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91_HB4478
LRB9113240LDcd
1 AN ACT concerning joint discussions between physicians,
2 health care providers, and health care plans.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be known as the
6 Health Care Services Contract Joint Discussions Act.
7 Section 5. Findings and purpose.
8 (a) The General Assembly finds that it is important for
9 health care plans and health care providers to work together
10 for the benefit of the citizens of the State. Health care
11 plans and health care providers must work cooperatively to
12 ensure enrollees receive quality health care services.
13 (b) The General Assembly finds that cooperation between
14 health care plans and health care providers often is lacking,
15 and this is to the detriment of enrollees. This occurs in
16 instances in which health care plans dominate the health care
17 financing market to such a degree that fair discussions
18 between health care providers and the health care plans are
19 unobtainable absent any joint action on behalf of health care
20 providers. In these instances, health care plans have the
21 ability to unilaterally issue the terms and conditions of the
22 contracts they offer health care providers, and many of the
23 contract terms and conditions being unilaterally issued to
24 health care providers directly impact the accessibility of
25 care and quality of care delivered to enrollees under those
26 contracts. Health care plans also control the health care
27 services rendered to enrollees through utilization review
28 programs and other managed care tools and associated coverage
29 and payment policies.
30 (c) The General Assembly finds that in most instances
31 health care providers currently cannot join together to
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1 discuss contract terms and conditions and that current
2 mechanisms that bring health care providers together into
3 contracting organizations, such as physician hospital
4 organizations, independent practice associations, and group
5 practices, do not provide health care providers with an
6 adequate voice in discussing contract terms and conditions.
7 (d) The General Assembly finds that joint discussions by
8 competing health care providers of these terms and conditions
9 of contracts with health care plans will result in
10 procompetitive effects, in the absence of any express or
11 implied threat of retaliatory joint action, such as a boycott
12 or strike, by health care providers, and will protect
13 enrollees from terms and conditions that may have an adverse
14 impact on the accessibility of care and quality of care
15 received by those enrollees. Empowering competing health
16 care providers to hold joint discussions with health care
17 plans as provided in this Act will help restore the
18 competitive balance between health care providers and health
19 care plans and improve competition in the markets for health
20 care services in this State, thereby providing benefits for
21 consumers, health care providers, and less dominant health
22 care plans.
23 (e) The General Assembly finds that joint discussions
24 over fee-related terms and conditions may in some
25 circumstances yield anticompetitive effects. Consequently,
26 the General Assembly finds it appropriate and necessary to
27 limit joint discussions on fee-related issues to those
28 instances where it is determined that significant imbalances
29 exist.
30 (f) The General Assembly finds that this Act is
31 necessary and proper and constitutes an appropriate exercise
32 of the authority of this State to regulate the business of
33 insurance and the delivery of health care services. It is
34 the intention of the General Assembly to authorize health
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1 care providers to hold joint discussions with health care
2 plans and to qualify those joint discussions and related
3 joint activities for the State-action exemption to the
4 federal antitrust laws through the articulated State policy
5 and active supervision provided in this Act.
6 Section 10. Definitions.
7 "Attorney General" means the Attorney General of the
8 State of Illinois.
9 "Board" means the Health Care Services Contracting Board.
10 "Department" means the Department of Insurance.
11 "Enrollee" means any person and his or her dependents
12 enrolled in or covered by a health care plan.
13 "Health care plan" means any of the following that
14 contract with a health care provider for the delivery or
15 provision of health care services:
16 (1) companies offering accident and health
17 insurance;
18 (2) health maintenance organizations;
19 (3) preferred provider organizations;
20 (4) workers' compensation insurance;
21 (5) third party administrators; and
22 (6) state health insurance and municipal health
23 insurance plans.
24 For purposes of this definition, "health care plan" does
25 not include a Medicare supplemental policy as defined by
26 Section 1882(g)(1), Social Security Act (42 U.S.C. Section
27 1395ss), as amended.
28 "Health care provider" means any physician, hospital,
29 facility, or person that is licensed or otherwise authorized
30 to deliver health care services.
31 "Health care services" means any service included in the
32 furnishing to any individual of medical care, or the
33 hospitalization incident to the furnishing of such care, as
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1 well as the furnishing to any person of any and all other
2 services for the purpose of preventing, alleviating, curing,
3 or healing human illness, condition, or injury.
4 "Member" means a health care provider or group of health
5 care providers who have authorized a joint discussion
6 representative to enter into joint discussions on their
7 behalf.
8 "Offeror" means any health care plan offering a contract.
9 "Person" means any corporation, association, partnership,
10 limited liability company, sole proprietorship, or any other
11 legal entity.
