Re: Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls.

[Guest guest]

,Would I be over-reacting if I said I feel queasy about this?We can all say that we have nothing to worry about because certainly we are not conspiring. But perhaps the DOJ can decide there is a 'conspiracy' with pretty slim evidence. Like, we have discussions on a listserv. would that be 'evidence'? A stretch? Kathleen (who thinks Guatemala might welcome some physicians about now)True, but it also implied (at least I read it this way), that if a contract is SO bad that most of the docs in a community won't take it (without even talking to one another), they could be considered colluding to bring higher prices to health care. The other issue - which was brought up in my local IPA problem -- not wanting to accept the Medicare fee schedule (or some % or RVU factor of it) was considered bad business and maybe even illegal in some way. To keep prices down, I can see the DOJ getting involved in these regional spats. It will be fascinating to see what comes out the other end. From my read it seems the issue was active collusion by a bunch of orthopedists who otherwise were not an entity, or private group themselves. Tim Malia, MD (phone / fax)www.MaliaFamilyMedicine.comwww.SkinSenseLaser.comMalia Family Medicine & Skin Sense Laser6720 Pittsford-Palmyra Rd.Perinton Square MallFairport, NY 14450--

[Guest guest]

Kathleen,

I know what you mean -- but I'm not too worried.

Still...one person says on the list -- I'm going to drop XYZ Insurance -- nobody responds, but lots of docs get the e-mail.

Then the insurance has troubles getting enough docs to sign up in the dropping doctor's area.

Collusion?

Probably not...

 

http://definitions.uslegal.com/c/collusion/

Collusion occurs when two persons or representatives of an entity or organization make an agreement to deceive or mislead another. Such agreements are usually secretive, and involve fraud or gaining an unfair advantage over a third party, competitors, consumers or others with whom they are negotiating.

The collusion, therefore, makes the bargaining process inherently unfair. Collusion can involve price or wage fixing, kickbacks, or misrepresenting the independence of the relationship betweeen the colluding parties. 

For example, in a divorce action, the husband and wife may agree to fabricate a story or suppress evidence to provide evidence of lawful grounds for a divorce. As another example, collusion may involve cooperation between competing sellers, in the form of an agreement, express or tacit, limiting competition, or a merger or other means to raise the market price above the competitive level.

While we're talking about the long arm of the law...regarding our e-mails...

http://www.onthemedia.org/transcripts/2010/05/28/02

While the debate over Facebook’s privacy policy has garnered all the attention, a lesser known but far more wide-ranging battle for online privacy has also been in the works.

The Electronic Communications Privacy Act governs how law enforcement officials may access information about us stored online. But the act was drafted in 1986. Remember 1986? That was the year of Chernobyl. It was the year a lady named Oprah Winfrey began her talk show, and when the most popular movie was:

[TOP GUN SOUNDTRACK]

Top Gun. In short, it was a long time ago. Most people hadn't even heard of the internet and far fewer had actually used it.

Digital Due Process is a coalition of companies, including Google and Microsoft, civil liberties groups, political organizations and academics, working to update the Electronic Communications Privacy Act, also known as ECPA.

According to Bankston, a senior staff attorney at the Electronic Frontier Foundation, which is part of Digital Due Process, the government has easy access to much of your life online, and ECPA provides woefully inadequate protections.

KEVIN BANKSTON: The ECPA has what we think is an outdated distinction between services that provide you communications service, say, your email provider or your ISP or whatever, and services that provide you storage or processing of your data.

So Gmail is providing you communications service and your emails are relatively strongly protected, while your Google Doc, which you’re merely storing with Google, is weakly protected, such that the government could obtain your documents with only a subpoena. And in many cases, this can be done without any notice to the subscriber, so that you don't even have an opportunity to try and fight that subpoena.

BOB GARFIELD: There is no judge he has to persuade that this document is significant for his investigation.

KEVIN BANKSTON: Exactly - another great example of an anachronism in the law that doesn't make any sense anymore. Right now the law pretty clearly requires a warrant if the government wants to get your email. But that warrant requirement only applies for emails that are 180 days old or less.

And you’re probably wondering, what’s with this six-months cutoff, where did that come from?

BOB GARFIELD: What’s with the six-month cutoff? Where did that come from?

KEVIN BANKSTON: Well, that kind of made sense in 1986, because back then, no one stored their email with their provider. You would dial into your provider and download your email and have it deleted off the server. So if there was email sitting on an email provider’s server after six months, it was safe to assume you'd abandoned that email and any privacy interest you might have.

And so, we think - and one of our principles is pushing for removing this false and arbitrary 180-day cutoff, whereby you lose privacy protection the older your email gets.

BOB GARFIELD: Tell me exactly what your revision of the law would require a warrant for.

KEVIN BANKSTON: Well, any content that you store or transmit through the internet, if the government wants copies of those, they need to go to court, they need to prove probable cause of a crime, and particularly specify the things they want and get a judge to sign off on it before they can get it.

It would also include, importantly, the logs that the search engines keep of what you search for, which has been a point of great controversy. There’s disagreement about how the law currently applies there, but we can't brook any lack of clarity on that score when such sensitive records are at issue.

People treat the search engine like their most trusted friend. People tell Google things that they might not tell their spouse or their priest or their doctor. And so, it’s very important to the coalition to strongly protect that incredibly sensitive search data.

BOB GARFIELD: , you’re trying to get legislation but sometimes these things are nudged along by the courts, who themselves can rule that existing law is obsolete or just plain wrong. Have there been court decisions which will support you when hearings are held on the subject of ECPA?

KEVIN BANKSTON: To the extent that there are decisions, they don't always impact how the government operates as much as we'd like them to. One good example – I talked about how, under the law, the government needs a warrant for emails that are less than 180 days old. The government’s position is that it can get all of your email, everything in your inbox, everything in your sent folder, everything in your drafts folder. They can get all of that without a warrant, except for those few emails sitting in your inbox that you haven't read yet.

And the Ninth Circuit Court of Appeals agreed with us, and said that regardless of whether your email is opened or unopened, it’s still protected by the ECPA. Despite that, the government routinely seeks emails less than 180 days without a warrant, and on occasion even will get orders from outside of the Ninth Circuit to send them into the Ninth Circuit, which includes California where most of the email providers are based.

There's the other issue of when we do get opportunities to litigate these questions, it’s very common for the government to back down in order to avoid court decisions that disagree with it. We've seen this - the federal government in Colorado issued a court order to Yahoo!

And Yahoo!, to its credit, pushed back and said, no, we think, under the law, you have to get a warrant. And we at EFF jumped into that case as friends of the court. And so, there are all these forces arrayed against the government in Colorado, ready to litigate this question. And the government dropped its application.

BOB GARFIELD: So you’re supposing that the government doesn't want court decisions. If they face resistance, they immediately, uh, sort of melt back into the population to fight at another place, another day.

KEVIN BANKSTON: In the end, the ambiguity of the law serves the government. If they get pushed back, they can just drop it and bring it up with a different judge later. And, in the meantime, we're all the losers because we are deprived of clear rulings on what the law means.

BOB GARFIELD: All right, , thank you very much.

KEVIN BANKSTON: Thank you.

[MUSIC UP AND UNDER]

BOB GARFIELD: Bankston is a senior staff attorney at the Electronic Frontier Foundation.

-----------------------------

Locke, MD

 

 

,

Would I be over-reacting if I said I feel queasy about this?

We can all say that we have nothing to worry about because certainly we are not conspiring.  But perhaps the DOJ can decide there is a 'conspiracy' with pretty slim evidence.  Like, we have discussions on a listserv.  would that be 'evidence'?  A stretch? 

Kathleen (who thinks Guatemala might welcome some physicians about now)

True, but it also implied (at least I read it this way), that if a contract is SO bad that most of the docs in a community won't take it (without even talking to one another), they could be considered colluding to bring higher prices to health care.

