(A) in paragraph (2), by inserting ‘‘or
under a health insurance plan’’ before the pe-
riod at the end, and
(B) in paragraph (5), by inserting ‘‘or
under a health insurance plan’’ after ‘‘or XX’’.
(b) CRIMES.—
(1) SOCIAL SECURITY ACT.—Section 1128B of
such Act (42 U.S.C. 1320a–7b) is amended as fol-
lows:
(A) In the heading, by adding at the end
the following: ‘‘OR HEALTH INSURANCE PLANS’’.
(B) In subsection (a)(1)—
(i) by striking ‘‘title XVIII or’’ and
inserting ‘‘title XVIII,’’, and
(ii) by adding at the end the follow-
ing: ‘‘or a health insurance plan (as de-
fined in section 1128(i)),’’.
(C) In subsection (a)(5), by striking ‘‘title
XVIII or a State health care program’’ and in-
serting ‘‘title XVIII, a State health care pro-
gram, or a health insurance plan’’.
(D) In the second sentence of subsection
(a)—
(i) by inserting after ‘‘title XIX’’ the
following: ‘‘or a health insurance plan’’,
and
(ii) by inserting after ‘‘the State’’ the
following: ‘‘or the plan’’.
(E) In subsection (b)(1), by striking ‘‘title
XVIII or a State health care program’’ each
place it appears and inserting ‘‘title XVIII, a
State health care program, or a health insur-
ance plan’’.
(F) In subsection (b)(2), by striking ‘‘title
XVIII or a State health care program’’ each
place it appears and inserting ‘‘title XVIII, a
State health care program, or a health insur-
ance plan’’.
(G) In subsection (b)(3), by striking ‘‘title
XVIII or a State health care program’’ each
place it appears in subparagraphs (A) and (C)
and inserting ‘‘title XVIII, a State health care
program, or a health insurance plan’’.
(H) In subsection (d)(2)—
(i) by striking ‘‘title XIX,’’ and insert-
ing ‘‘title XIX or under a health insurance
plan,’’, and
(ii) by striking ‘‘State plan,’’ and in-
serting ‘‘State plan or the health insurance
plan,’’.
(2) TREBLE
DAMAGES
FOR
CRIMINAL
SANC-
TIONS.—Section 1128B of such Act (42 U.S.C.
1320a–7b) is amended by adding at the end the fol-
lowing new subsection:
‘‘(f) In addition to the fines that may be imposed
under subsection (a), (b), or (c), any individual found to
have violated the provisions of any of such subsections
may be subject to treble damages.’’.
(3) IDENTIFICATION OF COMMUNITY SERVICE
OPPORTUNITIES.—Section 1128B of such Act (42
U.S.C. 1320a–7b) is further amended by adding at
the end the following new subsection:
‘‘(g) The Secretary shall—
‘‘(1) in consultation with State and local health
care officials, identify opportunities for the satisfac-
tion of community service obligations that a court
may impose upon the conviction of an offense under
this section, and
‘‘(2) make information concerning such oppor-
tunities available to Federal and State law enforce-
ment officers and State and local health care offi-
cials.’’.
(c) HEALTH INSURANCE PLAN DEFINED.—Section
1128 of such Act (42 U.S.C. 1320a–7) is amended by re-
designating subsection (i) as subsection (j) and by insert-
ing after subsection (h) the following new subsection:
‘‘(i) HEALTH INSURANCE PLAN DEFINED.—For pur-
poses of sections 1128A and 1128B, the term ‘health in-
surance plan’ means a health insurance program other
than the medicare program, the medicaid program, or a
State health care program.’’.
(d) 
CONFORMING
AMENDMENT.—Section
1128(b)(8)(B)(ii) of such Act (42 U.S.C. 1320a–
7(b)(8)(B)(ii)) is amended by striking ‘‘1128A’’ and in-
serting ‘‘1128A (other than a penalty arising from a
health insurance plan, as defined in subsection (i))’’.
(e) EFFECTIVE DATE.—The amendments made by
this section shall take effect January 1, 1995.
TITLE IV—ANTITRUST
PROVISIONS
SEC. 401. EXEMPTION FROM ANTITRUST LAWS FOR CER-
TAIN COMPETITIVE AND COLLABORATIVE
ACTIVITIES.
