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Antitrust Issues for Hospitals. Association of Washington Public Hospital Districts. Davis Wright Tremaine LLP. Presenters. Douglas Ross Davis Wright Tremaine, LLP. Dick Goldsmith Director, Legal Services and Health Policy AWPHD. Webcast Outline. Why worry about antitrust?

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antitrust issues for hospitals

Antitrust Issues for Hospitals

Association of Washington Public Hospital Districts

Davis Wright Tremaine LLP

presenters
Presenters

Douglas Ross

Davis Wright Tremaine, LLP

Dick Goldsmith

Director, Legal Services and Health Policy

AWPHD

webcast outline
Webcast Outline
  • Why worry about antitrust?
  • What are the antitrust laws anyway?
  • What are typical antitrust issues hospitals face?
  • Are there any protections from the antitrust laws for hospitals?
  • What about additional protections for public hospital districts?
washington
Washington
  • A group of surgical specialists in Yakima was sued by:
    • The Federal Trade Commission
    • The State
    • A class of patients and payers
    • A former partner
  • And both Yakima hospitals were sued by the former partner as well
oregon
Oregon
  • McKenzie Hospital (114 beds) sued Sacred Heart (425 beds)
  • Sacred Heart’s conduct
      • Acquisition of “feeder” hospitals, MDs
      • Bundling
      • Contracts with Regence
  • Jury’s verdict
      • For Sacred Heart on all claims but one
      • Then awarded significant damages …
alaska
Alaska
  • Background
    • Providence: exclusive contract with group of anesthesiologists
    • Independent physician conducted procedure
    • Group protested
  • Lawsuit
    • Antitrust and other damages (over $1 million after trebling)
    • Fees for plaintiff’s lawyers
montana
Montana
  • Blue Cross/Blue Shield sued
  • Defendants
    • Only radiology group in Missoula
    • Imaging center joint venture between group and hospital
  • Alleged antitrust violation: joint venture
the goal of the antitrust laws
The Goal of the Antitrust Laws
  • Competition
    • Lower prices
    • Higher quality
anticompetitive activities
Anticompetitive Activities
  • Agreements that harm competition
    • Sherman Act, Section 1: “contract, combination or conspiracy in restraint of trade”
  • Single entity actions
    • Sherman Act, Section 2: monopolization
  • Mergers and joint ventures
  • Price discrimination
antitrust enforcement
Antitrust Enforcement
  • Federal
    • Federal Trade Commission
    • Antitrust Division, Department of Justice
  • State
  • Private
    • Class actions
    • Treble damages
    • Fees
test your knowledge
Test Your Knowledge
  • Discussion: American Airlines and Braniff
slide15
Poll
  • Is the previous example a violation of antitrust laws?
    • Yes
    • No
    • Not sure
antitrust issues
Antitrust Issues
  • Medical staff issues
    • MultiCare Health System
    • PeaceHealth St. John Medical Center
  • Price fixing or market division
    • Central Washington Hospital
  • Exclusive agreements with physicians
    • Kadlec Medical Center
  • Joint ventures with physicians
    • Missoula
antitrust issues cont
Antitrust Issues (cont.)
  • Hospital referrals – affiliated DME, home health care services
    • Providence St. Peter Hospital
  • Payer contracting – provider networks
    • Yakima
  • Mergers and acquisitions
    • St. Joseph Hospital (Bellingham)
    • Providence Everett Medical Center
other antitrust issues
Other Antitrust Issues
  • Group purchasing
  • Fee, wage, salary surveys
  • Drug purchasing
joint provider contracting21
Joint Provider Contracting
  • Competitors collectively contract with a payer
    • Possible price fixing
  • Provider contracting on a risk basis
    • Take and share substantial financial risk
    • Integration: may set price jointly
joint provider contracting the messenger model
Joint Provider Contracting:The Messenger Model
  • Use: if no risk sharing
    • Fee-for-service
    • Per diem
    • Case rates
  • Transmit offers between payer and each of the providers
  • Requirements:
    • Each provider determines own fees
    • Each provider determines whether to accept payer’s offer
joint ventures with physicians
Joint Ventures with Physicians

Hospital

67%

Clinic

33%

Outpatient

Surgery Center

joint ventures with physicians24
Joint Ventures with Physicians

Hospital

50%

Clinic

50%

Outpatient

Surgery Center

health care quality improvement act hcqia
Health Care Quality Improvement Act (HCQIA)
  • Credentialing and peer review
  • Response to Astoria case (1980s)
  • Purpose: encourage self-regulation and provide immunity
hcqia immunity
HCQIA Immunity
  • Action must be:
    • In reasonable belief that furthers quality health care
    • After a reasonable effort to obtain the facts
    • After notice and hearing
    • Warranted by the facts
other protections
Other Protections
  • Petitioning the government
    • Example: opposing a CON application
      • Northwest Kidney Centers
  • State Action
    • Can apply to private entities
protections for non profit institutions
Protections for Non-Profit Institutions
  • Exempt from price discrimination laws (Robinson-Patman)
    • For sales or purchases for their “own use”
    • Typically: pharmaceuticals
antitrust immunity process
Antitrust Immunity Process
  • RCW 43.72.300
    • Used four times (mid-90s)
    • No procedures in place
local government antitrust act
Local Government Antitrust Act
  • Bars recovery of damages in antitrust cases from local governments and officials acting in official capacity
    • 15 U.S.C Sections 34-36
  • Actions for injunctions not blocked
rural public hospital districts
Rural Public Hospital Districts
  • Cooperative agreements and contracts
    • Between rural PHDs
    • To provide for health care needs
    • RCW 70.44.450
  • Rural PHD
    • No city > 30,000 population
rural public hospital districts cont
Rural Public Hospital Districts (cont.)
  • Permitted activities include:
    • Allocation of health care services
    • Combined purchases and allocations of medical equipment
    • Joint agreements for health care service delivery and payment
    • Other arrangements permitted under the Interlocal Cooperation Act
      • Chapter 39.34 RCW
for more information

For More Information

Doug Ross

Davis Wright Tremaine, LLP

douglasross@dwt.com

Dick Goldsmith

AWPHD

richardg@awphd.org

thank you for participating

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