[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 3139 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 3139

 To ban anticompetitive terms in facility and insurance contracts that 
            limit access to higher quality, lower cost care.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 2, 2021

Mr. Braun (for himself and Ms. Baldwin) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To ban anticompetitive terms in facility and insurance contracts that 
            limit access to higher quality, lower cost care.

    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 ``Healthy Competition for Better Care 
Act''.

SEC. 2. BANNING ANTICOMPETITIVE TERMS IN FACILITY AND INSURANCE 
              CONTRACTS THAT LIMIT ACCESS TO HIGHER QUALITY, LOWER COST 
              CARE.

    (a) In General.--
            (1) PHSA.--Section 2799A-9 of the Public Health Service Act 
        (42 U.S.C. 300gg-119) is amended by adding at the end the 
        following:
    ``(b) Protecting Health Plans Network Design Flexibility.--
            ``(1) In general.--A group health plan or a health 
        insurance issuer offering group or individual health insurance 
        coverage shall not enter into an agreement with a provider, 
        network or association of providers, or other service provider 
        offering access to a network of service providers if such 
        agreement, directly or indirectly--
                    ``(A) restricts the group health plan or health 
                insurance issuer from--
                            ``(i) directing or steering enrollees to 
                        other health care providers; or
                            ``(ii) offering incentives to encourage 
                        enrollees to utilize specific health care 
                        providers;
                    ``(B) requires the group health plan or health 
                insurance issuer to enter into any additional contract 
                with an affiliate of the provider as a condition of 
                entering into a contract with such provider;
                    ``(C) requires the group health plan or health 
                insurance issuer to agree to payment rates or other 
                terms for any affiliate not party to the contract of 
                the provider involved; or
                    ``(D) restricts other group health plans or health 
                insurance issuers not party to the contract, from 
                paying a lower rate for items or services than the 
                contracting plan or issuer pays for such items or 
                services.
            ``(2) Additional requirement for self-insured plans.--A 
        self-insured group health plan shall not enter into an 
        agreement with a provider, network or association of providers, 
        third-party administrator, or other service provider offering 
        access to a network of providers if such agreement directly or 
        indirectly requires the group health plan to certify, attest, 
        or otherwise confirm in writing that the group health plan is 
        bound by restrictive contracting terms between the service 
        provider and a third-party administrator that the group health 
        plan is not party to, without a disclosure that such terms 
        exist.
            ``(3) Exception for certain group model issuers.--Paragraph 
        (1)(A) shall not apply to a group health plan or health 
        insurance issuer offering group or individual health insurance 
        coverage with respect to--
                    ``(A) a health maintenance organization (as defined 
                in section 2791(b)(3)), if such health maintenance 
                organization operates primarily through exclusive 
                contracts with multi-specialty physician groups, nor to 
                any arrangement between such a health maintenance 
                organization and its affiliates; or
                    ``(B) a value-based network arrangement, such as an 
                exclusive provider network, accountable care 
                organization or other alternative payment model, center 
                of excellence, a provider sponsored health insurance 
                issuer that operates primarily through aligned multi-
                specialty physician group practices or integrated 
                health systems, or such other similar network 
                arrangements as determined by the Secretary through 
                rulemaking.
            ``(4) Attestation.--A group health plan or health insurance 
        issuer offering group or individual health insurance coverage 
        shall annually submit to, as applicable, the applicable 
        authority described in section 2723 or the Secretary of Labor, 
        an attestation that such plan or issuer is in compliance with 
        the requirements of this subsection.
    ``(c) Maintenance of Existing HIPAA, GINA, and ADA Protections.--
Nothing in this section shall modify, reduce, or eliminate the existing 
privacy protections and standards provided by reason of State and 
Federal law, including the requirements of parts 160 and 164 of title 
45, Code of Federal Regulations (or any successor regulations).
    ``(d) Regulations.--The Secretary, in consultation with the 
Secretary of Labor and the Secretary of the Treasury, not later than 1 
year after the date of enactment of this section, shall promulgate 
