A05238
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2012
Session of
2024
INTRODUCED BY PISCIOTTANO, VENKAT, ISAACSON, MADDEN, SANCHEZ,
SCHLOSSBERG, KHAN, DELLOSO, HOWARD, MERSKI, N. NELSON, BOYD,
KRAJEWSKI, GREEN, CERRATO AND MATZIE, FEBRUARY 5, 2024
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, APRIL 17, 2024
AN ACT
Providing for cause of action for antitrust conduct, for
indirect purchaser recovery under State antitrust laws and
for premerger notice of health care mergers and transactions;
and imposing penalties.
TABLE OF CONTENTS
Section 1. Short title.
Section 2. Declaration of purpose.
Section 3. Definitions.
Section 4. Prohibited acts.
Section 5. Enforcement by Attorney General.
Section 6. Measurement of damages.
Section 7. Premerger notification regarding health care.
Section 8. Civil investigation.
Section 9. Criminal penalties.
Section 10. Standing.
Section 11. Antitrust enforcement by private parties.
Section 12. Cooperation with Federal Government and other
states.
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Section 13. Exceptions.
Section 14. Applicability.
Section 15. Action not barred as affecting or involving
interstate or foreign commerce.
Section 16. Remedies cumulative.
Section 17. Effective date.
AMENDING TITLE 12 (COMMERCE AND TRADE) OF THE PENNSYLVANIA
CONSOLIDATED STATUTES, PROVIDING FOR establishing CAUSE OF
ACTION FOR ANTITRUST CONDUCT, FOR INDIRECT PURCHASER RECOVERY
UNDER STATE ANTITRUST LAWS AND FOR PREMERGER NOTICE OF HEALTH
CARE MERGERS AND TRANSACTIONS; AND IMPOSING PENALTIES.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Pennsylvania
Open Markets Act.
Section 2. Declaration of purpose.
The purpose of this act is to promote free enterprise and
free trade in the marketplaces of this Commonwealth by
prohibiting restraints of trade that are secured through
monopolistic or collusive practices and that act or tend to act
to decrease competition between and among persons engaged in
commerce and trade.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Acquisition." An agreement, arrangement or activity, the
consummation of which results in a person acquiring, directly or
indirectly, the control of another person or the ability to
influence the competitive conduct of the target firm, and
includes the acquisition of voting securities and noncorporate
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interests, such as assets, capital stock, membership interests
or equity interests.
"Contracting affiliation." The formation of a relationship
between two or more entities that permits the entities to
negotiate jointly with insurers or third-party administrators
over rates for professional medical services or for one entity
to negotiate on behalf of the other entity with insurers or
third-party administrators over rates for professional medical
services.
"Hart-Scott-Rodino Act." Title II of the Clayton Antitrust
Act (Public Law 63-212, 15 U.S.C. § 18a).
"Health care facility." As defined in section 103 of the act
of July 19, 1979 (P.L.130, No.48), known as the Health Care
Facilities Act.
"Health care facility system." Either of the following:
(1) a parent corporation of one or more health care
facilities and an entity affiliated with the parent
corporation through ownership or control; or
(2) a health care facility and an entity affiliated with
the health care facility through ownership.
"Health care practitioner." As defined in section 103 of the
Health Care Facilities Act.
"Health care services." Medical, surgical, chiropractic,
hospital, optometric, podiatric, pharmaceutical, ambulance,
mental health, substance use disorder, therapeutic,
preventative, diagnostic, curative, rehabilitative, palliative,
custodial and other services relating to the prevention, cure or
treatment of illness, injury or disease.
"Health care services revenue." The total revenue received
for health care services in the previous 12 months.
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"Insurer." As defined in 40 Pa.C.S. § 9103 (relating to
definitions).
"Merger." A consolidation of two or more organizations,
including two or more organizations joining through a common
parent organization or two or more organizations forming a new
organization. The term does not include a corporate
reorganization.
"Monopoly." The power to control prices and exclude
competition as a seller.
"Monopsony." The power to control prices and exclude
competition as a buyer.
"Person." A natural person, corporation, trust, partnership,
an incorporated or unincorporated association, the Commonwealth,
a State agency, municipal authority, political subdivision and
any other legal entity.
"Provider organization." A corporation, partnership,
business trust, association or organized group of persons,
whether incorporated or not, that is in the business of health
care delivery or management and that represents seven or more
health care practitioners in contracting with insurers or third-
party administrators for the payments of health care services.
The term includes a physician organization, physician-hospital
organization, independent practice association, provider network
and accountable care organization.
"Third-party administrator." An entity that administers
payments for health care services on behalf of a client in
exchange for an administrative fee.
"Trade or commerce." Economic activity directly or
indirectly affecting the people of this Commonwealth.
Section 4. Prohibited acts.
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(a) Restraints of trade.--A contract, a combination in the
form of trust or otherwise or a conspiracy in restraint of trade
or commerce, is unlawful.
(b) Monopolize or monopsonize.--It is unlawful for a person
to monopolize or monopsonize, to attempt to monopolize or
monopsonize or to combine or conspire with another person to
monopolize or monopsonize, in any part of trade or commerce.
(c) Acquisitions.--It is unlawful for a person to acquire,
directly or indirectly, the whole or any part of the stock,
share capital or other equity interest of another person or the
whole or any part of the assets of another person if any of the
following apply:
(1) The effect of the acquisition is substantially to
lessen competition.
(2) The effect of the acquisition tends to create a
monopoly or monopsony of any part of trade or commerce.
(d) Market power.--It is unlawful for any person or persons
with market power in the conduct of any business, trade or
commerce, in a labor market, or in the furnishing of a service
in this Commonwealth, to abuse that market power.
