1.1.................... moves to amend H.F. No. 120 as follows:
1.2Delete everything after the enacting clause and insert:

1.3    "Section 1. [62R.10] ANTITRUST EXCEPTIONS; PURPOSE.
1.4The legislature finds that the goals of controlling health care costs and improving the
1.5quality of and access to health care services will be significantly enhanced by cooperative
1.6arrangements involving providers or purchasers that might be prohibited by state and
1.7federal antitrust laws if undertaken without governmental involvement. The purpose of
1.8sections 62R.10 to 62R.11 is to create an opportunity for the state to review proposed
1.9arrangements and to substitute regulation for competition when an arrangement is likely
1.10to result in lower costs, or greater access or quality, than would otherwise occur in the
1.11marketplace. The legislature intends that approval of arrangements be accompanied by
1.12appropriate conditions, supervision, and regulation to protect against private abuses
1.13of economic power, and that an arrangement approved by the commissioner and
1.14accompanied by such appropriate conditions, supervision, and regulation shall not be
1.15subject to state and federal antitrust liability.

1.16    Sec. 2. [62R.101] DEFINITIONS.
1.17    Subdivision 1. Scope. For purposes of sections 62R.10 to 62R.11, the terms defined
1.18in this section have the meanings given them.
1.19    Subd. 2. Access. "Access" means the financial, temporal, and geographic
1.20availability of health care to individuals who need it.
1.21    Subd. 3. Applicant. "Applicant" means the party or parties to an agreement or
1.22business arrangement under sections 62R.10 to 62R.11 for which the commissioner's
1.23approval is sought.
1.24    Subd. 4. Commissioner. "Commissioner" means the commissioner of health.
1.25    Subd. 5. Contested case. "Contested case" means a proceeding conducted by the
1.26Office of Administrative Hearings under sections 14.57 to 14.62.
2.1    Subd. 6. Cost or cost of health care. "Cost" or "cost of health care" means the
2.2amount paid by consumers or third party payers for health care services or products.
2.3    Subd. 7. Criteria. "Criteria" means the cost, access, and quality of health care.
2.4    Subd. 8. Health care products. "Health care products" means durable medical
2.5equipment and "medical equipment" as defined in section 62J.17, subdivision 2.
2.6    Subd. 9. Health care service. "Health care service" has the meaning given in
2.7section 62J.17, subdivision 2, paragraph (b).
2.8    Subd. 10. Person. "Person" means an individual or legal entity.

2.9    Sec. 3. [62R.102] SCOPE.
2.10    Subdivision 1. Availability of exception. Providers or purchasers wishing to
2.11engage in contracts, business or financial arrangements, or other activities, practices, or
2.12arrangements that might be construed to be violations of state or federal antitrust laws
2.13but which are in the best interests of the state and further the policies and goals of this
2.14chapter may apply to the commissioner for an exception.
2.15    Subd. 2. Absolute defense. Approval by the commissioner is an absolute defense
2.16against any action under state and federal antitrust laws, except as provided under section
2.1762R.11, subdivision 5.
2.18    Subd. 3. Application cannot be used to impose liability. The commissioner
2.19may ask the attorney general to comment on an application. The application and any
2.20information obtained by the commissioner under sections 62R.103 to 62R.105 that is not
2.21otherwise available is not admissible in any civil or criminal proceeding brought by the
2.22attorney general or any other person based on an antitrust claim, except:
2.23(1) a proceeding brought under section 62R.11, subdivision 5, based on an applicant's
2.24failure to substantially comply with the terms of the application; or
2.25(2) a proceeding based on actions taken by the applicant prior to submitting the
2.26application, where such actions are admitted to in the application.
2.27    Subd. 4. Out-of-state applicants. Providers or purchasers not physically located
2.28in Minnesota are eligible to seek an exception for arrangements in which they transact
2.29business in Minnesota as defined in section 295.51.