regulations to carry out this section.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to limit network design or cost or quality initiatives by a 
group health plan or health insurance issuer, including accountable 
care organizations, exclusive provider organizations, networks that 
tier providers by cost or quality or steer enrollees to centers of 
excellence, or other pay-for-performance programs.
    ``(f) Clarification With Respect to Antitrust Laws.--Compliance 
with this section does not constitute compliance with the antitrust 
laws, as defined in subsection (a) of the first section of the Clayton 
Act (15 U.S.C. 12(a)).''.
            (2) ERISA.--Section 724 of the Employee Retirement Income 
        Security Act of 1974 (29 U.S.C. 1185m) is amended by adding at 
        the end the following:
    ``(b) Protecting Health Plans Network Design Flexibility.--
            ``(1) In general.--A group health plan or a health 
        insurance issuer offering group health insurance coverage shall 
        not enter into an agreement with a provider, network or 
        association of providers, or other service provider offering 
        access to a network of service providers if such agreement, 
        directly or indirectly--
                    ``(A) restricts the group health plan or health 
                insurance issuer from--
                            ``(i) directing or steering enrollees to 
                        other health care providers; or
                            ``(ii) offering incentives to encourage 
                        enrollees to utilize specific health care 
                        providers;
                    ``(B) requires the group health plan or health 
                insurance issuer to enter into any additional contract 
                with an affiliate of the provider as a condition of 
                entering into a contract with such provider;
                    ``(C) requires the group health plan or health 
                insurance issuer to agree to payment rates or other 
                terms for any affiliate not party to the contract of 
                the provider involved; or
                    ``(D) restricts other group health plans or health 
                insurance issuers not party to the contract, from 
                paying a lower rate for items or services than the 
                contracting plan or issuer pays for such items or 
                services.
            ``(2) Additional requirement for self-insured plans.--A 
        self-insured group health plan shall not enter into an 
        agreement with a provider, network or association of providers, 
        third-party administrator, or other service provider offering 
        access to a network of providers if such agreement directly or 
        indirectly requires the group health plan to certify, attest, 
        or otherwise confirm in writing that the group health plan is 
        bound by restrictive contracting terms between the service 
        provider and a third-party administrator that the group health 
        plan is not party to, without a disclosure that such terms 
        exist.
            ``(3) Exception for certain group model issuers.--Paragraph 
        (1)(A) shall not apply to a group health plan or health 
        insurance issuer offering group health insurance coverage with 
        respect to--
                    ``(A) a health maintenance organization (as defined 
                in section 733(b)(3)), if such health maintenance 
                organization operates primarily through exclusive 
                contracts with multi-specialty physician groups, nor to 
                any arrangement between such a health maintenance 
                organization and its affiliates; or
                    ``(B) a value-based network arrangement, such as an 
                exclusive provider network, accountable care 
                organization or other alternative payment model, center 
                of excellence, a provider sponsored health insurance 
                issuer that operates primarily through aligned multi-
                specialty physician group practices or integrated 
                health systems, or such other similar network 
                arrangements as determined by the Secretary through 
                rulemaking.
            ``(4) Attestation.--A group health plan or health insurance 
        issuer offering group health insurance coverage shall annually 
        submit to the Secretary of Labor an attestation that such plan 
        or issuer is in compliance with the requirements of this 
        subsection.
    ``(c) Maintenance of Existing HIPAA, GINA, and ADA Protections.--
Nothing in this section shall modify, reduce, or eliminate the existing 
privacy protections and standards provided by reason of State and 
Federal law, including the requirements of parts 160 and 164 of title 
45, Code of Federal Regulations (or any successor regulations).
    ``(d) Regulations.--The Secretary, in consultation with the 
Secretary of Health and Human Services and the Secretary of the 
Treasury, not later than 1 year after the date of enactment of this 
section, shall promulgate regulations to carry out this section.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to limit network design or cost or quality initiatives by a 
group health plan or health insurance issuer, including accountable 
care organizations, exclusive provider organizations, networks that 
