Returning to form, the U.S. Justice Department last week cleared a proposed network of nine allergists in Massachusetts of antitrust problems.
After of string of at least 11 favorable antitrust decisions regarding physician networks, the department issued its first adverse ruling against physicians early this month (March 11, p. 30). The negative decision immediately elicited charges from organized medicine that the government's antitrust treatment of physician networks is too stringent.
The new ruling, released March 19, comes one week after the House Judiciary Committee approved a bill that would ease antitrust restrictions on physician networks (March 18, p. 25).
The bill is being pushed by the American Medical Association, which argues that federal antitrust laws and enforcement policies have hindered the development of competitive physician networks.
The AMA has taken that position despite the fact that physicians across the country are forming delivery networks and their own managed-care plans under the existing regulatory framework. In fact, the day before the committee voted out the bill, the AMA announced that the first physician network formed through a special AMA assistance program was going into operation (March 18, p. 16).
But, under the threat of legislation that could undermine their enforcement authority, both the Justice Department and Federal Trade Commission have taken pains to illustrate their flexibility in reviewing the anti-competitive risks of networks.
The FTC, for example, is drafting new enforcement guidelines that presumably would ease the legal restrictions on physician networks. For its part, the Justice Department has highly publicized its string of favorable rulings on physician networks.
And, in perhaps the boldest demonstrations of flexibility to date, one of the nine allergists in the new network blessed by the Justice Department was one of four allergists in Boston that the department tried to throw in jail four years ago for criminal price-fixing. The department eventually dropped criminal charges against the four physicians and entered into civil antitrust settlements with them (Feb. 10, 1992, p. 24).
The March 19 business review letter didn't identify which of the four is a member of the new proposed network.
The allergist and eight others intend to form a network called Allergy & Asthma Consultants to jointly pursue service contracts with payers. The Justice Department concluded that the network wouldn't pose any anti-competitive risks because the physicians, as a group, represent only about 10% of the practicing allergists in Massachusetts. The physicians also will use a third party to develop a fee schedule to be used in negotiations with payers, and none will have access to the other's fee information.