2.30    Sec. 4. [62R.103] APPLICATION.
2.31    Subdivision 1. Disclosure. An application for approval must include, to the extent
2.32applicable, disclosure of the following:
2.33(1) a descriptive title;
2.34(2) a table of contents;
3.1(3) exact names of each party to the application and the address of the principal
3.2business office of each party;
3.3(4) the name, address, and telephone number of the persons authorized to receive
3.4notices and communications with respect to the application;
3.5(5) a verified statement by a responsible officer of each party to the application
3.6attesting to the accuracy and completeness of the enclosed information;
3.7(6) background information relating to the proposed arrangement, including:
3.8(i) a description of the proposed arrangement, including a list of any services or
3.9products that are the subject of the proposed arrangement;
3.10(ii) an identification of any tangential services or products associated with the
3.11services or products that are the subject of the proposed arrangement;
3.12(iii) a description of the geographic territory involved in the proposed arrangement;
3.13(iv) if the geographic territory described in item (iii) is different from the territory in
3.14which the applicants have engaged in the type of business at issue over the last five years,
3.15a description of how and why the geographic territory differs;
3.16(v) identification of all products or services that a substantial share of consumers
3.17would consider substitutes for any service or product that is the subject of the proposed
3.18arrangement;
3.19(vi) identification of whether any services or products of the proposed arrangement
3.20are currently being offered, capable of being offered, utilized, or capable of being utilized
3.21by other providers or purchasers in the geographic territory described in item (iii);
3.22(vii) identification of the steps necessary, under current market and regulatory
3.23conditions, for other parties to enter the territory described in item (iii) and compete
3.24with the applicant;
3.25(viii) a description of the previous history of dealings between the parties to the
3.26application;
3.27(ix) a detailed explanation of the projected effects, including expected volume,
3.28change in price, and increased revenue, of the arrangement on each party's current
3.29businesses, both generally as well as the aspects of the business directly involved in
3.30the proposed arrangement;
3.31(x) the present market share of the parties to the application and of others affected
3.32by the proposed arrangement, and projected market shares after implementation of the
3.33proposed arrangement; and
3.34(xi) a statement of why the projected levels of cost, access, or quality could not be
3.35achieved in the existing market without the proposed arrangement; and
4.1(7) a detailed explanation of how the transaction will affect cost, access, and quality.
4.2The explanation must address the factors in section 62R.106, subdivision 2, paragraphs (b)
4.3to (d), to the extent applicable.
4.4    Subd. 2. State Register notice. In addition to the disclosures required in
4.5subdivision 1, the application must contain a written description of the proposed
4.6arrangement for purposes of publication in the State Register. The notice must include
4.7sufficient information to advise the public of the nature of the proposed arrangement
4.8and to enable the public to provide meaningful comments concerning the expected
4.9results of the arrangement. The notice must also state that any person may provide
4.10written comments to the commissioner, with a copy to the applicant, within 20 days of
4.11the notice's publication. The commissioner shall approve the notice before publication.
4.12If the commissioner determines that the submitted notice does not provide sufficient
4.13information, the commissioner may amend the notice before publication and may consult
4.14with the applicant in preparing the amended notice. The commissioner shall not publish
4.15an amended notice without the applicant's approval.
4.16    Subd. 3. Multiple parties to a proposed arrangement. For a proposed
4.17arrangement involving multiple parties, one joint application must be submitted on behalf
4.18of all parties to the arrangement.
4.19    Subd. 4. Filing fee. An application must be accompanied by a filing fee, which must
4.20be deposited in the health care access fund. The total of the deposited application fees is
4.21appropriated annually to the commissioner to administer the antitrust exceptions program.
4.22The filing fee is $2,000 for any application submitted by parties whose combined gross
4.23revenues exceeded $20,000,000 in the most recent calendar or fiscal year for which such
4.24figures are available. The filing fee for all other applications is $1,000. In addition, the
4.25applicants must pay the commissioner's costs in any contested case heard in connection
4.26with the application.
4.27    Subd. 5. Trade secret information; protection. Trade secret information, as
4.28defined in section 13.37, subdivision 1, paragraph (b), must be protected to the extent
4.29required under chapter 13.
4.30    Subd. 6. Commissioner's authority to refuse to review. (a) If the commissioner
4.31determines that an application is unclear, incomplete, or provides an insufficient basis on
4.32which to base a decision, the commissioner may return the application. The applicant may
4.33complete or revise the application and resubmit it.
4.34(b) If, upon review of the application and upon advice from the attorney general, the
4.35commissioner concludes that the proposed arrangement does not present any potential for
5.1liability under the state or federal antitrust laws, the commissioner may decline to review
5.2the application and so notify the applicant.
5.3(c) The commissioner may decline to review any application relating to
5.4arrangements already in effect before the submission of the application. However, the
5.5commissioner shall review any application if the review is expressly provided for in a
5.6settlement agreement entered into before the enactment of this section by the applicant
5.7and the attorney general.
5.8    Subd. 7. Commissioner's authority to extend time limit. Upon the showing
5.9of good cause, the commissioner may extend any of the time limits stated in sections
5.1062R.104 and 62R.105 at the request of the applicant or another person.