12 "Joint discussion representative" means a person
13 authorized under this Act to (i) collectively discuss,
14 consider, and comment to, and advise health care providers
15 and groups of health care providers on the terms and
16 conditions of proposed contracts for the provision of health
17 care services offered to such health care providers and
18 groups of health care providers and (ii) discuss and confer
19 with offerors of such contracts upon the terms and conditions
20 of such contracts. Such person must be authorized by the
21 health care providers and groups of health care providers to
22 hold joint discussions on their behalf with health care plans
23 over contractual terms and conditions affecting those health
24 care providers and groups of health care providers.
25 Section 15. Health Care Services Contracting Board.
26 (a) The Health Care Services Contracting Board is
27 created within the Office of the Attorney General. The Board
28 shall consist of 9 members appointed by the Governor with the
29 advice and consent of the Senate. Two members of the Board
30 shall be representatives of physicians licensed to practice
31 medicine in all its branches, 2 members shall be other health
32 care providers, 2 members shall be representatives of health
33 care plans, and 3 members of the Board shall be public
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1 members who shall not be engaged in any way, directly or
2 indirectly, as providers of health care services or with a
3 health care plan. The Attorney General and the Director of
4 the Department, or their designated representatives, shall
5 serve as non-compensated, ex-officio non-voting members of
6 the Board.
7 (b) Not later than January 1, 2001, the Governor shall
8 make all appointments to the Board. The initial Board shall
9 have 3 members appointed for a term expiring January 1, 2002;
10 3 members appointed for a term expiring January 1, 2003; and
11 3 members appointed for a term expiring January 1, 2004.
12 Thereafter, members shall serve for 3 year terms and may be
13 reappointed.
14 (c) Board members, other than ex-officio members, shall
15 be compensated at the rate of $150 for each day in which they
16 are actively engaged in the business of the Board. In
17 addition, Board members, other than ex-officio members, shall
18 receive reimbursement for their actual expenses incurred in
19 connection with their service on the Board.
20 (d) The Board shall elect a chairman from among its
21 voting members by a record vote of at least 5 voting members.
22 The Board shall have the power to organize and appoint other
23 officers as it may deem necessary.
24 (e) The Board may conduct business upon the presence of
25 a quorum of 5 voting members. An affirmative vote of at
26 least 5 members is necessary for the Board to take any
27 action.
28 (f) The Attorney General shall provide and assign
29 adequate staff to perform activities for the Board.
30 Section 20. Duties of the Board.
31 (a) It shall be the responsibility and duty of the Board
32 to license, supervise, and regulate joint discussion
33 representatives.
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1 (b) It shall be the responsibility and duty of the Board
2 to (i) either approve or disapprove a request of a joint
3 discussion representative to enter into discussions with a
4 health care plan, (ii) either approve or disapprove the
5 written communications as required between joint discussion
6 representatives and their members, and (iii) either approve
7 or disapprove the terms and conditions of all such contracts
8 upon which a joint discussion representative and offeror have
9 conferred and reached a proposed accord.
10 (c) The Board shall approve such joint discussions,
11 written communications, and proposed contracts if the Board
12 determines that the joint discussion representative has
13 demonstrated that the likely benefits resulting from the
14 joint discussions, written communications, or proposed
15 contracts outweigh the disadvantages attributable to a
16 reduction in competition that may result from the joint
17 discussions, written communications, or proposed contracts.
18 The Board shall consider health care provider distribution by
19 type and by specialty and its effect on competition. The
20 joint discussions shall represent no more than 20% of any
21 type of health care providers in a geographic service area of
22 a health care plan, except in cases where in conformance with
23 the other provisions of this Act conditions support the
24 approval of a greater or lesser percentage. Types of health
25 care providers shall be defined based on the licenses or
26 other authorizations to provide health care services held by
27 the health care providers.
28 (d) Members of the Board shall be immune from any civil
29 or criminal liability or disciplinary sanction in any action
30 based upon any proceeding or other acts performed in good
31 faith as a member of the Board.
