|
106th Congress
ANTITRUST EXEMPTIONS FOR
HEALTH CARE PROFESSIONALS
H.R. 1304, the Quality Health-Care Coalition Act of 1999, would create
a broad antitrust exemption to permit doctors and other health care
professionals to bargain collectively with health plans. The bill
undermines efforts to control health care costs for consumers and to
provide consumers with a wide range of choices among health care plans.
The bill does not protect patients' rights or assure that the legitimate
concerns of health care professionals will be addressed. Instead, it
provides incentives for health care professionals, such as doctors and
pharmacists, to engage in price-fixing, boycotts and market allocation
agreements that would otherwise be illegal under the antitrust laws. Such
conduct will result in higher health care costs for patients, employers,
and the Medicare and Medicaid programs. Also, it will permit such cartels
to negotiate unfair and exclusionary agreements with health plans that
could put nonphysician providers, in particular, at an unfair competitive
disadvantage.
The bill would grant to health care professionals who are engaged in
negotiations with a health plan (including group health plans, health
insurance issuers, and Medicare+Choice and Medicaid managed care plans) an
exemption under the antitrust laws similar to that granted to bargaining
units recognized under the National Labor Relations Act ("NLRA").
The bill would increase health care costs and put
some providers at an unfair competitive disadvantage:
Competition keeps health care costs down in the private sector, as well as
in the Medicare and Medicaid programs. The bill would eliminate
competition among health care professionals by permitting them to engage
in price-fixing, boycotts and market allocation agreements that would
otherwise be illegal under the antitrust laws. Under the bill, for
example, nothing would prevent all the doctors in a market from combining
into a single cartel and demanding exorbitant fee increases at the expense
of their patients and taxpayers who fund the Medicare and Medicaid
programs. Nonphysician providers, in particular, could be unfairly
disadvantaged if cartels of physicians were permitted to negotiate unfair
and exclusionary agreements with health plans that made it difficult or
impossible for them to fully participate.
No exemption is needed to permit physicians to
organize in ways that will benefit consumers or to discuss legitimate
quality of care issues: The 1996 DOJ/FTC Health Care Antitrust
Guidelines explain how providers can organize networks and joint ventures
to contract, or compete directly, with health plans. Through such
ventures, providers can work together to offer better care or their own
alternatives to health plans. H.R. 1304 undermines that approach by
allowing providers to form cartels that will limit choices and not benefit
consumers, and whose only tangible result may be to increase provider
incomes at the expense of patient' access to care. Moreover, H.R. 1304 is
not needed to enable providers to discuss collectively with health plans
issues involving legitimate quality of care concerns or to bring such
issues to the attention of the public. The 1996 DOJ/FTC Guidelines explain
that such discussions are lawful under the antitrust laws as long as they
do not involve boycotts or other collective activity that could limit the
choices available to consumers.
The bill is inconsistent with the labor antitrust
exemption granted to other workers: The antitrust labor
exemption seeks to balance the importance of competition with our national
labor policy. Although they enjoy an antitrust exemption, labor
negotiations are subject to strict rules under the NLRA governing the
rights and responsibilities of both workers and employers, and are
overseen by the National Labor Relations Board ("NLRB"). Physicians and
other health care professionals, to the extent they are employees, are
covered by the existing antitrust labor exemption. The special treatment
afforded by H.R. 1304 would go much further than the existing labor
antitrust exemption. It would cover much more than simply wages and
similar terms, and would extend to anything that might be the subject of
health plan negotiations. Moreover, it imposes no obligations whatever on
negotiating cartels and provides for no regulatory oversight.
The bill is not needed to counter health plans'
market power or to challenge the antitrust exemption for the business of
insurance: The bill rests on the faulty premises that health
care professionals need an antitrust exemption to balance the market power
of large health plans and that such plans are protected from scrutiny
under the McCarran-Ferguson Act, which provides an antitrust exemption for
the business of insurance to the extent it is regulated by state law.
Health care markets vary greatly across the country, and are subject to
rapid change. The exemption in H.R. 1304, however, would apply across the
board, including areas where health plans have little leverage or where
there is little managed care. Moreover, the McCarran-Ferguson Act
antitrust exemption does not protect health plans from scrutiny under the
antitrust laws for their agreements with third parties who provide
services to their members. And, the federal antitrust agencies (FTC/DOJ)
have frequently asserted jurisdiction over the conduct of health plans –
such as mergers – when the agencies determined that it could pose a risk
to competition among plans or market power over providers
THE MESSAGE TO CONGRESS
IS:
As a registered nurse, I am concerned that passage of H.R. 1304,
the Quality Health-Care Coalition Act of 1999, will raise the cost
of health care and give physicians the legal means to limit the
services provided by advance practice nurses. It could erect new
barriers to practice for non-physician providers by giving an
unprecedented exemption to physicians from antitrust law – without
adequate regulatory oversight. I urge you to oppose this
anti-competitive legislation. |
Return to U.S. Federal
Affairs.
| Sitemap | Home | Feedback | Join ANA |
| Bookstore | CE Online | NursingMall |
|