I Will, If You Do: A Warning
Health care providers and the organizations that represent them have found in the last several years that payers are continually instituting policies that impede the ability to treat patients in need. This environment can create a visceral response by providers who, in turn, find ways to fight back. It is not hard to find news stories reporting on providers who have taken drastic measures: selling of important assets, laying off employees, pulling from retirement accounts, commission of healthcare fraud, and even price fixing and collusion. In short, sometimes we make illogical or imprudent decisions when the financial pressure seems unbearable. As a result, all doctors must take some important precautions.
One area that is often misunderstood is antitrust law. The antitrust laws of the United States and the various states prohibit agreements, combinations, and conspiracies in restraint of trade. Business competitors are prohibited from engaging in actions that could result in an unreasonable restraint of trade (i.e., price fixing).
The Illinois Chiropractic Society is reminding all chiropractic physicians that antitrust laws are very rigorous, so we would encourage all physicians to be extremely cautious during this time to avoid any activity that might be viewed by regulators as antitrust violations. The Illinois Chiropractic Society reminds all doctors that state and federal antitrust laws prohibit agreements among competitors that unreasonably restrain competition. Although we routinely issue this reminder on our publications, its meaning is anything but routine, and we want our members to be aware of the exact nature of the prohibited conduct, given the current difficult reimbursement climate.
Charges of antitrust violations are often based upon discussions among competitors regarding prices, price levels or price mechanisms, and also include agreements to participate or not participate in any network agreement. The FTC recently investigated and entered a consent order and fine against four chiropractic-related organizations for such activities. Antitrust violations can occur at formal and informal meetings, over the phone, via email, and many other forms of communication. The ICS does not condone or participate in any such discussions, and we strongly urge our doctors to practice the same restraint.
While having lunch with your area colleagues, you may be tempted to discuss pricing, boycotting certain suppliers, or even whether or not to join or leave managed care network(s), Health Maintenance Organizations (HMO), or any other insurance-related physician groups. However, each of these discussions most likely would be considered violations of antitrust laws and should be avoided at all costs.
Although not all inclusive, here are some important rules to follow when meeting with your colleagues and other healthcare providers:
- Do not agree with your colleagues not to deal with specific equipment suppliers;
- Don’t agree with or influence your colleagues or any other health care providers to join, not join, or leave any managed care network(s), Health Maintenance Organizations (HMO), or any other insurance-related physician groups;
- Do not exchange data concerning fees, prices, salaries, customer credit, or other business practices. In fact, the Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care indicates, “Exchanges of future prices for provider services or future compensation of employees are very likely to be considered anticompetitive. If an exchange among competing providers of price or cost information results in an agreement among competitors as to the prices for health care services or the wages to be paid to health care employees, that agreement will be considered unlawful;” and
- Leave any meeting (formal or informal) where improper subjects are being discussed. Tell everyone why you are leaving.
Please take caution at every meeting you attend, whether formal or informal, to understand and adhere to antitrust laws. In addition to the legal scars, the fines and penalties may reach into the hundreds of thousands and are in addition to the legal defense costs.