97; 90-561, eff. 12-16-97.)".