5.11    Sec. 5. [62R.104] NOTICE AND COMMENT.
5.12    Subdivision 1. Notice. The commissioner shall cause the notice described in section
5.1362R.103, subdivision 2, to be published in the State Register and any person who has
5.14requested to be placed on a list to receive notice of applications. The commissioner may
5.15maintain separate notice lists for different regions of the state. The commissioner may also
5.16send a copy of the notice to any person together with a request that the person comment as
5.17provided under subdivision 2. Copies of the request must be provided to the applicant.
5.18    Subd. 2. Comments. Within 20 days after the notice is published, any person may
5.19mail to the commissioner written comments with respect to the application. Persons
5.20submitting comments shall provide a copy of the comments to the applicant. The applicant
5.21may mail to the commissioner written responses to any comments within ten days after the
5.22deadline for mailing such comments. The applicant shall send a copy of the response to
5.23the person submitting the comment.

5.24    Sec. 6. [62R.105] PROCEDURE FOR REVIEW OF APPLICATIONS.
5.25    Subdivision 1. Choice of procedures. After the conclusion of the period
5.26provided in section 62R.104, subdivision 2, for the applicant to respond to comments,
5.27the commissioner shall select one of the three procedures provided in subdivision 2.
5.28In determining which procedure to use, the commissioner shall consider the following
5.29criteria:
5.30(1) the size of the proposed arrangement, in terms of number of parties and amount
5.31of money involved;
5.32(2) the complexity of the proposed arrangement;
5.33(3) the novelty of the proposed arrangement;
5.34(4) the substance and quantity of the comments received; and
6.1(5) the presence or absence of any significant gaps in the factual record.
6.2If the applicant demands a contested case hearing no later than the conclusion of
6.3the period provided in section 62R.104, subdivision 2, for the applicant to respond to
6.4comments, the commissioner shall not select a procedure. Instead, the applicant shall be
6.5given a contested case proceeding as a matter of right.
6.6    Subd. 2. Procedures available. (a) Decision on the written record. The
6.7commissioner may issue a decision based on the application, the comments, and the
6.8applicant's responses to the comments, to the extent each is relevant. In making the
6.9decision, the commissioner may consult with staff of the Department of Health and may
6.10rely on Department of Health data.
6.11(b) Limited hearing. (1) The commissioner may order a limited hearing. A copy of
6.12the order must be mailed to the applicant and to all persons who have submitted comments
6.13or requested to be kept informed of the proceedings involving the application. The order
6.14must state the date, time, and location of the limited hearing and must identify specific
6.15issues to be addressed at the limited hearing. The issues may include the feasibility and
6.16desirability of one or more alternatives to the proposed arrangement. The order must
6.17require the applicant to submit written evidence, in the form of affidavits and supporting
6.18documents, addressing the issues identified, within 20 days after the date of the order. The
6.19order shall also state that any person may arrange to receive a copy of the written evidence
6.20from the commissioner, at the person's expense, and may provide written comments on the
6.21evidence within 40 days after the date of the order. A person providing written comments
6.22shall provide a copy of the comments to the applicant.
6.23(2) The limited hearing must be held before the commissioner or Department of
6.24Health staff member or members designated by the commissioner. The commissioner or
6.25the commissioner's designee shall question the applicant about the evidence submitted
6.26by the applicant. The questions may address relevant issues identified in the comments
6.27submitted in response to the written evidence or identified by Department of Health staff
6.28or brought to light by Department of Health data. At the conclusion of the applicant's
6.29responses to the questions, any person who submitted comments about the applicant's
6.30written evidence may make a statement addressing the applicant's responses to the
6.31questions. The commissioner or the commissioner's designee or designees may ask
6.32questions of any person making a statement. At the conclusion of all statements, the
6.33applicant may make a closing statement.
6.34(3) The commissioner's decision after a limited hearing must be based upon the
6.35application, the comments, the applicant's response to the comments, the applicant's
6.36written evidence, the comments in response to the written evidence, and the information
7.1presented at the limited hearing, to the extent each is relevant. In making the decision,
7.2the commissioner may consult with staff of the Department of Health and may rely on
7.3Department of Health data.
7.4(c) Contested case hearing. The commissioner may order a contested case hearing.
7.5A contested case hearing shall be tried before an administrative law judge who shall issue
7.6a written recommendation to the commissioner and shall follow the procedures in sections
7.714.57 to 14.62. All factual issues relevant to a decision must be presented in the contested
7.8case. The attorney general may appear as a party. Additional parties may appear to the
7.9extent permitted under sections 14.57 to 14.62. The record in the contested case includes
7.10the application, the comments, the applicant's response to the comments, and any other
7.11evidence that is part of the record under sections 14.57 to 14.62.