 

The other issue - which was brought up in my local IPA problem -- not wanting to accept the Medicare fee schedule (or some % or RVU factor of it) was considered bad business and maybe even illegal in some way.

 

To keep prices down, I can see the DOJ getting involved in these regional spats.

 

It will be fascinating to see what comes out the other end.

 

On Wed, Jun 2, 2010 at 5:42 AM, Malia  wrote:

 

From my read it seems the issue was active collusion by a bunch of orthopedists who otherwise were not an entity, or private group themselves. Tim Malia, MD (phone / fax)

www.MaliaFamilyMedicine.comwww.SkinSenseLaser.com

Malia Family Medicine & Skin Sense Laser6720 Pittsford-Palmyra Rd.Perinton Square MallFairport, NY 14450--

[Guest guest]

Then perhaps if we do wish to collude or to discuss the merits and demerits of let's say, UHC, we should employ carrier pigeons. Seems it would be difficult to issue a subpeona for a pigeon. , you are truly a wonder with research of the the literature. Kathleen,I know what you mean -- but I'm not too worried.Still...one person says on the list -- I'm going to drop XYZ Insurance -- nobody responds, but lots of docs get the e-mail.Then the insurance has troubles getting enough docs to sign up in the dropping doctor's area.Collusion?Probably not... http://definitions.uslegal.com/c/collusion/Collusion occurs when two persons or representatives of an entity or organization make an agreement to deceive or mislead another. Such agreements are usually secretive, and involve fraud or gaining an unfair advantage over a third party, competitors, consumers or others with whom they are negotiating. The collusion, therefore, makes the bargaining process inherently unfair. Collusion can involve price or wage fixing, kickbacks, or misrepresenting the independence of the relationship betweeen the colluding parties. For example, in a divorce action, the husband and wife may agree to fabricate a story or suppress evidence to provide evidence of lawful grounds for a divorce. As another example, collusion may involve cooperation between competing sellers, in the form of an agreement, express or tacit, limiting competition, or a merger or other means to raise the market price above the competitive level.While we're talking about the long arm of the law...regarding our e-mails...http://www.onthemedia.org/transcripts/2010/05/28/02While the debate over Facebook’s privacy policy has garnered all the attention, a lesser known but far more wide-ranging battle for online privacy has also been in the works.The Electronic Communications Privacy Act governs how law enforcement officials may access information about us stored online. But the act was drafted in 1986. Remember 1986? That was the year of Chernobyl. It was the year a lady named Oprah Winfrey began her talk show, and when the most popular movie was:[TOP GUN SOUNDTRACK]Top Gun. In short, it was a long time ago. Most people hadn't even heard of the internet and far fewer had actually used it.Digital Due Process is a coalition of companies, including Google and Microsoft, civil liberties groups, political organizations and academics, working to update the Electronic Communications Privacy Act, also known as ECPA.According to Bankston, a senior staff attorney at the Electronic Frontier Foundation, which is part of Digital Due Process, the government has easy access to much of your life online, and ECPA provides woefully inadequate protections.KEVIN BANKSTON: The ECPA has what we think is an outdated distinction between services that provide you communications service, say, your email provider or your ISP or whatever, and services that provide you storage or processing of your data.So Gmail is providing you communications service and your emails are relatively strongly protected, while your Google Doc, which you’re merely storing with Google, is weakly protected, such that the government could obtain your documents with only a subpoena. And in many cases, this can be done without any notice to the subscriber, so that you don't even have an opportunity to try and fight that subpoena.BOB GARFIELD: There is no judge he has to persuade that this document is significant for his investigation.KEVIN BANKSTON: Exactly - another great example of an anachronism in the law that doesn't make any sense anymore. Right now the law pretty clearly requires a warrant if the government wants to get your email. But that warrant requirement only applies for emails that are 180 days old or less.And you’re probably wondering, what’s with this six-months cutoff, where did that come from?BOB GARFIELD: What’s with the six-month cutoff? Where did that come from?KEVIN BANKSTON: Well, that kind of made sense in 1986, because back then, no one stored their email with their provider. You would dial into your provider and download your email and have it deleted off the server. So if there was email sitting on an email provider’s server after six months, it was safe to assume you'd abandoned that email and any privacy interest you might have.And so, we think - and one of our principles is pushing for removing this false and arbitrary 180-day cutoff, whereby you lose privacy protection the older your email gets.BOB GARFIELD: Tell me exactly what your revision of the law would require a warrant for.KEVIN BANKSTON: Well, any content that you store or transmit through the internet, if the government wants copies of those, they need to go to court, they need to prove probable cause of a crime, and particularly specify the things they want and get a judge to sign off on it before they can get it.It would also include, importantly, the logs that the search engines keep of what you search for, which has been a point of great controversy. There’s disagreement about how the law currently applies there, but we can't brook any lack of clarity on that score when such sensitive records are at issue.People treat the search engine like their most trusted friend. People tell Google things that they might not tell their spouse or their priest or their doctor. And so, it’s very important to the coalition to strongly protect that incredibly sensitive search data.BOB GARFIELD: , you’re trying to get legislation but sometimes these things are nudged along by the courts, who themselves can rule that existing law is obsolete or just plain wrong. Have there been court decisions which will support you when hearings are held on the subject of ECPA?KEVIN BANKSTON: To the extent that there are decisions, they don't always impact how the government operates as much as we'd like them to. One good example – I talked about how, under the law, the government needs a warrant for emails that are less than 180 days old. The government’s position is that it can get all of your email, everything in your inbox, everything in your sent folder, everything in your drafts folder. They can get all of that without a warrant, except for those few emails sitting in your inbox that you haven't read yet.And the Ninth Circuit Court of Appeals agreed with us, and said that regardless of whether your email is opened or unopened, it’s still protected by the ECPA. Despite that, the government routinely seeks emails less than 180 days without a warrant, and on occasion even will get orders from outside of the Ninth Circuit to send them into the Ninth Circuit, which includes California where most of the email providers are based.There's the other issue of when we do get opportunities to litigate these questions, it’s very common for the government to back down in order to avoid court decisions that disagree with it. We've seen this - the federal government in Colorado issued a court order to Yahoo!And Yahoo!, to its credit, pushed back and said, no, we think, under the law, you have to get a warrant. And we at EFF jumped into that case as friends of the court. And so, there are all these forces arrayed against the government in Colorado, ready to litigate this question. And the government dropped its application.BOB GARFIELD: So you’re supposing that the government doesn't want court decisions. If they face resistance, they immediately, uh, sort of melt back into the population to fight at another place, another day.KEVIN BANKSTON: In the end, the ambiguity of the law serves the government. If they get pushed back, they can just drop it and bring it up with a different judge later. And, in the meantime, we're all the losers because we are deprived of clear rulings on what the law means.BOB GARFIELD: All right, , thank you very much.KEVIN BANKSTON: Thank you.[MUSIC UP AND UNDER]BOB GARFIELD: Bankston is a senior staff attorney at the Electronic Frontier Foundation.----------------------------- Locke, MD On Wed, Jun 2, 2010 at 6:26 PM, Kathleen Patton <krpattoncomcast (DOT) net> wrote: ,Would I be over-reacting if I said I feel queasy about this?We can all say that we have nothing to worry about because certainly we are not conspiring. But perhaps the DOJ can decide there is a 'conspiracy' with pretty slim evidence. Like, we have discussions on a listserv. would that be 'evidence'? A stretch? Kathleen (who thinks Guatemala might welcome some physicians about now)True, but it also implied (at least I read it this way), that if a contract is SO bad that most of the docs in a community won't take it (without even talking to one another), they could be considered colluding to bring higher prices to health care. The other issue - which was brought up in my local IPA problem -- not wanting to accept the Medicare fee schedule (or some % or RVU factor of it) was considered bad business and maybe even illegal in some way. To keep prices down, I can see the DOJ getting involved in these regional spats. It will be fascinating to see what comes out the other end. From my read it seems the issue was active collusion by a bunch of orthopedists who otherwise were not an entity, or private group themselves. Tim Malia, MD (phone / fax)www.MaliaFamilyMedicine.comwww.SkinSenseLaser.comMalia Family Medicine & Skin Sense Laser6720 Pittsford-Palmyra Rd.Perinton Square MallFairport, NY 14450--

[Guest guest]

Why is it collusion if we discuss our business questions but the

insurers and the drug manufacturers etc have conferences so that regardless of

what drug or insurance contract is signed the reimbursement from all for a

particular code is within a few dollars either way of the average.  There is no

way that all of the insurance companies come up with almost the exact same

reimbursement schedule unless they are sharing their information amongst

themselves.  This is OK with the DOJ but if we do it we are committing a

crime.  This is ludicrous.

