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91_SB0646sam002
LRB9105880MWpcam
1 AMENDMENT TO SENATE BILL 646
2 AMENDMENT NO. . Amend Senate Bill 646, AS AMENDED,
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, and 13.35 as follows:
8 (20 ILCS 3960/13.5 new)
9 Sec. 13.5. Health care provider cooperative agreements.
10 The General Assembly finds that the goals of controlling
11 health care costs and improving the quality of and access to
12 health care services will be significantly enhanced by some
13 cooperative arrangements involving providers that might be
14 prohibited by State and federal antitrust laws if undertaken
15 without governmental involvement. Both currently and
16 historically Illinois, other states, and the United States
17 have determined that unrestricted marketplace competition may
18 not produce the optimum mix of cost, access, and quality that
19 can be achieved in health care. The purpose of Sections 13.5
20 through 13.35 is to create an opportunity for the State to
21 review proposed arrangements and to substitute regulation for
22 competition when an arrangement is likely to result in lower
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1 costs, or greater access, or improved quality, than would
2 otherwise occur in the competitive marketplace. The General
3 Assembly intends that approval of relationships be
4 accompanied by appropriate conditions, supervision, and
5 regulation to protect against private abuses of economic
6 power, and that an arrangement or relationship approved by
7 the Attorney General and accompanied by appropriate
8 conditions, supervision, and regulation shall not be subject
9 to State or federal antitrust liability.
10 The General Assembly finds that the market for health
11 care services is extremely diverse in Illinois. Some parts
12 of Illinois are national destinations for tertiary health
13 care services and receive patients from throughout the United
14 States and the Western Hemisphere. Other regions of Illinois
15 have extraordinary rates of outmigration, with residents
16 traveling hundreds of miles, often out-of-state, for care.
17 Providing health care close to home is medically useful to a
18 patient's recovery, because visits of families and friends
19 can improve a patient's psycho-social capacity to cope with
20 disease. Providing incentives to increase quality care in
21 areas without it is desirable.
22 (20 ILCS 3960/13.9 new)
23 Sec. 13.9. Regional application.
24 (a) The provisions of this law shall apply to any region
25 in Illinois where the following health care conditions exist:
26 (1) in any area of at least 25 contiguous counties
27 containing at least 20 facilities licensed under the
28 Hospital Licensing Act;
29 (2) where during the calendar year preceding the
30 effective date of this amendatory Act of the 91st General
31 Assembly, no facility has been approved or received a
32 permit to establish neo-natal intensive care, open-heart
33 surgery, level-one trauma, or organ transplantation;
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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 (b) For purposes of this law, health care providers
8 shall include any institution or individual licensed by the
9 State under the Medical Practice Act of 1987 or the Hospital
10 Licensing Act.
11 (20 ILCS 3960/13.10 new)
12 Sec. 13.10. Health care provider cooperative agreements;
13 goals. Acting by their boards of directors or boards of
14 trustees or as individuals, 2 or more health care providers,
15 at least one of which must be licensed under the Hospital
16 Licensing Act, may enter into a cooperative agreement
17 concerning the allocation of health care equipment or health
18 care services among themselves for the provision of major
19 medical procedures such as open heart surgery, neo-natal
20 intensive care, level one trauma, or organ transplantation.
21 The agreement shall not involve price-fixing or predatory
22 pricing and shall be designed to achieve one or more of the
23 following goals:
24 (1) Reducing health care costs for Illinois
25 consumers.
26 (2) Improving access to health care services in
27 Illinois.
28 (3) Improving the quality of patient care in
29 Illinois.
30 (20 ILCS 3960/13.15 new )
31 Sec. 13.15. Health care provider cooperative agreements;
32 approval.
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1 (a) No cooperative agreement between health care
2 providers implemented without first obtaining a review by the
3 Health Facilities Planning Board and approval from the
4 Attorney General as provided in this Section shall be
5 eligible for any protection or immunity created by Section
6 13.30.