7.12    Sec. 7. [62R.106] CRITERIA FOR DECISION.
7.13    Subdivision 1. Criteria. The commissioner shall not approve an application unless
7.14the commissioner determines that the arrangement is more likely to result in lower costs,
7.15increased access, or increased quality of health care, than would otherwise occur under
7.16existing market conditions or conditions likely to develop without an exemption from
7.17state and federal antitrust law. In the event that a proposed arrangement appears likely
7.18to improve one or two of the criteria at the expense of another one or two of the criteria,
7.19the commissioner shall not approve the application unless the commissioner determines
7.20that the proposed arrangement, taken as a whole, is likely to substantially further the
7.21purpose of this chapter. In making such a determination, the commissioner may employ a
7.22cost/benefit analysis.
7.23    Subd. 2. Factors. (a) Generally applicable factors. In making a determination
7.24about cost, access, and quality, the commissioner may consider the following factors, to
7.25the extent relevant:
7.26(1) whether the proposal is compatible with lowering the costs for health care;
7.27(2) market structure:
7.28(i) actual and potential sellers and buyers or providers and purchasers;
7.29(ii) actual and potential consumers;
7.30(iii) geographic market area; and
7.31(iv) entry conditions;
7.32(3) current market conditions;
7.33(4) the historical behavior of the market;
7.34(5) performance of other, similar arrangements;
8.1(6) whether the proposal unnecessarily restrains competition or restrains competition
8.2in ways not reasonably related to the purposes of this chapter; and
8.3(7) the financial condition of the applicant.
8.4(b) Cost. The commissioner's analysis of cost must focus on the individual
8.5consumer of health care. Cost savings to be realized by providers, health carriers, group
8.6purchasers, or other participants in the health care system are relevant only to the extent
8.7that the savings are likely to be passed on to the consumer. However, where an application
8.8is submitted by providers or purchasers who are paid primarily by third party payers
8.9unaffiliated with the applicant, it is sufficient for the applicant to show that cost savings
8.10are likely to be passed on to the unaffiliated third party payers; the applicants do not have
8.11the burden of proving that third party payers with whom the applicants are not affiliated
8.12will pass on cost savings to individuals receiving coverage through the third party payers.
8.13In making determinations as to costs, the commissioner may consider:
8.14(1) the cost savings likely to result to the applicant;
8.15(2) the extent to which the cost savings are likely to be passed on to the consumer
8.16and in what form;
8.17(3) the extent to which the proposed arrangement is likely to result in cost shifting
8.18by the applicant onto other payers or purchasers of other products or services;
8.19(4) the extent to which the cost shifting by the applicant is likely to be followed
8.20by other persons in the market;
8.21(5) the current and anticipated supply and demand for any products or services
8.22at issue;
8.23(6) the representations and guarantees of the applicant and their enforceability;
8.24(7) likely effectiveness of regulation by the commissioner;
8.25(8) inferences to be drawn from market structure;
8.26(9) the cost of regulation, both for the state and for the applicant; and
8.27(10) any other factors tending to show that the proposed arrangement is or is not
8.28likely to reduce cost.
8.29(c) Access. In making determinations as to access, the commissioner may consider:
8.30(1) the extent to which the utilization of needed health care services or products
8.31by the intended targeted population is likely to increase or decrease. When a proposed
8.32arrangement is likely to increase access in one geographic area, by lowering prices or
8.33otherwise expanding supply, but limits access in another geographic area by removing
8.34service capabilities from that second area, the commissioner shall articulate the criteria
8.35employed to balance these effects;
9.1(2) the extent to which the proposed arrangement is likely to make available a new
9.2and needed service or product to a certain geographic area; and
9.3(3) the extent to which the proposed arrangement is likely to otherwise make health
9.4care services or products more financially or geographically available to persons who
9.5need them.
9.6If the commissioner determines that the proposed arrangement is likely to
9.7increase access and bases that determination on a projected increase in utilization,
9.8the commissioner shall also determine and make a specific finding that the increased
9.9utilization does not reflect overutilization.
9.10(d) Quality. In making determinations as to quality, the commissioner may consider
9.11the extent to which the proposed arrangement is likely to:
9.12(1) decrease morbidity and mortality;
9.13(2) result in faster convalescence;
9.14(3) result in fewer hospital days;
9.15(4) permit providers to attain needed experience or frequency of treatment, likely to
9.16lead to better outcomes;
9.17(5) increase patient satisfaction; and
9.18(6) have any other features likely to improve or reduce the quality of health care.

