In this situation one of both these therapists may have just violated Federal anti-trust law if it can be demonstrated that they conspired to fix prices. If that is so, it is quite serious and not a minor violation. See http://www.usdoj.gov/atr/contact/newcase.htm Nor is it one of those “victimless” crimes. The patient may have sought professional help to get their head shrunk so to speak. But unbeknownst to them, their wallet also got shrunk (or picked) as well. They wound up paying more then the established rate because of collusion between the two non-affiliated colleagues. If the two therapists in question hold the same or similar credentials and are not affiliated which means they are not part of the same organization or agency, they are considered competitors. Anti trust law prohibits competitors in the same market from engaging in price fixing or collusion to fix prices or illegal boycotts.
Of course conversations like the above do occur occasionally in any field. However while collusion or conspiracy to fix prices is against the law it often difficult to prove if done in secret through an in person discussion or even on the phone where there is no record of who said what. However, had the above discussion occurred on the internet on a discussion group or listserv there would be a detailed record of the conversation in writing and it would make it far easier to investigate. There would be copies on several computers as well as internet servers that could be presented as evidence in courts.
Another variation of a potential anti-trust problem would be when mental health professionals attempt to use the internet to work together to influence the rates managed care companies pay providers.
Due to a variety of market forces managed care companies have been extremely successful in holding the rates (fees) they pay providers down. In many cases rates have actually been reduced over the years. This may be seen as good for the consumer from an economic standpoint but providers understandably are not always pleased. Costs of doing business increase and it is a burden for many of us. In theory we are free to negotiate with each managed care company but it’s difficult to negotiate when they are a powerful billion dollar company and you are a lowly independent practitioner.
Of course any individual provider has the option of not accepting the rates of a managed care company. We can drop from a panel if the rates go down or for any reason. Many providers have done just that and accept cash only patients. Then we could charge whatever fee we can get depending on what the market will bear.
However it could be a quite different matter if we try to persuade others from signing onto a panel or to drop out of panels as a means of pressuring the managed care company to raise their rates. We can’t act as if we were a union. Employees can unionize but small business owners cannot.
But that is precisely what some providers did or tried to do on an internet discussion group a while ago. A managed care company which we will call “XYZ” announced a reduction of rates. Some providers were in arms and they went to the internet to drum up support and call for concerted action. In the discussions of what was to be done one member who (also the list owner) writes. “Writing a letter of protest for the record is a good idea, but nothing less than leaving the XYZ panel AND patients complaining they can't get appointments with any of the panel’s providers is really the only thing that will make an impact. And that won't be because XYZ feels badly about their subscribers not getting services, but because it will make it more difficult for XYZ to sell their contracts.”
Now not being an attorney I can’t say if the above is an anti-trust violation. That would be up to the attorneys at the Anti-trust division of The Justice Department. However as a consumer advocate it is disturbing to say the least. It does seem to be calling for a boycott of the managed care panel by a group of independent private practitioners. Whether it is or is not a violation, such actions clearly will have adverse effects on consumers and potential consumers. It could leave them in a position of being unable to obtain the mental health services they need. Put another way it is using consumer/patients as pawns in a power struggle between them and the managed care company. The frustration of mental health providers to negotiate fees with managed care companies is understandable. However working in unison to have patients complain that they can’t get an appointment raises a number of concerns. Among them is that if they are unable to get care in a timely manner their condition could deteriorate. Given a serious mental health problem such as a major depression, if untreated, it could have disastrous consequences.
Professional trade associations such as APA or NASW are usually good at pointing out anti-trust issues and warning members of the consequences. For example, Professional trade associations that sponsor internet discussion groups, listservs bulletin boards etc. monitor these lists and are quick to step in when conversations come close to bordering on anti-trust violations. It could get the organization in serious trouble. [1]
However the internet has brought mental health professionals directly in contact with each other with less need to go through professional organizational channels. Currently there are literally hundreds of discussion groups and listservs of mental health professionals that provide forums for all kinds of discussions. Perhaps discussions of fees occur only occasionally but given the number of these listservs, discussion groups and bulletin boards the potential for problematic discussions around setting prices or engaging in boycotts could be considerable.
Part of the problem is that just about anyone can set up a discussion group or listserv. Many are free through servers such as Yahoo and MSN. Not all of the listserv owners who institute these groups and lists have taken the time to understand the benefits and potential dangers of using the internet for professional purposes. This is true about issues of protecting patient’s confidentiality [2] or the legal ramifications of anti-trust issues. Few have or can afford legal council.
Some listserv owners honestly do not believe that they are subject to anti-trust laws. They believe it may apply to the professional trade associations but not to members, individual providers or members of listservs. But others have taken the view even if it’s against the law the risks are quite acceptable. They have argued that there has been no known case of any mental health provider facing any legal action or whom have had any complaints lodged against them to date as a result of their discussions. Therefore some conclude that the risks of using the internet to coordinate efforts against managed care companies are minimal.
Time will tell of course. But whether laws are being violated or not on the internet it behooves all professionals to become knowledgeable of the laws and regulations that govern the practice of mental health treatment and develop standards of practice that will protect the consumer.
To the above end we ask for reader's comments and discussion. Please feel free to write us at johnr@psychjourney.com
[1] Often trade associations like APA, NASW are unfairly criticized by their members for not doing enough for members such as advocating with managed care organizations to higher fees etc. But what the members do not realize is that trade associations are limited by law. Professional trade associations are not unions and can not act like unions. Anti-competitive activity by trade associations in the health care industry has been successfully challenged under the antitrust laws wrote Carolyn Popowy, NASW General Council . “NASW and its chapters should not engage in exclusionary conduct or be used as a forum in which social workers engage in anticompetitive conduct”. See Social Workers, Managed Care, and Antitrust Issues NASW, April 1997, a Law note available by NASW.
[2] See Psychjourney’s Confidentiality Series or Psychotherapy Networker’s article on Online confidentiality at http://www.psychotherapynetworker.org/jf06_cd.html (4th feature)