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Hospital-Sponsored Preferred Provider Organizations

Published online by Cambridge University Press:  28 April 2021

Extract

The recent growth of new forms of health care delivery has been encouraged by the increase in competition in the health care industry. Several factors account for this increase in competition. First, there is an overabundance of physicians in many areas of the United States. In addition, many overbedded hospitals now compete for the same patients to fill their beds. Finally, health maintenance organizations and other alternative delivery systems, such as ambulatory surgical care centers, ‘surgicenters,” and birthing centers, are capturing more of the patient market and reducing hospital inpatient utilization.

Employers, insurers, and the government, as the third-party payers who most often pay for an individual's medical care, hope to take advantage of this new competitive environment and to moderate the increase in their health care expenditures.

Type
Article
Copyright
© 1984 American Society of Law, Medicine & Ethics

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References

The Census Bureau has reported that the number of new physicians in the United States increased 40 percent between 1970 and 1980. Waldholz, M., To Attract Patients, Doctors and Hospitals Cut Prices to Groups, Wall Street Journal, November 22, 1983, at 1, col. 1.Google Scholar
The Upheaval in Health Care, Business Week, pp. 44, 46 (July 25, 1983).Google Scholar
See generally Ellwein, L. Gregg, D.D., An Introduction to Preferred Provider Organizations (PPOs) (Inter-Study, Excelsior, Minn.) (1982). See also Preferred Provider Organizations and “Direct Provider Contracting,” Wisconsin Medical Journal 82(5): 2023 (May 1983); Kraft J.G., Preferred Provider Organizations. Addressing the Legal Issues, Healthcare Financial Management 37(8):10–16 (August 1983); Finke R.K. Gary M., Physicians and PPOs: Antitrust Lessons from Maricopa, Hospital Medical Staff 12(7): 10–15 (July 1983).Google Scholar
29 U.S.C. §§1001–1462 (1982).Google Scholar
Id. §1103.Google Scholar
Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205 (1979) [hereinafter referred to as Royal Drug]; Security Exchange Commission v. Variable Annuity Life Ins. Co., 359 U.S. 65, 73 (1959); Helvering v. Le Gierse, 312 U.S. 531, 539 (1941).Google Scholar
Royal Drug, supra note 6, at 225–26.Google Scholar
15 U.S.C. §1012 (1982). See Jordan v. Group Health Ass'n, 107 F.2d 239 (D.C. Cir. 1939); California Physicians’ Service v. Garrison, 172 P.2d 4 (Cal. 1946).Google Scholar
Royal Drug, supra note 6, at 211–12. See also Keeton, R. C., Insurance Law §1.2 (a) (West Publishing Co., St. Paul, Minn.) (“[i]nsurance is an arrangement for transferring and distributing risk”).Google Scholar
Royal Drug, supra note 6, at 214.Google Scholar
458 U.S. 119 (1982).Google Scholar
Id. at 126.Google Scholar
Id. at 133–34. See also Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 484 (4th Cir. 1980), cert, denied, 450 U.S. 916 (1981) (insurer's decision regarding whom to reimburse for psychotherapy treatment is not part of the business of insurance).Google Scholar
E.g., N.Y. Ins. Law §250 (Consol. Supp. 1983–1984).Google Scholar
E.g. Pa. Cons. Stat. Ann. tit 40, §756.2(c). (Purdon 1971).Google Scholar
Cal. Ins. Code §10133 (West Supp. 1983).Google Scholar
H.R. 2956, 98th Cong., 1st Sess. (1983).Google Scholar
See, e.g., Mass. Gen. Laws Ann. ch. 176G, §1 (West Supp. 1984).Google Scholar
29 U.S.C. §1002(1) (1982).Google Scholar
Id. §1144(a). See Shaw v. Delta Air Lines, Inc., 103 S.Ct. 2890 (1983).Google Scholar
29 U.S.C. §1144(b) (2) (A) (1982).Google Scholar
Id. §1144(b) (2) (B).Google Scholar
A court may carefully examine a plan to make sure it is a true employee welfare benefit plan under ERISA. See Bell v. Employee Security Benefit Ass'n, 437 F. Supp. 382, 390 (D, Kan. 1977). See also Brummond, D. J., The Legal Status of Uninsured, Noncollectively-Bargained Multiple-Employer Welfare Trusts under ERISA and State Insurance Law, Syracuse Law Review 28(3): 701–40 (1977).Google Scholar
15 U.S.C. §1.Google Scholar
See, e.g., Mass. Gen Laws Ann. ch. 93, §§1–13 (West 1984); Cal. Bus. & Prof. Code §§16, 600–758 (West 1979); Ill. Ann. Stat. ch. 38, §60-1-11 (Smith Hurd 1977).Google Scholar
Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 (1951). Payer or broker-based PPOs are not as susceptible to antitrust challenge as provider-based PPOs, because they should not involve horizontal arrangements among providers. See Advisory Opinion to Health Care Management Associates, 101 F.T.C. 1014, 1016 (June 7, 1983): The proposed Cooperating Provider Program, in essence, would be a form of vertical arrangement between individual sellers of services (cooperating providers) and purchasers of services (third-party payers, on behalf of their insureds or beneficiaries) for the sale and purchase of health care services. HCMA proposes to facilitate these transactions by performing certain functions much like an agent or brokerhellip;. Also, the Cooperating Provider Program involves no agreements among either competing providers or third party payers concerning any aspect of their involvement in the program.Google Scholar