Beth Sullivan, DO

Ridgeway Family Practice

Commerce, GA  30529

From:

[mailto: ] On Behalf Of Dr.

Brady

Sent: Wednesday, June 02, 2010 7:30 AM

To:

Subject: RE: Justice Department declares war on

doctors --> In a landmark Idaho case, the Justice Department forced a group

of doctors to accept government price controls.

This whole thing makes me depressed and

sick. I would go see a doctor, but then we might be considered to be conspiring

to fix prices, so I guess I just need to stay sick. This whole thing is so

stupid and scary and stress-filled and one sided and filled with legal jargon.

Why do we need payment reform? Let me count the ways….

From:

[mailto: ]

On Behalf Of Locke

Sent: Wednesday, June 02, 2010 1:03 AM

To: practiceimprovement1; Practice Management Issues

Subject: Justice Department declares war on

doctors --> In a landmark Idaho case, the Justice Department forced a group

of doctors to accept government price controls.

As if

the 21% impending Medicare fee schedule cut wasn't enough...

http://www.csmonitor.com/Money/Mises-Economics-Blog/2010/0531/Justice-Department-declares-war-on-doctors

________________________________

Mises

Economics Blog

Justice

Department declares war on doctors

===========================================================

In

a landmark Idaho case, the Justice Department forced a group of doctors to

accept government price controls.

Attorney

General Holder testifies before the House Judiciary Committee's oversight

hearing on May 13. In a landmark action against Idaho physicians, the Justice

Department has unambiguously stated that refusal to accept government price

controls is a form of illegal price fixing.

=========================================

As

I’ve long suspected, “health care reform” has emboldened the

Justice Department to take a more active role in enforcing government price

controls against physicians. Today the Antitrust Division, joined by Idaho

Attorney General Lawrence Wasden, forced a a group of Boise orthopedists to

accept price controls for worker’s compensation and HMO contracts as part

of a settlement accusing the doctors of “price fixing”:

According

to the complaint, the conspiring orthopedists engaged in two antitrust

conspiracies, which took place from 2006 to 2008.

In the first conspiracy, through a series of meetings and other communications,

the orthopedists agreed not to treat most patients covered by workers’

compensation insurance.

They

entered into a group boycott in order to force the Idaho Industrial Commission

to increase the rates at which orthopedists were paid for treating injured workers.

The Idaho Industrial Commission sets the fee schedule that determines the

amount that orthopedists and other healthcare providers usually receive for

treating patients covered by workers’ compensation insurance. The boycott

resulted in a shortage of orthopedists willing to treat workers’

compensation patients, causing higher rates for orthopedic services.

In

the second conspiracy, all of the defendants, except [one], and other

conspiring orthopedists agreed to threaten to terminate their contracts with

Blue Cross of Idaho. They jointly threatened to terminate their contracts to

force Blue Cross of Idaho to offer better contract terms to orthopedists.

The

proposed settlement prevents the Idaho Orthopaedic Society and the named

orthopedists from agreeing with their competitors on fees and contract terms.

The settlement also prohibits them from collectively denying medical care to

patients, refusing to deal with any payer or threatening to terminate contracts

with any payer.

This

case is a watershed for two reasons:

First,

until now the Federal Trade Commission, not the Justice Department, has taken

the lead in prosecuting physicians. Since 2000, the FTC has brought about three

dozen cases against physicians (all but one of which settled without any

trial). But the FTC only has civil and administrative jurisdiction; the

Antitrust Division has civil and criminal jurisdiction. The Sherman Act makes no distinction between civil and

criminal “price fixing,” so in a case like this, it’s

entirely a matter of prosecutorial discretion whether to charge the doctors

with a civil or criminal offense.

Based on the descriptions in the Antitrust Division’s

press release, there’s certainly no reason they couldn’t have

prosecuted the doctors criminally and insisted upon prison sentences

— and there’s little doubt such threats were made or implied to

obtain the physicians’ agreement to the proposed “settlement.”

The second reason this is a landmark case is that the Justice

Department has unambiguously stated that refusal to accept government price

controls is a form of illegal “price fixing.”

The FTC has hinted at this when it’s said physicians

must accept Medicare-based reimbursement schedules from insurance companies.

But the DOJ has gone the final step and said, “Government prices are

market prices,” in the form of the Idaho Industrial Commission’s

fee schedule. The IIC administers the state’s worker compensation system

and is composed of three commissioners appointed by the governor. This

isn’t a quasi-private or semi-private entity. It’s a purely

government operation.

What’s

more, the Antitrust Division has linked a

refusal to accept government price controls with a refusal to accept a

“private” insurance company’s contract offer.

This lives little doubt that antitrust regulators consider insurance

party contracts the equivalent of government price controls — and

physicians and patients have no choice but to accept them.

Despite

this, Antitrust Division chief Varney, an Obama political appointee,

insists she’s trying to protect “competition”:

The

orthopedists who participated in these group boycotts denied medical care to

Idaho workers and caused higher prices for orthopedic services. Today’s

action seeks to prevent the recurrence of these illegal acts and protects Idaho

consumers by promoting competition in the healthcare industry.”

The

Idaho attorney general compounds the lie:

The

free marketplace works best when there is fair competition. Anticompetitive

activity harms the marketplace, businesses and consumers. Enforcement of the

antitrust laws restores competition to the marketplace to the benefit of

businesses and consumers and the marketplace as a whole.

But what “competition” do they refer to? The IIC

fee schedule is set by government fiat. There’s no

“competition” among orthopedists — or any other physicians

for that matter. Everyone gets paid exactly the same “acceptable

charges” based on the schedule. Even in the case of the Blue Cross

contract, the physicians weren’t “competing” on price; they

were simply told to accept the reimbursement levels proposed by the insurer.

And

as much as the government would tout the “conspiracy” among

physicians, as I said yesterday, we’re basically talking about people having

conversations with one another. The truth is the antitrust regulators

don’t need much to establish a Sherman Act “conspiracy.” Even

if there’s no evidence of direct communication between physicians, if a

large number of physicians in a given market individually reject a government

price control scheme or insurance company contract, the Antitrust Division can

simply “infer” the existence of a conspiracy.

This

is another reason why the DOJ’s presence in a physician case is more

disturbing than the normal FTC case. The DOJ

has a number of “tools” the FTC does not, including the

self-granted power to award amnesties from criminal prosecutions to the first

“conspirator” to step forward and provide evidence against

one’s competitors.

A doctor that feared prosecution could seek amnesty —

and provide the Justice Department a blank check to rummage through his files

and private communications. And if that doesn’t work, the DOJ can always

seek wiretaps of physicians’ phones and computers, a power awarded the DOJ

during a 2006 renewal of the PATRIOT Act. The potential exposure of your

physician’s confidential records — including your medical records

— is limitless.

And

while I usually caution against reading partisan political motives into an

antitrust case — and I’d note the Idaho attorney general is a

Republican — it’s hard to segregate today’s action from the

larger political context of “Obamacare.” Varney is an

Obama political appointee, and if the Idaho case is an indication her Division

plans to take a more hands-on approach to dealing with local physician groups,

this policy will quickly degenerate into political demagoguery. It’s just

too easy to label physicians “price fixers” and scapegoat them for

the failure of government planning of the healthcare industry.

