The American Chiropractic Association ("ACA") has proposed an amendment to H.R. 1304 with the stated goal of preserving the application of the antitrust laws to concerted efforts by one group of health professionals to boycott another group of health professions. The amendment is named after Wilk v. American Medical Association, 895 F.2d 352 (7th Cir. 1990), cert denied, 498 U.S. 982 (1990), a case in which the AMA was found to have engaged in a national unlawful boycott against chiropractors.

The "Wilk Amendment" was drafted apparently in recognition of how important the antitrust laws have been to ensuring that nonphysician providers are not put at an unfair competitive disadvantage. / The proposed amendment, however, will not preserve for nonphysician practitioners the vital protection currently provided by the antitrust laws.

The Wilk Amendment states that nothing in H.R. 1304 shall render the antitrust laws inapplicable to "any agreement to exclude, boycott, coerce, or intimidate, or act of exclusion, boycott, coercion or intimidation." While the provision suggests that nonphysician providers may retain some antitrust protection against the most blatant exclusionary practices, it does not ensure them protection against the more subtle practices that, in fact, pose the greatest risk. Thus, the proposed amendment would not prevent physicians from collectively negotiating with health plans for contractual terms that have the effect of placing non-physician providers at a great competitive disadvantage. Consider, for example, contract terms

• that require that a physician be present for certain procedures, even though nonphysician providers can furnish the procedures independently under state and federal law;

• that impose "quality" standards that forbid or discourage referrals to non-physician providers;

• that mandate certain educational or experience requirements that typically can be met by most physicians, but by only few or no nonphysician providers; or

• that establish reimbursement rates that are so low for nonphysician providers that it is not viable for any of them to participate with health plans as independent providers.

Under existing antitrust laws, physicians can advocate for such terms, even if they disadvantage nonphysician providers or are not in the interest of consumers. But the antitrust laws do not allow physicians to engage in collective negotiation and other joint conduct that would allow them to force their views on health plans. H.R. 1304, even with the Wilk Amendment, permits such coercion.

Moreover, no matter how cleverly the Wilk Amendment might be redrafted, it will not assure nonphysician providers that H.R. 1304 does not take from them vital antitrust protection. That is because, by its own terms, H.R. 1304 will give physicians the ability to force health plans to accept the terms that the physicians collectively negotiate, and these terms can be couched in an infinite number of ways in which nonphysician providers can be unfairly disadvantaged. Provisos like the Wilk Amendment simply will encourage physicians who wish to compete unfairly with nonphysician providers to be more resourceful and subtle in their negotiation efforts. The ultimate result -- with or without the Wilk Amendment -- will be the same under H.R. 1304. As between physicians and nonphysician providers, the playing field will be tilted far in favor of physicians, who will have the unfettered bargaining clout to insist on contractual provisions that place nonphysician providers at an unfair disadvantage.

For these reasons, those concerned about assuring that nonphysician providers have the opportunity to compete fairly should oppose H.R. 1304, as well as efforts like the Wilk Amendment that fall far short of preserving crucial antitrust protection.

[copy of proposal currently being circulated]

The American Chiropractic Association recognizes the need to level the playing field in negotiations between groups of health care professionals and health plans and health insurers. We believe that H.R. 1304 is a step in that direction through the application of the antitrust laws in the same manner as such laws apply to collective bargaining by labor organizations under the National Labor Relations Act.

However, chiropractors have also been the targets of a national unlawful boycott by the American Medical Association designed to "contain and eliminate" the chiropractic profession. Chiropractic successfully waged a long and costly battle to assure its continued existence utilizing the protections afforded by the antitrust laws. (Wilk v. American Medical Association, 671 F. Supp. 1495 (N.D. Ill. 1987), 895 F.2d 352 (7th Cir. 1990), cert. denied, 498 U.S. 982 (1990)).

In light of the Wilk decision, and the special concern of the chiropractic profession to preserve the application of the antitrust laws to any concerted effort by one group of health professionals to boycott another group of professionals, the ACA respectfully submits this Wilk Amendment to H.R. 1304.

Amend H.R. 1304 by adding a new Section 4, as follows:

Sec. 4 Preservation of Antitrust Laws to Certain Activities