Section 5. Enforcement by Attorney General.
(a) Action on behalf of Commonwealth.--If the Attorney
General has reason to believe that a person, foreign or
domestic, has engaged in, is engaging in or is about to engage
in an act or practice that is unlawful under this act, the
Attorney General may bring a civil action in the name of the
Commonwealth against the person to:
(1) Obtain a declaratory judgment that the action or
practice violates this act.
(2) Enjoin an act or practice that violates this act by
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issuing a temporary restraining order, an ex parte temporary
restraining order or a preliminary or permanent injunction,
without bond.
(3) Recover a civil penalty of not less than $100,000
for each violation of this act or of an injunction, judgment
or consent agreement issued or entered into under this act.
(4) Obtain an order requiring divestiture of assets:
(i) acquired in violation of this act and after the
court determines that divestiture is necessary to avoid
the creation or continuation of a monopoly or to avoid a
likely substantial lessening of competition that results
from a transaction found to be in violation of this act;
or
(ii) to restore competition to a line of commerce
that has been eliminated by a violation of this act.
(5) Recover actual damages, restitution or disgorgement
on behalf of the Commonwealth and its agencies that are
injured either directly or indirectly through a violation of
this act.
(b) Action on behalf of natural person.--The Attorney
General may bring a civil action in the name of the Commonwealth
on behalf of a natural person injured directly or indirectly to
recover damages, restitution or disgorgement through a violation
of this act.
(c) Recovery authorized.--The Attorney General shall recover
the costs of an investigation, expert costs and reasonable
attorney fees and costs if successful in an action initiated
under this section.
(d) Jurisdiction.--A civil action under this section may be
brought in Commonwealth Court and in the court of common pleas
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of the county in which a party resides or has a principal place
of business.
(e) Investigation.--
(1) If the Attorney General has reason to believe that a
person, whether foreign or domestic, has engaged in or is
engaging in a violation of this act or of a Federal antitrust
law that may be enforced by the Attorney General, the
Attorney General may initiate an investigation.
(2) As part of an investigation under this section, the
Attorney General may administer oaths and affirmations,
subpoena witnesses and documentary material, propound
interrogatories to be answered in writing under oath and
collect evidence.
(3) The Attorney General may use the information
obtained under this section as the Attorney General
determines necessary in the civil enforcement of this act or
Federal antitrust law that may be enforced by the Attorney
General, including presentation before a court.
(4) The Attorney General may cooperate with and
coordinate enforcement of this act and a Federal antitrust
law may be enforced by the Attorney General with the Federal
Government and the several states, including using and
sharing information and evidence obtained under this act.
Section 6. Measurement of damages.
(a) General rule.--In an action brought under this act, the
prevailing party shall recover treble damages sustained,
reasonable attorney fees and costs, expert witness fees and
investigative costs.
(b) Method.--In an action under this act, damages may be
proved and assessed in the aggregate by statistical or sampling
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methods, by the computation of illegal overcharges or
underpayment or by another reasonable system of estimating
aggregate damages as the court may permit without the necessity
of separately proving the individual claim of, or amount of
damage to, persons on whose behalf the suit was brought.
(c) Computation.--Damages may be proved and assessed in the
aggregate by statistical or sampling methods, by the computation
of illegal overcharges or by another reasonable system of
estimating aggregate damages as the court may permit, without
the necessity of separately proving the individual claim of, or
amount of damage to, persons on whose behalf the suit was
brought.
(d) Interest.--Damages for injuries by reason of anything
prohibited under this act shall include interest computed from
the date on which the injury is sustained, at a rate equal to
the statutory rate for postjudgment interest, and the cost of
suit, including reasonable attorney fees.
Section 7. Premerger notification regarding health care.
(a) General notification.--A person conducting business in
this Commonwealth that is required to file the notification and
report form for certain mergers and acquisitions under the Hart-
Scott-Rodino Act shall provide the same notice and documentation
in its entirety to the Office of Attorney General at the same
time that notice is filed with the Federal Trade Commission or
the United States Department of Justice.
(b) Health care notification.--
(1) It is the intent of the General Assembly to ensure
that competition beneficial to consumers in health care
markets across this Commonwealth remains vigorous and robust.
(2) The General Assembly supports the intent through
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this section, which provides the Office of Attorney General
with notice of all material health care transactions in this
Commonwealth, so that the Office of Attorney General has the
information necessary to determine whether an investigation
under this act is warranted for potential anticompetitive
conduct and consumer harm.
(3) In addition to requiring notice under subsection (a)
for transactions not involving health care, this section is
also intended to supplement the Hart-Scott-Rodino Act by
requiring notice of health care transactions not reportable
under the reporting thresholds of the Hart-Scott-Rodino Act
and by providing the Office of Attorney General with a copy
of filings made in accordance with the Hart-Scott-Rodino Act.
(c) Notice of material change.--
(1) Not less than 120 days prior to the effective date
of a health care transaction that results in a material
change, the parties to the health care transaction shall
submit written notice to the Office of Attorney General of
the material change.
(2) For the purposes of this section, a material change
includes a merger, acquisition or contracting affiliation
between two or more entities of the following types:
(i) health care facilities;
(ii) health care facility systems; or
(iii) provider organizations.
(3) A material change includes proposed changes
identified in paragraph (1) between a Pennsylvania entity and
an out-of-State entity where the out-of-State entity
generates at least $10,000,000 in health care services
revenue from patients residing in this Commonwealth and the
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entities are of the types identified in paragraph (2). A
party to a material change that is licensed or operating in
this Commonwealth shall submit a notice as required under
this section.
