Healthy Competition for Better Care Act

I 118TH CONGRESS 1ST SESSION H. R. 3120 To ban anticompetitive terms in facility and insurance contracts that limit access to higher quality, lower cost care. IN THE HOUSE OF REPRESENTATIVES MAY 5, 2023 Mrs. STEEL introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Edu- cation and the Workforce, and Ways and Means, for a period to be subse- quently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Healthy Competition 4 for Better Care Act’’. 5 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 3120 IH SEC. 2. BANNING ANTICOMPETITIVE TERMS IN FACILITY 1 AND INSURANCE CONTRACTS THAT LIMIT AC- 2 CESS TO HIGHER QUALITY, LOWER COST 3 CARE. 4 (a) IN GENERAL.— 5 (1) PHSA.—Section 2799A–9 of the Public 6 Health Service Act (42 U.S.C. 300gg–119) is 7 amended by adding at the end the following: 8 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE- 9 SIGN FLEXIBILITY.— 10 ‘‘(1) IN GENERAL.—A group health plan or a 11 health insurance issuer offering group or individual 12 health insurance coverage shall not enter into an 13 agreement with a provider, network or association of 14 providers, or other service provider offering access to 15 a network of service providers if such agreement, di- 16 rectly or indirectly— 17 ‘‘(A) restricts the group health plan or 18 health insurance issuer from— 19 ‘‘(i) directing or steering enrollees to 20 other health care providers; or 21 ‘‘(ii) offering incentives to encourage 22 enrollees to utilize specific health care pro- 23 viders; 24 ‘‘(B) requires the group health plan or 25 health insurance issuer to enter into any addi- 26 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 3120 IH tional contract with an affiliate of the provider 1 as a condition of entering into a contract with 2 such provider; 3 ‘‘(C) requires the group health plan or 4 health insurance issuer to agree to payment 5 rates or other terms for any affiliate not party 6 to the contract of the provider involved; or 7 ‘‘(D) restricts other group health plans or 8 health insurance issuers not party to the con- 9 tract, from paying a lower rate for items or 10 services than the contracting plan or issuer 11 pays for such items or services. 12 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN- 13 SURED PLANS.—A self-insured group health plan 14 shall not enter into an agreement with a provider, 15 network or association of providers, third-party ad- 16 ministrator, or other service provider offering access 17 to a network of providers if such agreement directly 18 or indirectly requires the group health plan to cer- 19 tify, attest, or otherwise confirm in writing that the 20 group health plan is bound by restrictive contracting 21 terms between the service provider and a third-party 22 administrator that the group health plan is not 23 party to, without a disclosure that such terms exist. 24 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 3120 IH ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL 1 ISSUERS.—Paragraph (1)(A) shall not apply to a 2 group health plan or health insurance issuer offering 3 group or individual health insurance coverage with 4 respect to— 5 ‘‘(A) a health maintenance organization 6 (as defined in section 2791(b)(3)), if such 7 health maintenance organization operates pri- 8 marily through exclusive contracts with multi- 9 specialty physician groups, nor to any arrange- 10 ment between such a health maintenance orga- 11 nization and its affiliates; or 12 ‘‘(B) a value-based network arrangement, 13 such as an exclusive provider network, account- 14 able care organization or other alternative pay- 15 ment model, center of excellence, a provider 16 sponsored health insurance issuer that operates 17 primarily through aligned multi-specialty physi- 18 cian group practices or integrated health sys- 19 tems, or such other similar network arrange- 20 ments as determined by the Secretary through 21 rulemaking. 22 ‘‘(4) ATTESTATION.—A group health plan or 23 health insurance issuer offering group or individual 24 health insurance coverage shall annually submit to, 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 3120 IH as applicable, the applicable authority described in 1 section 2723 or the Secretary of Labor, an attesta- 2 tion that such plan or issuer is in compliance with 3 the requirements of this subsection. 4 ‘‘(c) MAINTENANCE OF EXISTING HIPAA, GINA, 5 AND ADA PROTECTIONS.