7 (b) Health care providers desiring to implement a
8 cooperative agreement authorized under Section 13.10 and to
9 obtain the antitrust exception provided by Section 13.30
10 shall apply to the Attorney General for approval of the
11 agreement. Applications for approval shall be in a form
12 prescribed by the Attorney General but shall contain at least
13 the following:
14 (1) A verified copy of the proposed agreement.
15 (2) An implementation plan that states how and when
16 the cooperative action identified in the agreement will
17 meet one or more of the goals specified in Section 13.10,
18 and how the benefits will outweigh any negatives.
19 (3) A statement of any consideration received or to
20 be received under the proposed agreement.
21 (c) Each application shall be accompanied by a fee
22 determined by the Attorney General, but in an amount
23 sufficient to cover the cost of processing the application.
24 All payments made to the Attorney General pursuant to this
25 Section shall be deposited into the Attorney General Health
26 Care Cooperative Agreement and Antitrust Enforcement Fund, a
27 special fund created in the State treasury. Moneys in the
28 fund shall be used subject to appropriation for the
29 performance of any function pertaining to the exercise of the
30 duties of the Attorney General in carrying out the provisions
31 of this Act.
32 (d) The Attorney General shall adopt rules for the
33 operation of this Act under the Illinois Administrative
34 Procedure Act. The General Assembly finds that the current
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1 health care situation constitutes an emergency for purposes
2 of the Illinois Administrative Procedure Act. Therefore, the
3 Attorney General may implement the provisions of Sections
4 13.5 through 13.30 by emergency rulemaking under the Illinois
5 Administrative Procedure Act.
6 (e) The rules shall require applicants to provide clear
7 and convincing evidence in the application demonstrating that
8 quality, cost, or access improvements cannot be accomplished
9 by the applicants without the agreement.
10 (f) A copy of an application submitted to the Attorney
11 General pursuant to subsection (b) shall simultaneously be
12 submitted to the Health Facilities Planning Board, which
13 shall hold public hearings on the application. The hearings
14 may be combined with hearings relating to the provision by
15 the State Board of a Certificate of Need, if applicable. The
16 State Board shall issue a report, including findings of fact
17 and recommendations, and provide it, together with a record
18 of proceedings, to the Attorney General as expeditiously as
19 possible.
20 (g) Upon receiving a report and recommendations from the
21 Health Facilities Planning Board, the Attorney General may
22 approve an agreement if he or she finds by clear and
23 convincing evidence that its implementation will lead to the
24 improvements in cost, access, or quality described in the
25 application, that these improvements are likely to outweigh
26 any probable negative results, that predatory pricing will
27 not occur, and that the agreement is in the public interest.
28 (h) The Attorney General may condition his approval of
29 the agreement upon terms he or she finds necessary to protect
30 consumers and to be in the public interest.
31 (20 ILCS 3960/13.20 new)
32 Sec. 13.20. Health care provider cooperative agreements;
33 annual review. The Attorney General shall require from the
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1 parties to a cooperative agreement annual progress reports
2 concerning the implementation of the agreement. The reports
3 shall contain any information and be accompanied by any fees
4 that are required by rule.
5 A copy of each report shall simultaneously be filed with
6 the Health Facilities Planning Board, which shall review it
7 and make recommendations to the Attorney General.
8 (20 ILCS 3960/13.25 new)
9 Sec. 13.25. Health care provider cooperative agreements;
10 rescinding approval. If the Attorney General finds that any
11 of the following circumstances exist, he or she may issue a
12 decision rescinding his or her approval of a hospital
13 cooperative agreement:
14 (1) The parties to the agreement fail to submit
15 annual progress reports;
16 (2) Materially misleading information was submitted
17 in the application or in any subsequent report filed by
18 the parties with the Health Facilities Planning Board and
19 the Attorney General pursuant to this Act;
20 (3) The parties have failed to implement the
21 agreement with due diligence;
22 (4) The agreement has failed to accomplish its
23 purposes as described in the application; or
24 (5) The Attorney General has subsequently found by
25 substantial evidence that the benefits of the agreement
26 do not substantially outweigh the negative results.
27 (20 ILCS 3960/13.30 new)
28 Sec. 13.30. Health care provider cooperative agreements;
29 antitrust exception.