(4) For purposes of paragraph (2), a merger, acquisition
or contracting affiliation between two or more health care
facilities, health care facility systems or provider
organizations only qualifies as a material change if the
health care facilities, health care facility systems or
provider organizations did not previously have common
ownership or a contracting affiliation.
(d) Notice requirements.--
(1) The written notice provided by the parties, as
required by subsection (c), shall include:
(i) The names of the parties and their current
business addresses.
(ii) Identification of all locations where health
care services are currently provided by each party.
(iii) Identification of all health care
practitioners who currently provide health care services
for each party.
(iv) A brief description of the nature and purpose
of the proposed material change.
(v) The anticipated effective date of the proposed
material change.
(2) Nothing in this section shall be construed to
prohibit the parties to a material change from voluntarily
providing additional information to the Office of Attorney
General.
(e) Requests for additional information.--
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(1) The Office of Attorney General must make a request
for additional information from the parties under this act
within 30 days of the date notice is received under
subsections (a), (c) and (d).
(2) Nothing in this subsection shall be construed to
preclude the Office of Attorney General from conducting an
investigation or enforcing Federal or State antitrust laws at
a later date.
(f) Health care premerger notification.--A health care
practitioner or provider organization conducting business in
this Commonwealth that files a premerger notification with the
Federal Trade Commission or the United States Department of
Justice, in compliance with the Hart-Scott-Rodino Act, shall
provide a copy of the filing to the Office of Attorney General.
Providing a copy of the Hart-Scott-Rodino Act filing to the
Office of Attorney General satisfies the notice requirement
under subsection (d).
(g) Materials submitted to the Office of Attorney General.--
(1) Information submitted to the Office of Attorney
General under this section shall be maintained and used by
the Office of Attorney General in the same manner and under
the same protections as provided under this act.
(2) Nothing in this section shall be construed to limit
the Office of Attorney General's authority under this act.
(3) Failure to comply with this section does not provide
a private cause of action.
(h) Penalty for noncompliance.--A person that fails to
comply with this section is liable to the Commonwealth for a
civil penalty of not more than $200 per day for each day of
noncompliance.
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Section 8. Civil investigation.
(a) Power of Attorney General to conduct.--
(1) If the Attorney General has reason to believe that a
person, whether foreign or domestic, has engaged in or is
engaging in a violation of this act or of a Federal antitrust
law that may be enforced by the Attorney General, the
Attorney General may initiate an investigation.
(2) As part of an investigation under this section, the
Attorney General may administer oaths and affirmations,
subpoena witnesses and documentary material, propound
interrogatories to be answered in writing under oath and
collect evidence.
(3) The Attorney General may use the information
obtained under this section as the Attorney General
determines necessary in the civil enforcement of this act or
Federal antitrust law that may be enforced by the Attorney
General, including presentation before a court.
(4) An interrogatory or subpoena served under this
subsection shall inform the party served of the right to file
a petition as provided in subsection (b).
(b) Petition authorized.--
(1) Not later than five business days after the service
of an interrogatory or subpoena, or at any time before the
return date specified in the interrogatory or subpoena, the
party served under this section may file in Commonwealth
Court a petition for an order modifying or setting aside the
interrogatory or subpoena.
(2) The party must serve the Attorney General with a
copy of the petition.
(3) The petitioner may raise an objection or privilege
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that would be available under this act or upon service of a
subpoena in a civil action.
(c) Location for production of documentary material.--
(1) If documentary material that the Attorney General
seeks to obtain by subpoena is not located within this
Commonwealth and is not reducible to electronic reproduction
and transmission, the party subpoenaed may make the
documentary material available to the Attorney General to
examine the documentary material at the place where the
documentary material is located.
(2) The Attorney General may designate representatives,
including officials of the state in which the documentary
material is located, to inspect the documentary material on
the Attorney General's behalf.
(3) The Attorney General may respond to similar requests
from officials of other states and may inspect documentary
material on their behalf.
(d) Investigation enforcement order.--
(1) The Attorney General may apply to Commonwealth Court
for an order compelling compliance of a party who fails to
obey a subpoena or answer an interrogatory issued under this
section without lawful excuse and upon reasonable notice to
all persons affected by the subpoena or interrogatory.
(2) The Attorney General may request that an individual
who refuses to comply with a subpoena or answer an
interrogatory on the grounds that the testimony or
documentary material may incriminate the individual be
ordered by the court to provide the testimony or documentary
material.
(3) Except for a prosecution for perjury, an individual
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who complies with a court order to provide testimony or
matter after asserting a privilege against self-incrimination
to which the individual is entitled by law shall not have the
testimony or documentary material provided, or evidence
derived therefrom, or received against the individual used in
a criminal investigation or proceeding.
(e) Duty to comply.--A person, whether foreign or domestic,
upon whom an interrogatory or subpoena is served pursuant to
this section shall comply with the terms of the interrogatory or
subpoena unless otherwise provided by this section or by court
order.
(f) Liability.--
(1) A person who:
(i) fails to appear with the intent to avoid, evade
or prevent compliance, in whole or in part, with an
investigation under this act or who removes from a place,
conceals, withholds, mutilates, alters, destroys or by
other means falsifies a matter or documentary material in
the possession, custody or control of a person, subject
to the request or subpoena; or
(ii) knowingly conceals relevant information with
the intent to avoid, evade or prevent compliance shall be
liable for a civil penalty as provided in this
subsection.
(2) The Attorney General may, upon petition to
Commonwealth Court, recover a civil penalty not to exceed
$25,000. If a civil penalty is assessed in or as the result
of litigation, the Attorney General is entitled to reasonable
attorney fees and costs.
