In physicians' latest stab at relief from antitrust laws, newly proposed federal legislation would give antitrust immunity to independent practitioners who negotiate collectively with health plans as if the doctors were unionized.
The bill, introduced with little fanfare last month by U.S. Rep. Tom Campbell (R-Calif.), would allow physicians who own their own practices to collectively discuss contract terms. Under current law, such discussions are illegal.
At a hearing last week on Capitol Hill, proponents, including the American Medical Association and one trade union, said the measure would level the playing field between providers and HMOs.
The National Labor Relations Act grants antitrust immunity to sanctioned bargaining units that represent employees. Self-employed physicians are barred from negotiating collectively on the grounds that could lead to price fixing.
But some independent physicians say that insurance contracts dictate so many conditions related to the practice of medicine that doctors are essentially health plan employees.
"The problem private practice physicians face today is no different than the problem miners or factory workers face when they cannot speak with a unified voice. Individually, our bargaining power is dwarfed by the bargaining power of the insurance companies," said Michael Connair, M.D., an orthopedic surgeon, speaking on behalf of the Tallahassee, Fla.-based Federation of Physicians and Dentists, an affiliate of the American Federation of State, County and Municipal Employees.
Dentists, nurses, nurse-midwives and other healthcare professionals who own their own practices also would be covered, but it is physicians who have been involved in organizing efforts by unions, medical societies and independent practice associations.
In an interview with MODERN HEALTHCARE, Campbell insisted the bill would not lead to price fixing. "In view of all the complaints I've heard, it is truly not about money. It is about quality of service," he said.
But in testimony before the House Judiciary Committee, Federal Trade Commission Chairman Robert Pitofsky said the bill would hurt consumers, increase healthcare costs and open the door for workers in other industries to seek exemptions.
Also voicing opposition were the American Association of Health Plans and the American College of Nurse-Midwives. While the bill would grant nurse-midwives the same antitrust immunity as physicians, the college fears doctors would use their immunity to eliminate nonphysicians from health plan contracts.
The House Judiciary Committee is chaired by U.S. Rep. Henry Hyde, (R-Ill.), a supporter of antitrust relief for physicians. In 1996 Hyde sponsored legislation that would have required the FTC and the U.S. Justice Department to relax antitrust reviews of physician networks.
Hyde's bill was credited with pressuring the agencies to release new guidelines in 1996 that expanded the types of networks subject to case-by-case or "rule of reason" analysis. Previously, only networks whose members shared financial risk or met other specific requirements were allowed.
Since then, the FTC and the Justice Department have issued 15 advisory opinions and business review letters concerning provider networks, all of which have been favorable, Pitofsky said.