Interview With Robert E. Goff Part Two
JR: A question asked by many is this. What specific activities have courts held to violate the act? And while prudence might be recommended one should not be forced to unnecessarily give up constitutional freedoms, such as that of free speech, out of excessive temerity. How do we find the balance? You work with physicians however I am assuming that we replaced the word physician with practitioner, clinician or any equivalent term to reflect non –physician health/ mental health care practitioners, i.e. psychologists, social workers etc. the concepts would be the same. Is that correct?
RG: Changing the word to practitioner from physician will not change the meaning, since the antitrust regulations apply regardless of the "name".
Perhaps this will give you a sense.
A group of physicians cannot negotiate fees or prices with payers, unless they are related in a risk arrangement such as a PC or committed to a shared risk arrangement.
A group of unrelated physicians cannot boycott a payer if certain terms are not met.
A group of unrelated physicians cannot suggest or threaten that a group of unrelated physicians will boycott a payer if certain terms are not met. Each physician must decide independently how such member will respond to a contract offer and what terms he or she will or will not accept.
A group of unrelated physicians cannot suggest or threaten that a group of unrelated physicians will contract exclusively through a physician organization of hospital.
A group of unrelated physicians cannot communicate or exchange competitively sensitive information concerning one physician (such as the minimum fee schedule a particular member is willing to accept or a physician's plans with respect to contracting with a particular payer) with a group of unrelated physicians.*
A group of unrelated physicians cannot recommend or signal, in any way, how individual physicians should respond to a contract proposal.*
A group of unrelated physicians cannot (other than acting on their own, for their own purposes or in the circumstances described below) review, approve or otherwise comment on a payer’s contract proposal. Any such review, approval or comment would create a strong appearance that the A group of unrelated physicians were jointly agreeing on the terms under which they would be willing to contract.
A physician organization can communicate contract offers from a payer to a group of physicians related by that organization. A physician organization can communicate an individual member’s responses back to the payer. A physician organization cannot share an individual member’s responses among other members.
A physician organization can gather information from each member regarding the minimum fee level the member would accept. The member can authorize A physician organization to contract on the member’s behalf with payers who offer reimbursement at levels that meet or exceed the member’s minimum acceptable fee.
A physician organization can conduct a survey of members to determine the minimum fee level each member would accept. A physician organization can summarize that information for a payer. A physician organization cannot share the results of any survey or summary with the membership, however. Only the payer can have access to such information.
A physician organization can seek clarification of ambiguous contract terms from payers and transmit the responses to members.
I the payer consents, A physician organization can negotiate non-price terms on behalf of members (examples: credentialing, quality standards, indemnity, billing arrangements, contract termination provisions). A physician organization cannot suggest or imply that members will only enter into an agreement if particular demands are satisfied. Doing so would create the impression that the membership is engaged in, or threatening, a group boycott. Each member must decide on his or her own whether to accept a particular contract or contract terms.
If the payer requests, a physician organization can, as a service to the payer, give the payer access to a committee or group of members who can function as a focus group and comment on or provide reaction to the terms (including price) of a proposed agreement. If requested by a payer, such committee members can share their comments or reactions with other committee members or with other members. Each member of such a focus group will be acting on his or her own. Any such focus group will be purely functioning as a service to payer and will not, in any way, speak for a physician organization.
A physician organization can develop and provide objective information about a contract proposal to the membership. For example, a physician organization can compare a proposed contract to other contracts in the market (assuming doing so complies with any applicable confidentiality or similar agreements) and can distribute commentary or analysis of proposed contract terms. A physician organization cannot recommend how the membership will respond to a contract. All members must decide individually on whether they will accept a particular contract term.
A physician organization can provide information to payers about members’ qualifications, credentials, outcome data, practice parameters, utilization patterns, etc.
JR: Thank you Mr. Goff for this informative interview.
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