32 Section 25. Joint discussions authorized.
33 (a) Competing health care providers within the
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1 geographic area served by a health care plan may meet and
2 enter into joint discussions regarding the following terms
3 and conditions of contracts with the health care plan:
4 (1) practices and procedures to assess and improve
5 the delivery of effective, cost-efficient preventive
6 health care services, including, but not limited to,
7 childhood immunizations, prenatal care, and mammograms
8 and other cancer screening tests or procedures;
9 (2) practices and procedures to encourage early
10 detection and effective, cost-efficient management of
11 diseases and illnesses in children;
12 (3) practices and procedures to assess and improve
13 the delivery of women's medical and health care,
14 including, but not limited to, menopause and
15 osteoporosis;
16 (4) clinical criteria for effective, cost-efficient
17 disease management programs, including, but not limited
18 to, diabetes, asthma, and cardiovascular disease;
19 (5) practices and procedures to encourage and
20 promote patient education and treatment compliance,
21 including, but not limited to, parental involvement with
22 their children's health care;
23 (6) drug formularies;
24 (7) practices and procedures to identify, correct,
25 and prevent potentially fraudulent activities;
26 (8) practices and procedures for the effective,
27 cost-efficient use of outpatient surgery;
28 (9) clinical practice guidelines and coverage
29 criteria;
30 (10) administrative procedures, including, but not
31 limited to, methods and timing of health care provider
32 payment for services;
33 (11) dispute resolution procedures relating to
34 disputes between health care plans and health care
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1 providers;
2 (12) patient referral procedures;
3 (13) formulation and application of health care
4 provider reimbursement methodology;
5 (14) quality assurance programs;
6 (15) health care service utilization review and
7 utilization management procedures;
8 (16) health care provider selection and termination
9 criteria, including credentialing; and
10 (17) the inclusion or alteration of terms and
11 conditions to the extent they are the subject of
12 government regulation prohibiting or requiring the
13 particular term or condition in question; provided,
14 however, that such restriction does not limit health care
15 provider rights to jointly petition government for a
16 change in such regulation.
17 (b) Competing health care providers may jointly discuss
18 the terms and conditions specified in this subsection only
19 where a determination has been made by the Board that the
20 health care plan has substantial market power:
21 (1) the fees or prices for services, including
22 those arrived at by applying any payment methodology
23 procedures;
24 (2) the conversion factors in a resource-based
25 relative value scale reimbursement methodology or similar
26 methodologies;
27 (3) the amount of any discount on the price of
28 services to be rendered by health care providers; and
29 (4) the dollar amount of capitation or fixed
30 payment for health care services rendered by health care
31 providers to enrollees.
32 (c) The Board shall make the determination of what
33 constitutes substantial market power. A health care plan has
34 substantial market power if:
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1 (1) the health care plan has the power to set the
2 terms and conditions listed in subsection (b) in a manner
3 that has already affected or threatens to adversely
4 affect the quality and availability of health care
5 services to enrollees; or
6 (2) the market share of the health care plan in the
7 health care financing market exceeds 15% of the enrollees
8 in the geographic area of the affected health care
9 providers of a joint discussion representative. When
10 calculating the market power of a health care plan, the
11 Board shall include all policies and products offered by
12 subsidiary, parent, and affiliate health care plans of
13 the offeror. When calculating the market power of a
14 health care plan, the number of enrollees in Medicare,
15 the Department of Public Aid's Medical Assistance
16 Program, and other governmental programs shall not be
17 counted as part of the health care financing market,
18 unless the enrollees receive their governmental program
19 coverage through a health care plan. When calculating
20 the market power of a health care plan that has third
21 party administration products, the number of enrollees of
22 the health care plan shall include the number of
23 enrollees enrolled in or covered by the third party
24 payor.
25 (d) Financial information submitted to the Board or
26 Attorney General under this Act shall be privileged and
27 confidential to the same extent as information under the
28 provisions of Part 21 of Article VIII of the Code of Civil
29 Procedure.
30 (e) Nothing contained in this Act shall be construed to
31 enable health care providers and groups of health care
32 providers to engage in any group boycott or strike.
33 Section 30. Approval of joint discussions.
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1 (a) Upon the request of one or more of its affected
2 members, a joint discussion representative may send a written
3 communication to its members to determine the interest of its
4 members in having the joint communication representative
5 review, comment upon, and advise or discuss and confer with
6 offerors of a contract, or both, regarding the terms and
7 conditions of the contract.
8 (b) When a joint discussion representative determines to
9 review, comment upon, and advise or discuss and confer with
10 offerors of a contract, or both, regarding the terms and
11 conditions of a contract, the joint discussion representative
12 shall make such intention known in writing to those members
13 it has reason to believe are or may be affected by such
14 contract. Such written communication may be sent by
15 electronic mail or facsimile and shall:
16 (1) describe the specific terms and conditions of
17 the proposed contract to be discussed with the health
18 care plan; and
19 (2) advise the members of the date, time, and
20 location of an initial meeting to which members are
21 invited to attend to discuss the specific terms and
22 conditions of the proposed contract to be discussed with
23 the health care plan. Such initial meeting shall be
24 conducted not sooner than 30 days from the date of the
25 initial written communication and no later than 60 days
26 from the date of the initial written communication.
