OCR Text |
Show tion in separate statements and include a third statement specifically on participation in exchanges of price and cost information. The statement on non-fee-related information provides a safety zone that allows providers to collectively provide data relating to the mode, quality, or efficiency of treatment. Absent extraordinary circumstances, the agencies will not challenge a medical society's collection of outcome data from its members about particular procedures, nor the development of suggested practice parameters. The agencies believe that such information poses little risk of restraining competition and may help in the development of protocols that increase quality and efficiency. The safety zone, however, excludes any attempt by providers to coerce a purchaser by implying or threatening a boycott. The statement emphasizes that providers who collectively threaten to or actually refuse to deal with a purchaser because they object to the purchaser's administrative, clinical, or other terms governing the provision of services run a substantial antitrust risk. The statement on fee-related information is new. It provides a safety zone that allows providers to collectively provide current and historical fee-related information to purchasers. The principles expressed in the statement on exchanges of price and cost information are also applicable to the collective provision of fee-related information. The collection of such information must be managed by a third party. Current fee-related information may be provided to purchasers; however, any information that is shared among or available to the competing providers furnishing the data must be more than three months old. Data must be available from at least five providers, not one of which represents more than 25 percent on a weighted basis of any statistic, and not one of which can be individually identified within the data. Excluded from the safety zone are collective negotiations between unintegrated providers and purchasers that may further agreement among the providers on fees or other terms of reimbursement. The concern is that such sharing of fee-related information potentially could be used to coerce purchasers to accept collectively-determined fees or terms. Also excluded from the safety zone is providers' collective provision of information concerning prospective fee-related matters. Because there may be both procompetitive and anticompetitive impacts from the availability of prospective fee information, the agencies will examine cases involving such information on a case-by-case basis. Information considered in such analyses may include the nature of the information provided, the nature and extent of the communication among the providers and be- tween the providers and the purchasers, the rationale for providing the information, and the nature of the market in which the information is provided. Joint Purchasing Arrangements among Health Care Providers This statement recognizes that collaborative purchasing agreements typically allow participants to achieve efficiencies that may ultimately benefit consumers. Some of the efficiencies possible include volume discounts, reduced transaction costs, and access to consulting advice that may not be available to each participant on its own. Antitrust concerns are unlikely to arise unless the joint arrangements account for so large a portion of the purchases of a product or service that the exercise of market power is likely, or so large a portion of the total cost of the services sold by participants that the arrangements may facilitate price fixing. The latter circumstance is only of concern if some or all of the participants are direct competitors. To avoid these circumstances, the agencies suggest several safeguards, namely that: (1) members not be required to use the arrangement for all of their purchases of a particular product or service; (2) negotiations on behalf of the joint purchasing arrangement be conducted by an independent agent; and (3) communications between the purchasing group and each participant are confidential and are not discussed with the other participants. The primary change between the 1993 and 1994 statements on joint purchasing arrangements is the addition of an example that focuses on rural joint purchasing arrangements. The example illustrates the common situation in which the market for products purchased through the joint arrangement (e.g., hospital supplies such as bandages, antiseptics, and surgical gowns) is a national market. This suggests that even if all of the hospitals in a local market area participate in the agreement, the arrangement will not result in purchases comprising a large portion of the sales of the products in their national market. Physician Network Joint Ventures The 1993 statement on physician network joint ventures established a safety zone for joint ventures comprising 20 percent or less of the physicians in each specialty with staff privileges who practice in the relevant geographic market and share substantial financial risk. Although the safety zone applied equally to "exclusive" and "non-exclusive" physician network joint ventures, non-exclusive agreements were clearly Health Care and Antitrust Enforcement |