(g) Access to information of other agencies and
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confidentiality.--
(1) If criminal or civil intelligence, records of
investigations, investigative information or other
information held by a Federal or State agency is available to
the Attorney General on a confidential or restricted basis,
the Attorney General may obtain and use the information
unless otherwise prohibited by law.
(2) A record of an investigation or intelligence or
investigative information that is exempt from disclosure
under the act of February 14, 2008 (P.L.6, No.3), known as
the Right-to-Know Law, shall remain confidential and be
exempt from disclosure under that act.
(h) Records of investigation.--A written response, testimony
or document obtained by the Attorney General under this section,
or information derived directly or indirectly from a written
response, testimony or document obtained by the Attorney
General, shall be deemed a record of an investigation and shall
be exempt from disclosure under the Right-to-Know Law.
Section 9. Criminal penalties.
A person, including an agent or officer of the person, who
knowingly commits an unlawful act under section 4(a) or (b) is
guilty of a felony of the third degree and, upon conviction,
shall be sentenced to a term of imprisonment of not more than
four years or sentenced to pay a fine of not more than
$1,000,000, or both. If the person who knowingly committed an
unlawful act under section 4(a) or (b) is a corporation, the
corporation shall be sentenced to pay a fine of not more than
$1,000,000. An indictment or information based on a violation of
a of the provisions of this act must be found within five years
after the violation. No criminal proceeding barred by a prior
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limitation shall be revived by this act.
Section 10. Standing.
An individual or entity who has suffered damages as a result
of prohibited acts enumerated in section 4 shall have standing
to commence an action in a court of competent jurisdiction.
Section 11. Antitrust enforcement by private parties.
(a) Election.--The plaintiff in an action commenced under
this act may elect to sue for and recover either treble damages
sustained or the full amount of the plaintiff's overcharge or
underpayment without regard to any portion of the overcharge or
underpayment that was recovered upon resale. An action under
this section may be brought by a person injured in the person's
business or property under this act, regardless of whether the
person dealt directly or indirectly with the defendant. A remedy
under this section is in addition to any other remedy under law
and may not diminish or offset any other remedy. Proof of
liability as a result of anticompetitive conduct in violation of
this act shall not require proof of individual reliance.
(b) Class action.--An action brought under this section may
be maintained as a class action pursuant to the Pennsylvania
Rules of Civil Procedure.
Section 12. Cooperation with Federal Government and other
states.
The Attorney General may cooperate with and coordinate
enforcement of this act and Federal antitrust law that may be
enforced by the Attorney General with the Federal Government and
the several states, including using and sharing information and
evidence obtained under this act.
Section 13. Exceptions.
This act shall not make illegal an activity or conduct exempt
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under any statute of the United States or the Commonwealth.
Section 14. Applicability.
This act shall not apply to a cooperative association or an
employee-owned enterprise, corporate or otherwise, of farmers,
gardeners or dairy producers, including livestock farmers and
fruit growers, nor to a contract, agreement or arrangement made
by the association or enterprise, nor to a bona fide labor
union.
Section 15. Action not barred as affecting or involving
interstate or foreign commerce.
An action under this act may not be barred on the grounds
that the activity or conduct complained of affects or involves
interstate or foreign commerce.
Section 16. Remedies cumulative.
The remedies afforded by this act are cumulative.
Section 17. Effective date.
This act shall take effect in 60 days.
SECTION 1. TITLE 12 OF THE PENNSYLVANIA CONSOLIDATED
STATUTES IS AMENDED BY ADDING A CHAPTER TO READ:
CHAPTER 9
PENNSYLVANIA OPEN MARKETS
SEC.
901. SCOPE OF CHAPTER.
902. DECLARATION OF PURPOSE.
903. DEFINITIONS.
904. PROHIBITED ACTS.
905. ENFORCEMENT BY ATTORNEY GENERAL.
906. MEASUREMENT OF DAMAGES.
907. PREMERGER NOTIFICATION REGARDING HEALTH CARE.
908. CIVIL INVESTIGATION.
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909. CRIMINAL PENALTIES.
910. STANDING.
911. ANTITRUST ENFORCEMENT BY PRIVATE PARTIES.
912. COOPERATION WITH FEDERAL GOVERNMENT AND OTHER STATES ,
other states and state agencies .
913. Agency cooperation.
913 914 . EXCEPTIONS.
914 915 . APPLICABILITY.
915 916 . ACTION NOT BARRED AS AFFECTING OR INVOLVING INTERSTATE
OR FOREIGN COMMERCE.
917. Construction .
916 918 . REMEDIES CUMULATIVE.
§ 901. SCOPE OF CHAPTER.
THIS CHAPTER RELATES TO OPEN MARKETS IN THIS COMMONWEALTH.
§ 902. DECLARATION OF PURPOSE.
THE PURPOSE OF THIS CHAPTER IS TO PROMOTE FREE ENTERPRISE AND
FREE TRADE IN THE MARKETPLACES OF THIS COMMONWEALTH BY
PROHIBITING RESTRAINTS OF TRADE THAT ARE SECURED THROUGH
MONOPOLISTIC OR COLLUSIVE PRACTICES AND THAT ACT OR TEND TO ACT
TO DECREASE COMPETITION BETWEEN AND AMONG PERSONS ENGAGED IN
COMMERCE AND TRADE.
§ 903. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
"ACQUISITION." AN AGREEMENT, ARRANGEMENT OR ACTIVITY, THE
CONSUMMATION OF WHICH RESULTS IN A PERSON ACQUIRING, DIRECTLY OR
INDIRECTLY, THE CONTROL OF ANOTHER PERSON OR THE ABILITY TO
INFLUENCE THE COMPETITIVE CONDUCT OF THE TARGET FIRM person , AND
INCLUDES THE ACQUISITION OF VOTING SECURITIES AND NONCORPORATE
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INTERESTS, SUCH AS ASSETS, CAPITAL STOCK, MEMBERSHIP INTERESTS
OR EQUITY INTERESTS.