27 (c) Before engaging in any joint discussions with a
28 health care plan on behalf of its members, the joint
29 discussion representative shall furnish, for the Board's
30 approval, a report identifying:
31 (1) the joint discussion representative's name and
32 business address and the financial relationships of the
33 representative, if any, with its members and any health
34 care plans;
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1 (2) the names, addresses, provider types, and
2 specialties, if applicable, of the members who will be
3 represented by the joint discussion representative;
4 (3) a statement from each of the members who will
5 be represented by the joint discussion representative
6 indicating that the representative is authorized to
7 represent him or her in the joint negotiations with the
8 health care plan;
9 (4) the relationship of the members requesting
10 joint discussions to the total population of health care
11 providers, by type of health care provider to be
12 represented, in each geographic service area, based on
13 total population figures made available by the
14 Department;
15 (5) the health care plan or plans with which the
16 joint discussion representative intends to have
17 discussions on behalf of the its members;
18 (6) the relationship, if any, with the health care
19 plan of each member requesting joint discussions;
20 (7) the proposed terms and conditions to be
21 discussed with the health care plan;
22 (8) the joint discussion representative's
23 procedures to ensure compliance with this Act;
24 (9) the expected impact of the discussions on the
25 accessibility to care and the quality of patient care;
26 (10) the benefits of a contract between the health
27 care plan and members; and
28 (11) a copy of the initial written communication
29 required under subsections (a) and (b).
30 Such report shall be sent to the Board at the same time
31 that the initial written communication required under
32 subsection (b) is sent to the members of the joint discussion
33 representative. The joint discussion representative may
34 apply to hold discussions with more than one health care plan
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1 in a single report. The joint discussion representative
2 shall attest to the truthfulness, accuracy, and completeness
3 of the report.
4 (d) The report provided under subsection (c) shall be
5 updated by the joint discussion representative as necessary.
6 (e) A joint discussion representative may represent more
7 than one type of health care provider.
8 (f) Joint discussions shall be approved in accordance
9 with Section 50.
10 Section 35. Joint discussions with offeror.
11 (a) A joint discussion representative may enter into
12 joint discussions with offerors on behalf of its members.
13 The joint discussions shall be limited to terms and
14 conditions approved by the Board under Section 50.
15 (b) At all times during the joint discussions the joint
16 discussion representative may provide written communications
17 with its members as to any and all terms or conditions of any
18 proposed contract and as to the status of the joint
19 discussions with the offeror, including, where applicable,
20 the reason or reasons why discussions have been delayed or
21 interrupted. Such written communications may be sent by
22 electronic mail or facsimile and may advise the members of
23 the date, time, and location of meetings to which members are
24 invited to attend to discuss the specific terms and
25 conditions of the proposed contract and the status of the
26 joint discussions. Such meetings shall be conducted not
27 sooner than 30 days from the date of the written
28 communication and no later than 60 days from the date of the
29 written communications. The written communications shall be
30 approved by the Board in accordance with Section 50.
31 (c) Joint discussion representatives may join together
32 in discussions and conferences with offerors and may share
33 information derived in the course of the review of proposed
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1 contracts or discussions with offerors, or both. Discussions
2 shall be limited to those terms and conditions approved by
3 the Board in accordance with Section 50.
4 (d) Upon completion of a proposed contract, the joint
5 discussion representative shall inform its affected members,
6 in writing, of that fact, and shall further advise its
7 members of an analysis of the terms and conditions of the
8 proposed contract. The written communication shall include a
9 copy of the proposed contract. Such written communication
10 may be sent by electronic mail or facsimile and shall advise
11 the members of the date, time, and location of a meeting to
12 which members are invited to attend to discuss the specific
13 terms and conditions of the proposed contract. Such meeting
14 shall be conducted not sooner than 30 days from the date of
15 the written communication and no later than 60 days from the
16 date of the written communication. The written communication
17 shall be approved by the Board in accordance with Section 50.
18 The contract shall be approved by the Board in accordance
19 with Section 55.
20 Section 40. Refusal to hold joint discussions. No offeror
21 shall be required to enter into joint discussions with a
22 joint discussion representative. In the event that joint
23 discussions have been approved by the Board in accordance
24 with Section 50 and the offeror refuses to discuss and confer
25 with the joint discussion representative regarding the terms
26 and conditions of the proposed contract, the joint discussion
27 representative shall inform its affected members, in writing,
28 of that fact, and shall further advise its members of such
29 other analysis of the terms and conditions of the proposed
30 contract that it may not have conveyed in its previous
31 communications. Such written communication may be sent by
32 electronic mail or facsimile and shall advise the members of
33 the date, time, and location of a meeting to which members
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1 are invited to attend to discuss the specific terms and
2 conditions of the proposed contract and the refusal of the
3 health care plan to enter into joint discussions with the
4 joint discussion representative. Such meeting shall be
5 conducted not sooner than 30 days from the date of the
6 written communication and no later than 60 days from the date
7 of the written communication. The written communication
8 shall be approved by the Board in accordance with Section 50.
9 Section 45. Joint discussion representative and offeror
10 reach an impasse. An offeror may terminate joint discussions
11 with a joint discussion representative at any time. In the
12 event that the joint discussions between the joint discussion
13 representative and the offeror reach an impasse in the
14 judgment of the joint discussion representative, the joint
15 discussion representative shall inform its affected members,
16 in writing, of that fact, and shall further advise its
17 members of the reasons for the impasse and of such other
18 analysis of the terms and conditions of the proposed contract
19 that it may not have conveyed in its previous communications.
