[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.
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