"CONTRACTING AFFILIATION." THE FORMATION OF A RELATIONSHIP
BETWEEN TWO OR MORE ENTITIES persons THAT PERMITS THE ENTITIES
persons TO NEGOTIATE JOINTLY WITH INSURERS OR THIRD-PARTY
ADMINISTRATORS OVER RATES FOR PROFESSIONAL MEDICAL SERVICES OR
FOR ONE ENTITY person TO NEGOTIATE ON BEHALF OF THE OTHER ENTITY
person WITH INSURERS OR THIRD-PARTY ADMINISTRATORS OVER RATES
FOR PROFESSIONAL MEDICAL SERVICES.
"HART-SCOTT-RODINO ACT." TITLE II OF THE CLAYTON ANTITRUST
ACT (PUBLIC LAW 63-212, 15 U.S.C. § 18A).
"HEALTH CARE FACILITY." AS DEFINED IN SECTION 103 802.1 OF
THE ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE HEALTH
CARE FACILITIES ACT.
"HEALTH CARE FACILITY SYSTEM." EITHER OF THE FOLLOWING:
(1) A PARENT CORPORATION OF ONE OR MORE HEALTH CARE
FACILITIES AND AN ENTITY a person AFFILIATED WITH THE PARENT
CORPORATION THROUGH OWNERSHIP OR CONTROL; OR
(2) A HEALTH CARE FACILITY AND AN ENTITY a person
AFFILIATED WITH THE HEALTH CARE FACILITY THROUGH OWNERSHIP
direct or indirect ownership, including a private equity
fund .
"HEALTH CARE PRACTITIONER." AS DEFINED IN SECTION 103 OF THE
HEALTH CARE FACILITIES ACT.
"HEALTH CARE SERVICES." MEDICAL, SURGICAL, CHIROPRACTIC,
HOSPITAL, OPTOMETRIC, dental treatment, PODIATRIC,
PHARMACEUTICAL, AMBULANCE, MENTAL HEALTH, SUBSTANCE USE
DISORDER, THERAPEUTIC, PREVENTATIVE, DIAGNOSTIC, CURATIVE,
REHABILITATIVE, PALLIATIVE, CUSTODIAL AND OTHER SERVICES
RELATING TO THE PREVENTION, CURE OR TREATMENT OF ILLNESS, INJURY
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OR DISEASE.
"HEALTH CARE SERVICES REVENUE." THE TOTAL REVENUE RECEIVED
FOR HEALTH CARE SERVICES IN THE PREVIOUS 12 MONTHS.
"INSURER." AS DEFINED IN 40 PA.C.S. § 9103 (RELATING TO
DEFINITIONS).
"MERGER." A CONSOLIDATION OF TWO OR MORE ORGANIZATIONS
persons , INCLUDING TWO OR MORE ORGANIZATIONS persons JOINING
THROUGH A COMMON PARENT ORGANIZATION OR TWO OR MORE
ORGANIZATIONS FORMING A NEW ORGANIZATION. THE TERM DOES NOT
INCLUDE A CORPORATE REORGANIZATION.
"MONOPOLY." THE POWER TO CONTROL PRICES AND EXCLUDE
COMPETITION AS A SELLER.
"MONOPSONY." THE POWER TO CONTROL PRICES AND EXCLUDE
COMPETITION AS A BUYER.
"PERSON." A NATURAL PERSON, CORPORATION, TRUST, PARTNERSHIP,
AN INCORPORATED OR UNINCORPORATED ASSOCIATION, THE COMMONWEALTH,
A STATE AGENCY, MUNICIPAL AUTHORITY, POLITICAL SUBDIVISION AND
ANY OTHER LEGAL ENTITY.
"PROVIDER ORGANIZATION." A CORPORATION, PARTNERSHIP,
BUSINESS TRUST, ASSOCIATION OR ORGANIZED GROUP OF PERSONS,
WHETHER INCORPORATED OR NOT, THAT IS IN THE BUSINESS OF HEALTH
CARE DELIVERY OR MANAGEMENT AND THAT REPRESENTS TWO OR MORE
HEALTH CARE PRACTITIONERS IN CONTRACTING WITH INSURERS OR THIRD-
PARTY ADMINISTRATORS FOR THE PAYMENTS OF HEALTH CARE SERVICES.
THE TERM INCLUDES A PHYSICIAN ORGANIZATION, PHYSICIAN-HOSPITAL
ORGANIZATION, INDEPENDENT PRACTICE ASSOCIATION, PROVIDER NETWORK
AND ACCOUNTABLE CARE ORGANIZATION.
"THIRD-PARTY ADMINISTRATOR." AN ENTITY A person THAT
ADMINISTERS PAYMENTS FOR HEALTH CARE SERVICES ON BEHALF OF A
CLIENT IN EXCHANGE FOR AN ADMINISTRATIVE FEE.
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"TRADE OR COMMERCE." ECONOMIC ACTIVITY DIRECTLY OR
INDIRECTLY AFFECTING THE PEOPLE OF THIS COMMONWEALTH.
§ 904. PROHIBITED ACTS.
(A) RESTRAINTS OF TRADE.--A CONTRACT, A COMBINATION IN THE
FORM OF TRUST OR OTHERWISE OR A CONSPIRACY IN RESTRAINT OF TRADE
OR COMMERCE, IS UNLAWFUL.