20 Such written communication may be sent by electronic mail or
21 facsimile and shall advise the members of the date, time, and
22 location of a meeting to which members are invited to attend
23 to discuss the specific terms and conditions of the proposed
24 contract and the impasse reached with the health care plan.
25 Such meeting shall be conducted not sooner than 30 days from
26 the date of the written communication and no later than 60
27 days from the date of the written communication. The written
28 communication shall be approved by the Board in accordance
29 with Section 50.
30 Section 50. Review of written communications by the
31 Board.
32 (a) All written communications required by Sections 30,
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1 35, 40, and 45 shall be filed by the joint discussion
2 representative with the Board and the offeror within 5 days
3 after the submission to members. The Board shall review the
4 contents of each written communication to determine whether
5 the communication, or any portion thereof wherein the terms
6 or conditions are summarized or described, accurately
7 summarizes or describes such terms or conditions. The Board
8 shall notify the representative and the offeror within 20
9 days of receipt if it objects to a communication because such
10 communication does not accurately summarize or describe the
11 terms or conditions. Approval of the written communication
12 shall be deemed to have been granted if the Board does not
13 take any action within the 20 day period.
14 (b) The Board shall approve joint discussions, written
15 communications, and proposed contracts upon a formal finding
16 that the joint discussions, written communications, and
17 proposed contracts do not contain any term or condition
18 prohibited by this Act. If disapproved, the Board shall
19 furnish a written explanation to the joint discussion
20 representative and the offeror of any deficiencies along with
21 a statement of specific remedial measures as to how such
22 deficiencies could be corrected. In carrying out its duties
23 the Board shall consider the recommendations of staff and
24 employees assigned to the Board.
25 (c) If the Board objects to a written communication, or
26 a portion thereof, within the 20 day period, the joint
27 discussion representative shall attempt to informally resolve
28 the Board's objections prior to any scheduled meeting. If
29 resolution is reached, the joint discussion representative
30 may be required by the Board to send members an additional
31 written notice. If no resolution is reached, the scheduled
32 meeting shall be canceled and the joint discussion
33 representative shall inform its members of the Board's
34 objections. The Board's objection constitutes a final
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1 administrative decision that may be appealed by the joint
2 discussion representative under the provisions of the
3 Administrative Review Law.
4 (d) The Board shall approve joint discussions and
5 written communications if the procompetitive and other
6 benefits of the joint discussions and written communications
7 outweigh any anticompetitive effects in the view of the
8 Board. In the case of a written communication seeking
9 approval to jointly negotiate one or more fee or fee-related
10 terms, the health care plan must have substantial market
11 power over the health care providers.
12 (e) The procompetitive and other benefits of joint
13 discussions, written communications, and proposed provider
14 contract terms and conditions may include, but shall not be
15 limited to, restoration of the competitive balance in the
16 market for health care services, protections for access to
17 quality patient care, promotion of the health care
18 infrastructure and medical advancement, and improved
19 communications between health care providers and health care
20 plans. When weighing the anticompetitive effects of proposed
21 contract terms and conditions, the Board may consider whether
22 the terms provide for excessive payments or contribute to the
23 escalation of the cost of providing health care services.
24 (f) The Board may require the submission of such
25 supplemental information as it may deem necessary or proper
26 to enable the Board to reach a determination under this
27 Section.
28 Section 55. Review of proposed contracts by the Board.
29 (a) Proposed contracts agreed to under Section 35 shall
30 be filed by the joint discussion representative with the
31 Board and the offeror within 5 days after the submission to
32 members. The Board shall review the proposed contract to
33 determine whether the proposed contract is consistent with
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1 this Act. The Board shall approve the proposed contract upon
2 a formal finding that the proposed contract does not contain
3 any term or condition prohibited by this Act and shall so
4 notify the joint discussion representative and the offeror.
5 Approval of the proposed contract shall be deemed to have
6 been granted if the Board does not take any action within 20
7 days after the proposed contract is filed with the Board. In
8 carrying out its duties the Board shall consider the
9 recommendations of staff and employees assigned to the Board.
10 (b) The Board shall notify the joint discussion
11 representative and the offeror within 20 days of receipt of
12 the proposed contract if it objects to any provision in the
13 proposed contract submitted under subsection (a). The Board
14 shall furnish a written explanation of any deficiencies along
15 with a statement of specific remedial measures as to how such
16 deficiencies could be corrected. If the Board objects to a
17 contract term or condition, or a portion thereof, within the
18 20-day period, the joint discussion representative shall
19 attempt to informally resolve the Board's objections with the
20 offeror prior to the scheduled meeting. If resolution is
21 reached, the joint discussion representative may be required
22 by the Board to send members an additional written notice.
