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91_SB0646eng
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1 AN ACT concerning health care providers, amending named
2 Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
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
23 costs, or greater access, or improved quality, than would
24 otherwise occur in the competitive marketplace. The General
25 Assembly intends that approval of relationships be
26 accompanied by appropriate conditions, supervision, and
27 regulation to protect against private abuses of economic
28 power, and that an arrangement or relationship approved by
29 the Attorney General and accompanied by appropriate
30 conditions, supervision, and regulation shall not be subject
31 to State or federal antitrust liability.
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1 The General Assembly finds that the market for health
2 care services is extremely diverse in Illinois. Some parts
3 of Illinois are national destinations for tertiary health
4 care services and receive patients from throughout the United
5 States and the Western Hemisphere. Other regions of Illinois
6 have extraordinary rates of outmigration, with residents
7 traveling hundreds of miles, often out-of-state, for care.
8 Providing health care close to home is medically useful to a
9 patient's recovery, because visits of families and friends
10 can improve a patient's psycho-social capacity to cope with
11 disease. Providing incentives to increase quality care in
12 areas without it is desirable.
13 (20 ILCS 3960/13.9 new)
14 Sec. 13.9. Regional application.
15 (a) The provisions of this law shall apply to any region
16 in Illinois where the following health care conditions exist:
17 (1) in any area of at least 25 contiguous counties
18 containing at least 20 facilities licensed under the
19 Hospital Licensing Act;
20 (2) where during the calendar year preceding the
21 effective date of this amendatory Act of the 91st General
22 Assembly, no facility has been approved or received a
23 permit to establish neo-natal intensive care, open-heart
24 surgery, level-one trauma, or organ transplantation;
25 (3) where at least 50% of residents receiving
26 open-heart surgery procedures at Illinois hospitals must
27 travel at least 75 miles; and
28 (4) where no Illinois university with a medical
29 school has a primary medical school campus within 100
30 miles of the most distant point in the region.
31 (b) For purposes of this law, health care providers
32 shall include any institution or individual licensed by the
33 State under the Medical Practice Act of 1987 or the Hospital
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1 Licensing Act.
2 (20 ILCS 3960/13.10 new)
3 Sec. 13.10. Health care provider cooperative agreements;
4 goals. Acting by their boards of directors or boards of
5 trustees or as individuals, 2 or more health care providers,
6 at least one of which must be licensed under the Hospital
7 Licensing Act, may enter into a cooperative agreement
8 concerning the allocation of health care equipment or health
9 care services among themselves for the provision of major
10 medical procedures such as open-heart surgery, neo-natal
11 intensive care, level-one trauma, or organ transplantation.
12 The agreement shall not involve price-fixing or predatory
13 pricing and shall be designed to achieve one or more of the
14 following goals:
15 (1) Reducing health care costs for Illinois
16 consumers.
17 (2) Improving access to health care services in
18 Illinois.
19 (3) Improving the quality of patient care in
20 Illinois.
21 (20 ILCS 3960/13.15 new )
22 Sec. 13.15. Health care provider cooperative agreements;
23 approval.
24 (a) No cooperative agreement between health care
25 providers implemented without first obtaining a review by the
26 Health Facilities Planning Board and approval from the
27 Attorney General as provided in this Section shall be
28 eligible for any protection or immunity created by Section
29 13.30.
30 (b) Health care providers desiring to implement a
31 cooperative agreement authorized under Section 13.10 and to
32 obtain the antitrust exception provided by Section 13.30
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1 shall apply to the Attorney General for approval of the
2 agreement. Applications for approval shall be in a form
3 prescribed by the Attorney General but shall contain at least
4 the following:
5 (1) A verified copy of the proposed agreement.
6 (2) An implementation plan that states how and when
7 the cooperative action identified in the agreement will
8 meet one or more of the goals specified in Section 13.10,
9 and how the benefits will outweigh any negatives.
10 (3) A statement of any consideration received or to
11 be received under the proposed agreement.
12 (c) Each application shall be accompanied by a fee
13 determined by the Attorney General, but in an amount
14 sufficient to cover the cost of processing the application.
15 All payments made to the Attorney General pursuant to this
16 Section shall be deposited into the Attorney General Health
17 Care Cooperative Agreement and Antitrust Enforcement Fund, a
18 special fund created in the State treasury. Moneys in the
19 fund shall be used subject to appropriation for the
20 performance of any function pertaining to the exercise of the
21 duties of the Attorney General in carrying out the provisions
22 of this Act.
23 (d) The Attorney General shall adopt rules for the
24 operation of this Act under the Illinois Administrative
25 Procedure Act. The General Assembly finds that the current
26 health care situation constitutes an emergency for purposes
27 of the Illinois Administrative Procedure Act. Therefore, the
28 Attorney General may implement the provisions of Sections
29 13.5 through 13.30 by emergency rulemaking under the Illinois
30 Administrative Procedure Act.
31 (e) The rules shall require applicants to provide clear
32 and convincing evidence in the application demonstrating that
33 quality, cost, or access improvements cannot be accomplished
34 by the applicants without the agreement.
