So the Federal Trade Commission sends you a letter requesting records of all your payer contracts and documents from physician members of your physician hospital organization or independent practice association?
"If you do find yourself in a dispute with the FTC, first and foremost cooperate fully," advises Gloria Austin, president of San Francisco-based Brown & Toland Medical Group, which settled physician price-fixing allegations with the FTC this year and is negotiating agency approval of a clinical integration plan.
"Ensure that you have an attorney who has extensive experience in dealing with the FTC," Austin says.
So how do you settle an antitrust investigation? "First, do no harm," says former FTC attorney Toby Singer, who practices with the Washington office of Jones Day and has settled both hospital and physician antitrust investigations at the state and federal level.
She advises providers to take allegations seriously when facing antitrust regulators from the Federal Trade Commission, the Justice department's Antitrust Division or state attorneys general. "The No. 1 thing is to not to destroy any documents when you learn you're being investigated. That's absolutely critical," Singer says.
"You don't want the appearance of a problem when there may not be one. I've had clients who have screwed up. They had computer programs in place to get rid of old documents. The government frowns on that. And don't put all your assets in your wife's name," she says.
Singer says providers and their lawyers next should contact the antitrust agency to discuss the case. "You don't know what they have," Singer says. "But you should negotiate the information request. The regulators don't always know how burdensome their requests can be and sometimes that can be mitigated. Sometimes that can even be done by phone, unless it's a Hart-Scott-Rodino request (dealing with a merger notification requirement), which is always done in person."
Be sure to narrow the focus of the government's document request. Just because they ask for it doesn't mean they should get it. They may not even need it. "Come up with ways to satisfy their legitimate needs while reducing the burden of your clients to produce seemingly limitless documents," advises Richard Feinstein, a former FTC official with the Washington office of Boies, Schiller & Flexner.
When parties agree on what kinds of documentation need to be produced, they need to send that information. Feinstein says the Hart-Scott-Rodino requests move according to a swift, prescribed deadline, but other cases can take much longer to resolve.
But after submitting the requested information and speaking with the agencies about their concerns, government officials sometimes produce a draft consent order, a kind of "boilerplate" that often includes a cease-and-desist order. "The provider and its attorneys need to decide whether to fight the allegations or settle," Singer says.
Does settling mean you did something wrong? Austin doesn't think so. "If you operate with integrity and you want to be within the scope of the law, it may be in your best interest to negotiate with the FTC and settle the dispute," she says.
"Sometimes having a credible litigation team and the willingness to use it can facilitate a settlement," Feinstein says. "It doesn't have to be conveyed in a hostile or antagonistic way. But if both sides understand each other's willingness to go to battle, they will seriously consider litigation risks and that could help speed resolution."
Remember to choose your battles. "Some lawyers take the approach that everything is a war," Feinstein says. "Sometimes that's effective. But more often it increases costs and sparks emotions. You're better off trying to identify the most important issues, agree on the facts not in dispute and focus on what's being contended."
What if the case involves market definition and analysis? "Bring in an economist early on," Feinstein says, who "can be invaluable in cutting to the core of the issues."
Even if the agency staff recommends filing a complaint, it isn't over yet. Staff recommendations are subject to the approval of the FTC's five commissioners, or, at the Justice Department, the assistant attorney general for antitrust. "The FTC staff won't send you a consent order unless they believe the law has been violated. It's never an empty threat," Singer says. "At this point you say you can't live with what they want and they can't live with anything less. So you make your best case to the commissioners or assistant attorney general as to why the government shouldn't sue you.
"Sometimes they overrule the staff," she says. "It doesn't happen often, but it does happen. ... It's a legitimate opportunity to persuade. It's all or nothing at this level. In some cases the commissioners will sue if you don't settle or they might recommend to accept your last offer."
Singer says investigations can take one to two years but vary widely according to the complexity of the case. "The FTC will issue a closing letter and put it on public record that it has concluded its investigation. The Department of Justice will do that if you push them, but it's not routine," she says.
Singer says some clients refuse to settle, "even when it's in their best interest to do so. I don't view it as my obligation to convince them one way or the other. I lay out the scenarios and facts to help them make smart decisions. It's their money and reputation and time and effort at stake and the lawyer can't make that decision for them."
Austin suggests evaluating the current way you do business and having antitrust counsel scrutinize your company's activities to determine any potential antitrust risk. "That enables you to take preventive measures if necessary," she says.
* Listen. It's really basic, but very important, to understand each side's goals. You need to figure out how to make things work for both sides. You can't do that without really listening.
* Don't hide the ball. Both sides are tempted to conceal things and it leads to a lack of confidence and trust. While you can't lay everything out, you don't want to pretend to argue something you can't or claim that facts are stronger than they are.
* Respect your opponents. You both have jobs to do. Antagonizing each other only delays the process and raises costs.
* Be a Boy (or Girl) Scout. The most important issue may come down to credibility. The government lawyers have to trust you.
* Know when to hold 'em, know when to fold 'em. Like the song says.
Source: Modern Healthcare reporting