23 If no resolution is reached, the scheduled meeting shall be
24 canceled, and the joint discussion representative shall
25 inform its members of the Board's objections. The Board's
26 objection constitutes a final administrative decision that
27 may be appealed by the joint discussion representative or
28 offeror under the provisions of the Administrative Review
29 Law.
30 (c) The Board shall approve a proposed contract if the
31 procompetitive and other benefits of the contract terms
32 outweigh any anticompetitive effects and the contract terms
33 are consistent with other applicable laws and regulations.
34 (d) The provisions of this Section do not change any
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1 requirements that a health care plan file proposed contracts
2 with the Department prior to offering those contracts.
3 Section 60. Attorney General; review; recommendation.
4 Upon receipt of a written communication or proposed contract
5 required by Section 30, 35, 40, or 45, the Board shall submit
6 the written communication or proposed contract to the
7 Attorney General for review. The Attorney General shall
8 review the written communication or proposed contract and
9 shall recommend to the Board, in writing, the approval or
10 disapproval of the written communication or proposed
11 contract. If the Attorney General recommends the Board
12 object to a written communication or proposed contract, the
13 Attorney General shall state the reasons for that
14 recommendation. The Board shall take into consideration the
15 recommendations of the Attorney General and shall specify in
16 writing any reasons for a decision contrary to the
17 recommendations of the Attorney General. The Attorney
18 General shall provide comments to the Board to allow the
19 Board to make a determination pursuant to the time frames set
20 forth in this Act.
21 Section 65. Licensure of joint discussion
22 representatives.
23 (a) Any person seeking to represent health care
24 providers or groups of health care providers shall submit an
25 application to the Board, upon forms the Board may require,
26 to be annually licensed to be a joint discussion
27 representative.
28 (b) The Board shall accept applications for licensure
29 beginning July 1, 2001 and shall require an applicant for
30 licensure to submit a non-refundable initial application fee
31 in an amount not to exceed $500 and may provide for fees in
32 amounts not to exceed $300 for renewal of annual licenses or
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1 reinstatement of suspended licenses.
2 (c) The Board shall grant an annual joint discussion
3 representative license to any applicant who demonstrates to
4 the Board's satisfaction that the applicant agrees to adhere
5 to the provisions of this Act.
6 (d) The Board shall grant a license to an applicant who
7 meets the requirements of this Section within 30 days of
8 receipt of satisfactory and appropriate application
9 materials.
10 (e) A joint discussion representative shall not:
11 (1) fail to continuously meet the requirements for
12 licensure as provided under this Section;
13 (2) fail to submit written communications and
14 proposed contracts to the Board as provided under this
15 Act;
16 (3) knowingly fail to disclose to its members or
17 offerors with whom it enters into joint discussions a
18 potential conflict of interest in regard to its
19 representation;
20 (4) accept compensation or any other thing of value
21 or advantage from an offeror with whom it has entered or
22 intends to enter into joint discussions; or
23 (5) materially misrepresent to an offeror the size
24 or composition of its membership.
25 (f) Nothing in this Act shall be construed to require
26 licensure of a representative of an individual health care
27 provider or group of health care providers practicing as a
28 partnership, professional service corporation, independent
29 practice association, health care provider hospital
30 organization, health maintenance organization holding a valid
31 certificate of authority under the Health Maintenance
32 Organization Act, clinic, or the like in the consideration
33 and discussion and conference upon the terms and conditions
34 of any contract for the provision of health care services
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1 offered such health care provider or group of health care
2 providers.
3 Section 70. Activities of joint discussion
4 representatives.
5 (a) Health care providers and groups of health care
6 providers may join and be represented by more than one joint
7 discussion representative.
8 (b) A joint discussion representative shall not be
9 required to represent every health care provider and group of
10 health care providers who may request the joint discussion
11 representative to represent him or her.
12 (c) The joint discussion representative shall advise
13 health care providers of the provisions of this Act and shall
14 warn health care providers of the potential for legal action
15 against health care providers who violate State or federal
16 antitrust laws when acting outside the authority of this Act.
17 (d) Each joint discussion representative may hire
18 persons as employees or independent contractors to review,
19 comment upon, and advise upon contracts and discuss with
20 offerors the terms and conditions of the contracts under the
21 direct supervision of the joint discussion representative.
22 (e) A joint discussion representative may contract with
23 other joint discussion representatives to review, comment
24 upon, and advise upon contracts or discuss and confer with
25 offerors in regard to contracts, or both, under the direction
26 of such joint discussion representative so long as the
27 contractual relationship is reduced to writing and submitted
28 to the Board for it to review and to determine whether the
29 contract, or any portion thereof, violates this Act. The
30 Board shall inform the joint discussion representative within
31 20 days of receipt of such contract if it objects to the
32 contract or any portion thereof. If the Board objects to
33 such contract between joint discussion representatives within
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1 the 20-day period, the joint discussion representative
2 proposing the contract shall attempt to informally resolve
3 the Board's objections. If resolution is reached within 30
4 days of the joint discussion representative's receipt of the
5 Board's objections, the joint discussion representative may
6 be required to amend the proposed contract. If no resolution
7 is reached, the Board's objections shall constitute a final
8 administrative decision that may be appealed by the joint
9 discussion representative under the provisions of the
10 Administrative Review Law.
11 Section 75. Suspension or revocation of joint discussion
12 representative's license.
