Antitrust officials at the Justice Department and Federal Trade Commission continued to trip over themselves last month in the race to be viewed as the agency that provides the most antitrust guidance to healthcare providers.
The Justice Department issued a business review letter Sept. 14 that cleared a New York podiatry network of antitrust problems. The FTC countered nine days later with two advisory opinions, one blessing a Colorado cardiovascular network and the other clearing a South Carolina dental network.
Ever since first lady Hillary Rodham Clinton made a passing reference at last year's American Hospital Association convention about the need for provider antitrust relief, the agencies, particularly the Justice Department, have been announcing healthcare antitrust actions to the industry (Aug. 16, 1993, p. 2).
In July, for example, the agencies released rulings one day apart on the antitrust implications of two proposed PPOs (July 11, p. 14).
In the Sept. 14 business review letter, the Justice Department addressed a proposal by the New York State Podiatric Medical Association to create a subsidiary to help its members obtain managed-care contracts. The association represents 1,400 podiatrists, or about 54% of the podiatrists practicing in the state of New York.
The Preferred Podiatric Network would facilitate managed-care contracts between plans and individual podiatrists on the network's roster. As part of bringing plans and podiatrists together, the network would provide information to plans on podiatrists' fees.
But the network won't negotiate fees on behalf of the podiatrists; fee information won't be shared among podiatrists; each podiatrist would decide individually whether to accept or reject a contract offer; and podiatrists would be free to negotiate with a plan independently.
Although the network would represent a large number of podiatrists in the state, the arrangement wouldn't raise antitrust concerns because of the safeguards against collusion among podiatrists, particularly the prohibition on the sharing of fee information, the Justice Department concluded.
Meanwhile, the FTC in two advisory opinions cleared two networks of antitrust problems because they essentially fell within an antitrust "safety zone" issued by the FTC and Justice Department last year (Sept. 20, 1993, p. 3).
One safety zone exempts physician network joint ventures in which the participants represent no more than 20% of the physicians in a particular specialty in one geographic market.
Although the two networks exceeded the safety-zone limits, the fact that they were cleared indicates that the agencies view the safety zones as flexible and that any business arrangement outside of a safety zone won't necessarily be considered illegal.
The two networks cleared by the FTC include a group of Denver-area cardiologists, whose proposed Rocky Mountain Cardiovascular Affiliates would represent about 22% of the cardiologists in the market, and a group of dentists and oral surgeons in Charleston, S.C., whose Palmetto Dental Alliance would represent about 20% and 30% of the dentists and oral surgeons, respectively, in the market.