(B) MONOPOLIZE OR MONOPSONIZE.-- IT IS UNLAWFUL FOR A PERSON
TO MONOPOLIZE OR MONOPSONIZE, TO ATTEMPT TO MONOPOLIZE OR
MONOPSONIZE , to maintain a monopoly or monopsony OR TO COMBINE
OR CONSPIRE WITH ANOTHER PERSON TO MONOPOLIZE OR MONOPSONIZE, IN
ANY PART OF TRADE OR COMMERCE.
(C) ACQUISITIONS.--IT IS UNLAWFUL FOR A PERSON TO ACQUIRE,
DIRECTLY OR INDIRECTLY, THE WHOLE OR ANY PART OF THE STOCK,
SHARE CAPITAL OR OTHER EQUITY INTEREST OF ANOTHER PERSON OR THE
WHOLE OR ANY PART OF THE ASSETS OF ANOTHER PERSON IF ANY OF THE
FOLLOWING APPLY:
(1) THE EFFECT OF THE ACQUISITION IS SUBSTANTIALLY TO
LESSEN COMPETITION. may be substantially to lessen
competition in any part of trade or commerce.
(2) THE EFFECT OF THE ACQUISITION TENDS TO CREATE A
MONOPOLY OR MONOPSONY OF ANY PART OF TRADE OR COMMERCE.
(D) MARKET POWER .--IT IS UNLAWFUL FOR ANY PERSON OR PERSONS
WITH MARKET POWER IN THE CONDUCT OF ANY BUSINESS, TRADE OR
COMMERCE, IN A LABOR MARKET, OR IN THE FURNISHING OF A SERVICE
IN THIS COMMONWEALTH, TO ABUSE THAT MARKET POWER .
§ 905. ENFORCEMENT BY ATTORNEY GENERAL.
(A) ACTION ON BEHALF OF COMMONWEALTH.--IF THE ATTORNEY
GENERAL HAS REASON TO BELIEVE THAT A PERSON, FOREIGN OR
DOMESTIC, HAS ENGAGED IN, IS ENGAGING IN OR IS ABOUT TO ENGAGE
IN AN ACT OR PRACTICE THAT IS UNLAWFUL UNDER THIS CHAPTER, THE
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ATTORNEY GENERAL MAY BRING A CIVIL ACTION IN THE NAME OF THE
COMMONWEALTH AGAINST THE PERSON TO:
(1) OBTAIN A DECLARATORY JUDGMENT THAT THE ACTION act OR
PRACTICE VIOLATES THIS CHAPTER.
(2) ENJOIN AN ACT OR PRACTICE THAT VIOLATES THIS CHAPTER
BY ISSUING A TEMPORARY RESTRAINING ORDER, AN EX PARTE
TEMPORARY RESTRAINING ORDER OR A PRELIMINARY OR PERMANENT
INJUNCTION, WITHOUT BOND.
(3) RECOVER A CIVIL PENALTY OF NOT LESS THAN $100,000
FOR EACH VIOLATION OF THIS CHAPTER OR OF AN INJUNCTION,
JUDGMENT OR CONSENT AGREEMENT ISSUED OR ENTERED INTO UNDER
THIS CHAPTER.
(4) OBTAIN AN ORDER REQUIRING DIVESTITURE OF ASSETS:
(I) ACQUIRED IN VIOLATION OF THIS CHAPTER AND AFTER
THE COURT DETERMINES THAT DIVESTITURE IS NECESSARY TO
AVOID THE CREATION OR CONTINUATION OF A MONOPOLY OR TO
AVOID A LIKELY SUBSTANTIAL LESSENING OF COMPETITION THAT
RESULTS FROM A TRANSACTION FOUND TO BE IN VIOLATION OF
THIS CHAPTER ; OR
(II) TO RESTORE COMPETITION TO A LINE OF COMMERCE
THAT HAS BEEN ELIMINATED BY A VIOLATION OF THIS CHAPTER .
(5) RECOVER ACTUAL DAMAGES, RESTITUTION OR DISGORGEMENT
ON BEHALF OF THE COMMONWEALTH AND ITS AGENCIES THAT ARE
Commonwealth agencies INJURED EITHER DIRECTLY OR INDIRECTLY
THROUGH A VIOLATION OF THIS CHAPTER .
(B) ACTION ON BEHALF OF NATURAL PERSON.--THE ATTORNEY
GENERAL MAY BRING A CIVIL ACTION IN THE NAME OF THE COMMONWEALTH
ON BEHALF OF A NATURAL PERSON INJURED DIRECTLY OR INDIRECTLY TO
RECOVER DAMAGES, RESTITUTION OR DISGORGEMENT THROUGH A VIOLATION
OF THIS CHAPTER .
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(C) RECOVERY AUTHORIZED.--THE ATTORNEY GENERAL SHALL RECOVER
THE COSTS OF AN INVESTIGATION, EXPERT COSTS AND REASONABLE
ATTORNEY FEES AND COSTS IF SUCCESSFUL IN AN ACTION INITIATED
UNDER THIS SECTION.
(D) JURISDICTION.--A CIVIL ACTION UNDER THIS SECTION MAY BE
BROUGHT BY THE ATTORNEY GENERAL IN COMMONWEALTH COURT OR IN THE
COURT OF COMMON PLEAS OF THE COUNTY IN WHICH A PARTY RESIDES OR
HAS A PRINCIPAL PLACE OF BUSINESS.
