Negotiating with Payers Is Not a Crime

Article excerpt

WASHINGTON -- Physicians should not be criminally prosecuted for negotiating collectively with insurance companies, attorney Jack Bierig said at a hearing on health care law sponsored by the Federal Trade Commission and the Department of Justice.

Feeling powerless against managed care, many don't see the harm in banding together to establish market power against the payers, said Mr. Bierig of Sidley & Austin in Chicago.

Most antitrust violations by health care providers happen out in the open--a clear indicator of a lack of criminal intent, he said. "These are not covert operations performed in secrecy or in code."

Criminal enforcement is at times appropriate, but should only be used when the challenged conduct involves a clear violation of antitrust laws, and there is unambiguous proof that those who engaged in the conduct were aware that their actions were unlawful, said Mr. Bierig.

It's a mistake to assume that physicians would recognize their actions as illegal price fixing. he added.

Attorney Kevin O'Connor didn't agree. Physicians have known since the 1980s that their chances of being criminally prosecuted are greater when they get together to establish bargaining power, said Mr. O'Connor of Godfrey & Kahn in Madison, Wis.

The health care industry has never gotten the message from federal agencies that antitrust is a serious matter, said Kevin Grady of Alston & Bird, in Atlanta.

Huge monetary penalties and criminal sanctions against physicians have mostly involved fraud and abuse, not antitrust, according to Mr. …