457 U.S. 332 (1982) [hereinafter referred to as Maricopa].Google Scholar
See Federal Trade Commission, Statement of Enforcement Policy, 46 Fed. Reg. 48,982 (October 5, 1981). But see Glen Eden Hosp., Inc. v. Blue Cross & Blue Shield of Michigan, No. 83-1165 (6th Cir. July 16, 1984) (hospitals participating in a Blue Cross reimbursement plan may be involved in a structural price-fixing conspiracy under antitrust law if the hospitals established the original reimbursement rates over which they retained veto power to block any change).Google Scholar
Times-Picayune Publishing Co. v. United States, 345 U.S. 594 (1953). Note, however, that if the PPO brokerage company has dominant market power in a relevant geographic market, its unilateral refusal to deal with a certain provider may violate antitrust law under a monopoly analysis. See 15 U.S.C. §2; Justice Department Business Review Letter to Hospital Corporation of America (September 21, 1983): [I]f a large percentage of hospitals in any relevant geographic market should affiliate with hellip; [the Plan] or if a large percentage of doctors in any geographic market should become affiliated only with [the Plan], the Antitrust Division would be likely to give further consideration to the question of whetherhellip; [the Plan's] operation hellip; has the purpose or effect of impeding the development of other PPOs, facilitating collusion or otherwise reducing competition among providers or hospitals.Google Scholar
Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959).Google Scholar
Mutual Fund Investors v. Putnam Management Co., 553 F.2d 620, 626 (9th Cir. 1977); De Filippo v. Ford Motor Co., 516 F.2d 1313, 1318–21 (3rd Cir.), cert, denied, 423 U.S. 912 (1975). This analysis may be based on whether the facts indicate that the boycott is “horizontal’ (agreement between competitors at the same level of market structure) or “vertical” (agreement between competitors at different levels of market structure). While horizontal boycotts are analyzed under the per se rule, vertical boycotts are generally analyzed under the rule of reason. See Oreck Corp. v. Whirlpool Corp., 579 P.2d 126 (2d Cir.), cert, denied, 439 U.S. 946 (1978). But see Jefferson Parish Hospital District No. 2. v. Hyde, 104 U.S. 1551 (1983) (if a boycott of a physician is pursuant to a contract which constitutes a “tying arrangement,’ it may be illegal per se under antitrust laws).Google Scholar
Maricopa, , supra note 27, at 356.Google Scholar
Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 21–22 (1977).Google Scholar
See Louis, M.B., Restraints Ancillary to Joint Ventures and Licensing Agreements: Do Sealy and Topco Logically Survive Sylvania and Broadcast Music? Virginia Law Review 66(5): 879, 899 (June 1980).Google Scholar
Justice Department Review Letters to the Hospital Corporation of America, and to Health Care Management Associates (September 21, 1983).Google Scholar
See, e.g., Dr. Allison, Dentist, Inc. v. Allison, 196 N.E. 799, 800 (Ill. 1935).Google Scholar
See e.g., People ex rel. State Board of Medical Examiners v. Pacific Health Corp., 82 P.2d 429, 430 (Cal. 1938), cert, denied, 306 U.S. 633 (1939).Google Scholar
Id. at 431; Group Health Ass'n v. Moor, 24 F. Supp. 445, 446 (D.D.C. 1938), aff'd sub nom. Jordan v Group Health Ass'n, 107 F.2d 239 (D.C. Cir. 1939).Google Scholar
Garcia v. Texas State Board of Medical Examiners, 384 F. Supp. 434 (W.D. Tex. 1974), aff'd mem., 421 U.S. 995 (1975).Google Scholar
E.g., Ill. Rev. Stat. ch. 32 §§631 et seq. (Smith-Hurd 1970).Google Scholar
N.Y. Pub. Health Law §§4401–4411 (Consol. 1976 & Supp. 1982); N.J. Stat. Ann §17:48-Al (West 1963). The federal code has also granted an express exemption to HMOs. 42 U.S.C. §300e-10 (1981).Google Scholar
E.g., Greisman v. Newcomb Hosp., 192 A.2d 817 (N.J. 1963) (hospital may be subject to 14th Amendment because of its public purpose).Google Scholar
Wickline v. State of California, Cal. Civ. No. NWC 60672 (1982).Google Scholar
I.R.C. §501(c) (3).Google Scholar
In re Whether Nonprofit Organizations Composed of Physicians and Pharmacists that are under Contract to Provide Health Services for a Fee to Prepaid Medical Plan Subscribers Qualify for a Tax Exemption as a Social Welfare Organization under Section 501(c)(4), G.C.M. 38894 (September 27, 1982).Google Scholar
Treas. Reg. §53 4945 5 (1984).Google Scholar
Mass. Gen. Laws Ann. ch. 6A, §§3172 (West Supp. 1984–85).Google Scholar