Let’s take a look at Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care.
“Participation by competing providers in surveys of prices for health care services, or surveys of salaries, wages or benefits of personnel, does not necessarily raise antitrust concerns. In fact, such surveys can have significant benefits for health care consumers.” Therefore, conducting fee surveys are not necessarily a problem. The guidelines offer what are considered activities that are inside of the safety zone which is unlikely to get you in trouble or investigated and activities that are out side the safety zone which might very well get you investigated which can be extremely costly even if you are found not to have violated the law. “
How to keep it inside the safety zone?
The survey is managed by a third-party (e.g., a purchaser, government agency, health care consultant, academic institution, or trade association);
This would seem to mean that the person collecting and analyzing the data should have some expertise in research such as an academic affiliation and not have a vested interest in the outcome i.e. a non-biased third party.
The information provided by survey participants is based on data more than 3 months old;
Why more than 3 months old? Well suppose you were called and asked to participate in a survey on fees. Let’s say you knew your fees were lower than average but you did not want to admit that to a colleague or you were afraid that reporting such low fees might make it harder to improve reimbursement for all in the profession in the future. So you decide to report fees that are higher than you ever charged rationalizing that you just raised your fees. The problem with this is that a) the results of the survey might not be a reflection of the actual market and b) it could easily have a tendency of being anti-competitive and lead to artificially higher prices. By insisting that the data reported be at least three months old the chances of inflating fees is minimized.
There are at least five providers reporting data upon which each disseminated statistic is based, no individual provider's data represents more than 25 percent on a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices charged or compensation paid by any particular provider.
This is simply asking for minimum standards in research. If it turned out that one provider’s data represented more than 25% on a weighted basis of that statistic the data could easily be skewed or biased and meaningless at best or manipulated in such a way so that it will have an anti-competitive effect.
According to the FTC/DOJ guidelines all three conditions are necessary to be inside the safety zone. “They represent a careful balancing of a provider's individual interest in obtaining information useful in adjusting the prices it charges or the wages it pays in response to changing market conditions against the risk that the exchange of such information may permit competing providers to communicate with each other regarding a mutually acceptable level of prices for health care services or compensation for employees." Iif the study you are participating in does not meet all three conditions, what happens? Well it doesn’t mean you necessarily will be prosecuted and convicted for anti-trust violations. I don’t want to appear to be an alarmist. However if anyone should file a complaint to the FTC or DOJ and just about anyone can, it could mean an investigation. And, all the experts in this series have unanimously said that you really don’t want to go through the trouble and expense of an investigation if you can avoid it.
“Exchanges of price and cost information that fall outside the antitrust safety zone generally will be evaluated to determine whether the information exchange may have an anticompetitive effect that outweighs any pro-competitive justification for the exchange. Depending on the circumstances, public, non-provider initiated surveys may not raise competitive concerns. Such surveys could allow purchasers to have useful information that they can use for pro-competitive purposes.
But the key phrase above is public, non-provider initiated surveys. Let’s return to this request for fee information by a colleague.
If it was like the request that appeared recently on an internet listserv it did not come close to fitting within the safety zone was anything but a public, non-provider initiated .
This is what happened.
On one of these therapists’ listservs that has a very liberal policy about discussing fees there was another discussion about the sad state of affairs in terms of therapists’ reimbursement. There were the usual call for boycotts of managed care companies who have not increased rates in years or in fact reduced rates. Then someone diverted the conversation to the possibility that since therapists tend to be disproportionably represented by women perhaps our low fees are because women have a more difficult time asking for their fair worth. Another said that they were willing to bet that on average female therapists charged less than male therapists.
The list owner then announces that it is a great idea to test this and announces, “For those of you who are interested in this survey please send the info to my private e-mail address and NOT to the list. Please tell me the fees you charge for 90806 or procedure code for a 50-minute individual therapy session. She adds that she will take into account gender and demographics.
From your understanding of the FTC/DOJ guidelines how close or far does this listserv survey on fees, which was initiated by a provider come to the safety zone?
Assumptions:
Let’s assume that the research methodology is sound and the researcher has the skills and research experience and resources to conduct a good study.
Let’s further give the researcher the benefit of the doubt and stipulate that this survey is genuine and not a thinly veiled attempt to compare fees among nonaffiliated mental providers with the intent of artificially inflating fees.
Again I would ask the reader to assume that the results support the original hypothesis that fees by male therapists are higher than those of female therapists.
Question:
What will the impact of such a study be on fees and costs to consumers?
Is it probable that male therapists who learn of the study will say, oh dear! How unfair. I charge more than my female colleagues and in fairness I will lower my fees just to be fair? Or is it more likely that female therapists who read the study would say, I knew it. I’m upping my rates tomorrow.
Would a FTC or DOJ fact finder view such a study as pro commutative or anti-competitive?
These are not merely academic questions. If you were involved in this study in any way but especially conducting it, the answers to these questions can impact on you in a major way.