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1 (f) A copy of an application submitted to the Attorney
2 General pursuant to subsection (b) shall simultaneously be
3 submitted to the Health Facilities Planning Board, which
4 shall hold public hearings on the application. The hearings
5 may be combined with hearings relating to the provision by
6 the State Board of a Certificate of Need, if applicable. The
7 State Board shall issue a report, including findings of fact
8 and recommendations, and provide it, together with a record
9 of proceedings, to the Attorney General as expeditiously as
10 possible.
11 (g) Upon receiving a report and recommendations from the
12 Health Facilities Planning Board, the Attorney General may
13 approve an agreement if he or she finds by clear and
14 convincing evidence that its implementation will lead to the
15 improvements in cost, access, or quality described in the
16 application, that these improvements are likely to outweigh
17 any probable negative results, that predatory pricing will
18 not occur, and that the agreement is in the public interest.
19 (h) The Attorney General may condition his approval of
20 the agreement upon terms he or she finds necessary to protect
21 consumers and to be in the public interest.
22 (20 ILCS 3960/13.20 new)
23 Sec. 13.20. Health care provider cooperative agreements;
24 annual review. The Attorney General shall require from the
25 parties to a cooperative agreement annual progress reports
26 concerning the implementation of the agreement. The reports
27 shall contain any information and be accompanied by any fees
28 that are required by rule.
29 A copy of each report shall simultaneously be filed with
30 the Health Facilities Planning Board, which shall review it
31 and make recommendations to the Attorney General.
32 (20 ILCS 3960/13.25 new)
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1 Sec. 13.25. Health care provider cooperative agreements;
2 rescinding approval. If the Attorney General finds that any
3 of the following circumstances exist, he or she may issue a
4 decision rescinding his or her approval of a hospital
5 cooperative agreement:
6 (1) The parties to the agreement fail to submit
7 annual progress reports;
8 (2) Materially misleading information was submitted
9 in the application or in any subsequent report filed by
10 the parties with the Health Facilities Planning Board and
11 the Attorney General pursuant to this Act;
12 (3) The parties have failed to implement the
13 agreement with due diligence;
14 (4) The agreement has failed to accomplish its
15 purposes as described in the application; or
16 (5) The Attorney General has subsequently found by
17 substantial evidence that the benefits of the agreement
18 do not substantially outweigh the negative results.
19 (20 ILCS 3960/13.30 new)
20 Sec. 13.30. Health care provider cooperative agreements;
21 antitrust exception.
22 (a) Neither this subsection nor any other provision of
23 this Act is intended to confer, and does not confer,
24 authority to engage in agreements, tacit, implied, or
25 express, which are not submitted to the Attorney General for
26 approval, if those agreements are in violation of State or
27 federal antitrust laws. Conduct seemingly pursuant to the
28 provisions of this law done without the good faith intention
29 to accomplish an agreement approved by the Attorney General
30 is not entitled to the protections and immunities of this
31 Section 13.30.
32 (b) It is the intent of Sections 13.5 through this
33 Section to require the State, through the Attorney General
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1 and the Health Facilities Planning Board, to provide
2 direction, supervision, and control over cooperative
3 agreements approved under Section 13.15. To achieve the
4 goals specified in Section 13.10, this State direction,
5 supervision, and control will provide immunity from any civil
6 or criminal liability under the Illinois Antitrust Act and
7 state-action immunity under federal antitrust laws to (i)
8 health care providers, their governing board members, and
9 their officers, agents, and employees who take authorized
10 actions to implement a cooperative agreement approved under
11 Section 13.15 and (ii) health care providers' governing board
12 members who participate in discussions or negotiations
13 concerning the allocation of health care equipment or health
14 care services as authorized under Section 13.10.
15 (20 ILCS 3960/13.35 new)
16 Sec. 13.35. Health care providers' cooperative
17 agreements; Attorney General action. Nothing in Sections
18 13.5 through 13.30 shall limit the authority of the Attorney
19 General to initiate an action to enforce the civil or
20 criminal liability provisions of the Illinois Antitrust Act,
21 or to take any other measures that he or she deems necessary,
22 if the Attorney General determines that a health care
23 provider, the members of its governing board, or its
24 officers, agents, or employees have exceeded the scope of the
25 actions authorized under those Sections, have failed to
26 comply with the terms and conditions of an agreement
27 authorized under Section 13.15, or have failed to comply
28 with the reporting requirements of Section 13.20.
29 The Attorney General is authorized to use the subpoena
30 and investigative powers available to him or her under the
31 Illinois Antitrust Act and the Consumer Fraud and Deceptive
32 Business Practices Act to facilitate his or her review of any
33 application or report submitted to him or her pursuant to
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1 Sections 13.15 and 13.20, and to investigate possible
2 violations of Sections 13.5 through 13.30 of the Act.
