II 

117TH CONGRESS 

1ST SESSION S. 3139 

To ban anticompetitive terms in facility and insurance contracts that limit 

access to higher quality, lower cost care. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 2, 2021 

Mr. BRAUN (for himself and Ms. BALDWIN) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To ban anticompetitive terms in facility and insurance 

contracts that limit access to higher quality, lower cost care. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Healthy Competition 

5 for Better Care Act’’. 

6 SEC. 2. BANNING ANTICOMPETITIVE TERMS IN FACILITY 

7 AND INSURANCE CONTRACTS THAT LIMIT AC8 CESS TO HIGHER QUALITY, LOWER COST 

9 CARE. 

10 (a) IN GENERAL.— 


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1 (1) PHSA.—Section 2799A–9 of the Public 

2 Health Service Act (42 U.S.C. 300gg–119) is 

3 amended by adding at the end the following: 

4 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE5 SIGN FLEXIBILITY.— 

6 ‘‘(1) IN GENERAL.—A group health plan or a 

7 health insurance issuer offering group or individual 

8 health insurance coverage shall not enter into an 

9 agreement with a provider, network or association of 

10 providers, or other service provider offering access to 

11 a network of service providers if such agreement, di12 rectly or indirectly— 

13 ‘‘(A) restricts the group health plan or 

14 health insurance issuer from— 

15 ‘‘(i) directing or steering enrollees to 

16 other health care providers; or 

17 ‘‘(ii) offering incentives to encourage 

18 enrollees to utilize specific health care pro19 viders; 

20 ‘‘(B) requires the group health plan or 

21 health insurance issuer to enter into any addi22 tional contract with an affiliate of the provider 

23 as a condition of entering into a contract with 

24 such provider; 


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1 ‘‘(C) requires the group health plan or 

2 health insurance issuer to agree to payment 

3 rates or other terms for any affiliate not party 

4 to the contract of the provider involved; or 

5 ‘‘(D) restricts other group health plans or 

6 health insurance issuers not party to the con7 tract, from paying a lower rate for items or 

8 services than the contracting plan or issuer 

9 pays for such items or services. 

10 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN11 SURED PLANS.—A self-insured group health plan 

12 shall not enter into an agreement with a provider, 

13 network or association of providers, third-party ad14 ministrator, or other service provider offering access 

15 to a network of providers if such agreement directly 

16 or indirectly requires the group health plan to cer17 tify, attest, or otherwise confirm in writing that the 

18 group health plan is bound by restrictive contracting 

19 terms between the service provider and a third-party 

20 administrator that the group health plan is not 

21 party to, without a disclosure that such terms exist. 

22 ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL

23 ISSUERS.—Paragraph (1)(A) shall not apply to a 

24 group health plan or health insurance issuer offering 


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1 group or individual health insurance coverage with 

2 respect to— 

3 ‘‘(A) a health maintenance organization 

4 (as defined in section 2791(b)(3)), if such 

5 health maintenance organization operates pri6 marily through exclusive contracts with multi7 specialty physician groups, nor to any arrange8 ment between such a health maintenance orga9 nization and its affiliates; or 

10 ‘‘(B) a value-based network arrangement, 

11 such as an exclusive provider network, account12 able care organization or other alternative pay13 ment model, center of excellence, a provider 

14 sponsored health insurance issuer that operates 

15 primarily through aligned multi-specialty physi16 cian group practices or integrated health sys17 tems, or such other similar network arrange18 ments as determined by the Secretary through 

19 rulemaking. 

20 ‘‘(4) ATTESTATION.—A group health plan or 

21 health insurance issuer offering group or individual 

22 health insurance coverage shall annually submit to, 

23 as applicable, the applicable authority described in 

24 section 2723 or the Secretary of Labor, an attestaVerDate Sep 11 2014 22:19 Nov 04, 2021 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 tion that such plan or issuer is in compliance with 

2 the requirements of this subsection. 

3 ‘‘(c) MAINTENANCE OF EXISTING HIPAA, GINA, 

4 AND ADA PROTECTIONS.—Nothing in this section shall 

5 modify, reduce, or eliminate the existing privacy protec6 tions and standards provided by reason of State and Fed7 eral law, including the requirements of parts 160 and 164 

8 of title 45, Code of Federal Regulations (or any successor 

9 regulations). 

10 ‘‘(d) REGULATIONS.—The Secretary, in consultation 

11 with the Secretary of Labor and the Secretary of the 

12 Treasury, not later than 1 year after the date of enact13 ment of this section, shall promulgate regulations to carry 

14 out this section. 