—Nothing in this section shall 6 modify, reduce, or eliminate the existing privacy protec- 7 tions and standards provided by reason of State and Fed- 8 eral law, including the requirements of parts 160 and 164 9 of title 45, Code of Federal Regulations (or any successor 10 regulations). 11 ‘‘(d) REGULATIONS.—The Secretary, in consultation 12 with the Secretary of Labor and the Secretary of the 13 Treasury, not later than 1 year after the date of enact- 14 ment of this section, shall promulgate regulations to carry 15 out this section. 16 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec- 17 tion shall be construed to limit network design or cost or 18 quality initiatives by a group health plan or health insur- 19 ance issuer, including accountable care organizations, ex- 20 clusive provider organizations, networks that tier providers 21 by cost or quality or steer enrollees to centers of excel- 22 lence, or other pay-for-performance programs. 23 ‘‘(f) CLARIFICATION WITH RESPECT TO ANTITRUST 24 LAWS.—Compliance with this section does not constitute 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 3120 IH compliance with the antitrust laws, as defined in sub- 1 section (a) of the first section of the Clayton Act (15 2 U.S.C. 12(a)).’’. 3 (2) ERISA.—Section 724 of the Employee Re- 4 tirement Income Security Act of 1974 (29 U.S.C. 5 1185m) is amended by adding at the end the fol- 6 lowing: 7 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE- 8 SIGN FLEXIBILITY.— 9 ‘‘(1) IN GENERAL.—A group health plan or a 10 health insurance issuer offering group health insur- 11 ance coverage shall not enter into an agreement with 12 a provider, network or association of providers, or 13 other service provider offering access to a network of 14 service providers if such agreement, directly or indi- 15 rectly— 16 ‘‘(A) restricts the group health plan or 17 health insurance issuer from— 18 ‘‘(i) directing or steering enrollees to 19 other health care providers; or 20 ‘‘(ii) offering incentives to encourage 21 enrollees to utilize specific health care pro- 22 viders; 23 ‘‘(B) requires the group health plan or 24 health insurance issuer to enter into any addi- 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 3120 IH tional contract with an affiliate of the provider 1 as a condition of entering into a contract with 2 such provider; 3 ‘‘(C) requires the group health plan or 4 health insurance issuer to agree to payment 5 rates or other terms for any affiliate not party 6 to the contract of the provider involved; or 7 ‘‘(D) restricts other group health plans or 8 health insurance issuers not party to the con- 9 tract, from paying a lower rate for items or 10 services than the contracting plan or issuer 11 pays for such items or services. 12 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN- 13 SURED PLANS.—A self-insured group health plan 14 shall not enter into an agreement with a provider, 15 network or association of providers, third-party ad- 16 ministrator, or other service provider offering access 17 to a network of providers if such agreement directly 18 or indirectly requires the group health plan to cer- 19 tify, attest, or otherwise confirm in writing that the 20 group health plan is bound by restrictive contracting 21 terms between the service provider and a third-party 22 administrator that the group health plan is not 23 party to, without a disclosure that such terms exist. 24 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 3120 IH ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL 1 ISSUERS.—Paragraph (1)(A) shall not apply to a 2 group health plan or health insurance issuer offering 3 group health insurance coverage with respect to— 4 ‘‘(A) a health maintenance organization 5 (as defined in section 733(b)(3)), if such health 6 maintenance organization operates primarily 7 through exclusive contracts with multi-specialty 8 physician groups, nor to any arrangement be- 9 tween such a health maintenance organization 10 and its affiliates; or 11 ‘‘(B) a value-based network arrangement, 12 such as an exclusive provider network, account- 13 able care organization or other alternative pay- 14 ment model, center of excellence, a provider 15 sponsored health insurance issuer that operates 16 primarily through aligned multi-specialty physi- 17 cian group practices or integrated health sys- 18 tems, or such other similar network arrange- 19 ments as determined by the Secretary through 20 rulemaking. 21 ‘‘(4) ATTESTATION.