Bill Amendment: IL HB2222 | 2023-2024 | 103rd General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: ANTITRUST-ATTORNEY GEN-NOTICE

Status: 2023-08-15 - Public Act . . . . . . . . . 103-0526 [HB2222 Detail]

Download: Illinois-2023-HB2222-Senate_Amendment_001.html

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Sen. Ann Gillespie

Filed: 5/2/2023

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AMENDMENT TO HOUSE BILL 2222
AMENDMENT NO. ______. Amend House Bill 2222 by replacing
everything after the enacting clause with the following:
"Section 5. The Illinois Health Facilities Planning Act is
amended by changing Section 8.5 as follows:
(20 ILCS 3960/8.5)
(Section scheduled to be repealed on December 31, 2029)
Sec. 8.5. Certificate of exemption for change of ownership
of a health care facility; discontinuation of a category of
service; public notice and public hearing.
(a) Upon a finding that an application for a change of
ownership is complete, the State Board shall publish a legal
notice on 3 consecutive days in a newspaper of general
circulation in the area or community to be affected and afford
the public an opportunity to request a hearing. If the
application is for a facility located in a Metropolitan

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Statistical Area, an additional legal notice shall be
published in a newspaper of limited circulation, if one
exists, in the area in which the facility is located. If the
newspaper of limited circulation is published on a daily
basis, the additional legal notice shall be published on 3
consecutive days. The applicant shall pay the cost incurred by
the Board in publishing the change of ownership notice in
newspapers as required under this subsection. The legal notice
shall also be posted on the Health Facilities and Services
Review Board's web site and sent to the State Representative
and State Senator of the district in which the health care
facility is located and to the Office of the Attorney General.
An application for change of ownership of a hospital shall not
be deemed complete without a signed certification that for a
period of 2 years after the change of ownership transaction is
effective, the hospital will not adopt a charity care policy
that is more restrictive than the policy in effect during the
year prior to the transaction. An application for a change of
ownership need not contain signed transaction documents so
long as it includes the following key terms of the
transaction: names and background of the parties; structure of
the transaction; the person who will be the licensed or
certified entity after the transaction; the ownership or
membership interests in such licensed or certified entity both
prior to and after the transaction; fair market value of
assets to be transferred; and the purchase price or other form

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of consideration to be provided for those assets. The issuance
of the certificate of exemption shall be contingent upon the
applicant submitting a statement to the Board within 90 days
after the closing date of the transaction, or such longer
period as provided by the Board, certifying that the change of
ownership has been completed in accordance with the key terms
contained in the application. If such key terms of the
transaction change, a new application shall be required.
Where a change of ownership is among related persons, and
there are no other changes being proposed at the health care
facility that would otherwise require a permit or exemption
under this Act, the applicant shall submit an application
consisting of a standard notice in a form set forth by the
Board briefly explaining the reasons for the proposed change
of ownership. Once such an application is submitted to the
Board and reviewed by the Board staff, the Board Chair shall
take action on an application for an exemption for a change of
ownership among related persons within 45 days after the
application has been deemed complete, provided the application
meets the applicable standards under this Section. If the
Board Chair has a conflict of interest or for other good cause,
the Chair may request review by the Board. Notwithstanding any
other provision of this Act, for purposes of this Section, a
change of ownership among related persons means a transaction
where the parties to the transaction are under common control
or ownership before and after the transaction is completed.

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Nothing in this Act shall be construed as authorizing the
Board to impose any conditions, obligations, or limitations,
other than those required by this Section, with respect to the
issuance of an exemption for a change of ownership, including,
but not limited to, the time period before which a subsequent
change of ownership of the health care facility could be
sought, or the commitment to continue to offer for a specified
time period any services currently offered by the health care
facility.
The changes made by this amendatory Act of the 103rd
General Assembly are inoperative on and after January 1, 2027.
(a-3) (Blank).
(a-5) Upon a finding that an application to discontinue a
category of service is complete and provides the requested
information, as specified by the State Board, an exemption
shall be issued. No later than 30 days after the issuance of
the exemption, the health care facility must give written
notice of the discontinuation of the category of service to
the State Senator and State Representative serving the
legislative district in which the health care facility is
located. No later than 90 days after a discontinuation of a
category of service, the applicant must submit a statement to
the State Board certifying that the discontinuation is
complete.
(b) If a public hearing is requested, it shall be held at
least 15 days but no more than 30 days after the date of

