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IPAs and Per Se Rules: Arizona v. Maricopa County Medical Society

Published online by Cambridge University Press:  27 April 2021

Harry Philip Cohen
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Extract

The recent flurry of antitrust litigation in the health care industry is forcing the courts to reevaluate the legality of existing health care institutions under the Sherman Antitrust Act. One type of institution that poses significant antitrust questions is the independent practice association (IPA), an arrangement which consists of a contractual relationship between subscribers, physicians and an IPA corporate entity. The physicians agree to provide medical services to the IPA's subscribers, who pay a flat rate. In exchange, physicians are reimbursed at rates usually established by a fee schedule.

The Health Maintenance Organization Act of 1973 requires that an IPA, like an HMO, must “assume full financial risk on a prospective basis for the provision of basic health services…” This ensures that the IPA bears the risk that the cost of the services it renders will not exceed the value of the premiums it collects, giving it an incentive to contain costs.

Type
Article
Information
Law, Medicine and Healthcare , Volume 9 , Issue 5 , September 1981 , pp. 8 - 37
Copyright
Copyright © American Society of Law, Medicine and Ethics 1981

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References

P.L. 93-222 §1301(c)(2). While sometimes referred to as “open-panel health maintenance organizations,” IPAs must be distinguished from the conventional or closed-panel HMOs. IPAs are associations of physicians in traditional private practices. They provide prepaid health services to consumers, and attempt to control health care costs and improve the quality of medical services through peer review. See generally, Steinwald, C., Foundations for Medical Care (Chicago, Blue Cross Ass'n) (1971); and Egdahl, R., Foundations for Medical Care, New England Journal of Medicine 288(10): 491–98 (March 8, 1973).Google Scholar
Arizona v. Maricopa County Medical Society, 643 F.2d 553 (9th Cir. 1980) [hereinafter Maricopa].Google Scholar
49 U.S.L.W. 3663 (March 10, 1981).Google Scholar
15 U.S.C.A. §1.Google Scholar
National Society of Professional Engineers v. United States, 435 U.S. 679 (1978) [hereinafter NSPE].Google Scholar
Chicago Board of Trade v. United States, 426 U.S. 231 (1918).Google Scholar
Northern Pacific Railway v. United States, 356 U.S. 1 (1958).Google Scholar
See, e.g., United States v. Topco Associates, 405 U.S. 596 (1972) (market divisions per se illegal); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 1 (1958) (tying arrangements per se illegal).Google Scholar
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223(1940).Google Scholar
Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1 (1979) thereinafter BMI].Google Scholar
Id. at 7.Google Scholar
Id. at 9.Google Scholar
Id. at 20.Google Scholar
Id. at 19.Google Scholar
Id. at 10.Google Scholar
Maricopa, , supra note 2, at 556.Google Scholar
Id. at 557.Google Scholar
United States v. American Society of Anesthesiologists, 473 F. Supp. 147, 157 (S.D.N.Y. 1979), quoting from NSPE, supra note 5, at 692.Google Scholar
The individual user can negotiate with the copyright owner rather than purchase the blanket license, and the health care consumer can utilize physicians episodically rather than subscribe to the IPA.Google Scholar
See generally, Federal Trade Commission Bureau of Economics, Staff Report on the Health Maintenance Organization and Its Effects on Competition (July 1977).Google Scholar
See generally, Bloom, , IPAs as Valid Joint Ventures, National Health Lawyers Association Symposium on Antitrust in the Health Care Field (January 7-8, 1981); Federal Trade Commission Bureau of Competition Report, Medical Participation in Control of Blue Shield and other Open-Panel Medical Prepayment Plans (April 1979).Google Scholar
BMI, supra note 10, at 19.Google Scholar
Id.Google Scholar
Id. at 10.Google Scholar
Health Maintenance Organization Act of 1973, P.L. 93-222, codified at 42 U.S.C.A. §300c et seq.Google Scholar
Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) [hereinafter Goldfarb].Google Scholar
Maricopa, , supra note 2, at 556 (emphasis added).Google Scholar
United States v. American Society of Anesthesiologists, supra note 18.Google Scholar
Id. at 161.Google Scholar
“Implied repeal” is a judicial determination that a valid statute is superceded because it conflicts with the policy or operation of a subsequent statute. For the implied repeal to be effective there must be either. 1) a clear Congressional expression of intent to repeal; or 2) a positive repugnancy between the two statutes. See, e.g., Essential Communication Systems, Inc. v. A.T. & T., 446 F. Supp. 1090, 1094–95 (D.N.J. 1978) rev'd 610 F.2d 1114 (3d Cir. 1979).Google Scholar
BMI, supra note 10, at 15-16.Google Scholar
Notional Gerimedical Hosp. and Gerontology Center v. Blue Cross of Kansas City, 628 F.2d 1050 (8th Cir. 1980). For more on this case, see Berriman, W.T., Antitrust and Health Planning, Medicolegal News 9(3):4–9 (June 1981).Google Scholar
National Gerimedical Hosp. and Gerontology Center v. Blue Cross of Kansas City, 49 U.S.L.W. 4672 (June 16, 1981).Google Scholar
42 U.S.C.A. §300c et seq.Google Scholar
S. Rep. 93-129, 93d Cong. 1st Sess.Google Scholar
Id.Google Scholar
42 U.S.C.A. §300c-1(5)(A), (B).Google Scholar
See Goldfarb, , supra note 26; and NSPE, supra note 5.Google Scholar
Maricopa, , supra note 2, at 560.Google Scholar
Courts believed that self-imposed restraints on competition via professional regulation of members’ ethical behavior benefited the public and insured acceptable standards of service.Google Scholar
Goldfarb, , supra note 26, at 787.Google Scholar
Id. at 782-83.Google Scholar
Id. at 787-88.Google Scholar
Id. at 788, n. 17.Google Scholar
NSPE, supra note 5, at 692.Google Scholar
Id. at 696.Google Scholar
Id.Google Scholar
Id.Google Scholar
See, e.g., Viezaga v. National Board of Respiratory Therapy, (1977–1) Trade Cat. (CCH) §61,274 (N.D. Ill.) (suggesting a two-step analysis involving first a determination whether the challenged activity, by its nature and character, is “commercial” to which per se rules would apply; or noncommercial, to which Rule of Reason would apply).Google Scholar
Maricopa, , supra note 2, at 560 (citations omitted).Google Scholar
Id. at 564.Google Scholar