15 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec16 tion shall be construed to limit network design or cost or 

17 quality initiatives by a group health plan or health insur18 ance issuer, including accountable care organizations, ex19 clusive provider organizations, networks that tier providers 

20 by cost or quality or steer enrollees to centers of excel21 lence, or other pay-for-performance programs. 

22 ‘‘(f) CLARIFICATION WITH RESPECT TO ANTITRUST

23 LAWS.—Compliance with this section does not constitute 

24 compliance with the antitrust laws, as defined in subVerDate Sep 11 2014 22:19 Nov 04, 2021 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 section (a) of the first section of the Clayton Act (15 

2 U.S.C. 12(a)).’’. 

3 (2) ERISA.—Section 724 of the Employee Re4 tirement Income Security Act of 1974 (29 U.S.C. 

5 1185m) is amended by adding at the end the fol6 lowing: 

7 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE8 SIGN FLEXIBILITY.— 

9 ‘‘(1) IN GENERAL.—A group health plan or a 

10 health insurance issuer offering group health insur11 ance coverage shall not enter into an agreement with 

12 a provider, network or association of providers, or 

13 other service provider offering access to a network of 

14 service providers if such agreement, directly or indi15 rectly— 

16 ‘‘(A) restricts the group health plan or 

17 health insurance issuer from— 

18 ‘‘(i) directing or steering enrollees to 

19 other health care providers; or 

20 ‘‘(ii) offering incentives to encourage 

21 enrollees to utilize specific health care pro22 viders; 

23 ‘‘(B) requires the group health plan or 

24 health insurance issuer to enter into any addi25 tional contract with an affiliate of the provider 


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1 as a condition of entering into a contract with 

2 such provider; 

3 ‘‘(C) requires the group health plan or 

4 health insurance issuer to agree to payment 

5 rates or other terms for any affiliate not party 

6 to the contract of the provider involved; or 

7 ‘‘(D) restricts other group health plans or 

8 health insurance issuers not party to the con9 tract, from paying a lower rate for items or 

10 services than the contracting plan or issuer 

11 pays for such items or services. 

12 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN13 SURED PLANS.—A self-insured group health plan 

14 shall not enter into an agreement with a provider, 

15 network or association of providers, third-party ad16 ministrator, or other service provider offering access 

17 to a network of providers if such agreement directly 

18 or indirectly requires the group health plan to cer19 tify, attest, or otherwise confirm in writing that the 

20 group health plan is bound by restrictive contracting 

21 terms between the service provider and a third-party 

22 administrator that the group health plan is not 

23 party to, without a disclosure that such terms exist. 

24 ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL

25 ISSUERS.—Paragraph (1)(A) shall not apply to a 


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1 group health plan or health insurance issuer offering 

2 group health insurance coverage with respect to— 

3 ‘‘(A) a health maintenance organization 

4 (as defined in section 733(b)(3)), if such health 

5 maintenance organization operates primarily 

6 through exclusive contracts with multi-specialty 

7 physician groups, nor to any arrangement be8 tween such a health maintenance organization 

9 and its affiliates; or 

10 ‘‘(B) a value-based network arrangement, 

11 such as an exclusive provider network, account12 able care organization or other alternative pay13 ment model, center of excellence, a provider 

14 sponsored health insurance issuer that operates 

15 primarily through aligned multi-specialty physi16 cian group practices or integrated health sys17 tems, or such other similar network arrange18 ments as determined by the Secretary through 

19 rulemaking. 

20 ‘‘(4) ATTESTATION.—A group health plan or 

21 health insurance issuer offering group health insur22 ance coverage shall annually submit to the Secretary 

23 of Labor an attestation that such plan or issuer is 

24 in compliance with the requirements of this sub25 section. 


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1 ‘‘(c) MAINTENANCE OF EXISTING HIPAA, GINA, 

2 AND ADA PROTECTIONS.—Nothing in this section shall 

3 modify, reduce, or eliminate the existing privacy protec4 tions and standards provided by reason of State and Fed5 eral law, including the requirements of parts 160 and 164 

6 of title 45, Code of Federal Regulations (or any successor 

7 regulations). 

8 ‘‘(d) REGULATIONS.—The Secretary, in consultation 

9 with the Secretary of Health and Human Services and the 

10 Secretary of the Treasury, not later than 1 year after the 

11 date of enactment of this section, shall promulgate regula12 tions to carry out this section. 

13 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec14 tion shall be construed to limit network design or cost or 

15 quality initiatives by a group health plan or health insur16 ance issuer, including accountable care organizations, ex17 clusive provider organizations, networks that tier providers 

18 by cost or quality or steer enrollees to centers of excel19 lence, or other pay-for-performance programs. 