UPDATE:

The DOJ has released the proposed order and other documents. It’s a naked

censorship order that restrains the physicians from

(A)

encouraging, facilitating, entering into, participating in, or attempting to

engage in any actual or potential agreement or understanding with, between, or

among competing physicians about:

any

fee, or other payer contract term or condition, with any payer or group of

payers, including the acceptability or negotiation of any fee or other payer

contract term with any payer or group of payers;

the

manner in which the defendant or any competing physician will negotiate with,

contract with, or otherwise deal with any payer or group of payers, including

participating in or terminating any payer contract; or

any

refusal to deal or threatened refusal to deal with any payer;

or

(

communicating with any competing physician or facilitating the exchange of

information between or among competing physicians about:

the

actual or possible view, intention, or position of any defendant or his or her

medical practice group, or any competing physician concerning the negotiation

or acceptability of any proposed or existing payer contract or contract term,

including the negotiating or contracting status of the defendant, his or her

medical group, or any competing physician with any payer or group of payers, or

any

proposed or existing term of any payer contract that affects:

the

amount of fees or payment, however determined, that the defendant, his or her

medical practice group, or any competing physician charges, contracts for, or

accepts from or considers charging, contracting for, or accepting from any

payer or group of payers for providing physician services;

the

duration, amendment, or termination of any payer contract; or

the

manner of resolving disputes between any parties to any payer contract.

The

order also illegally legislates through the courts by requiring the physicians

to adhere to the 1996 Department of Justice and Federal Trade Commission

Statements of Antitrust Enforcement Policy in Health Care, which is not law but

merely the subjective opinions of unelected government antitrust lawyers. The

order also requires the physicians to make “all books, ledgers, accounts,

records, data, and documents,” available for government inspection at any

time in the next ten years.

Since

this is an DOJ case, it is subject to final approval by a federal judge in

Idaho. There’s a mandatory 60-day public comment period, after which the

judge will almost certainly rubber stamp the order as being “in the

public interest.” Still, there’s at least an opportunity to express

some serious dissent to what’s transpired here.

2ND

UPDATE: It turns out the Idaho physicians hired the guy who used to run the

Antitrust Division’s litigation department — and developed the

government’s anti-physician antitrust rules — to represent them. No

wonder they settled without a fight.

===================

Locke, MD

[Guest guest]

As it turns out and someone correct me if I am wrong but I believe insurance companies have a waiver concerning this.

 

Why is it collusion if we discuss our business questions but the

insurers and the drug manufacturers etc have conferences so that regardless of

what drug or insurance contract is signed the reimbursement from all for a

particular code is within a few dollars either way of the average.  There is no

way that all of the insurance companies come up with almost the exact same

reimbursement schedule unless they are sharing their information amongst

themselves.  This is OK with the DOJ but if we do it we are committing a

crime.  This is ludicrous.

 

Beth Sullivan, DO

Ridgeway Family Practice

Commerce, GA  30529

 

From:

[mailto: ] On Behalf Of Dr.

Brady

Sent: Wednesday, June 02, 2010 7:30 AM

To:

Subject: RE: Justice Department declares war on

doctors --> In a landmark Idaho case, the Justice Department forced a group

of doctors to accept government price controls.

 

 

This whole thing makes me depressed and

sick. I would go see a doctor, but then we might be considered to be conspiring

to fix prices, so I guess I just need to stay sick. This whole thing is so

stupid and scary and stress-filled and one sided and filled with legal jargon.

Why do we need payment reform? Let me count the ways….

 

From:

[mailto: ]

On Behalf Of Locke

Sent: Wednesday, June 02, 2010 1:03 AM

To: practiceimprovement1; Practice Management Issues

Subject: Justice Department declares war on

doctors --> In a landmark Idaho case, the Justice Department forced a group

of doctors to accept government price controls.

 

 

As if

the 21% impending Medicare fee schedule cut wasn't enough...

 

http://www.csmonitor.com/Money/Mises-Economics-Blog/2010/0531/Justice-Department-declares-war-on-doctors

 

________________________________

 

Mises

Economics Blog

 

Justice

Department declares war on doctors

 

===========================================================

 

In

a landmark Idaho case, the Justice Department forced a group of doctors to

accept government price controls.

 

Attorney

General Holder testifies before the House Judiciary Committee's oversight

hearing on May 13. In a landmark action against Idaho physicians, the Justice

Department has unambiguously stated that refusal to accept government price

controls is a form of illegal price fixing.

 

=========================================

 

As

I’ve long suspected, “health care reform” has emboldened the

Justice Department to take a more active role in enforcing government price

controls against physicians. Today the Antitrust Division, joined by Idaho

Attorney General Lawrence Wasden, forced a a group of Boise orthopedists to

accept price controls for worker’s compensation and HMO contracts as part

of a settlement accusing the doctors of “price fixing”:

 

According

to the complaint, the conspiring orthopedists engaged in two antitrust

conspiracies, which took place from 2006 to 2008.

In the first conspiracy, through a series of meetings and other communications,

the orthopedists agreed not to treat most patients covered by workers’

compensation insurance.

 

They

entered into a group boycott in order to force the Idaho Industrial Commission

to increase the rates at which orthopedists were paid for treating injured workers.

The Idaho Industrial Commission sets the fee schedule that determines the

amount that orthopedists and other healthcare providers usually receive for

treating patients covered by workers’ compensation insurance. The boycott

resulted in a shortage of orthopedists willing to treat workers’

compensation patients, causing higher rates for orthopedic services.

 

In

the second conspiracy, all of the defendants, except [one], and other

conspiring orthopedists agreed to threaten to terminate their contracts with

Blue Cross of Idaho. They jointly threatened to terminate their contracts to

force Blue Cross of Idaho to offer better contract terms to orthopedists.

 

The

proposed settlement prevents the Idaho Orthopaedic Society and the named

orthopedists from agreeing with their competitors on fees and contract terms.

The settlement also prohibits them from collectively denying medical care to

patients, refusing to deal with any payer or threatening to terminate contracts

with any payer.

 

This

case is a watershed for two reasons:

 

First,

until now the Federal Trade Commission, not the Justice Department, has taken

the lead in prosecuting physicians. Since 2000, the FTC has brought about three

dozen cases against physicians (all but one of which settled without any

trial). But the FTC only has civil and administrative jurisdiction; the

Antitrust Division has civil and criminal jurisdiction. The Sherman Act makes no distinction between civil and

criminal “price fixing,” so in a case like this, it’s

entirely a matter of prosecutorial discretion whether to charge the doctors

with a civil or criminal offense.

 

Based on the descriptions in the Antitrust Division’s

press release, there’s certainly no reason they couldn’t have

prosecuted the doctors criminally and insisted upon prison sentences

— and there’s little doubt such threats were made or implied to

obtain the physicians’ agreement to the proposed “settlement.”

 

The second reason this is a landmark case is that the Justice

Department has unambiguously stated that refusal to accept government price

controls is a form of illegal “price fixing.”

 

The FTC has hinted at this when it’s said physicians

must accept Medicare-based reimbursement schedules from insurance companies.

But the DOJ has gone the final step and said, “Government prices are

market prices,” in the form of the Idaho Industrial Commission’s

fee schedule. The IIC administers the state’s worker compensation system

and is composed of three commissioners appointed by the governor. This

isn’t a quasi-private or semi-private entity. It’s a purely

government operation.

 

What’s

more, the Antitrust Division has linked a

refusal to accept government price controls with a refusal to accept a

“private” insurance company’s contract offer.

This lives little doubt that antitrust regulators consider insurance

party contracts the equivalent of government price controls — and

physicians and patients have no choice but to accept them.

