A Competition Perspective on Physician Non-compete Agreements.

Physician non-compete agreements may have significant competitive implications, and effects on both providers and patients, but they are treated variously under the law on a state-by-state basis. Reviewing the relevant law and the economic literature cannot identify with confidence the net effects of such agreements on either physicians or health care delivery with any generality. In addition to identifying future research projects to inform policy, it is argued that the antitrust "rule of reason" provides a useful and established framework with which to evaluate such agreements in specific health care markets and, potentially, to address those agreements most likely to do significant damage to health care competition and consumers.

Physician collective bargaining.

Current antitrust enforcement policy unduly restricts physician collaboration, especially among small physician practices. Among other matters, current enforcement policy has hindered the ability of physicians to implement efficient healthcare delivery innovations, such as the acquisition and implementation of health information technology (HIT). Furthermore, the Federal Trade Commission and Department of Justice have unevenly enforced the antitrust laws, thereby fostering an increasingly severe imbalance in the healthcare market in which dominant health insurers enjoy the benefit of largely unfettered consolidation at the cost of both consumers and providers. This article traces the history of antitrust enforcement in healthcare, describe the current marketplace, and suggest the problems that must be addressed to restore balance to the healthcare market and help to ensure an innovative and efficient healthcare system capable of meeting the demands of the 21st century. Specifically, the writer explains how innovative physician collaborations have been improperly stifled by the policies of the federal antitrust enforcement agencies, and recommend that these policies be relaxed to permit physicians more latitude to bargain collectively with health insurers in conjunction with procompetitive clinical integration efforts. The article also explains how the unbridled consolidation of the health insurance industry has resulted in higher premiums to consumers and lower compensation to physicians, and recommends that further consolidation be prohibited. Finally, the writer discusses how health insurers with market power are improperly undermining the physician-patient relationship, and recommend federal antitrust enforcement agencies take appropriate steps to protect patients and their physicians from this anticompetitive conduct. The article also suggests such steps will require changes in three areas: (1) health insurers must be prohibited from engaging in anticompetitive activity; (2) the continuing improper consolidation of the health insurance industry must be curtailed; and (3) the physician community must be permitted to undertake the collaborative activity necessary for the establishment of a transparent, coordinated, and efficient delivery system.

Doc ownership takes legal hit. The dismissal of Little Rock Cardiology Clinic's antitrust case against Baptist Health could create roadblocks for physician groups, some suggest.

When a federal judge in Arkansas tossed out an antitrust complaint, hospitals nationwide got some legal guidance on fighting physician-owned specialty hospitals. The court "ultimately boiled down to a simple, logical conclusion: A hospital cannot monopolize a market in which it doesn't offer a product," says general counsel for the Federation of American Hospitals Jeffrey Micklos, left.

The Federal Trade Commission and physician practice.

Obtaining the best possible managed care contracts is important to physicians. Banding together with other practices to obtain more favorable payment could seem a legitimate business prac tice. Physicians competing in the same specialty in a market area must be acutely aware of federal antitrust rules to avoid improper collusion. The Federal Trade Commission is reviewing collaborative activities and seeking settlement agreements with physician organizations it determines have violated antitrust laws and regulations. Physicians and administrators should be aware of these actions, know what triggers a review, and understand what collaborative activities they may participate in to further their business interests. This article reviews Federal Trade Commission application of federal antitrust rules and recent advisory opinions, and their implications for practice.

Physicians, unions, and antitrust.

The increasing consolidation of our healthcare delivery systems and the concomitant push for perceived efficiencies, speed, and profits has laid the foundation for a renewed interest in unionization by many physicians. This Article analyzes the barriers to such unionization that are posed by the antitrust laws, and provides an analysis of how to proceed with unionization without violating those laws. The Article also analyzes the current status of physician ability to unionize, and surveys the present status of physician unions.

Physician's unions: handle with care.

In an attempt to battle the growing number and expanding power of MCOs, physicians are attempting to form or become a part of unions. By banding together, doctors believe that they can fight the MCO's ever-tightening grip on their practices and gain bargaining power that has been lost.

Physician organizing: a convergence of interests.

Economic forces and professional ideals are colliding to create further unrest in the health care industry in the form of organizing physicians into unions. Whereas self-employed or independent contractor physicians are barred from joining together to bargain collectively with third-party payers and HMOs, employed physicians may be able to avoid antitrust problems because they are eligible for protection under the National Labor Relations Act. Consequently, as the number of employed physicians has grown and the frustrations they encounter increase, unions (generally suffering a decrease in membership and political influence) are finding a receptive audience for their message of solidarity. However, will organizing into unions solve or aggravate the physicians' problems?

Health care economics is changing--the law is sure to follow.

Law is intimately related to economics. As the economic relationships in a market change, the legal landscape evolves accordingly. Even if no health care reform is enacted at the federal level, ever-increasing portions of today's managed indemnity sector will convert to plans constraining enrollee choice and seeking to deliver cost-effective care through risk-sharing relationships (both corporate and contractual) with providers. This is inevitable, given employer and federal government pricing demands, and it is changing the face of health care law. If federal reform is enacted and/or the systems adopted in Minnesota, Maryland, Washington, and Florida (to name a few) are replicated elsewhere, the legal concerns of physicians and other providers will shift even more dramatically. In this article, some of the legal fall-out from these economic developments is discussed.

Physician unionization.

Typically, doctors have seemed unsuited for and uncomfortable with the idea of unions but with the current changes in practices and referral patterns, doctors are looking--at least warily--at unions. Two sets of laws apply to possible unionization of physicians; one, federal antitrust laws, the other, both federal and state labor laws as they apply to changes in the medical profession. Antitrust laws are designed to protect competition by prohibiting price fixing. Another typical antitrust issue that applies to healthcare is that of a group boycott or refusal to deal, where competitors try to coerce a third party to set prices where competitors want them set. Congress' earliest legislation to aide the labor movement involved exceptions to the antitrust laws. Some provisions of the laws are limited to workers who are employees, defined as someone who is employed by any person. Doctors are searching for solutions that provide the collective power of the labor laws without offending the antitrust laws. The question is whether doctors can form unions under these two conflicting forces. The first main issue is whether the doctor is or is not an employee. Although radiologic technologists, typically employees of hospitals or provider groups, have been unionized for years, doctors are usually not employees, at least not if they have their own practices. Although not employees, physicians may affiliate with a larger union to use that broader bargaining power, a purpose that is permissible under current law. Membership in a union does have its responsibilities and disadvantages. Some have suggested that the definition of employee be broadened to cover physician duties under managed care payer agreements, for example. Meanwhile, the Federal Trade Commission and the Justice Department are watching that non-employee physicians not use the union label to mask price fixing, boycotts or refusals to deal.

Capitated physicians score victory as two plans settle antitrust suit.

Capitation scored major wins last fall when two of eight health plans agreed to settle longstanding antitrust charges with physicians. See how at-risk physicians benefit.