13 (a) Upon the motion of the Board or upon the verified
14 complaint in writing of any person setting forth facts that,
15 if proven, would indicate that a joint discussion
16 representative has engaged in an activity prohibited by this
17 Act, the Board shall investigate the actions of the joint
18 discussion representative.
19 (b) The Board shall, before suspending or revoking a
20 license, hold a hearing on any charges and both the
21 complainant and the joint discussion representative shall be
22 accorded ample opportunity to present in person or by counsel
23 such statement, testimony, evidence, and argument as may be
24 pertinent to the charges or to any defense.
25 (c) The Board shall serve written notice to the joint
26 discussion representative of any charges made and the time
27 and place for the hearing of the charges before the Board.
28 Such hearing shall be no earlier than 30 days after such
29 notice is given by the Board. The Board shall direct the
30 joint discussion representative to file a written answer to
31 the Board under oath within 20 days after the service of the
32 written notice and inform the joint discussion representative
33 that failure to file the answer will result in a default
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1 action against the joint discussion representative's license.
2 (d) Upon formal finding by the Board that a joint
3 discussion representative has engaged in activity prohibited
4 by this Act, the Board may, in its discretion, cause the
5 joint discussion representatives's license to be suspended
6 for a period of time not to exceed one year or may revoke the
7 joint discussion representative's license. Where a joint
8 discussion representative's license has previously been twice
9 suspended, the Board's finding of a violation of this Act
10 shall result in the immediate revocation of the joint
11 discussion representative's license. No joint discussion
12 representative whose license has been revoked may re-apply
13 for licensure within one year of the effective date of the
14 revocation.
15 Section 80. Health care provider joint discussions;
16 antitrust exemption.
17 (a) This Act does not confer authority to engage in
18 joint discussions that are not submitted to the Board for
19 approval if such joint discussions are in violation of State
20 or federal antitrust laws. Conduct seemingly pursuant to
21 provisions of this Act done without the good faith intention
22 to seek approval of the Board is not entitled to the
23 protections and immunities of this Section.
24 (b) It is the intent of this Act to require the State,
25 through the Board, to provide direction, supervision, and
26 control over the joint discussion process. To achieve the
27 purpose of this Act, this State direction, supervision, and
28 control shall provide immunity from any civil or criminal
29 liability under the Illinois Antitrust Act and State-action
30 immunity under federal antitrust laws to health care
31 providers and joint discussion representatives who
32 participate in joint discussions as authorized under this
33 Act.
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1 Section 85. Joint discussions; Attorney General action.
2 The Attorney General shall have all the powers necessary or
3 convenient for the representation and protection of the
4 public interest in all proceedings under this Act, including,
5 without limitation, the right to intervene as a party or
6 otherwise participate in any proceeding under this Act.
7 Nothing in this Act shall limit the authority of the Attorney
8 General to initiate an action to enforce the civil or
9 criminal liability provisions of the Illinois Antitrust Act
10 if the Attorney General determines that a health care
11 provider or joint discussion representative have exceeded the
12 scope of the actions authorized under this Act.
13 Section 90. Investigations. The Attorney General or the
14 Board, at any time after a written communication or proposed
15 contract required under Section 30, 35, 40 or 45 is filed or
16 approved under this Act, may require by subpoena the
17 attendance and testimony of witnesses and the production of
18 documents for the purpose of investigating compliance with
19 this Act. The Attorney General or the Board may seek a court
20 order compelling compliance with a subpoena issued under this
21 Section.
22 Section 95. Rulemaking. The Board shall have the
23 authority to adopt rules necessary to implement the
24 provisions of this Act.
25 Section 100. Construction. Nothing in this Act shall be
26 construed to prohibit health care providers from negotiating
27 the terms and conditions of contracts as permitted by other
28 State or federal law.
29 Section 105. Severability. The provisions of this Act
30 are severable under Section 1.31 of the Statute on Statutes.