(E) INVESTIGATION.--
(1) IF THE ATTORNEY GENERAL HAS REASON TO BELIEVE THAT A
PERSON, WHETHER FOREIGN OR DOMESTIC, HAS ENGAGED IN OR IS
ENGAGING IN A VIOLATION OF THIS CHAPTER OR OF A FEDERAL
ANTITRUST LAW THAT MAY BE ENFORCED BY THE ATTORNEY GENERAL,
THE ATTORNEY GENERAL MAY INITIATE AN INVESTIGATION.
(2) AS PART OF AN INVESTIGATION UNDER THIS SECTION, THE
ATTORNEY GENERAL MAY ADMINISTER OATHS AND AFFIRMATIONS,
SUBPOENA WITNESSES AND DOCUMENTARY MATERIAL, PROPOUND
INTERROGATORIES TO BE ANSWERED IN WRITING UNDER OATH AND
COLLECT EVIDENCE.
(3) THE ATTORNEY GENERAL MAY USE THE INFORMATION
OBTAINED UNDER THIS SECTION AS THE ATTORNEY GENERAL
DETERMINES NECESSARY IN THE CIVIL ENFORCEMENT OF THIS CHAPTER
OR FEDERAL ANTITRUST LAW THAT MAY BE ENFORCED BY THE ATTORNEY
GENERAL, INCLUDING PRESENTATION BEFORE A COURT.
(4) THE ATTORNEY GENERAL MAY COOPERATE WITH AND
COORDINATE ENFORCEMENT OF THIS CHAPTER AND A FEDERAL
ANTITRUST LAW that MAY BE ENFORCED BY THE ATTORNEY GENERAL
WITH THE FEDERAL GOVERNMENT AND , THE SEVERAL STATES and state
agencies , INCLUDING USING AND SHARING INFORMATION AND
EVIDENCE OBTAINED UNDER THIS CHAPTER .
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(f) Presumptions.--In an action brought by the Attorney
General under this chapter and the act of October 15, 1980
(P.L.950, No.164), known as the Commonwealth Attorneys Act:
(1) The Attorney General is the sole party for discovery
purposes and is deemed to lack possession, custody or control
over documents possessed by the General Assembly, other
Commonwealth officers or other Commonwealth agencies.
(2) If the action is asserted on behalf of a
Commonwealth agency, the Attorney General may facilitate
nonparty discovery from the Commonwealth agency but is not
otherwise obligated under section 913 (relating to agency
cooperation) or section 208 of the Commonwealth Attorneys
Act.
(3) If the Attorney General does not seek to recover
damages for an injury suffered by a Commonwealth agency,
nonparty discovery of the Commonwealth agency is
presumptively unreasonable and unduly burdensome.
§ 906. MEASUREMENT OF DAMAGES.
(A) GENERAL RULE.--IN AN ACTION BROUGHT UNDER THIS CHAPTER
in which the plaintiff prevails , THE PREVAILING PARTY plaintiff
SHALL RECOVER TREBLE DAMAGES SUSTAINED, REASONABLE ATTORNEY FEES
AND COSTS, EXPERT WITNESS FEES AND INVESTIGATIVE COSTS.
(B) METHOD.--IN AN ACTION UNDER THIS CHAPTER , DAMAGES MAY BE
PROVED AND ASSESSED IN THE AGGREGATE BY STATISTICAL OR SAMPLING
METHODS, BY THE COMPUTATION OF ILLEGAL OVERCHARGES OR
UNDERPAYMENT OR BY ANOTHER REASONABLE SYSTEM OF ESTIMATING
AGGREGATE DAMAGES AS THE COURT MAY PERMIT WITHOUT THE NECESSITY
OF SEPARATELY PROVING THE INDIVIDUAL CLAIM OF, OR AMOUNT OF
DAMAGE TO, PERSONS ON WHOSE BEHALF THE SUIT WAS BROUGHT.
(C) INTEREST.--DAMAGES FOR INJURIES BY REASON OF ANYTHING
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PROHIBITED UNDER THIS CHAPTER SHALL INCLUDE INTEREST COMPUTED
FROM THE DATE ON WHICH THE INJURY IS SUSTAINED, AT A RATE EQUAL
TO THE STATUTORY RATE FOR POSTJUDGMENT INTEREST, AND THE COST OF
SUIT, INCLUDING REASONABLE ATTORNEY FEES.
§ 907. PREMERGER NOTIFICATION REGARDING HEALTH CARE.
(A) GENERAL NOTIFICATION.--A PERSON CONDUCTING BUSINESS IN
THIS COMMONWEALTH THAT IS REQUIRED TO FILE THE NOTIFICATION AND
REPORT FORM FOR CERTAIN MERGERS AND ACQUISITIONS UNDER THE HART-
SCOTT-RODINO ACT SHALL PROVIDE THE SAME NOTICE AND DOCUMENTATION
IN ITS ENTIRETY TO THE OFFICE OF ATTORNEY GENERAL AT THE SAME
TIME THAT NOTICE IS FILED WITH THE FEDERAL TRADE COMMISSION OR
THE UNITED STATES DEPARTMENT OF JUSTICE.
(B) HEALTH CARE NOTIFICATION.--
(1) IT IS THE INTENT OF THE GENERAL ASSEMBLY TO ENSURE
THAT COMPETITION BENEFICIAL TO CONSUMERS IN HEALTH CARE
MARKETS ACROSS THIS COMMONWEALTH REMAINS VIGOROUS AND ROBUST.
(2) THE GENERAL ASSEMBLY SUPPORTS THE INTENT THROUGH
THIS SECTION, WHICH PROVIDES THE OFFICE OF ATTORNEY GENERAL
WITH NOTICE OF ALL MATERIAL HEALTH CARE TRANSACTIONS IN THIS
COMMONWEALTH, SO THAT THE OFFICE OF ATTORNEY GENERAL HAS THE
INFORMATION NECESSARY TO DETERMINE WHETHER AN INVESTIGATION
UNDER THIS CHAPTER IS WARRANTED FOR POTENTIAL ANTICOMPETITIVE
CONDUCT AND CONSUMER HARM.