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publication of the legal notice in the community in which the
facility is located. The hearing shall be held in the affected
area or community in a place of reasonable size and
accessibility and a full and complete written transcript of
the proceedings shall be made. All interested persons
attending the hearing shall be given a reasonable opportunity
to present their positions in writing or orally. The applicant
shall provide a summary or describe the proposed change of
ownership at the public hearing.
(c) For the purposes of this Section "newspaper of limited
circulation" means a newspaper intended to serve a particular
or defined population of a specific geographic area within a
Metropolitan Statistical Area such as a municipality, town,
village, township, or community area, but does not include
publications of professional and trade associations.
(d) The changes made to this Section by this amendatory
Act of the 101st General Assembly shall apply to all
applications submitted after the effective date of this
amendatory Act of the 101st General Assembly.
(Source: P.A. 100-201, eff. 8-18-17; 101-83, eff. 7-15-19.)
Section 10. The State Finance Act is amended by adding
Section 5.990 as follows:
(30 ILCS 105/5.990 new)
Sec. 5.990. The Antitrust Enforcement Fund. This Section

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is repealed on January 1, 2027.
Section 15. The Illinois Antitrust Act is amended by
changing Section 7.2 and by adding Sections 7.2a and 13 as
follows:
(740 ILCS 10/7.2) (from Ch. 38, par. 60-7.2)
Sec. 7.2. (1) Whenever it appears to the Attorney General
that any person has engaged in, is engaging in, or is about to
engage in any act or practice prohibited by this Act, or that
any person has assisted or participated in any agreement or
combination of the nature described herein, he may, in his
discretion, conduct an investigation as he deems necessary in
connection with the matter and has the authority prior to the
commencement of any civil or criminal action as provided for
in the Act to subpoena witnesses, and pursuant to a subpoena
(i) compel their attendance for the purpose of examining them
under oath, (ii) require the production of any books,
documents, records, writings or tangible things hereafter
referred to as "documentary material" which the Attorney
General deems relevant or material to his investigation, for
inspection, reproducing or copying under such terms and
conditions as hereafter set forth, (iii) require written
answers under oath to written interrogatories, or (iv) require
compliance with a combination of the foregoing. Any subpoena
issued by the Attorney General shall contain the following

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information:
(a) The statute and section thereof, the alleged
violation of which is under investigation and the general
subject matter of the investigation.
(b) The date and place at which time the person is
required to appear or produce documentary material in his
possession, custody or control or submit answers to
interrogatories in the office of the Attorney General
located in Springfield or Chicago. Said date shall not be
less than 10 days from date of service of the subpoena.
(c) Where documentary material is required to be
produced, the same shall be described by class so as to
clearly indicate the material demanded.
The Attorney General is hereby authorized, and may so
elect, to require the production, pursuant to this section, of
documentary material or interrogatory answers prior to the
taking of any testimony of the person subpoenaed. Said
documentary material shall be made available for inspection
and copying during normal business hours at the principal
place of business of the person served, or at such other time
and place, as may be agreed upon by the person served and the
Attorney General. When documentary material is demanded by
subpoena, said subpoena shall not:
(i) contain any requirement which would be
unreasonable or improper if contained in a subpoena duces
tecum issued by a court of this State; or

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(ii) require the disclosure of any documentary
material which would be privileged, or which for any other
reason would not be required by a subpoena duces tecum
issued by a court of this State.
(2) The production of documentary material in response to
a subpoena served pursuant to this Section shall be made under
a sworn certificate, in such form as the subpoena designates,
by the person, if a natural person, to whom the demand is
directed or, if not a natural person, by a person or persons
having knowledge of the facts and circumstances relating to
such production, to the effect that all of the documentary
material required by the demand and in the possession,
custody, or control of the person to whom the demand is
directed has been produced and made available to the
custodian. Answers to interrogatories shall be accompanied by
a statement under oath attesting to the accuracy of the
answers.
While in the possession of the Attorney General and under
such reasonable terms and conditions as the Attorney General
shall prescribe: (A) documentary material shall be available
for examination by the person who produced such material or by
any duly authorized representative of such person, (B)
transcript of oral testimony shall be available for
examination by the person who produced such testimony, or his
or her counsel and (C) answers to interrogatories shall be
available for examination by the person who swore to their