(a) EXEMPTION DESCRIBED.—An activity relating to
the provision of health care services shall be exempt from
the antitrust laws if—
(1) the activity is within one of the categories
of safe harbors described in section 402;
(2) the activity is within an additional safe har-
bor designated by the Attorney General under sec-
tion 403; or
(3) the activity is specified in and in compliance
with the terms of a certificate of review issued by
the Attorney General under section 404 and the ac-
tivity occurs—
(A) while the certificate is in effect, or
(B) in the case of a certificate issued dur-
ing the 2-year period beginning on the date of
the enactment of this Act, at any time on or
after the first day of the 2-year period that
ends on the date the certificate takes effect.
(b) AWARD OF ATTORNEY’S FEES AND COSTS OF
SUIT.—
(1) IN GENERAL.—If any person brings an ac-
tion alleging a claim under the antitrust laws and
the activity on which the claim is based is found by
the court to be exempt from such laws under sub-
section (a), the court shall, at the conclusion of the
action—
vider in question does not exceed 20 percent of the
total number of such type or specialty of provider in
the relevant market area.
(2) ACTIVITIES OF MEDICAL SELF-REGULATORY
ENTITIES.—
(A) IN
GENERAL.—Subject to subpara-
graph (B), any activity of a medical self-regu-
latory entity relating to standard setting or
standard enforcement activities that are de-
signed to promote the quality of health care
provided to patients.
(B) EXCEPTION.—No activity of a medical
self-regulatory entity may be deemed to fall
under the safe harbor established under this
paragraph if the activity is conducted for pur-
poses of financial gain.
(3) PARTICIPATION IN SURVEYS.—The partici-
pation of a provider of health care services in a writ-
ten survey of the prices of services, reimbursement
levels, or the compensation and benefits of employ-
ees and personnel, but only if—
(A) the survey is conducted by a third
party, such as a purchaser of health care serv-
ices, governmental entity, institution of higher
education, or trade association;
(B) the information provided by partici-
pants in the survey is based on prices charged,
reimbursements received, or compensation and
benefits paid prior to the third month preceding
the month in which the information is provided;
and
(C) if the results of the survey are dissemi-
nated, the results are aggregated in a manner
that ensures that no recipient of the results
may identify the prices charged, reimbursement
received, or compensation and benefits paid by
any particular provider.
(4) JOINT VENTURES FOR HIGH TECHNOLOGY
AND COSTLY EQUIPMENT AND SERVICES.—Any ac-
tivity of a health care cooperative venture relating to
the purchase, operation, or marketing of high tech-
nology or other expensive medical equipment, or the
provision of high cost or complex services, but only
if the number of participants in the venture does not
exceed the lowest number needed to support the ven-
ture. Other providers may be included in the ven-
ture, but only if such other providers could not pur-
chase, operate, or market such equipment or provide
a competing service either alone or through the for-
mation of a competing venture.
100
(5) HOSPITAL MERGERS.—Activities relating to
a merger of 2 hospitals if, during the 3-year period
preceding the merger, one of the hospitals had an
average of 150 or fewer operational beds and an av-
erage daily inpatient census of less than 50 percent
of such beds.
(6) JOINT PURCHASING ARRANGEMENTS.—Any
joint purchasing arrangement among health care
providers if—
(A) the purchases under the arrangement
represent less than 35 percent of the total sales
of the product or service purchased in the rel-
evant market; and
(B) the cost of the products and services
purchased jointly accounts for less than 20 per-
cent of the total revenues from all products or
services sold by each participant in the joint
purchasing arrangement.
(7) NEGOTIATIONS.—Activities consisting of
good faith negotiations to carry out any activity—
(A) described in this section,
(B) within an additional safe harbor des-
ignated by the Attorney General under section
403,
101
(C) that is the subject of an application for
a certificate of review under section 404, or
(D) that is deemed a submission of a noti-
fication under section 405(a)(2)(B),
without regard to whether such an activity is carried
out.
SEC. 403. DESIGNATION OF ADDITIONAL SAFE HARBORS.