20 ‘‘(f) CLARIFICATION WITH RESPECT TO ANTITRUST

21 LAWS.—Compliance with this section does not constitute 

22 compliance with the antitrust laws, as defined in sub23 section (a) of the first section of the Clayton Act (15 

24 U.S.C. 12(a)).’’. 


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1 (3) IRC.—Section 9824 of the Internal Rev2 enue Code of 1986 is amended by adding at the end 

3 the following: 

4 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE5 SIGN FLEXIBILITY.— 

6 ‘‘(1) IN GENERAL.—A group health plan shall 

7 not enter into an agreement with a provider, net8 work or association of providers, or other service 

9 provider offering access to a network of service pro10 viders if such agreement, directly or indirectly— 

11 ‘‘(A) restricts the group health plan 

12 from— 

13 ‘‘(i) directing or steering enrollees to 

14 other health care providers; or 

15 ‘‘(ii) offering incentives to encourage 

16 enrollees to utilize specific health care pro17 viders; 

18 ‘‘(B) requires the group health plan to 

19 enter into any additional contract with an affil20 iate of the provider as a condition of entering 

21 into a contract with such provider; 

22 ‘‘(C) requires the group health plan to 

23 agree to payment rates or other terms for any 

24 affiliate not party to the contract of the pro25 vider involved; or 


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1 ‘‘(D) restricts other group health plans not 

2 party to the contract, from paying a lower rate 

3 for items or services than the contracting plan 

4 pays for such items or services. 

5 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN6 SURED PLANS.—A self-insured group health plan 

7 shall not enter into an agreement with a provider, 

8 network or association of providers, third-party ad9 ministrator, or other service provider offering access 

10 to a network of providers if such agreement directly 

11 or indirectly requires the group health plan to cer12 tify, attest, or otherwise confirm in writing that the 

13 group health plan is bound by restrictive contracting 

14 terms between the service provider and a third-party 

15 administrator that the group health plan is not 

16 party to, without a disclosure that such terms exist. 

17 ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL

18 ISSUERS.—Paragraph (1)(A) shall not apply to a 

19 group health plan with respect to— 

20 ‘‘(A) a health maintenance organization 

21 (as defined in section 9832(b)(3)), if such 

22 health maintenance organization operates pri23 marily through exclusive contracts with multi24 specialty physician groups, nor to any arrangeVerDate Sep 11 2014 22:19 Nov 04, 2021 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3139.IS S3139

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1 ment between such a health maintenance orga2 nization and its affiliates; or 

3 ‘‘(B) a value-based network arrangement, 

4 such as an exclusive provider network, account5 able care organization or other alternative pay6 ment model, center of excellence, a provider 

7 sponsored health insurance issuer that operates 

8 primarily through aligned multi-specialty physi9 cian group practices or integrated health sys10 tems, or such other similar network arrange11 ments as determined by the Secretary through 

12 rulemaking. 

13 ‘‘(4) ATTESTATION.—A group health plan shall 

14 annually submit to the Secretary of Labor an attes15 tation that such plan is in compliance with the re16 quirements of this subsection. 

17 ‘‘(c) MAINTENANCE OF EXISTING HIPAA, GINA, 

18 AND ADA PROTECTIONS.—Nothing in this section shall 

19 modify, reduce, or eliminate the existing privacy protec20 tions and standards provided by reason of State and Fed21 eral law, including the requirements of parts 160 and 164 

22 of title 45, Code of Federal Regulations (or any successor 

23 regulations). 

24 ‘‘(d) REGULATIONS.—The Secretary, in consultation 

25 with the Secretary of Health and Human Services and the 


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1 Secretary of Labor, not later than 1 year after the date 

2 of enactment of this section, shall promulgate regulations 

3 to carry out this section. 

4 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec5 tion shall be construed to limit network design or cost or 

6 quality initiatives by a group health plan, including ac7 countable care organizations, exclusive provider organiza8 tions, networks that tier providers by cost or quality or 

9 steer enrollees to centers of excellence, or other pay-for10 performance programs. 

11 ‘‘(f) CLARIFICATION WITH RESPECT TO ANTITRUST

12 LAWS.—Compliance with this section does not constitute 

13 compliance with the antitrust laws, as defined in sub14 section (a) of the first section of the Clayton Act (15 

15 U.S.C. 12(a)).’’. 

16 (b) EFFECTIVE DATE.—The amendments made by 

17 subsection (a) shall apply with respect to any contract en18 tered into on or after the date that is 18 months after 

19 the date of enactment of this Act. With respect to an ap20 plicable contract that is in effect on the date of enactment 

21 of this Act, such amendments shall apply on the earlier 

22 of the date of renewal of such contract or 3 years after 

23 such date of enactment. 

Æ 


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