 

Despite

this, Antitrust Division chief Varney, an Obama political appointee,

insists she’s trying to protect “competition”:

 

The

orthopedists who participated in these group boycotts denied medical care to

Idaho workers and caused higher prices for orthopedic services. Today’s

action seeks to prevent the recurrence of these illegal acts and protects Idaho

consumers by promoting competition in the healthcare industry.”

 

The

Idaho attorney general compounds the lie:

 

The

free marketplace works best when there is fair competition. Anticompetitive

activity harms the marketplace, businesses and consumers. Enforcement of the

antitrust laws restores competition to the marketplace to the benefit of

businesses and consumers and the marketplace as a whole.

 

But what “competition” do they refer to? The IIC

fee schedule is set by government fiat. There’s no

“competition” among orthopedists — or any other physicians

for that matter. Everyone gets paid exactly the same “acceptable

charges” based on the schedule. Even in the case of the Blue Cross

contract, the physicians weren’t “competing” on price; they

were simply told to accept the reimbursement levels proposed by the insurer.

 

And

as much as the government would tout the “conspiracy” among

physicians, as I said yesterday, we’re basically talking about people having

conversations with one another. The truth is the antitrust regulators

don’t need much to establish a Sherman Act “conspiracy.” Even

if there’s no evidence of direct communication between physicians, if a

large number of physicians in a given market individually reject a government

price control scheme or insurance company contract, the Antitrust Division can

simply “infer” the existence of a conspiracy.

 

This

is another reason why the DOJ’s presence in a physician case is more

disturbing than the normal FTC case. The DOJ

has a number of “tools” the FTC does not, including the

self-granted power to award amnesties from criminal prosecutions to the first

“conspirator” to step forward and provide evidence against

one’s competitors.

 

A doctor that feared prosecution could seek amnesty —

and provide the Justice Department a blank check to rummage through his files

and private communications. And if that doesn’t work, the DOJ can always

seek wiretaps of physicians’ phones and computers, a power awarded the DOJ

during a 2006 renewal of the PATRIOT Act. The potential exposure of your

physician’s confidential records — including your medical records

— is limitless.

 

And

while I usually caution against reading partisan political motives into an

antitrust case — and I’d note the Idaho attorney general is a

Republican — it’s hard to segregate today’s action from the

larger political context of “Obamacare.” Varney is an

Obama political appointee, and if the Idaho case is an indication her Division

plans to take a more hands-on approach to dealing with local physician groups,

this policy will quickly degenerate into political demagoguery. It’s just

too easy to label physicians “price fixers” and scapegoat them for

the failure of government planning of the healthcare industry.

 

UPDATE:

The DOJ has released the proposed order and other documents. It’s a naked

censorship order that restrains the physicians from

 

(A)

encouraging, facilitating, entering into, participating in, or attempting to

engage in any actual or potential agreement or understanding with, between, or

among competing physicians about:

 

any

fee, or other payer contract term or condition, with any payer or group of

payers, including the acceptability or negotiation of any fee or other payer

contract term with any payer or group of payers;

the

manner in which the defendant or any competing physician will negotiate with,

contract with, or otherwise deal with any payer or group of payers, including

participating in or terminating any payer contract; or

any

refusal to deal or threatened refusal to deal with any payer;

or

 

(

communicating with any competing physician or facilitating the exchange of

information between or among competing physicians about:

 

the

actual or possible view, intention, or position of any defendant or his or her

medical practice group, or any competing physician concerning the negotiation

or acceptability of any proposed or existing payer contract or contract term,

including the negotiating or contracting status of the defendant, his or her

medical group, or any competing physician with any payer or group of payers, or

any

proposed or existing term of any payer contract that affects:

the

amount of fees or payment, however determined, that the defendant, his or her

medical practice group, or any competing physician charges, contracts for, or

accepts from or considers charging, contracting for, or accepting from any

payer or group of payers for providing physician services;

the

duration, amendment, or termination of any payer contract; or

the

manner of resolving disputes between any parties to any payer contract.

The

order also illegally legislates through the courts by requiring the physicians

to adhere to the 1996 Department of Justice and Federal Trade Commission

Statements of Antitrust Enforcement Policy in Health Care, which is not law but

merely the subjective opinions of unelected government antitrust lawyers. The

order also requires the physicians to make “all books, ledgers, accounts,

records, data, and documents,” available for government inspection at any

time in the next ten years.

 

Since

this is an DOJ case, it is subject to final approval by a federal judge in

Idaho. There’s a mandatory 60-day public comment period, after which the

judge will almost certainly rubber stamp the order as being “in the

public interest.” Still, there’s at least an opportunity to express

some serious dissent to what’s transpired here.

 

2ND

UPDATE: It turns out the Idaho physicians hired the guy who used to run the

Antitrust Division’s litigation department — and developed the

government’s anti-physician antitrust rules — to represent them. No

wonder they settled without a fight.

===================

Locke, MD

[Guest guest]