—A group health plan or 22 health insurance issuer offering group health insur- 23 ance coverage shall annually submit to the Secretary 24 of Labor an attestation that such plan or issuer is 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 3120 IH in compliance with the requirements of this sub- 1 section. 2 ‘‘(c) MAINTENANCE OF EXISTING HIPAA, GINA, 3 AND ADA PROTECTIONS.—Nothing in this section shall 4 modify, reduce, or eliminate the existing privacy protec- 5 tions and standards provided by reason of State and Fed- 6 eral law, including the requirements of parts 160 and 164 7 of title 45, Code of Federal Regulations (or any successor 8 regulations). 9 ‘‘(d) REGULATIONS.—The Secretary, in consultation 10 with the Secretary of Health and Human Services and the 11 Secretary of the Treasury, not later than 1 year after the 12 date of enactment of this section, shall promulgate regula- 13 tions to carry out this section. 14 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec- 15 tion shall be construed to limit network design or cost or 16 quality initiatives by a group health plan or health insur- 17 ance issuer, including accountable care organizations, ex- 18 clusive provider organizations, networks that tier providers 19 by cost or quality or steer enrollees to centers of excel- 20 lence, or other pay-for-performance programs. 21 ‘‘(f) CLARIFICATION WITH RESPECT TO ANTITRUST 22 LAWS.—Compliance with this section does not constitute 23 compliance with the antitrust laws, as defined in sub- 24 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 3120 IH section (a) of the first section of the Clayton Act (15 1 U.S.C. 12(a)).’’. 2 (3) IRC.—Section 9824 of the Internal Rev- 3 enue Code of 1986 is amended by adding at the end 4 the following: 5 ‘‘(b) PROTECTING HEALTH PLANS NETWORK DE- 6 SIGN FLEXIBILITY.— 7 ‘‘(1) IN GENERAL.—A group health plan shall 8 not enter into an agreement with a provider, net- 9 work or association of providers, or other service 10 provider offering access to a network of service pro- 11 viders if such agreement, directly or indirectly— 12 ‘‘(A) restricts the group health plan 13 from— 14 ‘‘(i) directing or steering enrollees to 15 other health care providers; or 16 ‘‘(ii) offering incentives to encourage 17 enrollees to utilize specific health care pro- 18 viders; 19 ‘‘(B) requires the group health plan to 20 enter into any additional contract with an affil- 21 iate of the provider as a condition of entering 22 into a contract with such provider; 23 ‘‘(C) requires the group health plan to 24 agree to payment rates or other terms for any 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 3120 IH affiliate not party to the contract of the pro- 1 vider involved; or 2 ‘‘(D) restricts other group health plans not 3 party to the contract, from paying a lower rate 4 for items or services than the contracting plan 5 pays for such items or services. 6 ‘‘(2) ADDITIONAL REQUIREMENT FOR SELF-IN- 7 SURED PLANS.—A self-insured group health plan 8 shall not enter into an agreement with a provider, 9 network or association of providers, third-party ad- 10 ministrator, or other service provider offering access 11 to a network of providers if such agreement directly 12 or indirectly requires the group health plan to cer- 13 tify, attest, or otherwise confirm in writing that the 14 group health plan is bound by restrictive contracting 15 terms between the service provider and a third-party 16 administrator that the group health plan is not 17 party to, without a disclosure that such terms exist. 18 ‘‘(3) EXCEPTION FOR CERTAIN GROUP MODEL 19 ISSUERS.—Paragraph (1)(A) shall not apply to a 20 group health plan with respect to— 21 ‘‘(A) a health maintenance organization 22 (as defined in section 9832(b)(3)), if such 23 health maintenance organization operates pri- 24 marily through exclusive contracts with multi- 25 VerDate Sep 11 2014 03:15 May 13, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3120.IH H3120 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 3120 IH specialty physician groups, nor to any arrange- 1 ment between such a health maintenance orga- 2 nization and its affiliates; or 3 ‘‘(B) a value-based network arrangement, 4 such as an exclusive provider network, account- 5 able care organization or other alternative pay- 6 ment model, center of excellence, a provider 7 sponsored health insurance issuer that operates 8 primarily through aligned mult [Text truncated for display. 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