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accuracy.
Except as otherwise provided in this Section, no
documentary material, transcripts of oral testimony, or
answers to interrogatories, or copies thereof, in the
possession of the Attorney General shall be available for
examination by any individual other than an authorized
employee of the Attorney General or other law enforcement
officials, federal, State, or local, without the consent of
the person who produced such material, transcripts, or
interrogatory answers. Such documentary material, transcripts
of oral testimony, or answers to interrogatories, or copies
thereof may be used by the Attorney General in any
administrative or judicial action or proceeding.
For purposes of this Section, all documentary materials,
transcripts of oral testimony, or answers to interrogatories
obtained by the Attorney General from other law enforcement
officials, information voluntarily produced to the Attorney
General for purposes of any investigation conducted under
subsection (1), or information provided to the Attorney
General pursuant to the notice requirement of Section 7.2a
shall be treated as if produced pursuant to a subpoena served
pursuant to this Section for purposes of maintaining the
confidentiality of such information.
The changes made by this amendatory Act of the 103rd
General Assembly are inoperative on and after January 1, 2027.
(3) No person shall, with intent to avoid, evade, prevent,

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or obstruct compliance in whole or in part by any person with
any duly served subpoena of the Attorney General under this
Act, knowingly remove from any place, conceal, withhold,
destroy, mutilate, alter, or by any other means falsify any
documentary material that is the subject of such subpoena. A
violation of this subsection is a Class A misdemeanor. The
Attorney General, with such assistance as he may from time to
time require of the State's Attorneys in the several counties,
shall investigate suspected violations of this subsection and
shall commence and try all prosecutions under this subsection.
(Source: P.A. 96-751, eff. 1-1-10; 96-1000, eff. 7-2-10.)
(740 ILCS 10/7.2a new)
Sec. 7.2a. Notification to the Attorney General.
(a) As used in this Section:
"Acquisition" means an agreement, arrangement, or activity
the consummation of which results in a person acquiring
directly or indirectly the control of another person.
"Acquisition" includes the acquisition of voting securities
and noncorporate interests, such as assets, capital stock,
membership interests, or equity interests.
"Contracting affiliation" means the formation of a
relationship between 2 or more entities that permits the
entities to negotiate jointly with health carriers or
third-party administrators over rates for professional medical
services, or for one entity to negotiate on behalf of the other

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entity with health carriers or third-party administrators over
rates for professional medical services. "Contracting
affiliation" does not include arrangements among entities
under common ownership.
"Covered transaction" means any merger, acquisition, or
contracting affiliation between 2 or more health care
facilities or provider organizations not previously under
common ownership or contracting affiliation.
"Health care facility" means the following facilities,
organizations, and related persons:
(1) An ambulatory surgical treatment center required
to be licensed under the Ambulatory Surgical Treatment
Center Act.
(2) An institution, place, building, or agency
required to be licensed under the Hospital Licensing Act.
(3) A hospital, ambulatory surgical treatment center,
or kidney disease treatment center maintained by the State
or any department or agency thereof.
(4) A kidney disease treatment center, including a
free-standing hemodialysis unit required to meet the
requirements of 42 CFR 494 in order to be certified for
participation in Medicare and Medicaid under Titles XVIII
and XIX of the federal Social Security Act of 1935.
(5) An institution, place, building, or room used for
the performance of outpatient surgical procedures that is
leased, owned, or operated by or on behalf of an

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out-of-state facility.
(6) An institution, place, building, or room used for
provision of a health care category of service, as defined
under the Illinois Health Facilities Planning Act,
including, but not limited to, cardiac catheterization and
open heart surgery.
With the exception of those health care facilities
specifically included in this Section, nothing in this Section
shall be intended to include facilities operated as a part of
the practice of a physician or other licensed health care
professional, whether practicing in his or her individual
capacity or within the legal structure of any partnership,
medical or professional corporation, or unincorporated medical
or professional group. Further, this Section shall not apply
to physicians or other licensed health care professional's
practices where such practices are carried out in a portion of
a health care facility under contract with such health care
facility by a physician or by other licensed health care
professionals, whether practicing in his or her individual
capacity or within the legal structure of any partnership,
medical or professional corporation, or unincorporated medical
or professional groups, unless the entity constructs,
modifies, or establishes a health care facility as
specifically defined in this Section.
"Health care services revenue" means the total revenue
received for health care services in the previous 12 months.

