244
not limited to, effects on competition in relevant
markets.
(3) LIMITATION
ON
RECOVERY
TO
ACTUAL
DAMAGES AND INTEREST.—Notwithstanding section
4 of the Clayton Act, any person who is entitled to
recovery under the antitrust laws for conduct that is
within the scope of a notification filed under sub-
section (a) shall recover the actual damages sus-
tained by such person and interest calculated at the
rate specified in section 1961 of title 28, United
States Code, for the period beginning on the earliest
date for which injury can be established and ending
on the date of judgment, unless the court finds that
the award of all or part of such interest is unjust
under the circumstances.
(4) AWARD OF ATTORNEY’S FEES AND COSTS
OF SUIT.—
(A) IN GENERAL.—In any action under the
antitrust laws brought against a health care co-
operative venture for conduct that is within the
scope of a notification filed under subsection
(a), the court shall, at the conclusion of the ac-
tion—
(i) award to a substantially prevailing
claimant the cost of suit attributable to
245
such claim, including a reasonable attor-
ney’s fee, or
(ii) award to a substantially prevailing
party defending against such claim the
cost of such suit attributable to such claim,
including reasonable attorney’s fee, if the
claim, or the claimant’s conduct during
litigation of the claim, was frivolous, un-
reasonable, without foundation, or in bad
faith.
(B) OFFSET IN CASES OF BAD FAITH.—
The court may reduce an award made pursuant
to subparagraph (A) in whole or in part by an
award in favor of another party for any part of
the cost of suit (including a reasonable attor-
ney’s fee) attributable to conduct during the
litigation by any prevailing party that the court
finds to be frivolous, unreasonable, without
foundation, or in bad faith.
(5) RESTRICTIONS
ON
ADMISSIBILITY
OF
IN-
FORMATION.—
(A) IN
GENERAL.—Any information dis-
closed in a notification submitted under sub-
section (a)(1) and the fact of the publication of
a notification by the Attorney General under
246
subsection (a)(4) shall only be admissible into
evidence in a judicial or administrative proceed-
ing for the sole purpose of establishing that a
party to a health care cooperative venture is en-
titled to the protections described in this sub-
section.
(B) ACTIONS OF ATTORNEY GENERAL.—
No action taken by the Attorney General pursu-
ant to this section shall be admissible into evi-
dence in any judicial or administrative proceed-
ing for the purpose of supporting or answering
any claim under the antitrust laws.
SEC. 456. REVIEW AND REPORTS ON SAFE HARBORS AND
CERTIFICATES OF REVIEW.
(a) IN GENERAL.—The Attorney General (in con-
sultation with the Secretary and the Chair) shall periodi-
cally review the safe harbors described in section 452, the
additional safe harbors designated under section 453, and
the certificates of review issued under section 454, and—
(1) with respect to the safe harbors described in
section 452, submit such recommendations to Con-
gress as the Attorney General considers appropriate
for modifications of such safe harbors;
(2) with respect to the additional safe harbors
under designated under section 453, issue proposed
247
revisions to such activities and publish the revisions
in the Federal Register; and
(3) with respect to the certificates of review,
submit a report to Congress on the issuance of such
certificates, and shall include in the report a descrip-
tion of the effect of such certificates on increasing
access to high quality health care services at reduced
costs.
(b) RECOMMENDATIONS
FOR LEGISLATION.—The
Attorney General shall include in the reports submitted
under subsection (a)(3) any recommendations of the At-
torney General for legislation to improve the program for
the issuance of certificates of review established under this
subtitle.
SEC. 457. RULES, REGULATIONS, AND GUIDELINES.
(a) SAFE HARBORS, CERTIFICATES, AND NOTIFICA-
TIONS.—The Attorney General, with the concurrence of
the Secretary, shall promulgate such rules, regulations,
and guidelines as are necessary to carry out sections 452,
453, 454, and 455, including guidelines defining or relat-
ing to relevant geographic and product markets for health
care services and providers of health care services.
(b) GUIDANCE FOR PROVIDERS.—
(1) IN
GENERAL.—To promote greater cer-
tainty regarding the application of the antitrust laws
248
to activities in the health care market, the Attorney
General, in consultation with the Secretary and the
Chair, shall (not later than 1 year after the date of
the enactment of this Act), taking into account the
criteria used to designate additional safe harbors
under section 453 and grant certificates of review
under section 454, publish guidelines—
(A) to assist providers of health care serv-
ices in analyzing whether the activities of such
providers may be subject to a safe harbor under
sections 452 or 453; and
(B) describing specific types of activities
which would meet the requirements for a cer-
tificate of review under section 454, and sum-
marizing the factual and legal bases on which
the activities would meet the requirements.
(2) PERIODIC UPDATE.—The Attorney General
shall periodically update the guidelines published
under paragraph (1) as the Attorney General consid-
ers appropriate.
(3) WAIVER OF ADMINISTRATIVE PROCEDURE
ACT.—Section 553 of title 5, United States Code,
shall not apply to the issuance of guidelines under
paragraph (1).