9.19    Sec. 8. [62R.107] DECISION.
9.20    Subdivision 1. Approval or disapproval. The commissioner shall issue a written
9.21decision approving or disapproving the application. The commissioner may condition
9.22approval on a modification of all or part of the proposed arrangement to eliminate any
9.23restriction on competition that is not reasonably related to the goals of reducing cost or
9.24improving access or quality. The commissioner may also establish conditions for approval
9.25that are reasonably necessary to protect against abuses of private economic power and to
9.26ensure that the arrangement is appropriately supervised and regulated by the state.
9.27    Subd. 2. Findings of fact. The commissioner's decision shall make specific findings
9.28of fact concerning the cost, access, and quality criteria, and identify one or more of those
9.29criteria as the basis for the decision.
9.30    Subd. 3. Data for supervision. A decision approving an application must require
9.31the periodic submission of specific data relating to cost, access, and quality, and to the
9.32extent feasible, identify objective standards of cost, access, and quality by which the
9.33success of the arrangement will be measured. However, if the commissioner determines
9.34that the scope of a particular proposed arrangement is such that the arrangement is
9.35certain to have neither a positive or negative impact on one or two of the criteria, the
10.1commissioner's decision need not require the submission of data or establish an objective
10.2standard relating to those criteria.

10.3    Sec. 9. [62R.108] APPEAL.
10.4After the commissioner has rendered a decision, the applicant or any other person
10.5aggrieved may appeal the decision to the Minnesota Court of Appeals within 30 days after
10.6receipt of the commissioner's decision. The appeal is governed by sections 14.63 to 14.69.
10.7The appellate process does not include a contested case under sections 14.57 to 14.62. The
10.8commissioner's determination, under section 62R.105, subdivision 1, of which procedure
10.9to use may not be raised as an issue on appeal.

