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Show raise competitive concerns. However, exchanges of future prices for hospital services or future compensation of employees are likely to be considered anti-competitive. Joint Purchasing Arrangements: There are several safeguards that should be included in joint purchasing arrangements. Antitrust concern is lessened if members are not required to use the arrangement for all of their purchases of a particular product or service. However, commitments to purchase some minimum amount in order to achieve volume discounts can be required. If negotiations are conducted by an independent employee or agent, antitrust risk is lowered. If communications between the purchasing group and each individual participant are kept confidential, the likelihood of anti-competitive communication is lowered. The exclusion from a joint purchasing arrangement of some competitors will raise antitrust concerns only if those who are excluded are put at a significant competitive disadvantage in competing with the participants. Physician Network Joint Ventures: Two key areas of competitive concern are whether a physician network joint venture could raise the prices for physicians' services charged to health insurance plans above competitive levels or prevent the formation of other physician network joint ventures that would compete with it. The availability of other joint ventures or sufficient numbers of physicians who could form competing physician networks would reduce anti-competitive concerns (see Scammon, Fuller, and Sheffet, 1987 for a discussion of these issues). Non-exclusive physician network joint ventures pose lower anticompetitive risks than do exclusive agreements. Efficiencies that are most likely to be recognized are cost savings associated with the assumption of financial risk by participating physicians, reduced administrative costs, improved utilization review, improved case management, quality assurance, and economies of scale. Analysis and Discussion The guidelines highlight six types of collaborative agreements specific to the health care area. By stating concisely the views of the DOJ and the FTC on the likely impact of these agreements, the guidelines pull together fifteen years of litigative and investigative experience with health care cases by these agencies. Close analysis of the new FTC - DOJ guidelines suggests a willingness on the part of the antitrust authorities to include not just a "consumer welfare" standard (as under the traditional "price test") but also an "economic efficiency" standard in their goals for enforcement. The guidelines do reinforce the traditional view of the antitrust authorities that practices such as price fixing and group boycotts will continue to be treated as per se violations, that is, such agreements are seen as having no redeeming benefits (and thus no justification). As FTC Commissioner Owen recently stated: "We do not believe there is anything unique about the commercial aspects of the health care industry that justify our being more tolerant of criminal antitrust violations in the health care industry, including the medical profession, than similar conduct in any other industry (Owen, 1992, p. 174). However, careful reading of the guidelines suggests that four of the six can be interpreted as sheltering collaborative agreements designed to achieve economic efficiency. Specifically, agreements to share high technology equipment, agreements to share information such as practice parameters, joint purchasing agreements, and the formation of provider networks designed to achieve economies of scale are acknowledged to have the potential for economic efficiency. Such collaborative agreements may be acceptable if they are structured appropriately. It is obvious, however, that antitrust enforcement agencies will remain sensitive to agreements and combinations that generate market power. For example, despite the fact that the joint venture safety zone suggests that the resource savings of a collaborative agreement justify an agreement that centralized ownership of advanced technological equipment with one joint venture, such an agreement would only be acceptable if a joint venture was the most efficient means of providing the service. It is apparent, however, that enforcement agencies would not let such an agreement extend beyond the minimally efficient Utah's Health: An Annual Review 1994 109 |