249
SEC. 458. ESTABLISHMENT OF HHS OFFICE OF HEALTH
CARE COMPETITION POLICY.
(a) IN GENERAL.—There is established within the
Department of Health and Human Services an Office to
be known as the Office of Health Care Competition Policy
(hereafter in this section referred to as the ‘‘Office’’). The
Office shall be headed by a director, who shall be ap-
pointed by the Secretary.
(b) DUTIES.—The Office shall coordinate the respon-
sibilities of the Secretary under this subtitle and otherwise
assist the Secretary in developing policies relating to the
competitive and collaborative activities of providers of
health care services.
SEC. 459. DEFINITIONS.
In this subtitle, the following definitions shall apply:
(1) The term ‘‘antitrust laws’’—
(A) has the meaning given it in subsection
(a) of the first section of the Clayton Act (15
U.S.C. 12(a)), except that such term includes
section 5 of the Federal Trade Commission Act
(15 U.S.C. 45) to the extent such section ap-
plies to unfair methods of competition; and
(B) includes any State law similar to the
laws referred to in subparagraph (A).
(2) The term ‘‘Chair’’ means the Chair of the
Federal Trade Commission.
250
(3) The term ‘‘health care cooperative venture’’
means any activities, including attempts to enter
into or perform a contract or agreement, carried out
by 2 or more persons for the purpose of providing
health care services.
(4) The term ‘‘health care services’’ means any
services for which payment may be made under a
health plan, including services related to the delivery
or administration of such services.
(5) The term ‘‘medical self-regulatory entity’’
means a medical society or association, a specialty
board, a recognized accrediting agency, or a hospital
medical staff, and includes the members, officers,
employees, consultants, and volunteers or commit-
tees of such an entity.
(6) The term ‘‘person’’ includes a State or unit
of local government.
(7) The term ‘‘provider of health care services’’
means any individual or entity that is engaged in the
delivery of health care services in a State and that
is required by State law or regulation to be licensed
or certified by the State to engage in the delivery of
such services in the State.
(8) The term ‘‘specialty group’’ means a medi-
cal specialty or subspecialty in which a provider of
251
health care services may be licensed to practice by
a State (as determined by the Secretary in consulta-
tion with the certification boards for such specialties
and subspecialties).
(9) The term ‘‘standard setting and enforce-
ment activities’’ means—
(A) accreditation of health care practition-
ers, health care providers, medical education in-
stitutions, or medical education programs,
(B) technology assessment and risk man-
agement activities,
(C) the development and implementation of
practice guidelines or practice parameters, or
(D) official peer review proceedings under-
taken by a hospital medical staff (or committee
thereof) or a medical society or association for
purposes of evaluating the professional conduct
or quality of health care provided by a medical
professional.
252
TITLE V—SPECIAL ASSISTANCE
FOR FRONTIER, RURAL, AND
URBAN UNDERSERVED AREAS
Subtitle A—Frontier, Rural, and
Urban Underserved Areas
SEC. 501. ESTABLISHMENT OF PROGRAM TO MAKE COMMU-
NITY-BASED PRIMARY HEALTH GRANTS AND
HEALTH SERVICE ACCESS GRANTS FOR FED-
ERALLY-QUALIFIED HEALTH CENTERS.
(a) IN GENERAL.—Subpart I of part D of title III
of the Public Health Service Act (42 U.S.C. 254b et seq.)
is amended by adding at the end the following new section:
‘‘SEC. 330A. GRANTS FOR EXPANDED ACCESS TO PRIMARY
HEALTH SERVICES.
‘‘(a) COMMUNITY-BASED PRIMARY HEALTH CARE
GRANT PROGRAM.—
‘‘(1) ESTABLISHMENT.—The Secretary shall es-
tablish and administer a program to provide allot-
ments to states to enable such states to provide
grants for the creation or enhancement of commu-
nity-based primary health care entities that provide
services to low-income or medically underserved
populations.
‘‘(2) ALLOTMENTS TO STATES.—
253
‘‘(A) IN
GENERAL.—From the amount
available for allotment under subsection (c) for
a fiscal year, the Secretary shall allot to each
State an amount equal to the product of the
grant share of the State (as determined under
subparagraph (B)) multiplied by such amount
available.
‘‘(B) GRANT SHARE.—
‘‘(i) IN
GENERAL.—For purposes of
subparagraph (A), the grant share of a
State shall be the product of the need-ad-
justed population of the State (as deter-
mined under clause (ii)) multiplied by the
Federal matching percentage of the State
(as determined under clause (iii)), ex-
pressed as a percentage of the sum of the
products of such factors for all States.
‘‘(ii) NEED-ADJUSTED POPULATION.—
‘‘(I) IN GENERAL.—For purposes
of clause (i), the need-adjusted popu-
lation of a State shall be the product
of the total population of the State
(as estimated by the Secretary of
Commerce) multiplied by the need
254
index of the State (as determined
under subclause (B)).