The McCarran-Ferguson Act 1945 seems to confer on insurance companies some immunity to Federal Anti-trust laws. You can bet there were some very smart long range thinkers in the insurance industry, lobbying for this one, way back in the 40'shttp://en.wikipedia.org/wiki/McCarran–Ferguson_ActIntentThe McCarran–Ferguson Act does not itself regulate insurance, nor does it mandate that states regulate insurance. Federal acts that do not expressly purport to regulate the "business of insurance" will not preempt state laws or regulations that regulate the "business of insurance."The Act also provides that federal anti-trust laws will not apply to the "business of insurance" as long as the state regulates in that area, but federal anti-trust laws will apply in cases of boycott, coercion, and intimidation. By contrast, most other federal laws will not apply to insurance whether the states regulate in that area or not.[edit]HistoryUnited States v. South-Eastern Underwriters Association (322 U.S. 533) came before the Supreme Court in 1944 on appeal from a district court located in north Georgia. The South-Eastern Underwriters Association controlled 90 percent of the market for fire and other insurance lines in six southern states and set rates at non-competitive levels. Furthermore, it used intimidation, boycotts and other coercive tactics to maintain its monopoly.The question before the Court was whether or not insurance was a form of "interstate commerce" which could be regulated under the Commerce Clause of the United States Constitution and the Sherman Anti-Trust Act. The general opinion in law before this case, according to the Court, was that the business of insurance was not commerce, and the District Court concurred with the opinion. In his partial dissent at 322 U.S. 588, Justice H. of the Supreme Court said:"4. Any enactment by Congress either of partial or of comprehensive regulations of the insurance business would come to us with the most forceful presumption of constitutional validity. The fiction that insurance is not commerce could not be sustained against such a presumption, for resort to the facts would support the presumption in favor of the congressional action. The fiction therefore must yield to congressional action, and continues only at the sufferance of Congress.5. Congress also may, without exerting its full regulatory powers over the subject, and without challenging the basis or supplanting the details of state regulation, enact prohibitions of any acts in pursuit of the insurance business which substantially affect or unduly burden or restrain interstate commerce."In short, the dissent stated that the conclusion that insurance was not commerce under the law rested with Congress, and that the Court should follow the lead of Congress.As a result, on March 9, 1945, the McCarran–Ferguson Act was passed by Congress. Among other things, it:partially exempts insurance companies from the federal anti-trust legislation that applies to most businesses[1]allows for the state regulation of insuranceallows states to establish mandatory licensing requirementspreserves certain state laws of insurance.As it turns out and someone correct me if I am wrong but I believe insurance companies have a waiver concerning this.On Fri, Jun 4, 2010 at 3:34 PM, Beth Sullivan, DO <bethdo97windstream (DOT) net> wrote: Why is it collusion if we discuss our business questions but the insurers and the drug manufacturers etc have conferences so that regardless of what drug or insurance contract is signed the reimbursement from all for a particular code is within a few dollars either way of the average. There is no way that all of the insurance companies come up with almost the exact same reimbursement schedule unless they are sharing their information amongst themselves. This is OK with the DOJ but if we do it we are committing a crime. This is ludicrous. Beth Sullivan, DORidgeway Family PracticeCommerce, GA 30529 From: [mailto: ] On Behalf Of Dr. BradySent: Wednesday, June 02, 2010 7:30 AMTo: Subject: RE: Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls. This whole thing makes me depressed and sick. I would go see a doctor, but then we might be considered to be conspiring to fix prices, so I guess I just need to stay sick. This whole thing is so stupid and scary and stress-filled and one sided and filled with legal jargon. Why do we need payment reform? Let me count the ways…. From: [mailto: ] On Behalf Of LockeSent: Wednesday, June 02, 2010 1:03 AMTo: practiceimprovement1; Practice Management IssuesSubject: Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls. As if the 21% impending Medicare fee schedule cut wasn't enough... http://www.csmonitor.com/Money/Mises-Economics-Blog/2010/0531/Justice-Department-declares-war-on-doctors ________________________________ Mises Economics Blog Justice Department declares war on doctors =========================================================== In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls. Attorney General Holder testifies before the House Judiciary Committee's oversight hearing on May 13. In a landmark action against Idaho physicians, the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal price fixing. ========================================= As I’ve long suspected, “health care reform” has emboldened the Justice Department to take a more active role in enforcing government price controls against physicians. Today the Antitrust Division, joined by Idaho Attorney General Lawrence Wasden, forced a a group of Boise orthopedists to accept price controls for worker’s compensation and HMO contracts as part of a settlement accusing the doctors of “price fixing”: According to the complaint, the conspiring orthopedists engaged in two antitrust conspiracies, which took place from 2006 to 2008. In the first conspiracy, through a series of meetings and other communications, the orthopedists agreed not to treat most patients covered by workers’ compensation insurance. They entered into a group boycott in order to force the Idaho Industrial Commission to increase the rates at which orthopedists were paid for treating injured workers. The Idaho Industrial Commission sets the fee schedule that determines the amount that orthopedists and other healthcare providers usually receive for treating patients covered by workers’ compensation insurance. The boycott resulted in a shortage of orthopedists willing to treat workers’ compensation patients, causing higher rates for orthopedic services. In the second conspiracy, all of the defendants, except [one], and other conspiring orthopedists agreed to threaten to terminate their contracts with Blue Cross of Idaho. They jointly threatened to terminate their contracts to force Blue Cross of Idaho to offer better contract terms to orthopedists. The proposed settlement prevents the Idaho Orthopaedic Society and the named orthopedists from agreeing with their competitors on fees and contract terms. The settlement also prohibits them from collectively denying medical care to patients, refusing to deal with any payer or threatening to terminate contracts with any payer. This case is a watershed for two reasons: First, until now the Federal Trade Commission, not the Justice Department, has taken the lead in prosecuting physicians. Since 2000, the FTC has brought about three dozen cases against physicians (all but one of which settled without any trial). But the FTC only has civil and administrative jurisdiction; the Antitrust Division has civil and criminal jurisdiction. The Sherman Act makes no distinction between civil and criminal “price fixing,” so in a case like this, it’s entirely a matter of prosecutorial discretion whether to charge the doctors with a civil or criminal offense. Based on the descriptions in the Antitrust Division’s press release, there’s certainly no reason they couldn’t have prosecuted the doctors criminally and insisted upon prison sentences — and there’s little doubt such threats were made or implied to obtain the physicians’ agreement to the proposed “settlement.” The second reason this is a landmark case is that the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal “price fixing.” The FTC has hinted at this when it’s said physicians must accept Medicare-based reimbursement schedules from insurance companies. But the DOJ has gone the final step and said, “Government prices are market prices,” in the form of the Idaho Industrial Commission’s fee schedule. The IIC administers the state’s worker compensation system and is composed of three commissioners appointed by the governor. This isn’t a quasi-private or semi-private entity. It’s a purely government operation. What’s more, the Antitrust Division has linked a refusal to accept government price controls with a refusal to accept a “private” insurance company’s contract offer. This lives little doubt that antitrust regulators consider insurance party contracts the equivalent of government price controls — and physicians and patients have no choice but to accept them. Despite this, Antitrust Division chief Varney, an Obama political appointee, insists she’s trying to protect “competition”: The orthopedists who participated in these group boycotts denied medical care to Idaho workers and caused higher prices for orthopedic services. Today’s action seeks to prevent the recurrence of these illegal acts and protects Idaho consumers by promoting competition in the healthcare industry.” The Idaho attorney general compounds the lie: The free marketplace works best when there is fair competition. Anticompetitive activity harms the marketplace, businesses and consumers. Enforcement of the antitrust laws restores competition to the marketplace to the benefit of businesses and consumers and the marketplace as a whole. But what “competition” do they refer to? The IIC fee schedule is set by government fiat. There’s no “competition” among orthopedists — or any other physicians for that matter. Everyone gets paid exactly the same “acceptable charges” based on the schedule. Even in the case of the Blue Cross contract, the physicians weren’t “competing” on price; they were simply told to accept the reimbursement levels proposed by the insurer. And as much as the government would tout the “conspiracy” among physicians, as I said yesterday, we’re basically talking about people having conversations with one another. The truth is the antitrust regulators don’t need much to establish a Sherman Act “conspiracy.” Even if there’s no evidence of direct communication between physicians, if a large number of physicians in a given market individually reject a government price control scheme or insurance company contract, the Antitrust Division can simply “infer” the existence of a conspiracy. This is another reason why the DOJ’s presence in a physician case is more disturbing than the normal FTC case. The DOJ has a number of “tools” the FTC does not, including the self-granted power to award amnesties from criminal prosecutions to the first “conspirator” to step forward and provide evidence against one’s competitors. A doctor that feared prosecution could seek amnesty — and provide the Justice Department a blank check to rummage through his files and private communications. And if that doesn’t work, the DOJ can always seek wiretaps of physicians’ phones and computers, a power awarded the DOJ during a 2006 renewal of the PATRIOT Act. The potential exposure of your physician’s confidential records — including your medical records — is limitless. And while I usually caution against reading partisan political motives into an antitrust case — and I’d note the Idaho attorney general is a Republican — it’s hard to segregate today’s action from the larger political context of “Obamacare.” Varney is an Obama political appointee, and if the Idaho case is an indication her Division plans to take a more hands-on approach to dealing with local physician groups, this policy will quickly degenerate into political demagoguery. It’s just too easy to label physicians “price fixers” and scapegoat them for the failure of government planning of the healthcare industry. UPDATE: The DOJ has released the proposed order and other documents. It’s a naked censorship order that restrains the physicians from (A) encouraging, facilitating, entering into, participating in, or attempting to engage in any actual or potential agreement or understanding with, between, or among competing physicians about: any fee, or other payer contract term or condition, with any payer or group of payers, including the acceptability or negotiation of any fee or other payer contract term with any payer or group of payers;the manner in which the defendant or any competing physician will negotiate with, contract with, or otherwise deal with any payer or group of payers, including participating in or terminating any payer contract; orany refusal to deal or threatened refusal to deal with any payer;or ( communicating with any competing physician or facilitating the exchange of information between or among competing physicians about: the actual or possible view, intention, or position of any defendant or his or her medical practice group, or any competing physician concerning the negotiation or acceptability of any proposed or existing payer contract or contract term, including the negotiating or contracting status of the defendant, his or her medical group, or any competing physician with any payer or group of payers, orany proposed or existing term of any payer contract that affects:the amount of fees or payment, however determined, that the defendant, his or her medical practice group, or any competing physician charges, contracts for, or accepts from or considers charging, contracting for, or accepting from any payer or group of payers for providing physician services;the duration, amendment, or termination of any payer contract; orthe manner of resolving disputes between any parties to any payer contract.The order also illegally legislates through the courts by requiring the physicians to adhere to the 1996 Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care, which is not law but merely the subjective opinions of unelected government antitrust lawyers. The order also requires the physicians to make “all books, ledgers, accounts, records, data, and documents,” available for government inspection at any time in the next ten years. Since this is an DOJ case, it is subject to final approval by a federal judge in Idaho. There’s a mandatory 60-day public comment period, after which the judge will almost certainly rubber stamp the order as being “in the public interest.” Still, there’s at least an opportunity to express some serious dissent to what’s transpired here. 2ND UPDATE: It turns out the Idaho physicians hired the guy who used to run the Antitrust Division’s litigation department — and developed the government’s anti-physician antitrust rules — to represent them. No wonder they settled without a fight.=================== Locke, MD