(a) IN GENERAL.—
(1) SOLICITATION OF PROPOSALS.—Not later
than 30 days after the date of the enactment of this
Act, the Attorney General shall publish a notice in
the Federal Register soliciting proposals for addi-
tional safe harbors.
(2) REVIEW AND REPORT ON PROPOSED SAFE
HARBORS.—Not later than 180 days after the date
of the enactment of this Act, the Attorney General
(in consultation with the Secretary of Health and
Human Services and the Chair of the Federal Trade
Commission) shall—
(A) review the proposed safe harbors sub-
mitted under paragraph (1); and
(B) submit a report to Congress describing
the proposals to be included in the publication
of additional safe harbors described in para-
102
graph (3) and the proposals that are not to be
so included, together with explanations therefor.
(3) PUBLICATION OF ADDITIONAL SAFE HAR-
BORS.—Not later than 180 days after the date of
the enactment of this Act, the Attorney General (in
consultation with the Secretary of Health and
Human Services and the Chair of the Federal Trade
Commission) shall publish in the Federal Register
proposed additional safe harbors for purposes of sec-
tion 401(a)(2) for providers of health care services.
Not later than 180 days after publishing such pro-
posed safe harbors in the Federal Register, the At-
torney General shall issue final rules establishing
such safe harbors.
(b) CRITERIA FOR SAFE HARBORS.—In establishing
safe harbors under subsection (a), the Attorney General
shall take into account the following:
(1) The extent to which a competitive or col-
laborative activity will accomplish any of the follow-
ing:
(A) An increase in access to health care
services.
(B) The enhancement of the quality of
health care services.
103
(C) The establishment of cost efficiencies
that will be passed on to consumers, including
economies of scale and reduced transaction and
administrative costs.
(D) An increase in the ability of health
care facilities to provide services in medically
underserved areas or to medically underserved
populations.
(E) An improvement in the utilization of
health care resources or the reduction in the in-
efficient duplication of the use of such re-
sources.
(2) Whether the designation of an activity as a
safe harbor under subsection (a) will result in the
following outcomes:
(A) Health plans and other health care in-
surers, consumers of health care services, and
health care providers will be better able to ne-
gotiate payment and service arrangements
which will reduce costs to consumers.
(B) Taking into consideration the charac-
teristics of the particular purchasers and pro-
viders involved, competition will not be unduly
restricted.
104
(C) Equally efficient and less restrictive al-
ternatives do not exist to meet the criteria de-
scribed in paragraph (1).
(D) The activity will not unreasonably
foreclose competition by denying competitors a
necessary element of competition.
SEC. 404. CERTIFICATES OF REVIEW.
(a) ESTABLISHMENT OF PROGRAM.—In consultation
with the Secretary and the Chair, the Attorney General
shall (not later than 180 days after the date of the enact-
ment of this Act) issue certificates of review in accordance
with this section for providers of health care services and
advise and assist any person with respect to applying for
such a certificate of review.
(b) PROCEDURES FOR APPLICATION FOR CERTIFI-
CATE.—
(1) FORM; CONTENT.—To apply for a certifi-
cate of review, a person shall submit to the Attorney
General a written application which—
(A) specifies the activities relating to the
provision of health care services which satisfy
the criteria described in section 403(b) and
which will be included in the certificate; and
(B) is in a form and contains any informa-
tion, including information pertaining to the
105
overall market in which the applicant operates,
required by rule or regulation promulgated
under section 407.
(2) PUBLICATION OF NOTICE IN FEDERAL REG-
ISTER.—Within 10 days after an application submit-
ted under paragraph (1) is received by the Attorney
General, the Attorney General shall publish in the
Federal Register a notice that announces that an
application for a certificate of review has been sub-
mitted, identifies each person submitting the appli-
cation, and describes the conduct for which the ap-
plication is submitted.
(3) ESTABLISHMENT OF PROCEDURES FOR IS-
SUANCE OF CERTIFICATE.—In consultation with the
Chair and the Secretary, the Attorney General shall
establish procedures to be used in applying for and
in determining whether to approve an application for
a certificate of review under this title. Under such
procedures the Attorney General shall approve an
application if the Attorney General determines that
the activities to be covered under the certificate will
satisfy the criteria described in section 403(b) for
additional safe harbors designated under such sec-
tion and that the benefits of the issuance of the cer-
106
tificate will outweigh any disadvantages that may re-
sult from reduced competition.
