HR 1946 IHCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

H. R. 1946CommentsClose CommentsPermalink

To ensure and foster continued safety and quality of care and a competitive marketplace by exempting independent pharmacies from the antitrust laws in their negotiations with health plans and health insurance insurers.CommentsClose CommentsPermalink

IN THE HOUSE OF REPRESENTATIVESCommentsClose CommentsPermalink

May 23, 2011CommentsClose CommentsPermalink

Mr. MARINO (for himself and Mr. GOHMERT) introduced the following bill; which was referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To ensure and foster continued safety and quality of care and a competitive marketplace by exempting independent pharmacies from the antitrust laws in their negotiations with health plans and health insurance insurers.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Preserving Our Hometown Independent Pharmacies Act of 2011’.CommentsClose CommentsPermalink

SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO INDEPENDENT PHARMACIES NEGOTIATING WITH HEALTH PLANS.

(a) In General- Any independent pharmacies who are engaged in negotiations with a health plan regarding the terms of any contract under which the pharmacies provide health care items or services for which benefits are provided under such plan shall, only in connection with such negotiations, be treated under the antitrust laws as an employee engaged in concerted activities and shall not be regarded as having the status of an employer, independent contractor, managerial employee, or supervisor.CommentsClose CommentsPermalink





(b) Protection for Good Faith Actions- Actions taken in good faith reliance on subsection (a) shall not be the subject under the antitrust laws of criminal sanctions nor of any civil damages, fees, or penalties beyond actual damages incurred.CommentsClose CommentsPermalink





(c) No Change in National Labor Relations Act- Nothing in this section shall be construed as changing or amending any provision of the National Labor Relations Act, or as affecting the status of any group of persons under that Act.CommentsClose CommentsPermalink





(d) Effective Date- The exemption provided in subsection (a) shall apply to conduct occurring beginning on the date of the enactment of this Act.CommentsClose CommentsPermalink





(e) Limitations on Exemption- Nothing in this section shall exempt from the application of the antitrust laws any agreement or otherwise unlawful conspiracy that--CommentsClose CommentsPermalink





(1) would have the effect of boycotting any independent pharmacy or group of independent pharmacies, or would exclude, limit the participation or reimbursement of, or otherwise limit the scope of services to be provided by, any independent pharmacy or group of independent pharmacies with respect to the performance of services that are within the scope of practice as defined or permitted by relevant law or regulation;CommentsClose CommentsPermalink





(2) allocates a market among competitors;CommentsClose CommentsPermalink





(3) unlawfully ties the sale or purchase of one product or service to the sale or purchase of another product or service; orCommentsClose CommentsPermalink





(4) monopolizes or attempts to monopolize a market.CommentsClose CommentsPermalink





(f) Limitation Based on Market Share of Group- This section shall not apply with respect to the negotiations of any group of independent pharmacies with a health plan regarding the terms of any contract under which such pharmacies provide health care items or services for which benefits are provided under such plan in a PDP region (as defined in subsection (j)(4)) if the number of pharmacy licenses of such pharmacies within such group in such region exceeds 25 percent of the total number of pharmacy licenses issued to all retail pharmacies (including both independent and other pharmacies) in such region.CommentsClose CommentsPermalink





(g) No Effect on Title VI of Civil Rights Act of 1964- Nothing in this section shall be construed to affect the application of title VI of the Civil Rights Act of 1964.CommentsClose CommentsPermalink





(h) No Application to Specified Federal Programs- Nothing in this section shall apply to negotiations between independent pharmacies and health plans pertaining to benefits provided under any of the following:CommentsClose CommentsPermalink





(1) The Medicaid Program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).CommentsClose CommentsPermalink





(2) The State Children’s Health Insurance Program (SHIP) under title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.).CommentsClose CommentsPermalink





(3) Chapter 55 of title 10, United States Code (relating to medical and dental care for members of the uniformed services).CommentsClose CommentsPermalink





(4) Chapter 17 of title 38, United States Code (relating to Veterans’ medical care).CommentsClose CommentsPermalink





(5) Chapter 89 of title 5, United States Code (relating to the Federal employees’ health benefits program).CommentsClose CommentsPermalink





(6) The Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.).CommentsClose CommentsPermalink





(7) Part C or D of title XVIII of the Social Security Act.CommentsClose CommentsPermalink





(i) Definitions- For purposes of this section:CommentsClose CommentsPermalink





(1) ANTITRUST LAWS- The term ‘antitrust laws’--CommentsClose CommentsPermalink





(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 5 applies to unfair methods of competition; andCommentsClose CommentsPermalink





(B) includes any State law similar to the laws referred to in subparagraph (A).CommentsClose CommentsPermalink





(2) HEALTH PLAN AND RELATED TERMS-CommentsClose CommentsPermalink





(A) IN GENERAL- The term ‘health plan’--CommentsClose CommentsPermalink





(i) means a group health plan or a health insurance issuer that is offering health insurance coverage;CommentsClose CommentsPermalink





(ii) includes any entity that contracts with such a plan or issuer for the administering of services under the plan or coverage; andCommentsClose CommentsPermalink





(iii) does not include a Medicare Advantage plan offered under part C of title XVIII of the Social Security Act or a prescription drug plan offered under part D of such title.CommentsClose CommentsPermalink





(B) HEALTH INSURANCE COVERAGE; HEALTH INSURANCE ISSUER- The terms ‘health insurance coverage’ and ‘health insurance issuer’ have the meanings given such terms under paragraphs (1) and (2), respectively, of section 733(b) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b(b)).CommentsClose CommentsPermalink





(C) GROUP HEALTH PLAN- The term ‘group health plan’ has the meaning given that term in section 733(a)(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191b(a)(1)).CommentsClose CommentsPermalink





(3) INDEPENDENT PHARMACY- The term ‘independent pharmacy’ means a pharmacy that has a market share of--CommentsClose CommentsPermalink





(A) less than 10 percent in any PDP region; andCommentsClose CommentsPermalink





(B) less than 1 percent in the United States.CommentsClose CommentsPermalink





For purposes of the preceding sentence, all pharmacies that are members of the same controlled group of corporations (within the meaning of section 267(f) of the Internal Revenue Code of 1986) and all pharmacies under common control (within the meaning of section 52(b) of such Code but determined by treating an interest of more than 50 percent as a controlling interest) shall be treated as 1 pharmacy.CommentsClose CommentsPermalink





(4) PDP REGION- The term ‘PDP region’ has the meaning given such term in section 1860D-11(a)(2) of the Social Security Act (42 U.S.C. 1395w-111(a)(2)).CommentsClose CommentsPermalink





(j) 5-Year Sunset- The exemption provided in subsection (a) shall only apply to conduct occurring during the 5-year period beginning on the date of the enactment of this Act and shall continue to apply for 1 year after the end of such period to contracts entered into before the end of such period.CommentsClose CommentsPermalink





(k) General Accountability Office Study and Report- The Comptroller General of the United States shall conduct a study on the impact of enactment of this section during the 6-month period beginning with the 5th year of the 5-year period described in subsection (j). Not later than the end of such 6-month period, the Comptroller General shall submit to Congress a report on such study and shall include in the report such recommendations on the extension of this section (and changes that should be made in making such extension) as the Comptroller General deems appropriate.CommentsClose CommentsPermalink





(l) Oversight- Nothing in this section shall preclude the Federal Trade Commission or the Department of Justice from overseeing the conduct of independent pharmacies covered under this section.CommentsClose CommentsPermalink