[Guest guest]

You got it gang.... This is the screwing that our supreme court handed down upon all of us.... It simply blows my mind that such things are Dred , this Act and Ruling, no less the two combined Corporate Godness rulings, First about a hundred years ago that a corporation has the same exact standing in the eyes of the law that a living breathing human being does... That means any and all corporations have more rights and standing in the eyes of the law as well as in a court of than do any actual living, breathing, bleeding animal does... Think about it. Some mental construct has the same inalienable rights as we do, but a horse and cat or a dog is seen as an object or possession... And now just this year the ruling that there can be NO limits on money and contributions in politics and elections

because "Money Spent on Politics and Ads EQUALS Speech"!!! And so there are no breaks in place to limit speech in any manor of equity now. The richer you are the more speech you are entitled to.... The past 2008 election may have been the last semi-free and democratic election ever to be run again in the US of A my friends...

And not to upset anyone too much because I am about a Free Choice as any person can be... Is it not totally insane and illogical that now with these kinds of rulings, a human fetus has less basics human rights and standing in the eyes of the law and in a court of law, then the mental construct of a corporation??? My mind strains just to try and comprehend how that could even co-exist in the same court.... I think I am going to bring a case before the supreme court and insist that my '72 Dodge Dart Four Door Sedan be granted the same equal rights in the eyes of the law as a mental construct created on nothing more than a sheet of paper and a man or many people's minds. At least my Dart has honest and real substance to her and she has a real personality all of her own. Why she even has a definite gender identity, she is a female....She even has an honest to goodness human name too....

"Wanda" after Lee in "A Fish Named Wanda". (yeah think about that one for a while and get back to me if and when you think a young man in his 20's would have named his car that back in the mid '80's... A thousand points all around to everyone but Wayne just because I like to pick on him so much)

I wonder if we could challenge the corporate standing laws based on the fact that any real being worthy of having a human standing in court would have be one of two genders??? It is one of the most common and just about the first denominator that we used to identify real people... And yeah, like what race are you Mr or is the Ms, or Miss, or Mrs Corporation? And where is your birth certificate identifying your genetic birth parents and your actual place, the acutal address of your birth??? Not just the county and state but the actual street address, town, city, village what have you???? What a load of bunk and now our entire country is getting screwed up the backside because of absolutely twisted logic or the lack there of might I say.... God Bless America.

This courts total and unfetered power to get certain things so wrong just blows my mind and then the bought and paid for whores down in DC don't have the least amount of decency to do the right thing and correct these hanous mistakes with good solid have the guts to take a stand and set a course law....

To: Sent: Fri, June 4, 2010 6:09:53 PMSubject: Re: Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls.

The McCarran-Ferguson Act 1945 seems to confer on insurance companies some immunity to Federal Anti-trust laws.

You can bet there were some very smart long range thinkers in the insurance industry, lobbying for this one, way back in the 40's

http://en.wikipedia .org/wiki/ McCarran–Ferguson_Act

Intent

The McCarran–Ferguson Act does not itself regulate insurance, nor does it mandate that states regulate insurance. Federal acts that do not expressly purport to regulate the "business of insurance" will not preempt state laws or regulations that regulate the "business of insurance."

The Act also provides that federal anti-trust laws will not apply to the "business of insurance" as long as the state regulates in that area, but federal anti-trust laws will apply in cases of boycott, coercion, and intimidation. By contrast, most other federal laws will not apply to insurance whether the states regulate in that area or not.

[edit]History

United States v. South-Eastern Underwriters Association (322 U.S. 533) came before the Supreme Court in 1944 on appeal from a district court located in north Georgia. The South-Eastern Underwriters Association controlled 90 percent of the market for fire and other insurance lines in six southern states and set rates at non-competitive levels. Furthermore, it used intimidation, boycotts and other coercive tactics to maintain its monopoly.

The question before the Court was whether or not insurance was a form of "interstate commerce" which could be regulated under the Commerce Clause of the United States Constitution and the Sherman Anti-Trust Act. The general opinion in law before this case, according to the Court, was that the business of insurance was not commerce, and the District Court concurred with the opinion. In his

partial dissent at 322 U.S. 588, Justice H. of the Supreme Court said:

"4. Any enactment by Congress either of partial or of comprehensive regulations of the insurance business would come to us with the most forceful presumption of constitutional validity. The fiction that insurance is not commerce could not be sustained against such a presumption, for resort to the facts would support the presumption in favor of the congressional action. The fiction therefore must yield to congressional action, and continues only at the sufferance of Congress.

5. Congress also may, without exerting its full regulatory powers over the subject, and without challenging the basis or supplanting the details of state regulation, enact prohibitions of any acts in pursuit of the insurance business which substantially affect or unduly burden or restrain interstate commerce."

In short, the dissent stated that the conclusion that insurance was not commerce under the law rested with Congress, and that the Court should follow the lead of Congress.

As a result, on March 9, 1945, the McCarran–Ferguson Act was passed by Congress. Among other things, it:

partially exempts insurance companies from the federal anti-trust legislation that applies to most businesses[1]

allows for the state regulation of insurance

allows states to establish mandatory licensing requirements

preserves certain state laws of insurance.

As it turns out and someone correct me if I am wrong but I believe insurance companies have a waiver concerning this.

On Fri, Jun 4, 2010 at 3:34 PM, Beth Sullivan, DO <bethdo97@windstream .net> wrote:

Why is it collusion if we discuss our business questions but the insurers and the drug manufacturers etc have conferences so that regardless of what drug or insurance contract is signed the reimbursement from all for a particular code is within a few dollars either way of the average. There is no way that all of the insurance companies come up with almost the exact same reimbursement schedule unless they are sharing their information amongst themselves. This is OK with the DOJ but if we do it we are committing a crime. This is ludicrous.

Beth Sullivan, DO

Ridgeway Family Practice

Commerce, GA 30529

From: Practiceimprovement 1yahoogroups (DOT) com [mailto:Practiceimprovement 1yahoogroups (DOT) com] On Behalf Of Dr. BradySent: Wednesday, June 02, 2010 7:30 AMTo: Practiceimprovement 1yahoogroups (DOT) comSubject: RE: [Practiceimprovemen t1] Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls.

This whole thing makes me depressed and sick. I would go see a doctor, but then we might be considered to be conspiring to fix prices, so I guess I just need to stay sick. This whole thing is so stupid and scary and stress-filled and one sided and filled with legal jargon. Why do we need payment reform? Let me count the ways….

From: Practiceimprovement 1yahoogroups (DOT) com [mailto:Practiceimprovement 1yahoogroups (DOT) com] On Behalf Of LockeSent: Wednesday, June 02, 2010 1:03 AMTo: practiceimprovement 1;

Practice Management IssuesSubject: [Practiceimprovemen t1] Justice Department declares war on doctors --> In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls.

As if the 21% impending Medicare fee schedule cut wasn't enough...

http://www.csmonito r.com/Money/ Mises-Economics- Blog/2010/ 0531/Justice- Department- declares- war-on-doctors

____________ _________ _________ __

Mises Economics Blog

Justice Department declares war on doctors

============ ========= ========= ========= ========= ========= ==

In a landmark Idaho case, the Justice Department forced a group of doctors to accept government price controls.

