With a fresh federal appeals court victory on the subject, the Federal Trade Commission is exploring how the benefits of clinical integration among independent providers weigh against the governments obligation to bust collaboration that crosses antitrust lines.
The concept has been either a source of confusion or a magnet for physicians more interested in getting a leg up on payers. The FTC has brought dozens of cases since 2001 against independent physician associations and physician-hospital organizations for conduct condemned as illegal price-fixing.
Anyone wondering whether the FTC was on solid legal ground got an answer last month from the 5th U.S. Circuit Court of Appeals in New Orleans, which backed the commission in its case against North Texas Specialty Physicians, Fort Worth, the only one of those targets to fight the government in courtall of the others agreed to cease and desist, according to the FTC (Appeals court backs FTC on IPA price-fixing decision, May 19 ).
In an opinion issued May 14, the three-judge panel agreed with the FTC that the Texas organization harmed competition by polling members to establish minimum fees it would entertain in contract negotiations. The decision is a strong endorsement of the approach the FTC uses in analyzing these physician cases, says FTC Assistant Director Markus Meier.
Providers are allowed to engage in collective contracting if its central to clinical integration that yields higher quality and more efficient care in return. The crucial point the court affirmed, Meier says, is there has to be this connection, this nexus, between the conduct that restrains trade and the efficiencies that are being claimed by doing so. North Texas Specialty argued in its appeal that the FTC declined to consider evidence regarding the services its members delivered, but the court agreed there was no reason to believe the quality of care, even if proved superior, flowed from the suspect contracting tactics.
The FTC held a May 29 workshop in which providers, payers, regulators and lawyers discussed how the activity plays out in the marketplace, which Meier says could inform future guidance and enforcement regarding clinical integration.
Acutely aware of the antitrust jeopardy involved, the Greater Rochester (N.Y.) Independent Practice Association secured a favorable advisory opinion from the FTC before launching a program of clinical integration. Its not for the faint of heart, says Eric Nielsen, M.D., chief medical officer for GRIPA who participated in a panel discussion at the FTC event.
GRIPA has been negotiating collective contracts since receiving the nod from Washington that doing so is central to the program, which promises practice guidelines, quality benchmarks, performance monitoring, Web-based integration of clinical data and shared administrative burden. Nielsen adds, however, that the FTC could come back and investigate us any time, and Im sure theyll be keeping an eye on us.
Appearing with Nielsen was Advocate Physician Partners CMO Lee Sacks, whose organization includes 2,900 employed and independent physicians with privileges at Oak Brook, Ill.-based Advocate Health Cares eight hospitals. Advocate Physician Partners signed a consent order with the FTC in 2006 agreeing not to negotiate with payers on behalf of members outside of its clinical integration program.
Our organization feels strongly, and I testified during our investigation, the ability to do the group negotiation is integral to the success of clinical integration because it assures stability of the physician network and common standards and procedures, Sacks says.What do you think? Write us with your comments at [email protected]. Please include your name, title and hometown.