(4) TIMING FOR DECISION ON APPLICATION.—
(A) IN GENERAL.—Within 90 days after
the Attorney General receives an application for
a certificate of review, the Attorney General
shall determine whether the applicant’s health
care market activities are in accordance with
the procedures described in paragraph (3). If
the Attorney General, with the concurrence of
the Secretary, determines that such procedures
are met, the Attorney General shall issue to the
applicant a certificate of review. The certificate
of review shall specify—
(i) the health care market activities to
which the certificate applies,
(ii) the person to whom the certificate
of review is issued, and
(iii) any terms and conditions the At-
torney General or the Secretary deems nec-
essary to assure compliance with the appli-
cable procedures described in paragraph
(3).
(B) APPLICATIONS DEEMED APPROVED.—
If the Attorney General does not reject an ap-
107
plication before the expiration of the 90-day pe-
riod beginning on the date the Attorney General
receives the application, the Attorney General
shall be deemed to have approved the applica-
tion and to have issued a certificate of review
relating to the applicant’s health care market
activities covered under the application.
(5) EXPEDITED ACTION.—If the applicant indi-
cates a special need for prompt disposition, the At-
torney General and the Secretary may expedite ac-
tion on the application, except that no certificate of
review may be issued within 30 days of publication
of notice in the Federal Register under subsection
(b)(2).
(6) ACTIONS UPON DENIAL.—
(A) NOTIFICATION.—If the Attorney Gen-
eral denies in whole or in part an application
for a certificate, the Attorney General shall no-
tify the applicant of the Attorney General’s de-
termination and the reasons for it.
(B) REQUEST
FOR
RECONSIDERATION.—
An applicant may, within 30 days of receipt of
notification that the application has been denied
in whole or in part, request the Attorney Gen-
eral to reconsider the determination. The Attor-
108
ney General, with the concurrence of the Sec-
retary, shall notify the applicant of the deter-
mination upon reconsideration within 30 days
of receipt of the request.
(C) RETURN OF DOCUMENTS.—If the At-
torney General denies an application for the is-
suance of a certificate of review and thereafter
receives from the applicant a request for the re-
turn of documents submitted by the applicant
in connection with the application for the cer-
tificate, the Attorney General and the Secretary
shall return to the applicant, not later than 30
days after receipt of the request, the documents
and all copies of the documents available to the
Attorney General and the Secretary, except to
the extent that the information has been made
public under an exception to the rule against
public 
disclosure 
described 
in 
subsection
(g)(2)(B).
(7) FRAUDULENT
PROCUREMENT.—A certifi-
cate of review shall be void ab initio with respect to
any health care market activities for which the cer-
tificate was procured by fraud.
(c) AMENDMENT
AND REVOCATION
OF CERTIFI-
CATES.—
109
(1) NOTIFICATION
OF
CHANGES.—Any appli-
cant who receives a certificate of review—
(A) shall promptly report to the Attorney
General any change relevant to the matters
specified in the certificate; and
(B) may submit to the Attorney General
an application to amend the certificate to re-
flect the effect of the change on the conduct
specified in the certificate.
(2) AMENDMENT TO CERTIFICATE.—An appli-
cation for an amendment to a certificate of review
shall be treated as an application for the issuance of
a certificate. The effective date of an amendment
shall be the date on which the application for the
amendment is submitted to the Attorney General.
(3) REVOCATION.—
(A) GROUNDS FOR REVOCATION.—In ac-
cordance with this paragraph, the Attorney
General may revoke in whole or in part a cer-
tificate of review issued under this section. The
following shall be considered grounds for the
revocation of a certificate:
(i) After the expiration of the 2-year
period beginning on the date a person’s
certificate is issued, the activities of the
110
person have not substantially accomplished
the purposes for the issuance of the certifi-
cate.
(ii) The person has failed to comply
with any of the terms or conditions im-
posed under the certificate by the Attorney
General or the Secretary under subsection
(b)(4).
(iii) The activities covered under the
certificate no longer satisfy the criteria set
forth in section 403(b).