Attorney General Holder testifies before the House Judiciary Committee's oversight hearing on May 13. In a landmark action against Idaho physicians, the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal price fixing.

============ ========= ========= ========= ==

As I’ve long suspected, “health care reform†has emboldened the Justice Department to take a more active role in enforcing government price controls against physicians. Today the Antitrust Division, joined by Idaho Attorney General Lawrence Wasden, forced a a group of Boise orthopedists to accept price controls for worker’s compensation and HMO contracts as part of a settlement accusing the doctors of “price fixingâ€:

According to the complaint, the conspiring orthopedists engaged in two antitrust conspiracies, which took place from 2006 to 2008. In the first conspiracy, through a series of meetings and other communications, the orthopedists agreed not to treat most patients covered by workers’ compensation insurance.

They entered into a group boycott in order to force the Idaho Industrial Commission to increase the rates at which orthopedists were paid for treating injured workers. The Idaho Industrial Commission sets the fee schedule that determines the amount that orthopedists and other healthcare providers usually receive for treating patients covered by workers’ compensation insurance. The boycott resulted in a shortage of orthopedists willing to treat workers’ compensation patients, causing higher rates for orthopedic services.

In the second conspiracy, all of the defendants, except [one], and other conspiring orthopedists agreed to threaten to terminate their contracts with Blue Cross of Idaho. They jointly threatened to terminate their contracts to force Blue Cross of Idaho to offer better contract terms to orthopedists.

The proposed settlement prevents the Idaho Orthopaedic Society and the named orthopedists from agreeing with their competitors on fees and contract terms. The settlement also prohibits them from collectively denying medical care to patients, refusing to deal with any payer or threatening to terminate contracts with any payer.

This case is a watershed for two reasons:

First, until now the Federal Trade Commission, not the Justice Department, has taken the lead in prosecuting physicians. Since 2000, the FTC has brought about three dozen cases against physicians (all but one of which settled without any trial). But the FTC only has civil and administrative jurisdiction; the Antitrust Division has civil and criminal jurisdiction. The Sherman Act makes no distinction between civil and criminal “price fixing,†so in a case like this, it’s entirely a matter of prosecutorial discretion whether to charge the doctors with a civil or criminal offense.

Based on the descriptions in the Antitrust Division’s press release, there’s certainly no reason they couldn’t have prosecuted the doctors criminally and insisted upon prison sentences — and there’s little doubt such threats were made or implied to obtain the physicians’ agreement to the proposed “settlement.â€

The second reason this is a landmark case is that the Justice Department has unambiguously stated that refusal to accept government price controls is a form of illegal “price fixing.â€

The FTC has hinted at this when it’s said physicians must accept Medicare-based reimbursement schedules from insurance companies. But the DOJ has gone the final step and said, “Government prices are market prices,†in the form of the Idaho Industrial Commission’s fee schedule. The IIC administers the state’s worker compensation system and is composed of three commissioners appointed by the governor. This isn’t a quasi-private or semi-private entity. It’s a purely government operation.

What’s more, the Antitrust Division has linked a refusal to accept government price controls with a refusal to accept a “private†insurance company’s contract offer. This lives little doubt that antitrust regulators consider insurance party contracts the equivalent of government price controls — and physicians and patients have no choice but to accept them.

Despite this, Antitrust Division chief Varney, an Obama political appointee, insists she’s trying to protect “competitionâ€:

The orthopedists who participated in these group boycotts denied medical care to Idaho workers and caused higher prices for orthopedic services. Today’s action seeks to prevent the recurrence of these illegal acts and protects Idaho consumers by promoting competition in the healthcare industry.â€

The Idaho attorney general compounds the lie:

The free marketplace works best when there is fair competition. Anticompetitive activity harms the marketplace, businesses and consumers. Enforcement of the antitrust laws restores competition to the marketplace to the benefit of businesses and consumers and the marketplace as a whole.

But what “competition†do they refer to? The IIC fee schedule is set by government fiat. There’s no “competition†among orthopedists — or any other physicians for that matter. Everyone gets paid exactly the same “acceptable charges†based on the schedule. Even in the case of the Blue Cross contract, the physicians weren’t “competing†on price; they were simply told to accept the reimbursement levels proposed by the insurer.

And as much as the government would tout the “conspiracy†among physicians, as I said yesterday, we’re basically talking about people having conversations with one another. The truth is the antitrust regulators don’t need much to establish a Sherman Act “conspiracy.†Even if there’s no evidence of direct communication between physicians, if a large number of physicians in a given market individually reject a government price control scheme or insurance company contract, the Antitrust Division can simply “infer†the existence of a conspiracy.

This is another reason why the DOJ’s presence in a physician case is more disturbing than the normal FTC case. The DOJ has a number of “tools†the FTC does not, including the self-granted power to award amnesties from criminal prosecutions to the first “conspirator†to step forward and provide evidence against one’s competitors.

A doctor that feared prosecution could seek amnesty — and provide the Justice Department a blank check to rummage through his files and private communications. And if that doesn’t work, the DOJ can always seek wiretaps of physicians’ phones and computers, a power awarded the DOJ during a 2006 renewal of the PATRIOT Act. The potential exposure of your physician’s confidential records — including your medical records — is limitless.

And while I usually caution against reading partisan political motives into an antitrust case — and I’d note the Idaho attorney general is a Republican — it’s hard to segregate today’s action from the larger political context of “Obamacare.†Varney is an Obama political appointee, and if the Idaho case is an indication her Division plans to take a more hands-on approach to dealing with local physician groups, this policy will quickly degenerate into political demagoguery. It’s just too easy to label physicians “price fixers†and scapegoat them for the failure of government planning of the healthcare industry.

UPDATE: The DOJ has released the proposed order and other documents. It’s a naked censorship order that restrains the physicians from

(A) encouraging, facilitating, entering into, participating in, or attempting to engage in any actual or potential agreement or understanding with, between, or among competing physicians about:

any fee, or other payer contract term or condition, with any payer or group of payers, including the acceptability or negotiation of any fee or other payer contract term with any payer or group of payers;

the manner in which the defendant or any competing physician will negotiate with, contract with, or otherwise deal with any payer or group of payers, including participating in or terminating any payer contract; or

any refusal to deal or threatened refusal to deal with any payer;

or

( communicating with any competing physician or facilitating the exchange of information between or among competing physicians about:

the actual or possible view, intention, or position of any defendant or his or her medical practice group, or any competing physician concerning the negotiation or acceptability of any proposed or existing payer contract or contract term, including the negotiating or contracting status of the defendant, his or her medical group, or any competing physician with any payer or group of payers, or

any proposed or existing term of any payer contract that affects:

the amount of fees or payment, however determined, that the defendant, his or her medical practice group, or any competing physician charges, contracts for, or accepts from or considers charging, contracting for, or accepting from any payer or group of payers for providing physician services;

the duration, amendment, or termination of any payer contract; or

the manner of resolving disputes between any parties to any payer contract.

The order also illegally legislates through the courts by requiring the physicians to adhere to the 1996 Department of Justice and Federal Trade Commission Statements of Antitrust Enforcement Policy in Health Care, which is not law but merely the subjective opinions of unelected government antitrust lawyers. The order also requires the physicians to make “all books, ledgers, accounts, records, data, and documents,†available for government inspection at any time in the next ten years.

Since this is an DOJ case, it is subject to final approval by a federal judge in Idaho. There’s a mandatory 60-day public comment period, after which the judge will almost certainly rubber stamp the order as being “in the public interest.†Still, there’s at least an opportunity to express some serious dissent to what’s transpired here.

2ND UPDATE: It turns out the Idaho physicians hired the guy who used to run the Antitrust Division’s litigation department — and developed the government’s anti-physician antitrust rules — to represent them. No wonder they settled without a fight.

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Locke, MD