The Federal Trade Commission has completed its long-awaited revamping of antitrust guidelines for physician networks, and several special-interest groups have been invited to sneak a peek at the first draft this week, MODERN HEALTHCARE has learned.
The groups that will view the guidelines include the American Medical Association, the American Hospital Association, the American Association of Health Plans and the American Medical Group Association, according to several sources who requested anonymity.
The sources said representatives from the various groups will be allowed to view the guidelines at the FTC's headquarters in Washington and offer their comments. The groups will not be allowed to take a copy of the guidelines with them when they leave the FTC office building, the sources said.
The FTC, which has been working with the U.S. Justice Department on the new guidelines, is expected to release the final set of physician network antitrust rules in August.
Edward Hirshfeld, associate general counsel for the AMA, confirmed last week that the association will be taking a look at the guidelines within the next week or so.
"We're trying to schedule a date right now," he said. "We'll be allowed to review a draft of the guidelines and have an opportunity to discuss them."
The AMA has been the prime mover behind the guidelines, which it hopes will ease antitrust restrictions on physician networks. The AMA has argued that current antitrust laws and enforcement policies have hindered physicians from forming networks to collectively contract with payers. The AMA has pressed the argument despite the fact that physicians across the country have been forming contracting networks and their own managed-care plans, including some backed by capital arranged by the AMA.
In February, the AMA had federal legislation introduced that would ease antitrust restrictions on physician networks. The legislation would require the FTC and Justice Department to consider the actual antitrust risks of certain networks rather than automatically considering them illegal price-fixing schemes.
The legislation, known as the Antitrust Healthcare Advancement Act, passed the House Judiciary Committee in March, and the AMA is lobbying hard for a vote by the full House (June 17, p. 68). The national Blue Cross and Blue Shield Association and the AAHP oppose the bill. The AHA hasn't take a formal position on the legislation.
The looming threat of the legislation, which could diminish the authority of the FTC and Justice Department to monitor physicians, prompted the FTC to announce last December that it was reconsidering its approach to reviewing the antitrust risks of physician networks. The draft guidelines to be reviewed by the special-interest groups are the result of that reconsideration.
Under current healthcare antitrust enforcement guidelines, physician networks are immune to antitrust scrutiny only if they're limited to 20% to 30% of physicians in a particular market or medical specialty. And the network physicians must share economic risk in the venture through the acceptance of capitated service contracts or other risk-sharing arrangements.
"We expect the FTC to expand the guidelines but not dramatically," Hirshfeld predicted. "We'd like to see them expanded dramatically."
According to Hirshfeld, that would include allowing physicians to form networks that deal collectively with payers on a fee-for-service basis without having those arrangements automatically considered illegal price fixing.
"If the FTC does a good job, it may obviate the need for legislation," Hirshfeld said. "If not, we'll continue to press for legislation."