[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2161 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 2161

 To ensure and foster continued patient safety and quality of care by 
   making the antitrust laws apply to negotiations between groups of 
 independent pharmacies and health plans and health insurance issuers 
(including health plans under parts C and D of the Medicare Program) in 
 the same manner as such laws apply to protected activities under the 
                     National Labor Relations Act.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 15, 2007

 Mr. Isakson (for himself, Mr. Johnson, and Mr. Graham) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To ensure and foster continued patient safety and quality of care by 
   making the antitrust laws apply to negotiations between groups of 
 independent pharmacies and health plans and health insurance issuers 
(including health plans under parts C and D of the Medicare Program) in 
 the same manner as such laws apply to protected activities under the 
                     National Labor Relations Act.

    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 ``Community Pharmacy Fairness Act of 
2007''.

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, in connection with 
such negotiations, be entitled to the same treatment under the 
antitrust laws as the treatment to which bargaining units which are 
recognized under the National Labor Relations Act (29 U.S.C. 151 et 
seq.) are entitled in connection with activities described in section 7 
of such Act (29 U.S.C. 157). Such a pharmacy shall, only in connection 
with such negotiations, be treated 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.--This section 
applies only to independent pharmacies excluded from the 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) Limitation on Exemption.--Nothing in this section shall exempt 
from the application of the antitrust laws any agreement or otherwise 
unlawful conspiracy that excludes, limits the participation or 
reimbursement of, or otherwise limits 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.
    (f) 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.
    (g) 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 (SCHIP) 
        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.).
    (h) 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 a prescription drug plan 
                        offered under part D of title XVIII of the 
                        Social Security Act and a Medicare Advantage 
                        plan offered under part C of such title; and
                            (iii) includes any entity  that contracts 
                        with such a plan or issuer for the 
                        administering of services under the plan or 
                        coverage.
                    (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 which is not owned (or operated) by 
        a publicly traded company. For purposes of the previous 
        sentence, the term ``publicly traded company'' means a company 
        that is an issuer within the meaning of section 2(a)(7) of the 
        Sarbanes-Oxley Act of 2002 (15 U.S.C. 7201(a)(7)).
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