Avoiding antitrust issues on Listservs
By Legal and Regulatory Affairs Staff
Feb. 28, 2013—Active discussion about the new psychotherapy codes on various APA and APA Practice Organization (APAPO) Listservs has prompted a substantial increase in questions to the APA Practice Office of Legal and Regulatory Affairs (LRA) about antitrust constraints on Listserv discussions related to reimbursement rates.
Several years ago, LRA worked closely with APA’s the Office of General Counsel (OGC) (which represents both APA and APAPO), and APA’s outside antitrust counsel to liberalize the antitrust policy for APA and APA Practice Organization Listservs. That policy allows practitioners to discuss across-the-board fees set by private insurers and government payors like Medicare – as long as those discussions are not accompanied by commentary that could be construed as calls to boycott payors, or statements of what the fee should be.
Section A.2 of the antitrust policy states:
Generally applicable fees set and announced by insurers or other third party payors may be discussed – as long as the discussion is not accompanied by any commentary stating or implying: (a) that other psychologists should not accept the rate or should not deal with the payor (see also Section B below on boycotts) or (b) what the rate should be.
Examples of what is ok (when not accompanied by improper commentary):
Did you hear that Company A is now paying $110 for 90808?
Medicare announced that its rate in this area for CPT Code X will now be $113.50. Company Z pays $105 for the same code.
Examples of what is not ok:
Company X’s new rate of $93 is unacceptable.
If Company Y goes forward with that rate cut, a lot of psychologists are going to leave its network.
I can’t believe Company Z is only paying $90 for that code. If you adjust what they paid in 1990 for inflation, we’d be getting $150 instead.
The notion behind this liberalization is to distinguish between high- and low-risk fee discussions. Discussions of the fees that psychologists themselves set are dangerous because antitrust regulators could use those discussions as evidence that psychologists are comparing competing rates in furtherance of an agreement to fix rates. Those discussions are still prohibited.
By contrast, individual psychologists simply do not have the market power to “price fix” the across-the-board rates set by large health insurers, Medicare and Medicaid. Thus, those discussions carry a low antitrust risk – as long as they are not accompanied by comments that could be viewed by regulators as efforts to boycott some or all payors, or to have competing psychologists agree on a minimum price they’ll accept.
Psychologists do have to be careful about some seemingly innocent language. Many health care providers that have been caught crossing the line by the Federal Trade Commission (FTC) were not careless enough to explicitly say in writing that they are agreeing to fix prices or boycott a company. Thus, the FTC investigators look with a cynical and prosecutorial eye at statements that might have been posted quite innocently.
A psychologist may be innocently stating a fact when he or she says “if you consider inflation, Company X was paying us $100 back in 1985.” But such statements should not be put on lists because a regulator may view that as a signal of the minimum price that competing psychologists on the list should accept. The psychologist and the state and national associations connected with the Listserv may be able to eventually prove that the psychologist had no nefarious intent with that statement. But the major antitrust risk is the high cost of defending an antitrust investigation and complying with an onerous consent decree by the FTC that may be in effect for decades. These concerns are heightened by the current Administration’s increased antitrust enforcement.
“The liberalized rules allow our members to discuss on lists almost everything they legitimately need to discuss,” says Alan Nessman, JD, senior special counsel in LRA who works on antitrust issues as well as insurance and managed care advocacy. “We regret that the rules sometimes limit an understandable desire to vent, such as through calls for all psychologists to leave managed care.”
Nessman encourages members to keep in mind that if they keep themselves and us out of antitrust trouble by following these fairly reasonable limitations, APAPO is better able to focus on lobbying, lawsuits, agency complaints and other advocacy against insurance abuses.
In addition to describing the appropriate limits of fee discussions, the antitrust policy gives further guidance on: boycotts (Section B), agreements not to compete (Section C), and discussions of wages, salaries and costs (Section A.4). The examples provided within each section are helpful to understanding the rules.
But the antitrust policy and examples cannot cover everything. If you uncertain about how the rule applies to a particular post or discussion, ask those assigned to monitor the list for clarification. If they don’t know the answer, you or preferably the list monitor can contact LRA for clarification by email or by phone at (202) 336-5886 (LRA assists the OGC on antitrust issues). Please note that the OGC directly handles questions about all of the other rules governing Listservs, such as questions about commercial use.