By John H. Fisher II
May 22, 2014
As health care provider networks move down the path toward clinical integration, we are often asked to provide guidance on how information can be jointly provided to payors. The antitrust laws recognize that collective sharing of some pricing information, even by otherwise competing providers, can be beneficial and does not necessarily violate antitrust laws. However, there are significant limitations on what can be jointly provided and how the information can be shared.
At the outset, it should be clarified that collective negotiations by competing providers who are not financially or clinically integrated should never take place and constitutes a per se violation of federal antitrust laws. Prohibited activities include any action in contemplation of or in furtherance of an agreement on fees or other aspects of reimbursement. It is unlawful for a non-integrated group of competing providers to agree on or suggest a central fee schedule. Any activity relating to prospective fees should be avoided.
Competing providers can jointly provide information on fees currently being charged or that have been charged in the past as long as certain safeguards are implemented and strictly followed. The FTC and DOJ have stated that the joint provision of historic fee information to payors raise little anticompetitive concerns as long as the following conditions are met:
- Collection of fee information is managed by a third party;
- Any information that is made available to competing providers must be at least three (3) months old;
- Data provided to participating providers must meet further requirements, including:
a. It must be aggregated so recipients cannot identify the prices charged by individual providers;
b. There must be at least five (5) providers reporting data that goes into an integrated statistic; and
c. No provider can represent more than twenty-five percent (25%) on a weighted basis for any statistical item.
I normally recommend that provider groups create antitrust policies that address the provision of fee information to payors and other sensitive antitrust issues. Even an organization that is significantly clinically integrated should be concerned with the method used to convey fee information to payors.
Adopting and applying specific antitrust policies is a step toward assuring antitrust compliance. Antitrust policies should include detailed processes for conveying fee information that incorporate the parameters applicable to the organization.
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