(B) REQUEST FOR COMPLIANCE INFORMA-
TION.—If the Attorney General or Secretary
has reason to believe that any of the grounds
for revocation of a certificate of review de-
scribed in subparagraph (A) may apply to a
person holding the certificate, the Attorney
General shall request such information from
such person as the Attorney General or the Sec-
retary deems necessary to resolve the matter of
compliance. Failure to comply with such request
shall be grounds for revocation of the certificate
under this paragraph.
(C) PROCEDURES
FOR
REVOCATION.—If
the Attorney General or the Secretary deter-
111
mines that any of the grounds for revocation of
a certificate of review described in subpara-
graph (A) apply to a person holding the certifi-
cate, or that such person has failed to comply
with a request made under subparagraph (B),
the Attorney General shall give written notice of
the determination to such person. The notice
shall include a statement of the circumstances
underlying, and the reasons in support of, the
determination. In the 60-day period beginning
30 days after the notice is given, the Attorney
General shall revoke the certificate or modify it
as the Attorney General or the Secretary deems
necessary to cause the certificate to apply only
to activities that meet the procedures for the is-
suance of certificates described in subsection
(b)(2).
(D) 
INVESTIGATION
AUTHORITY.—For
purposes of carrying out this paragraph, the
Attorney General may conduct investigations in
the same manner as the Attorney General con-
ducts investigations under section 3 of the Anti-
trust Civil Process Act, except that no civil in-
vestigative demand may be issued to a person
112
to whom a certificate of review is issued if such
person is the target of such investigation.
(d) REVIEW OF DETERMINATIONS.—
(1) AVAILABILITY OF REVIEW FOR CERTAIN AC-
TIONS.—If the Attorney General denies, in whole or
in part, an application for a certificate of review or
for an amendment to a certificate, or revokes or
modifies a certificate pursuant to paragraph (3), the
applicant or certificate holder (as the case may be)
may, within 30 days of the denial or revocation,
bring an action in any appropriate district court of
the United States to set aside the determination on
the ground that such determination is erroneous
based on the preponderance of the evidence.
(2) NO
OTHER
REVIEW
PERMITTED.—Except
as provided in paragraph (1), no action by the At-
torney General or the Secretary pursuant to this
title shall be subject to judicial review.
(3) EFFECT
OF
REJECTED
APPLICATION.—If
the Attorney General denies, in whole or in part, an
application for a certificate of review or for an
amendment to a certificate, or revokes or amends a
certificate, neither the negative determination nor
the statement of reasons therefore shall be admissi-
ble in evidence, in any administrative or judicial pro-
113
ceeding, concerning any claim under the antitrust
laws.
(e) PUBLICATION
OF DECISIONS.—The Attorney
General shall publish a notice in the Federal Register on
a timely basis of each decision made with respect to an
application for a certificate of review under this section
or the amendment or revocation of such a certificate, in
a manner that protects the confidentiality of any propri-
etary information relating to the application.
(f) ANNUAL REPORTS.—Every person to whom a cer-
tificate of review is issued shall submit to the Attorney
General an annual report, in such form and at such time
as the Attorney General may require, that contains any
necessary updates to the information required under sub-
section (b) and a description of the activities of the holder
under the certificate during the preceding year.
(g) RESTRICTIONS ON DISCLOSURE OF INFORMA-
TION.—
(1) WAIVER
OF
DISCLOSURE
REQUIREMENTS
UNDER
ADMINISTRATIVE
PROCEDURE
ACT.—Infor-
mation submitted by any person in connection with
the issuance, amendment, or revocation of a certifi-
cate of review shall be exempt from disclosure under
section 552 of title 5, United States Code.
114
(2) RESTRICTIONS
ON
DISCLOSURE
OF
COM-
MERCIAL OR FINANCIAL INFORMATION.—
(A) IN GENERAL.—Except as provided in
subparagraph (B), no officer or employee of the
United States shall disclose commercial or fi-
nancial information submitted in connection
with the issuance, amendment, or revocation of
a certificate of review if the information is priv-
ileged or confidential and if disclosure of the in-
formation would cause harm to the person who
submitted the information.
