Preserving Our Hometown Independent Pharmacies Act of 2011 - Treats independent pharmacies negotiating contract terms with a health plan for the provision of health care items or services the same under the antitrust laws as an employee engaged in concerted activities, and not as an employer, independent contractor, managerial employee, or supervisor, only in connection with such negotiations.
Exempts actions taken in good faith reliance on this Act from being subject to criminal sanctions or civil penalties beyond actual damages incurred.
Provides that this Act does not exempt from application of antitrust laws any agreement or unlawful conspiracy that: (1) would have the effect of boycotting any independent pharmacy; (2) 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 their scope of practice as defined or permitted by relevant law or regulation; (3) allocates a market among competitors; (4) unlawfully ties the sale or purchase of one product or service to the sale or purchase of another product or service; or (5) monopolizes or attempts to monopolize a market.
Provides that this Act shall not apply to negotiations between pharmacies and health plans regarding benefits provided under specified federal programs, including Medicaid, veterans' medical care, and the federal employees' health benefits program.
Requires the Comptroller General to study the impact of this Act after five years.
Provides that this Act does not preclude the Federal Trade Commission (FTC) or the Department of Justice (DOJ) from overseeing the conduct of independent pharmacies covered under this Act.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1946 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 1946
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 23, 2011
Mr. Marino (for himself and Mr. Gohmert) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preserving Our Hometown Independent
Pharmacies Act of 2011''.
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.
(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.
(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.
(d) Effective Date.--The exemption provided in subsection (a) shall
apply to conduct occurring beginning on the date of the enactment of
this Act.
(e) Limitations on Exemption.--Nothing in this section shall exempt
from the application of the antitrust laws any agreement or otherwise
unlawful conspiracy that--
(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;
(2) allocates a market among competitors;
(3) unlawfully ties the sale or purchase of one product or
service to the sale or purchase of another product or service;
or
(4) monopolizes or attempts to monopolize a market.
(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.
(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.
(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:
(1) The Medicaid Program under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.).
(2) The State Children's Health Insurance Program (SHIP)
under title XXI of the Social Security Act (42 U.S.C. 1397aa et
seq.).
(3) Chapter 55 of title 10, United States Code (relating to
medical and dental care for members of the uniformed services).
(4) Chapter 17 of title 38, United States Code (relating to
Veterans' medical care).
(5) Chapter 89 of title 5, United States Code (relating to
the Federal employees' health benefits program).
(6) The Indian Health Care Improvement Act (25 U.S.C. 1601
et seq.).
(7) Part C or D of title XVIII of the Social Security Act.
(i) Definitions.--For purposes of this section:
(1) Antitrust laws.--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 5 applies to unfair methods of competition; and
(B) includes any State law similar to the laws
referred to in subparagraph (A).
(2) Health plan and related terms.--
(A) In general.--The term ``health plan''--
(i) means a group health plan or a health
insurance issuer that is offering health
insurance coverage;
(ii) includes any entity that contracts
with such a plan or issuer for the
administering of services under the plan or
coverage; and
(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.
(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)).
(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)).
(3) Independent pharmacy.--The term ``independent
pharmacy'' means a pharmacy that has a market share of--
(A) less than 10 percent in any PDP region; and
(B) less than 1 percent in the United States.
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.
(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)).
(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.
(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.
(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.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
Referred to the Subcommittee on Intellectual Property, Competition and the Internet.
Subcommittee Hearings Held.
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