tier providers by cost or quality or steer enrollees to centers of 
excellence, or other pay-for-performance programs.
    ``(f) Clarification With Respect to Antitrust Laws.--Compliance 
with this section does not constitute compliance with the antitrust 
laws, as defined in subsection (a) of the first section of the Clayton 
Act (15 U.S.C. 12(a)).''.
            (3) IRC.--Section 9824 of the Internal Revenue Code of 1986 
        is amended by adding at the end the following:
    ``(b) Protecting Health Plans Network Design Flexibility.--
            ``(1) In general.--A group health plan shall not enter into 
        an agreement with a provider, network or association of 
        providers, or other service provider offering access to a 
        network of service providers if such agreement, directly or 
        indirectly--
                    ``(A) restricts the group health plan from--
                            ``(i) directing or steering enrollees to 
                        other health care providers; or
                            ``(ii) offering incentives to encourage 
                        enrollees to utilize specific health care 
                        providers;
                    ``(B) requires the group health plan to enter into 
                any additional contract with an affiliate of the 
                provider as a condition of entering into a contract 
                with such provider;
                    ``(C) requires the group health plan to agree to 
                payment rates or other terms for any affiliate not 
                party to the contract of the provider involved; or
                    ``(D) restricts other group health plans not party 
                to the contract, from paying a lower rate for items or 
                services than the contracting plan pays for such items 
                or services.
            ``(2) Additional requirement for self-insured plans.--A 
        self-insured group health plan shall not enter into an 
        agreement with a provider, network or association of providers, 
        third-party administrator, or other service provider offering 
        access to a network of providers if such agreement directly or 
        indirectly requires the group health plan to certify, attest, 
        or otherwise confirm in writing that the group health plan is 
        bound by restrictive contracting terms between the service 
        provider and a third-party administrator that the group health 
        plan is not party to, without a disclosure that such terms 
        exist.
            ``(3) Exception for certain group model issuers.--Paragraph 
        (1)(A) shall not apply to a group health plan with respect to--
                    ``(A) a health maintenance organization (as defined 
                in section 9832(b)(3)), if such health maintenance 
                organization operates primarily through exclusive 
                contracts with multi-specialty physician groups, nor to 
                any arrangement between such a health maintenance 
                organization and its affiliates; or
                    ``(B) a value-based network arrangement, such as an 
                exclusive provider network, accountable care 
                organization or other alternative payment model, center 
                of excellence, a provider sponsored health insurance 
                issuer that operates primarily through aligned multi-
                specialty physician group practices or integrated 
                health systems, or such other similar network 
                arrangements as determined by the Secretary through 
                rulemaking.
            ``(4) Attestation.--A group health plan shall annually 
        submit to the Secretary of Labor an attestation that such plan 
        is in compliance with the requirements of this subsection.
    ``(c) Maintenance of Existing HIPAA, GINA, and ADA Protections.--
Nothing in this section shall modify, reduce, or eliminate the existing 
privacy protections and standards provided by reason of State and 
Federal law, including the requirements of parts 160 and 164 of title 
45, Code of Federal Regulations (or any successor regulations).
    ``(d) Regulations.--The Secretary, in consultation with the 
Secretary of Health and Human Services and the Secretary of Labor, not 
later than 1 year after the date of enactment of this section, shall 
promulgate regulations to carry out this section.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to limit network design or cost or quality initiatives by a 
group health plan, including accountable care organizations, exclusive 
provider organizations, networks that tier providers by cost or quality 
or steer enrollees to centers of excellence, or other pay-for-
performance programs.
    ``(f) Clarification With Respect to Antitrust Laws.--Compliance 
with this section does not constitute compliance with the antitrust 
laws, as defined in subsection (a) of the first section of the Clayton 
Act (15 U.S.C. 12(a)).''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply with respect to any contract entered into on or after the date 
that is 18 months after the date of enactment of this Act. With respect 
to an applicable contract that is in effect on the date of enactment of 
this Act, such amendments shall apply on the earlier of the date of 
renewal of such contract or 3 years after such date of enactment.
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