I
103D CONGRESS
1ST SESSION
H. R. 2640
To direct the Secretary of Health and Human Services and the Attorney
General to provide exemptions of certain provisions of antitrust law
for activities of providers of health care services conducted under joint
ventures, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 14, 1993
Mr. MCMILLAN (for himself, Mr. COBLE, Mr. TAYLOR of North Carolina, Mr.
LANCASTER, Mr. KOLBE, and Mr. VALENTINE) introduced the following
bill; which was referred jointly to the Committees on Energy and Com-
merce and the Judiciary
A BILL
To direct the Secretary of Health and Human Services and
the Attorney General to provide exemptions of certain
provisions of antitrust law for activities of providers of
health care services conducted under joint ventures, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Health Care Coopera-
tive Antitrust Protection Act of 1993’’.
SEC. 2. PURPOSE.
It is the purpose of this Act to substantively encour-
age the formation of efficiency producing, pro-competitive
joint ventures among providers of health care services by
minimizing unnecessary antitrust risk and clarifying regu-
latory ambiguity in order to reduce excess capacity and
duplication of services.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) The term ‘‘Advisory Committee’’ means the
Interagency Advisory Committee on Competition,
Antitrust Policy, and Health Care established under
section 6.
(2) The term ‘‘antitrust laws’’ 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—
(A) section 5 of the Federal Trade Com-
mission Act (15 U.S.C. 45) to the extent such
section applies to unfair methods of competi-
tion; and
(B) any State law similar to the laws re-
ferred to in subparagraph (A).
(3) The term ‘‘health care joint venture’’ means
an agreement between 2 or more providers of health
care services that is entered into solely for the pur-
pose of sharing in the provision of health care serv-
ices and that involves substantial integration or fi-
nancial risk-sharing between the parties, but does
not include the exchanging of information, the enter-
ing into of any agreement, or the engagement in any
other conduct that is not reasonably required to
carry out such agreement.
(4) The term ‘‘health care services’’ includes
services related to the delivery or administration of
health care services.
(5) 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.
(6) The term ‘‘Secretary’’ means the Secretary
of Health and Human Services.
SEC. 4. ESTABLISHMENT OF EXEMPTION PROGRAM FOR
HEALTH CARE JOINT VENTURES.
(a) ESTABLISHMENT.—
(1) IN
GENERAL.—Not later than 6 months
after the date of the enactment of this Act, the Sec-
retary of Health and Human Services, in concur-
rence with the Attorney General, shall promulgate
specific guidelines under which a health care joint
venture may submit an application requesting that
the Secretary provide the entities participating in
the joint venture with either of the following exemp-
tions:
(A) With respect to any action brought
against the entity under the antitrust laws, an
exemption under which (notwithstanding any
other provision of law)—
(i) monetary recovery on a claim shall
be limited to actual damages if the claim
results from conduct within the scope of
the joint venture and the action is filed
after the exemption becomes effective; and
(ii) the conduct of the entity in mak-
ing or performing a contract to carry out
the joint venture shall not be deemed ille-
gal per se but shall be judged on the basis
of its reasonableness, taking into account
all relevant factors affecting competition,
including (but not limited to) effects on
competition in properly defined, relevant
research, development, product, process,
and service markets (taking into consider-
ation worldwide capacity to the extent that