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1 Section 200. The Illinois Antitrust Act is amended by
2 changing Section 5 as follows:
3 (740 ILCS 10/5) (from Ch. 38, par. 60-5)
4 Sec. 5. No provisions of this Act shall be construed to
5 make illegal:
6 (1) the activities of any labor organization or of
7 individual members thereof which are directed solely to labor
8 objectives which are legitimate under the laws of either the
9 State of Illinois or the United States;
10 (2) the activities of any agricultural or horticultural
11 cooperative organization, whether incorporated or
12 unincorporated, or of individual members thereof, which are
13 directed solely to objectives of such cooperative
14 organizations which are legitimate under the laws of either
15 the State of Illinois or the United States;
16 (3) the activities of any public utility, as defined in
17 Section 3-105 of the Public Utilities Act to the extent that
18 such activities are subject to a clearly articulated and
19 affirmatively expressed State policy to replace competition
20 with regulation, where the conduct to be exempted is actively
21 supervised by the State itself;
22 (4) The activities of a telecommunications carrier, as
23 defined in Section 13-202 of the Public Utilities Act, to the
24 extent those activities relate to the provision of
25 noncompetitive telecommunications services under the Public
26 Utilities Act and are subject to the jurisdiction of the
27 Illinois Commerce Commission or to the activities of
28 telephone mutual concerns referred to in Section 13-202 of
29 the Public Utilities Act to the extent those activities
30 relate to the provision and maintenance of telephone service
31 to owners and customers;
32 (5) the activities (including, but not limited to, the
33 making of or participating in joint underwriting or joint
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1 reinsurance arrangement) of any insurer, insurance agent,
2 insurance broker, independent insurance adjuster or rating
3 organization to the extent that such activities are subject
4 to regulation by the Director of Insurance of this State
5 under, or are permitted or are authorized by, the Insurance
6 Code or any other law of this State;
7 (6) the religious and charitable activities of any
8 not-for-profit corporation, trust or organization established
9 exclusively for religious or charitable purposes, or for both
10 purposes;
11 (7) the activities of any not-for-profit corporation
12 organized to provide telephone service on a mutual or
13 co-operative basis or electrification on a co-operative
14 basis, to the extent such activities relate to the marketing
15 and distribution of telephone or electrical service to owners
16 and customers;
17 (8) the activities engaged in by securities dealers who
18 are (i) licensed by the State of Illinois or (ii) members of
19 the National Association of Securities Dealers or (iii)
20 members of any National Securities Exchange registered with
21 the Securities and Exchange Commission under the Securities
22 Exchange Act of 1934, as amended, in the course of their
23 business of offering, selling, buying and selling, or
24 otherwise trading in or underwriting securities, as agent,
25 broker, or principal, and activities of any National
26 Securities Exchange so registered, including the
27 establishment of commission rates and schedules of charges;
28 (9) the activities of any board of trade designated as a
29 "contract market" by the Secretary of Agriculture of the
30 United States pursuant to Section 5 of the Commodity Exchange
31 Act, as amended;
32 (10) the activities of any motor carrier, rail carrier,
33 or common carrier by pipeline, as defined in the Common
34 Carrier by Pipeline Law of the Public Utilities Act, to the
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1 extent that such activities are permitted or authorized by
2 the Act or are subject to regulation by the Illinois Commerce
3 Commission;
4 (11) the activities of any state or national bank to the
5 extent that such activities are regulated or supervised by
6 officers of the state or federal government under the banking
7 laws of this State or the United States;
8 (12) the activities of any state or federal savings and
9 loan association to the extent that such activities are
10 regulated or supervised by officers of the state or federal
11 government under the savings and loan laws of this State or
12 the United States;
13 (13) the activities of any bona fide not-for-profit
14 association, society or board, of attorneys, practitioners of
15 medicine, architects, engineers, land surveyors or real
16 estate brokers licensed and regulated by an agency of the
17 State of Illinois, in recommending schedules of suggested
18 fees, rates or commissions for use solely as guidelines in
19 determining charges for professional and technical services;
20 (14) Conduct involving trade or commerce (other than
21 import trade or import commerce) with foreign nations unless:
22 (a) such conduct has a direct, substantial, and
23 reasonably foreseeable effect:
24 (i) on trade or commerce which is not trade or
25 commerce with foreign nations, or on import trade or
26 import commerce with foreign nations; or
27 (ii) on export trade or export commerce with
28 foreign nations of a person engaged in such trade or
29 commerce in the United States; and
30 (b) such effect gives rise to a claim under the
31 provisions of this Act, other than this subsection (14).
32 (c) If this Act applies to conduct referred to in
33 this subsection (14) only because of the provisions of
34 paragraph (a)(ii), then this Act shall apply to such
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1 conduct only for injury to export business in the United
2 States which affects this State; or
3 (15) the activities of a unit of local government or
4 school district and the activities of the employees, agents
5 and officers of a unit of local government or school
6 district; or.
7 (16) the activities of any person pursuant to and in
8 compliance with the Health Care Services Contract Joint
9 Discussions Act.
10 (Source: P.A. 90-185, eff. 7-23-97; 90-561, eff. 12-16-97.)
11 Section 999. Effective date. This Act shall take effect
12 upon becoming law.