Texas physicians who had hoped for increased clout from the state's new collective bargaining law now fear the lengthy approval process will drown them in paperwork.
When Attorney General John Cornyn released the law's proposed rules last month, provider groups and the Texas Medical Association decried them as onerous and cumbersome. The law, which was passed in June and took effect in September, allows private practice physicians to enter into voluntary, state-supervised joint negotiations with health plans.
Physicians interested in joint negotiations must apply to the attorney general for approval before meeting with health plans. Cornyn's proposed rules outline the information the physicians must include in that application. Barring any major changes, final rules are expected by the end of this month.
"Our primary concern is the amount of information that the attorney general's office would want from physicians (is information) that the physicians themselves may not have access to or be able to produce," says TMA lobbyist Kim Ross. "The rules are trying to anticipate every conceivable challenge to the doctrine, but they're overly cautious."
The law, which pitted the TMA against insurers and healthcare purchasing groups, allows competing private practice physicians to collectively bargain free from antitrust concerns. Physicians can negotiate formularies, patient protection issues and specialist referrals, but they can negotiate reimbursement rates only if the attorney general determines that the health plan has substantial market share. The number of physicians allowed to come together is limited to 10% of the doctors in the health plan's service area.
According to the proposed rules, the application must include information about the participating physicians, including specialty, IPA affiliations, current or planned joint business activities, all contracts and related correspondence, and the applicants' 10 most common CPT codes. More burdensome, Ross says, is information about competing physicians in the market and the expected impact of negotiations on competition and consumers.
The application process is lengthy and expensive: According to the proposed rules, an application for fee-related negotiations must be accompanied by a $4,000 fee, and the review of any new contracts or contract renewals that result from joint negotiations is a $1,000 fee. Applications for nonfee-related negotiations will cost $2,000, and review of nonfee-related contracts will cost $500. Any third party representing the physicians in negotiations also must pay $500.
One application from a group of orthopedic surgeons in San Antonio, which came in before the rules were announced, already was rejected for lack of information. According to Mark Tobey, antitrust section chief for the attorney general, the application did not provide enough information about the 60 physicians' market share. Also, the application did not go into enough detail about what the physicians intend to negotiate or what the expected impact of the negotiations will be.
Tobey says the application and review process needs to be this arduous to prevent any antitrust violations.
"We are certainly willing to talk more about a way of getting the information that we need in a less burdensome manner," he says, "but this is about the third or fourth draft we've been through, and we've whittled it down each time."