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"Health carriers" has the meaning given to that term in
Section 10 of the Health Carrier External Review Act.
"Illinois health care entity" means a health care facility
or provider organization that has an office in or is doing
business in this State.
"Merger" means the consolidation of 2 or more
organizations, including 2 or more organizations joining
through a common parent organization or 2 or more
organizations forming a new organization, but does not include
a corporate reorganization.
"Out-of-state health care entity" means a health care
facility or provider organization that is not headquartered in
this State and does not do business in this State.
"Provider organization" means a corporation, partnership,
business trust, association, or organized group of persons,
whether incorporated or not, which is in the business of
health care delivery or management and that represents 20 or
more health care providers in contracting with health carriers
or third-party administrators for the payment of health care
services. "Provider organization" includes physician
organizations, physician-hospital organizations, independent
practice associations, provider networks, and accountable care
organizations.
"Third-party administrator" means an entity that
administers payments for health care services on behalf of a
client in exchange for an administrative fee.

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(b) Health care facilities or provider organizations that
are party to a covered transaction shall provide notice of
such transaction to the Attorney General no later than 30 days
prior to the transaction closing or effective date of the
transaction.
Covered transactions between an Illinois health care
entity and an out-of-state health care entity must provide
notice under this subsection where the out-of-state entity
generates $10,000,000 or more in annual revenue from patients
residing in this State.
(c) The written notice provided by the parties under
subsection (b) shall be provided as follows:
(1) For any health care facility or provider
organization that is a party to a covered transaction and
files a premerger notification with the Federal Trade
Commission or the United States Department of Justice, in
compliance with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, 15 U.S.C. 18a, the notice
requirement is satisfied by providing a copy of such
filing to the Attorney General at the same time as it is
provided to the federal government.
(2) For any health care facility that is a party to a
covered transaction that is not described in paragraph
(1), the notice requirement is satisfied when the
healthcare facility files an application for a change of
ownership with the Health Facilities and Services Review

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Board, in compliance with the Illinois Health Facilities
Planning Act. The Health Facilities and Services Review
Board shall provide a copy of such filing to the Attorney
General at the same time as it is provided to the
applicable State legislators under subsection (a) of
Section 8.5 of the Illinois Health Facilities Planning
Act.
(3) For any health care facility or provider
organization that is a party to a covered transaction that
is not described in paragraph (1) or (2), written notice
provided by the parties must include:
(A) the names of the parties and their current
business address;
(B) identification of all locations where health
care services are currently provided by each party;
(C) a brief description of the nature and purpose
of the proposed transaction; and
(D) the anticipated effective date of the proposed
transaction.
Nothing in this subsection prohibits the parties to a
covered transaction from voluntarily providing additional
information to the Attorney General.
(d) The Attorney General may make any requests for
additional information from the parties that is relevant to
its investigation of the covered transaction within 30 days of
the date notice is received under subsections (b) and (c). If

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the Attorney General requests additional information, the
covered transaction may not proceed until 30 days after the
parties have substantially complied with the request. Any
subsequent request for additional information by the Attorney
General shall not further delay the covered transaction from
proceeding. Nothing in this Section precludes the Attorney
General from conducting an investigation or enforcing State or
federal antitrust laws at a later date.
(e) Any health care facility or provider organization that
fails to comply with any provision of this Section is subject
to a civil penalty of not more than $500 per day for each day
during which the health care facility or provider organization
is in violation of this Section.
Whenever the Attorney General has reason to believe that a
health care facility or provider organization has engaged in
or is engaging in a covered transaction without complying with
the provisions of this Section, the Attorney General may apply
for and obtain, in an action in the Circuit Court of Sangamon
or Cook County, a temporary restraining order or injunction,
or both, prohibiting the health care facility or provider
organization from continuing its noncompliance or doing any
act in furtherance thereof. The court may make such further
orders or judgments, at law or in equity, as may be necessary
to remedy such noncompliance.
Before bringing such an action or seeking to recover a
civil penalty, the Attorney General shall permit the health

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care facility or provider organization to come into compliance
with this Section within 10 days of being notified of its
alleged noncompliance. The right to cure noncompliance does
not exist on or after the covered transaction's proposed or
actual closing date of the covered transaction, whichever is
sooner.
(f) This Section is repealed on January 1, 2027.
(740 ILCS 10/13 new)
Sec. 13. Antitrust Enforcement Fund. Any penalties
collected from an entity for violations of this Act shall be
deposited into the Antitrust Enforcement Fund, a special fund
created in the State treasury that is dedicated to enforcing
this Act.
This Section is repealed on January 1, 2027.
Section 99. Effective date. This Act takes effect January
1, 2024.".