30 (a) Neither this subsection nor any other provision of
31 this Act is intended to confer, and does not confer,
32 authority to engage in agreements, tacit, implied, or
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1 express, which are not submitted to the Attorney General for
2 approval, if those agreements are in violation of State or
3 federal antitrust laws. Conduct seemingly pursuant to the
4 provisions of this law done without the good faith intention
5 to accomplish an agreement approved by the Attorney General
6 is not entitled to the protections and immunities of this
7 Section 13.30.
8 (b) It is the intent of Sections 13.5 through this
9 Section to require the State, through the Attorney General
10 and the Health Facilities Planning Board, to provide
11 direction, supervision, and control over cooperative
12 agreements approved under Section 13.15. To achieve the
13 goals specified in Section 13.10, this State direction,
14 supervision, and control will provide immunity from any civil
15 or criminal liability under the Illinois Antitrust Act and
16 state-action immunity under federal antitrust laws to (i)
17 health care providers, their governing board members, and
18 their officers, agents, and employees who take authorized
19 actions to implement a cooperative agreement approved under
20 Section 13.15 and (ii) health care providers' governing board
21 members who participate in discussions or negotiations
22 concerning the allocation of health care equipment or health
23 care services as authorized under Section 13.10.
24 (20 ILCS 3960/13.35 new)
25 Sec. 13.35. Health care providers' cooperative
26 agreements; Attorney General action. Nothing in Sections
27 13.5 through 13.30 shall limit the authority of the Attorney
28 General to initiate an action to enforce the civil or
29 criminal liability provisions of the Illinois Antitrust Act,
30 or to take any other measures that he or she deems necessary,
31 if the Attorney General determines that a health care
32 provider, the members of its governing board, or its
33 officers, agents, or employees have exceeded the scope of the
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1 actions authorized under those Sections, have failed to
2 comply with the terms and conditions of an agreement
3 authorized under Section 13.15, or have failed to comply
4 with the reporting requirements of Section 13.20.
5 The Attorney General is authorized to use the subpoena
6 and investigative powers available to him or her under the
7 Illinois Antitrust Act and the Consumer Fraud and Deceptive
8 Practices Act to facilitate his or her review of any
9 application or report submitted to him or her pursuant to
10 Sections 13.15 and 13.20, and to investigate possible
11 violations of Sections 13.5 through 13.30 of the Act.
12 Section 10. The State Finance Act is amended by adding
13 Section 5.490 as follows:
14 (30 ILCS 105/5.490 new)
15 Sec. 5.490. The Attorney General Health Care Cooperative
16 Agreement and Antitrust Enforcement Fund.
17 Section 15. The Illinois Antitrust Act is amended by
18 changing Section 5 as follows:
19 (740 ILCS 10/5) (from Ch. 38, par. 60-5)
20 Sec. 5. No provisions of this Act shall be construed to
21 make illegal:
22 (1) the activities of any labor organization or of
23 individual members thereof which are directed solely to labor
24 objectives which are legitimate under the laws of either the
25 State of Illinois or the United States;
26 (2) the activities of any agricultural or horticultural
27 cooperative organization, whether incorporated or
28 unincorporated, or of individual members thereof, which are
29 directed solely to objectives of such cooperative
30 organizations which are legitimate under the laws of either
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1 the State of Illinois or the United States;
2 (3) the activities of any public utility, as defined in
3 Section 3-105 of the Public Utilities Act to the extent that
4 such activities are subject to a clearly articulated and
5 affirmatively expressed State policy to replace competition
6 with regulation, where the conduct to be exempted is actively
7 supervised by the State itself;
8 (4) The activities of a telecommunications carrier, as
9 defined in Section 13-202 of the Public Utilities Act, to the
10 extent those activities relate to the provision of
11 noncompetitive telecommunications services under the Public
12 Utilities Act and are subject to the jurisdiction of the
13 Illinois Commerce Commission or to the activities of
14 telephone mutual concerns referred to in Section 13-202 of
15 the Public Utilities Act to the extent those activities
16 relate to the provision and maintenance of telephone service
17 to owners and customers;
18 (5) the activities (including, but not limited to, the
19 making of or participating in joint underwriting or joint