(3) IN ADDITION TO REQUIRING NOTICE UNDER SUBSECTION (A)
FOR TRANSACTIONS NOT INVOLVING HEALTH CARE, THIS SECTION IS
ALSO INTENDED TO SUPPLEMENT THE HART-SCOTT-RODINO ACT BY
REQUIRING NOTICE OF HEALTH CARE TRANSACTIONS NOT REPORTABLE
UNDER THE REPORTING THRESHOLDS OF THE HART-SCOTT-RODINO ACT
AND BY PROVIDING THE OFFICE OF ATTORNEY GENERAL WITH A COPY
OF FILINGS MADE IN ACCORDANCE WITH THE HART-SCOTT-RODINO ACT.
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(C) NOTICE OF MATERIAL CHANGE.--
(1) NOT LESS THAN 120 DAYS PRIOR TO THE EFFECTIVE DATE
OF A HEALTH CARE TRANSACTION THAT RESULTS IN A MATERIAL
CHANGE, THE PARTIES TO THE HEALTH CARE TRANSACTION SHALL
SUBMIT WRITTEN NOTICE TO THE OFFICE OF ATTORNEY GENERAL OF
THE MATERIAL CHANGE.
(2) FOR THE PURPOSES OF THIS SECTION, A MATERIAL CHANGE
INCLUDES A MERGER, ACQUISITION OR CONTRACTING AFFILIATION
BETWEEN TWO OR MORE ENTITIES persons OF THE FOLLOWING TYPES:
(I) HEALTH CARE FACILITIES;
(II) HEALTH CARE FACILITY SYSTEMS; OR
(III) PROVIDER ORGANIZATIONS.
(3) A MATERIAL CHANGE INCLUDES PROPOSED CHANGES
IDENTIFIED IN PARAGRAPH (1) BETWEEN A PENNSYLVANIA ENTITY
person AND AN OUT-OF-STATE ENTITY person WHERE THE OUT-OF-
STATE ENTITY person GENERATES AT LEAST $10,000,000 IN HEALTH
CARE SERVICES REVENUE FROM PATIENTS RESIDING IN THIS
COMMONWEALTH AND THE ENTITIES persons ARE OF THE TYPES
IDENTIFIED IN PARAGRAPH (2). A PARTY TO A MATERIAL CHANGE
THAT IS LICENSED OR OPERATING IN THIS COMMONWEALTH SHALL
SUBMIT A NOTICE AS REQUIRED UNDER THIS SECTION.
(4) FOR PURPOSES OF PARAGRAPH (2), A MERGER, ACQUISITION
OR CONTRACTING AFFILIATION BETWEEN TWO OR MORE HEALTH CARE
FACILITIES, HEALTH CARE FACILITY SYSTEMS OR PROVIDER
ORGANIZATIONS ONLY QUALIFIES AS A MATERIAL CHANGE IF THE
HEALTH CARE FACILITIES, HEALTH CARE FACILITY SYSTEMS OR
PROVIDER ORGANIZATIONS DID NOT PREVIOUSLY HAVE COMMON
OWNERSHIP OR A CONTRACTING AFFILIATION.
(D) NOTICE REQUIREMENTS.--
(1) THE WRITTEN NOTICE PROVIDED BY THE PARTIES, AS
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REQUIRED BY SUBSECTION (C), SHALL INCLUDE:
(I) THE NAMES OF THE PARTIES AND THEIR CURRENT
BUSINESS ADDRESSES.
(II) IDENTIFICATION OF ALL LOCATIONS WHERE HEALTH
CARE SERVICES ARE CURRENTLY PROVIDED BY EACH PARTY.
(III) IDENTIFICATION OF ALL HEALTH CARE
PRACTITIONERS WHO CURRENTLY PROVIDE HEALTH CARE SERVICES
FOR EACH PARTY.
(IV) A BRIEF DESCRIPTION OF THE NATURE AND PURPOSE
OF THE PROPOSED MATERIAL CHANGE.
(V) THE ANTICIPATED EFFECTIVE DATE OF THE PROPOSED
MATERIAL CHANGE.
(2) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
PROHIBIT THE PARTIES TO A MATERIAL CHANGE FROM VOLUNTARILY
PROVIDING ADDITIONAL INFORMATION TO THE OFFICE OF ATTORNEY
GENERAL.
(E) REQUESTS FOR ADDITIONAL INFORMATION.--
(1) THE OFFICE OF ATTORNEY GENERAL MUST MAKE A REQUEST
FOR ADDITIONAL INFORMATION FROM THE PARTIES UNDER THIS
CHAPTER WITHIN 30 DAYS OF THE DATE NOTICE IS RECEIVED UNDER
SUBSECTIONS (A), (C) AND (D).
(2) NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO
PRECLUDE THE OFFICE OF ATTORNEY GENERAL FROM CONDUCTING AN
INVESTIGATION OR ENFORCING FEDERAL OR STATE ANTITRUST LAWS AT
A LATER DATE.
(F) HEALTH CARE PREMERGER NOTIFICATION.--A health care
facility, health care facility system, HEALTH CARE PRACTITIONER
OR PROVIDER ORGANIZATION CONDUCTING BUSINESS IN THIS
COMMONWEALTH THAT FILES A PREMERGER NOTIFICATION WITH THE
FEDERAL TRADE COMMISSION OR THE UNITED STATES DEPARTMENT OF
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