‘‘(II) NEED
INDEX.—For pur-
poses of subclause (I), the need index
of a State shall be the ratio of—
‘‘(aa) the weighted sum of
the geographic percentage of the
State 
(as 
determined 
under
subclause (III)), the poverty per-
centage of the State (as deter-
mined under subclause (IV)), and
the multiple grant percentage of
the State (as determined under
subclause (V)); to
‘‘(bb) the general population
percentage of the State (as deter-
mined under subclause (VI)).
‘‘(III) GEOGRAPHIC
PERCENT-
AGE.—For 
purposes 
of 
subclause
(II)(a), the geographic percentage of
the State shall be the estimated popu-
lation of the State that is residing in
nonurbanized areas expressed as a
percentage of the total nonurbanized
population of all States. For purposes
255
of the preceding sentence, the esti-
mated population of the State that is
residing in nonurbanized areas shall
be one minus the urbanized popu-
lation of the State (as determined
using the most recent decennial cen-
sus), expressed as a percentage of the
total population of the State (as de-
termined using the most recent decen-
nial census), multiplied by the current
estimated population of the State.
‘‘(IV) POVERTY PERCENTAGE.—
For purposes of subclause (II)(aa),
the poverty percentage of the State
shall be the estimated number of peo-
ple residing in the State with incomes
below 160 percent of the income offi-
cial poverty line (as adjusted for ac-
tual costs and incomes in each State
and as determined by the Office of
Management and Budget) expressed
as a percentage of the total number of
such people residing in all States.
‘‘(V) MULTIPLE
GRANT
PER-
CENTAGE.—For purposes of subclause
256
(II)(aa), the multiple grant percentage
of the State shall be the amount of
Federal funding received by the State
under grants awarded under sections
329, 330, and 340, expressed as a
percentage of the total amounts re-
ceived under such grants by all
States. With respect to a State, such
percentage shall not exceed twice the
general population percentage of the
State under subclause (VI) or be less
than one-half of the States general
population percentage.
‘‘(VI) 
GENERAL
POPULATION
PERCENTAGE.—For 
purposes 
of
subclause (II)(bb), the general popu-
lation percentage of the State shall be
the total population of the State (as
determined by the Secretary of Com-
merce) expressed as a percentage of
the total population of all States.
‘‘(iii) FEDERAL MATCHING PERCENT-
AGE.—
‘‘(I) IN GENERAL.—For purposes
of clause (i), the Federal matching
257
percentage of the State shall be equal
to one, less the State matching per-
centage 
(as 
determined 
under
subclause (B)).
‘‘(II) STATE
MATCHING
PER-
CENTAGE.—For purposes of clause
(i), the State matching percentage of
the State shall be 0.50 multiplied by
the ratio of the total taxable resource
percentage 
(as 
determined 
under
subclause (III)) to the need-adjusted
population of the State (as determined
under clause (ii)).
‘‘(III) 
TOTAL
TAXABLE
RE-
SOURCE PERCENTAGE.—For purposes
of subclause (II), the total taxable re-
sources percentage of the State shall
be the total taxable resources of a
State (as determined by the Secretary
of the Treasury) expressed as a per-
centage of the sum of the total tax-
able resources of all States.
‘‘(C) ANNUAL ESTIMATES.—
‘‘(i) IN GENERAL.—If the Secretary of
Commerce does not produce the annual es-
258
timates 
required 
under 
subparagraph
(B)(ii)(IV), such estimates shall be deter-
mined by multiplying the percentage of the
population of the State that is below 160
percent of the income official poverty line
as determined using the most recent decen-
nial census by the most recent estimate of
the total population of the State. Except as
provided in clause (ii), the calculations re-
quired under this clause shall be made
based on the most recent 3-year average of
the total taxable resources of individuals
within the State.
‘‘(ii) DISTRICT OF COLUMBIA.—Not-
withstanding clause (i), the calculations re-
quired under such clause with respect to
the District of Columbia shall be based on
the most recent 3-year average of the per-
sonal income of individuals residing within
the District as a percentage of the personal
income for all individuals residing within
the District, as determined by the Sec-
retary of Commerce.
‘‘(iii) STATE
OF
ALASKA.—Notwith-
standing clause (i), the calculations re-
259
quired under such clause with respect to
the State of Alaska shall be based on the
quotient of—
‘‘(I) the most recent 3-year aver-
age of the per capita income of indi-
viduals residing in the State; divided
by
‘‘(II) 1.25.
‘‘(D) MATCHING REQUIREMENT.—A State
that receives an allotment under this subsection
shall make available State resources (either di-
rectly or indirectly) to carry out this subsection
in an amount that shall equal the State match-
ing percentage for the State (as determined
under subparagraph (B)(iii)(II)) divided by the
Federal matching percentage (as determined
under subparagraph (B)(iii)).
‘‘(3) APPLICATION.—
‘‘(A) IN GENERAL.—To be eligible to re-
ceive an allotment under this subsection, a
State shall prepare and submit an application
to the Secretary at such time, in such manner,
and containing such information as the Sec-
retary may by regulation require.