20 reinsurance arrangement) of any insurer, insurance agent,
21 insurance broker, independent insurance adjuster or rating
22 organization to the extent that such activities are subject
23 to regulation by the Director of Insurance of this State
24 under, or are permitted or are authorized by, the Insurance
25 Code or any other law of this State;
26 (6) the religious and charitable activities of any
27 not-for-profit corporation, trust or organization established
28 exclusively for religious or charitable purposes, or for both
29 purposes;
30 (7) the activities of any not-for-profit corporation
31 organized to provide telephone service on a mutual or
32 co-operative basis or electrification on a co-operative
33 basis, to the extent such activities relate to the marketing
34 and distribution of telephone or electrical service to owners
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1 and customers;
2 (8) the activities engaged in by securities dealers who
3 are (i) licensed by the State of Illinois or (ii) members of
4 the National Association of Securities Dealers or (iii)
5 members of any National Securities Exchange registered with
6 the Securities and Exchange Commission under the Securities
7 Exchange Act of 1934, as amended, in the course of their
8 business of offering, selling, buying and selling, or
9 otherwise trading in or underwriting securities, as agent,
10 broker, or principal, and activities of any National
11 Securities Exchange so registered, including the
12 establishment of commission rates and schedules of charges;
13 (9) the activities of any board of trade designated as a
14 "contract market" by the Secretary of Agriculture of the
15 United States pursuant to Section 5 of the Commodity Exchange
16 Act, as amended;
17 (10) the activities of any motor carrier, rail carrier,
18 or common carrier by pipeline, as defined in the Common
19 Carrier by Pipeline Law of the Public Utilities Act, to the
20 extent that such activities are permitted or authorized by
21 the Act or are subject to regulation by the Illinois Commerce
22 Commission;
23 (11) the activities of any state or national bank to the
24 extent that such activities are regulated or supervised by
25 officers of the state or federal government under the banking
26 laws of this State or the United States;
27 (12) the activities of any state or federal savings and
28 loan association to the extent that such activities are
29 regulated or supervised by officers of the state or federal
30 government under the savings and loan laws of this State or
31 the United States;
32 (13) the activities of any bona fide not-for-profit
33 association, society or board, of attorneys, practitioners of
34 medicine, architects, engineers, land surveyors or real
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1 estate brokers licensed and regulated by an agency of the
2 State of Illinois, in recommending schedules of suggested
3 fees, rates or commissions for use solely as guidelines in
4 determining charges for professional and technical services;
5 (14) Conduct involving trade or commerce (other than
6 import trade or import commerce) with foreign nations unless:
7 (a) such conduct has a direct, substantial, and
8 reasonably foreseeable effect:
9 (i) on trade or commerce which is not trade or
10 commerce with foreign nations, or on import trade or
11 import commerce with foreign nations; or
12 (ii) on export trade or export commerce with
13 foreign nations of a person engaged in such trade or
14 commerce in the United States; and
15 (b) such effect gives rise to a claim under the
16 provisions of this Act, other than this subsection (14).
17 (c) If this Act applies to conduct referred to in
18 this subsection (14) only because of the provisions of
19 paragraph (a)(ii), then this Act shall apply to such
20 conduct only for injury to export business in the United
21 States which affects this State; or
22 (15) the activities of a unit of local government or
23 school district and the activities of the employees, agents
24 and officers of a unit of local government or school district
25 ; or
26 (16) the activities of a health care provider and the
27 activities of its governing board members and its officers,
28 agents, and employees in discussing, negotiating, entering
29 into, or implementing a cooperative agreement concerning the
30 allocation of health care equipment or health care services
31 resulting in one or more proposals or agreements that are
32 approved by the Attorney General, or if submitted to the
33 Attorney General might reasonably have been approved, as
34 authorized under Sections 13.5 through 13.35 of the Illinois
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1 Health Facilities Planning Act.
2 (Source: P.A. 90-185, eff. 7-23-97; 90-561, eff. 12-16-97.)".