117 HR 8135 IH: Addressing Anti-Competitive Contracting Clauses Act
U.S. House of Representatives
2022-06-16
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I
117th CONGRESS
2d Session
H. R. 8135
IN THE HOUSE OF REPRESENTATIVES
June 16, 2022
Mrs. Spartz introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To require the Government Accountability Office to evaluate the effects of anticompetitive contracting clauses in contracts between health insurers and health care providers and to determine actions taken by the Federal Trade Commission and the Department of Justice relating to the use of such clauses in such contracts and to assess their ability to effectively enforce the Federal antitrust laws with respect to such use.
1.

Short title
This Act may be cited as the “Addressing Anti-Competitive Contracting Clauses Act”.
2.

GAO study
(a)

Study
Not later than 18 months after the date of the enactment of this Act, the Comptroller General of the United States, in coordination with the Federal Trade Commission and the Assistant Attorney General of the Antitrust Division of the Department of Justice, shall carry out a study that—
(1)
evaluates the effect of anticompetitive contract clauses known as anti-steering clauses, anti-tiering clauses, all-or-nothing clauses, and gag clauses in contracts between health insurers and health care providers, including the effects such contracts have on consolidation in the health care industry, prices paid by consumers for medical services, and consumer access to health care,
(2)
contains a list of all actions the Federal Trade Commission and the Department of Justice have taken directly or indirectly related to use of such contract clauses in contracts between health insurers and health care providers,
(3)
contains an assessment of whether the Federal Trade Commission and the Department of Justice have the resources and the capability to effectively enforce the Federal antitrust laws as applied to such the use of such clauses in such contracts, and
(4)
includes recommendations for legislative or administrative actions if necessary to increase such resources.
(b)

Report
The report containing the results of the study carried out under subsection (a) shall be submitted timely by the Comptroller General as follows:
(1)
To—
(A)
the Committee on Energy and Commerce,
(B)
the Committee on Ways and Means,
(C)
the Committee on Education and Labor, and
(D)
the Committee on the Judiciary,
of the House of Representatives.
(2)
To—
(A)
The Committee on Health, Education, Labor, and Pensions, and
(B)
The Committee on the Judiciary,
of the Senate.
3.

Definitions
For purposes of this Act:
(1)

All-or-nothing clause
The term “all-or-nothing clause” means a provision of a health care contract that requires—
(A)
a health insurance carrier or health plan administrator to include all members of a health care provider in a network plan; or
(B)
a health insurance carrier or health plan administrator to enter into an additional contract with an affiliate of the health care provider as a condition of entering into a contract with such health care provider.
(2)

Anti-steering clause
The term “anti-steering clause” means a provision of a health care contract that restricts the ability of a health insurance carrier or a health plan administrator from encouraging an enrollee to obtain a health care service from a competitor of the hospital or health system, including offering incentives to encourage enrollees to utilize specific health care providers.
(3)

Anti-tiering clause
The term “anti-tiering clause” means a provision in a health care contract that—
(A)
restricts the ability of a health insurance carrier or a health plan administrator to introduce or modify a tiered network plan or assign health care providers into tiers; or
(B)
requires the health insurance carrier or health plan administrator to place all members of a health care provider in the same tier of a tiered network plan.
(4)

Gag clause
the term “gag clause” means a provision of a health care contract that—
(A)
restricts the ability of a health insurance carrier, a health plan administrator, or a health care provider to disclose a price or quality information, including the allowed amount, negotiated rates or discounts, a fees for services, or any other claim-related financial obligations included in the provider contract to—
(i)
a governmental entity as authorized by law,
(ii)
its contractors or agents,
(iii)
an enrollee,
(iv)
a treating health care provider of an enrollee,
(v)
a plan sponsor, or
(vi)
a potential eligible enrollees and plan sponsors; or
(B)
restricts the ability of a health insurance carrier, a health plan administrator, or a health care provider to disclose out-of-pocket costs to an enrollee.
(5)

Tiered network plan
The term “tiered network plan” means a health benefit plan that sorts some or all types of health care providers into specific groups to which different provider reimbursement, enrollee cost sharing, health care provider access requirements, or a combination thereof, are applied for the same services.