Arizona v. Maricopa County Medical Soc'y, 102 S. Ct. 2466 (1982) [hereinafter referred to as Maricopa].Google Scholar

See, e.g., United States v. American Soc'y of Anesthesiologists, 473 F. Supp. 147 (S.D.N.Y. 1979).Google Scholar

Cohen, H.P., IPAs and Per Se Rules: Arizona v. Maricopa County Medical Society, Law, Medicine & Health Care 9(4):8 (September 1981). See also Fried J.M., The Impact of Recent Antitrust Case Law on Health Care Professionals, Law, Medicine & Health Care 10(6): 254 (December 1982).Google Scholar

15 U.S.C. §§1-7 (1976).Google Scholar

15 U.S.C. §§41-58 (1976).Google Scholar

15 U.S.C. §1.Google Scholar

Section 2 of the Sherman Act proscribes monopolies. However, violation of Section 2 is unlikely to occur in the health care marketplace because of the number and diversity of health care providers. Maricopa is not appropriate for antitrust analysis under Section 2 which is therefore not addressed in this article.Google Scholar

Federal Trade Commission v. Brown Shoe Co., 384 U.S. 316, 322 (1966).Google Scholar

Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918).Google Scholar

National Soc'y of Professional Engineers v. United States, 435 U.S. 679, 692 (1978); Northern Pacific Rail Co. v. United States, 356 U.S. 1, 5 (1958).Google Scholar

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940).Google Scholar

United States v. McKesson & Robbins, Inc., 351 U.S. 305, 310 (1956).Google Scholar

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See United States v. Oregon State Medical Soc'y, 343 U.S. 326 (1952); United States v. American Soc'y of Anesthesiologists, 473 F. Supp. 147 (S.D.N.Y. 1979); Veizaga v. National Board for Respiratory Therapy, 1977-1 Trade Cas. (C.C.H.) para. 61, 274 (N.D. Ill. 1977).Google Scholar

A relative value guide is a list of medical procedures, described in medical terminology and assigned numbers known as “unit values.” The unit value places a value on every procedure in relation to the others in terms of difficulty, time, and other relevant factors. These guides are used in the medical profession to construct fee schedules. This is accomplished by multiplying the unit value by a “conversion factor.” Each physician, or group of physicians, has his or her own conversion factor, which is simply a dollar amount. See Havighurst, C. Kissam, P., The Antitrust Implications of Relative Value Studies in Medicine, Journal of Health Politics, Policy and Law 4(1):48 (1979); Note, Relative Value Guides and the Sherman Antitrust Act, Vanderbilt Law Review 33: 233 (1980).Google ScholarPubMed

Arizona v. Maricopa County Medical Society, 643 F.2d 553, 554 (9th Cir. 1981).Google Scholar

Id.Google Scholar

Id. at 556.Google Scholar

Id.Google Scholar

Maricopa , supra note 1, at 2469.Google Scholar

Id. at 2475.Google Scholar

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Id. at 2477.Google Scholar

Id. at 2478.Google Scholar

441 U.S. 1 (1979) [hereinafter referred to as BMI].Google Scholar

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BMI, supra note 27, at 9, quoting United States v. Topco Assoc., Inc., 405 U.S. 596, 607-08 (1972).Google Scholar

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Id. at 2479.Google Scholar

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Id. at 2478–79. The Court noted that Congress has exempted certain industries from the full reach of the Sherman Act. See, e.g., 7 U.S.C. §§291-292 (Capper-Volstead Act, agricultural cooperatives); 15 U.S.C. §§1011-1013 (McCarran-Ferguson Act, insurance); 49 U.S.C. §5b (Reed-Bulwinkle Act, rail and motor carrier rate fixing bureaus); 15 U.S.C. §1801 (newspaper joint operating agreements).Google Scholar

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Id. at 2481 (emphasis in original).Google Scholar

However, the dissent argued that the Court had before it an incomplete record which would not support a motion for summary judgment, and therefore refused to render an opinion as to the lawfulness of the challenged arrangement. Id. at 2485.Google Scholar

Id. at 2481, quoting Opinion of the Court, at 2472 (emphasis in original).Google Scholar

IPAs are probably sufficiently similar to FMCs to fall within the holding of Maricopa. Both are composed of individual practitioners who compete with one another for patients. Neither sells insurance or derives profits from the sale of health insurance policies.Google Scholar

296 F. Supp. 1121 (N.D. Ill. 1968), aff'd, 393 U.S. 534 (1969).Google Scholar

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It could be argued that courts should defer to the Department of Health & Human Services (HHS), and find that any risk arrangement approved by HHS as part of the HMO qualification process is sufficient to shield the IPA from per se classification. 42 C.F.R. Part 10, subpart F. However, since IPAs associated with federally qualified HMOs often place the physicians at risk for 15 to 20 percent of their fees (similar to non-qualified HMOs), the persuasiveness of such an argument will depend upon further clarification by the courts of the type and magnitude of risk required to escape per se classifications, and a decision as to whether such federal approval will be interpreted as an implied exemption from antitrust liability.Google Scholar

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While it may initially appear that an agreement between an HMO and an IPA would not be an agreement between competitors subject to challenge under the antitrust laws, recent decisions suggest that a court may ignore the existence of the IPA as a separate entity, and determine that the IPA is simply a group of competitors. In these cases, courts held that where a cooperative marketing entity, or a manufacturer, if substantially controlled by its members or licensees, imposes price restraints on such members or licensees, the underlying agreement is viewed as price-fixing by competitors. United States v. Sealy, Inc., 388 U.S. 350 (1967); United States v. Serta Assocs., Inc., 296 F. Supp. 1121 (N.D. Ill. 1968), aff'd, 393 U.S. 534 (1969). Under this analysis, the agreement between an HMO and an IPA may be viewed, not as an agreement between two non-competing entities, but as an agreement between a single entity and a group of competing providers. Hence, an exclusive dealing arrangement could be construed as a boycott. This possibility increases if the IPA controls the HMO.Google Scholar

See, e.g., Feldman v. Jackson Memorial Hosp., 509 F. Supp. 815 (S.D. Fla. 1981).Google Scholar

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Many of these cases are disposed of by the “interstate commerce” defense; in order to sue under the federal antitrust laws, there must be an impact on interstate commerce. See Wolf v. Jane Phillips Episcopal-Memorial Medical Center, 513 F.2d 684 (10th Cir. 1975); Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 536 F. Supp. 1065 (E.D. Pa. 1982). Where cases are brought by a single or a few providers, they are subject to challenge under the defense, and the defense is often successful. But cf. Mishler v. St. Anthony's Hosp., 1981–2 Trade Cas. (C.C.H.) para. 64, 342 (10th Cir. 1981); Feldman v. Jackson Memorial Hosp., 509 F. Supp. 815 (S.D. Fla. 1981); Amiri v. William Beaumont Hosp., 430 F. Supp. 875 (E.D. Mich. 1977).Google Scholar

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Id. at 548.Google Scholar

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Justice Stevens delivered the majority opinion, joined by Justices Brennan, White, and Marshall. Justice Powell wrote the dissenting opinion, in which Chief Justice Burger and Justice Rehnquist joined. Justices Blackmun and O'Connor did not participate in the considerations or decision of the case.Google Scholar