(B) 
EXCEPTIONS.—Subparagraph 
(A)
shall not apply with respect to information dis-
closed—
(i) upon a request made by the Con-
gress or any committee of the Congress,
(ii) in a judicial or administrative pro-
ceeding, subject to appropriate protective
orders,
(iii) with the consent of the person
who submitted the information,
(iv) in the course of making a deter-
mination with respect to the issuance,
amendment, or revocation of a certificate
of review, if the Attorney General deems
115
disclosure of the information to be nec-
essary in connection with making the de-
termination,
(v) in accordance with any require-
ment imposed by a statute of the United
States, or
(vi) in accordance with any rule or
regulation promulgated under subsection
(i) permitting the disclosure of the infor-
mation to an agency of the United States
or of a State on the condition that the
agency will disclose the information only
under 
the 
circumstances 
specified 
in
clauses (i) through (v).
(3) PROHIBITION AGAINST USE OF INFORMA-
TION TO SUPPORT OR ANSWER CLAIMS UNDER ANTI-
TRUST LAWS.—Any information disclosed in an ap-
plication for a certificate of review under this section
shall only be admissible into evidence in a judicial or
administrative proceeding for the sole purpose of es-
tablishing that a person is entitled to the protection
provided by such a certificate.
116
SEC. 405. NOTIFICATIONS PROVIDING REDUCTION IN CER-
TAIN PENALTIES UNDER ANTITRUST LAW
FOR 
HEALTH 
CARE 
COOPERATIVE 
VEN-
TURES.
(a) NOTIFICATIONS DESCRIBED.—
(1) SUBMISSION
OF
NOTIFICATION
BY
VEN-
TURE.—Any party to a health care cooperative ven-
ture, acting on such venture’s behalf, may, not later
than 90 days after entering into a written agreement
to form such venture or not later than 90 days after
the date of the enactment of this Act, whichever is
later, file with the Attorney General a written notifi-
cation disclosing—
(A) the identities of the parties to such
venture,
(B) the nature and objectives of such ven-
ture, and
(C) such additional information as the At-
torney General may require by regulation.
(2) ACTIVITIES DEEMED SUBMISSION OF NOTI-
FICATION.—The following health care cooperative
ventures shall be deemed to have filed a written noti-
fication with respect to the venture under paragraph
(1):
(A) SUBMISSION
OF
APPLICATION
FOR
CERTIFICATE OF REVIEW.—Any health care co-
117
operative venture for which an application for a
certificate of review is filed with the Attorney
General under section 403.
(B) CERTAIN VENTURES.—Any health care
cooperative venture meeting the following re-
quirements:
(i) The venture consists of a network
of non-institutional providers not greater
than—
(I) in the case of a nonexclusive
network in which the participating
members are permitted to create or
join other competing networks, 50
percent of the providers of health care
services in the relevant geographic
area and 50 percent of the members
of the provider specialty group in the
relevant market; or
(II) in the case of an exclusive
network in which the participating
members are not permitted to create
or join other competing networks, 35
percent of the providers of health care
services in the relevant geographic
area and 35 percent of the members
118
of the provider specialty group in the
relevant market.
(ii) Each member of the venture as-
sumes substantial financial risk for the op-
eration of the venture through risk-sharing
arrangements, including (but not limited
to)—
(I) the acceptance of capitation
contracts;
(II) the acceptance of contracts
with fee withholding mechanisms re-
lating to the ability to meet estab-
lished goals for utilization review and
management; and
(III) the holding by members of
significant ownership or equity inter-
ests in the venture, where the capital
contributed by the members is used to
fund the operational costs of the ven-
ture such as administration, market-
ing, and computer-operated medical
information, if the venture develops
and operates comprehensive programs
for utilization management and qual-
ity assurance that include controls
119
over the use of institutional, special-
ized, and ancillary medical services.
(3) SUBMISSION
OF
ADDITIONAL
INFORMA-
TION.—
(A) REQUEST OF ATTORNEY GENERAL.—
At any time after receiving a notification filed
under paragraph (1), the Attorney General may
require the submission of additional information
or documentary material relevant to the pro-
posed health care cooperative venture.
(B) PARTIES TO VENTURE.—Any party to
a health care cooperative venture may submit
such additional information on the venture’s be-
half as may be appropriate to ensure that the
venture will receive the protections provided
under subsection (b).