10.10    Sec. 10. [62R.109] SUPERVISION AFTER APPROVAL.
10.11    Subdivision 1. Appropriate supervision. The commissioner shall appropriately
10.12supervise, monitor, and regulate approved arrangements.
10.13    Subd. 2. Procedures. The commissioner shall review data submitted periodically
10.14by the applicant. The commissioner's order shall set forth the time schedule for the
10.15submission of data, which shall be at least once a year. The commissioner's order must
10.16identify the data that must be submitted, although the commissioner may subsequently
10.17require the submission of additional data or alter the time schedule. Upon review of the
10.18data submitted, the commissioner shall notify the applicant of whether the arrangement
10.19is in compliance with the commissioner's order. If the arrangement is not in compliance
10.20with the commissioner's order, the commissioner shall identify those respects in which the
10.21arrangement does not conform to the commissioner's order.
10.22An applicant receiving notification that an arrangement is not in compliance has 30
10.23days in which to respond with additional data. The response may include a proposal and a
10.24time schedule by which the applicant will bring the arrangement into compliance with the
10.25commissioner's order. If the arrangement is not in compliance and the commissioner and
10.26the applicant cannot agree to the terms of bringing the arrangement into compliance, the
10.27matter shall be set for a contested case hearing.
10.28The commissioner shall publish notice in the State Register two years after the
10.29date of an order approving an application, and at two-year intervals thereafter, soliciting
10.30comments from the public concerning the impact that the arrangement has had on cost,
10.31access, and quality. The commissioner may request additional oral or written information
10.32from the applicant or from any other source.
10.33    Subd. 3. Study. The commissioner shall study and make recommendations by
10.34January 15, 2011, on the appropriate length and scope of supervision of arrangements
10.35approved for exemption from the antitrust laws.

11.1    Sec. 11. [62R.11] REVOCATION.
11.2    Subdivision 1. Conditions. The commissioner may revoke approval of a
11.3cooperative arrangement only if:
11.4(1) the arrangement is not in substantial compliance with the terms of the application;
11.5(2) the arrangement is not in substantial compliance with the conditions of approval;
11.6(3) the arrangement has not and is not likely to substantially achieve the
11.7improvements in cost, access, or quality identified in the approval order as the basis for
11.8the commissioner's approval of the arrangement; or
11.9(4) the conditions in the marketplace have changed to such an extent that competition
11.10would promote reductions in cost and improvements in access and quality better than does
11.11the arrangement at issue. In order to revoke on the basis that conditions in the marketplace
11.12have changed, the commissioner's order must identify specific changes in the marketplace
11.13and articulate why those changes warrant revocation.
11.14    Subd. 2. Notice. The commissioner shall begin a proceeding to revoke approval by
11.15providing written notice to the applicant describing in detail the basis for the proposed
11.16revocation. Notice of the proceeding must be published in the State Register. The notice
11.17must invite the submission of comments to the commissioner.
11.18    Subd. 3. Procedure. A proceeding to revoke an approval must be conducted as
11.19a contested case proceeding upon the written request of the applicant. Decisions of the
11.20commissioner in a proceeding to revoke approval are subject to judicial review under
11.21sections 14.63 to 14.69.
11.22    Subd. 4. Alternatives to revocation preferred. In deciding whether to revoke
11.23an approval, the commissioner shall take into account the hardship that the revocation
11.24may impose on the applicant and any potential disruption of the market as a whole.
11.25The commissioner shall not revoke an approval if the arrangement can be modified,
11.26restructured, or regulated so as to remedy the problem upon which the revocation
11.27proceeding is based. The applicant may submit proposals for alternatives to revocation.
11.28Before approving an alternative to revocation that involves modifying or restructuring
11.29an arrangement, the commissioner shall publish notice in the State Register that any
11.30person may comment on the proposed modification or restructuring within 20 days
11.31after publication of the notice. The commissioner shall not approve the modification
11.32or restructuring until the comment period has concluded. An approved modified or
11.33restructured arrangement is subject to appropriate supervision under section 62R.109.
11.34    Subd. 5. Impact of revocation. An applicant that has had its approval revoked is
11.35not required to terminate the arrangement. The applicant cannot be held liable under state
12.1or federal antitrust law for acts that occurred while the approval was in effect, except to
12.2the extent that the applicant failed to substantially comply with the terms of its application
12.3or failed to substantially comply with the terms of the approval. The applicant is fully
12.4subject to state and federal antitrust law after the revocation becomes effective and may be
12.5held liable for acts that occur after the revocation."
12.6Amend the title accordingly