3 Section 10. The State Finance Act is amended by adding
4 Section 5.490 as follows:
5 (30 ILCS 105/5.490 new)
6 Sec. 5.490. The Attorney General Health Care Cooperative
7 Agreement and Antitrust Enforcement Fund.
8 Section 15. 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
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1 extent those activities relate to the provision of
2 noncompetitive telecommunications services under the Public
3 Utilities Act and are subject to the jurisdiction of the
4 Illinois Commerce Commission or to the activities of
5 telephone mutual concerns referred to in Section 13-202 of
6 the Public Utilities Act to the extent those activities
7 relate to the provision and maintenance of telephone service
8 to owners and customers;
9 (5) the activities (including, but not limited to, the
10 making of or participating in joint underwriting or joint
11 reinsurance arrangement) of any insurer, insurance agent,
12 insurance broker, independent insurance adjuster or rating
13 organization to the extent that such activities are subject
14 to regulation by the Director of Insurance of this State
15 under, or are permitted or are authorized by, the Insurance
16 Code or any other law of this State;
17 (6) the religious and charitable activities of any
18 not-for-profit corporation, trust or organization established
19 exclusively for religious or charitable purposes, or for both
20 purposes;
21 (7) the activities of any not-for-profit corporation
22 organized to provide telephone service on a mutual or
23 co-operative basis or electrification on a co-operative
24 basis, to the extent such activities relate to the marketing
25 and distribution of telephone or electrical service to owners
26 and customers;
27 (8) the activities engaged in by securities dealers who
28 are (i) licensed by the State of Illinois or (ii) members of
29 the National Association of Securities Dealers or (iii)
30 members of any National Securities Exchange registered with
31 the Securities and Exchange Commission under the Securities
32 Exchange Act of 1934, as amended, in the course of their
33 business of offering, selling, buying and selling, or
34 otherwise trading in or underwriting securities, as agent,
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1 broker, or principal, and activities of any National
2 Securities Exchange so registered, including the
3 establishment of commission rates and schedules of charges;
4 (9) the activities of any board of trade designated as a
5 "contract market" by the Secretary of Agriculture of the
6 United States pursuant to Section 5 of the Commodity Exchange
7 Act, as amended;
8 (10) the activities of any motor carrier, rail carrier,
9 or common carrier by pipeline, as defined in the Common
10 Carrier by Pipeline Law of the Public Utilities Act, to the
11 extent that such activities are permitted or authorized by
12 the Act or are subject to regulation by the Illinois Commerce
13 Commission;
14 (11) the activities of any state or national bank to the
15 extent that such activities are regulated or supervised by
16 officers of the state or federal government under the banking
17 laws of this State or the United States;
18 (12) the activities of any state or federal savings and
19 loan association to the extent that such activities are
20 regulated or supervised by officers of the state or federal
21 government under the savings and loan laws of this State or
22 the United States;
23 (13) the activities of any bona fide not-for-profit
24 association, society or board, of attorneys, practitioners of
25 medicine, architects, engineers, land surveyors or real
26 estate brokers licensed and regulated by an agency of the
27 State of Illinois, in recommending schedules of suggested
28 fees, rates or commissions for use solely as guidelines in
29 determining charges for professional and technical services;
30 (14) Conduct involving trade or commerce (other than
31 import trade or import commerce) with foreign nations unless:
32 (a) such conduct has a direct, substantial, and
33 reasonably foreseeable effect:
34 (i) on trade or commerce which is not trade or
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1 commerce with foreign nations, or on import trade or
2 import commerce with foreign nations; or
3 (ii) on export trade or export commerce with
4 foreign nations of a person engaged in such trade or
5 commerce in the United States; and
6 (b) such effect gives rise to a claim under the
7 provisions of this Act, other than this subsection (14).
8 (c) If this Act applies to conduct referred to in
9 this subsection (14) only because of the provisions of
10 paragraph (a)(ii), then this Act shall apply to such
11 conduct only for injury to export business in the United
12 States which affects this State; or
13 (15) the activities of a unit of local government or
14 school district and the activities of the employees, agents
15 and officers of a unit of local government or school district
16 ; or
17 (16) the activities of a health care provider and the
18 activities of its governing board members and its officers,
19 agents, and employees in discussing, negotiating, entering
20 into, or implementing a cooperative agreement concerning the
21 allocation of health care equipment or health care services
22 resulting in one or more proposals or agreements that are
23 approved by the Attorney General, or if submitted to the
24 Attorney General might reasonably have been approved, as
25 authorized under Sections 13.5 through 13.35 of the Illinois
26 Health Facilities Planning Act.
27 (Source: P.A. 90-185, eff. 7-23-97; 90-561, eff. 12-16-97.)
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