(C) REQUIRED SUBMISSION OF INFORMA-
TION
ON
CHANGES
TO
VENTURE.—A health
care cooperative venture for which a notification
is in effect under this section shall submit infor-
mation on any change in the membership of the
venture not later than 90 days after such
change occurs.
(4) PUBLICATION OF NOTIFICATION.—
120
(A) INFORMATION MADE PUBLICLY AVAIL-
ABLE.—Not later than 30 days after receiving
a notification with respect to a venture under
paragraph (1), the Attorney General shall pub-
lish in the Federal Register a notice with re-
spect to the venture that identifies the parties
to the venture and generally describes the pur-
pose and planned activity of the venture. Prior
to its publication, the contents of the notice
shall be made available to the parties to the
venture.
(B) RESTRICTION
ON
DISCLOSURE
OF
OTHER
INFORMATION.—All information and
documentary material submitted pursuant to
this section and all information obtained by the
Attorney General in the course of any investiga-
tion or case with respect to a potential violation
of the antitrust laws by the health care coopera-
tive venture (other than information and mate-
rial described in subparagraph (A)) shall be ex-
empt from disclosure under section 552 of title
5, United States Code, and shall not be made
publicly available by any agency of the United
States to which such section applies except in
121
a judicial proceeding in which such information
and material is subject to any protective order.
(5) WITHDRAWAL OF NOTIFICATION.—Any per-
son who files a notification pursuant to this section
may withdraw such notification before a publication
by the Attorney General pursuant to paragraph (4).
Any person who is deemed to have filed a notifica-
tion under paragraph (2)(A) shall be deemed to have
withdrawn the notification if the certificate of review
in question is revoked or withdrawn under section
404.
(6) NO
JUDICIAL
REVIEW
PERMITTED.—Any
action taken or not taken by the Attorney General
with respect to notifications filed pursuant to this
subsection shall not be subject to judicial review.
(b) PROTECTIONS FOR VENTURES SUBJECT TO NO-
TIFICATION.—
(1) IN GENERAL.—
(A) PROTECTIONS DESCRIBED.—The pro-
visions of paragraphs (2), (3), (4), and (5) shall
apply with respect to any action under the anti-
trust laws challenging conduct within the scope
of a notification which is in effect pursuant to
subsection (a)(1).
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(B) TIMING OF PROTECTIONS.—The pro-
tections described in this subsection shall apply
to the venture that is the subject of a notifica-
tion under subsection (a)(1) as of the earlier
of—
(i) the date of the publication in the
Federal Register of the notice published
with respect to the notification; or
(ii) if such notice is not published dur-
ing the period required under subsection
(a)(4), the expiration of the 30-day period
that begins on the date the Attorney Gen-
eral receives any necessary information re-
quired to be submitted under subsection
(a)(1) or any additional information re-
quired by the Attorney General under sub-
section (a)(3)(A).
(2) APPLICABILITY
OF
RULE
OF
REASON
STANDARD.—In any action under the antitrust laws,
the conduct of any person which is within the scope
of a notification filed under subsection (a) shall not
be deemed illegal per se, but shall be judged on the
basis of its reasonableness, taking into account all
relevant factors affecting competition, including, but
123
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
124
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
125
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. 406. 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 402, the
additional safe harbors designated under section 403, and
the certificates of review issued under section 404, and—
(1) with respect to the safe harbors described in
section 402, 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
designated under section 403, issue proposed revi-
126
sions 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
title.
SEC. 407. 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 402,
403, 404, and 405, 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
127
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 403 and grant certificates of review
under section 404, 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 402 or 403; and
(B) describing specific types of activities
which would meet the requirements for a cer-
tificate of review under section 404, 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).
128
SEC. 408. DEFINITIONS.
In this title, 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.
(3) The term ‘‘health insurance plan’’ has the
meaning given such term in section 111(b).
(4) 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.
(5) The term ‘‘health care services’’ means any
services for which payment may be made under a
health insurance plan, including services related to
the delivery or administration of such services.
(6) The term ‘‘medical self-regulatory entity’’
means a medical society or association, a specialty
130
(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.
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