Antitrust concerns strongly influence health care


Sherman Act is an important federal law consists of two sections: Section 1 prohibits concerted action that unreasonably restrict competition, and Section 2, prohibits monopolies in general.

Some agreements are considered so extraordinary that we do not restrict competition even. The mere fact that such an agreement has taken place is sufficient and there is no defense. Some include this per se violations of antitrust laws: an agreement between two or more independent physicians is a certain amount for a given service (Aprica determination @) agreement between two or more independent physicians contract with an HMO tax is not particularly (boycott @ ;. agreement between two or more independent doctors regarding working hours, they will provide services, or geographic areas that serve to  This is by no means an exhaustive list or complete description of the anti-trust laws, but defines certain types of activities that the antitrust violation.

To be for a violation of § 1, have an agreement to prevent excessive competition. Because there is an agreement, it must involve more than one economic entity. That is, there can be no such agreement by an economic entity with you. For example, generally speaking, shareholders in the same company cartel for legal reasons are incapable of engaging in unlawful concerted action together if they share substantial financial risk. They will be generally as part of an economic entity. In contrast, rival members of two or more economic entities separate professional groups, for example, can not access a whole range of things agree, because such agreements would violate one or more anti-trust law.


Case 1: A payer approach that you and your colleagues, competitors are. Payer, a contract offered, and fees, they write with your colleagues. While recognize that you are not wanted to pay a physician group practice with just one look from you for the contract. You can put one of you to represent your group and seeks to change the contract, including fees.

Sherman Act was violated: Feedback. Since you and your colleagues and competitors are not members of one professional society, through which all or nearly all to conduct your professional practice, not to speak about taxes among you, and can not order someone to act as voice of the group. In addition to pricing above, if you decide to contract with the client would engage in a group boycott.

Violations can be avoided by properly structuring with sponsors of a formal group and the observance of certain rules in the negotiations. Check the review of the activities of the organization of doctors, one of the most important things the antitrust enforcement authorities, the degree of economic integration organizations, the degree to which risk is shared between the partners. The degree of integration is a key element in determining whether the organization is an economic unit, or if two or more businesses.

Determine whether an organization is sufficiently integrated physician is often extremely difficult task. Changes in law and fact are very specific. FTC sees things as: 1) whether the organization capitation, 2) the extent to which services centrally within the organization, and 3) the shareholders committed to the organization through things such as utilization, quality assurance and peer review.

Shared Financial Risk

Statements also expands the concept of shared financial risk, traditionally the cornerstone of compliance. Original guidelines identified only two examples, which satisfy the condition: (a) the head and Waste Disposal (2) significant. The revised guidelines jointly expand the concept of financial risk by looking at other things to meet the demand. Now you can include risk-sharing (a) the use of significant financial penalties or rewards based on the total cost, or use, and (2) using the appropriate global or fees. Even more impressive is that instead of substantial financial risk that can happen to a network when they raise show significant clinical integration.

clinically meaningful integration can be shown by that the network is expected to produce significant efficiency @ through an active program to evaluate run and modify the model to medical practice and a high degree of interdependence be built [doctor] and cooperation. Examples given include the examination of the use, physician credentialing, investment in the integration of financial markets and human capital, and the clinical.

Additionally, if the network contracts and non-risk venture, the new guidelines allow pricing policy where efficiency increases in the flow of business process risk than non-risk business. This is an advantage for most networks because they are often both risk and non-risk for contracting opportunities. Although the changes are not a free pass antitrust practitioners are only through strict capitation agreements that have been more difficult in practice areas free.

Good trend

Health reform is due to do Justice and other regulators on two things almost unprecedented in the history of antitrust law: to innovate and cooperate. I exaggerate, but the truth is that health reform has ignited a large fire in the … mmm … Government regulators together to find ways health care providers to compete for “Come Together” in the interest of reducing costs and help improve quality.

A few years ago, lit Justice Department antitrust restrictions of almost unworkable “by: (a) extending the rule of reason analysis to determine whether @ antitrust laws were violated, (2) the concept of a joint financial venture extends beyond simple capitation and (3) expanding the role of the messenger. While the so-called messenger model organization (eg API) returns an error stating that the judiciary considers other ways to create “significant economic risk” to be, was shocking. And now, what is more shocking is the fact that the DOJ recently: (a) has promised to all ACO proposals provide, in essence, more lenient, and (2), agreed in a joint statement with the HHS Inspector General Office (the primary enforcement authority over things such as heavy and has anti-kickback injuries), to work together, facilitate the development and role of the OCA.

Rules of Reason.

For those who appreciate a little more depth analyzed possible antitrust violations by the governments of either per se or rule of reason analysis. Violators will be as important per se violations, regardless of good intentions or potential positive impact on the market. Examples include: (a) two or more doctors agree to charge certain fees for certain procedures in their practices, independent, and (2) to do two or more physicians waiver of any business with a specific HMO.

Instead investigated the rule of reason analysis, law enforcement agencies require deeper probe into the arrangement to see if agreements or conflicts with the principles of promoting anti-trust laws. This type of analysis offers the parties an opportunity to justify not investigating their arrangement, analysis per se.

Revised statements of antitrust enforcement policy for Health, issued several years ago by DOJ, extended the rule of reason analysis to situations that were previously considered per se violations. For example, had a traditional supplier network financially capitation be integrated or refuse the rule of reason analysis, and discounted fee for service agreements accepted sent to network many doctors defenders during the antitrust enforcement actions based on the network = s negotiations with other payment. And now, health reform, who wants to go further.



Over the years, the antitrust slow changed in a landslide. The recent debate on health reform and innovation accelerates facilitate at least sincere desire Restrictions top officials. But the proof is in the pudding, as officials cut the proposed combination, the cost and improve the quality objective to continue challenging. In their defense, said officials stated that they open more. They said they would be stupid.

As the founder of Florida Health Care Law Jeff Cohen uses his 25 + years experience as a healthcare provider in order to better the community. In line with its vision of the highest quality legal Florida Health Care firm offer combines the values ​​of transparency, integrity and ethics. Mr. Cohen added together a dynamic team of lawyers; the strategic accompany him to see the vision fulfilled provided.

By Taha Mateen


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