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Sunday, Oct 1, 2023

COMMENTARY–Antitrust Relief Bill Is Not the Right Medicine

In the next few weeks, Congress is scheduled to consider antitrust legislation that would dramatically increase the cost of health insurance and negatively impact consumers.

HR-1304, the so-called Quality Health-Care Coalition Act of 1999, sponsored by California Rep. Tom Campbell, R-San Jose, seeks to allow certain health professionals to bargain collectively without forming a union or other legitimate collective bargaining unit. This would exempt certain health professionals from current antitrust laws.

The prime objective of the antitrust laws is to promote consumer welfare by preserving and promoting competition. First enacted 100 years ago, the federal antitrust laws include the Sherman Act, Clayton Act and Federal Trade Commission Act. These laws prohibit price fixing, boycotts, and similar agreements among competitors that produce anticompetitive effects.

The Campbell bill, however, undermines efforts to control health care costs for consumers and would limit consumer choices among health care plans and providers. The bill does not protect patients’ rights or assure that the legitimate concerns of health care professionals will be addressed. Instead, it provides incentives for health care professionals to engage in price-fixing, boycotts, and market allocation agreements that would otherwise be illegal under the antitrust laws.

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Under the bill, for example, nothing would prevent all the doctors in a market from combining into a single cartel and demanding exorbitant fee increases at the expense of their patients and taxpayers who fund the Medicare and Medicaid programs.

Restricts Non-Physician Practitioners

Also, it would permit such cartels to negotiate unfair and exclusionary agreements with health plans that could restrict non-physician providers , such as nurses, nurse midwives, nurse practitioners, nurse anesthetists, nurses, social workers, or physical therapists.

This legislation will result in higher health care costs for patients, employers, and the Medicare and Medicaid programs and will put non-physician providers at an unfair competitive disadvantage.

Supporters of HR-1304, led by the American Medical Association, claim the bill is needed to “level the playing field” against health plans. Exemption from antitrust laws will not level the playing field for non-physician providers but will create additional noncompetitive obstacles.

Physicians Already Organized

Currently, no exemption is needed to permit physicians to organize in ways that will benefit consumers or to discuss legitimate quality of care issues. Indeed, in 1996 the Department of Justice and Federal Trade Commission issued Health Care Antitrust Guidelines to explain how providers can organize networks and joint ventures to contract, or compete directly, with health plans.

Through such ventures, providers can work together to offer better care or their own alternatives to health plans. HR-1304 undermines that approach by allowing providers to form cartels that will limit choices and not benefit consumers, and whose only tangible result may be to increase provider incomes at the expense of patients’ access to care.

Moreover, the bill is inconsistent with the labor antitrust exemption granted to other workers. The antitrust labor exemption seeks to balance the importance of competition with our national labor policy.

Although they enjoy an antitrust exemption, labor negotiations are subject to strict rules under the National Labor Relations Act governing the rights and responsibilities of both workers and employers, and are overseen by the National Labor Relations Board.

Physicians and other health care professionals, to the extent they are employees, are covered by the existing antitrust labor exemption.

Opposed By FTC, DoJ

Recognizing this bill is not in the best interests of consumers, the Federal Trade Commission and the Department of Justice, the agencies entrusted with enforcement of our nation’s antitrust laws, have registered opposition to this legislation.

Likewise, the Consumer Federation of America, American Hospital Association and American Nurses Association are among a diverse group of organizations that oppose this bill.

A recent study of HR-1304, conducted by Charles River Associates, estimates that the annual increase in the cost of personal health care services will be between $35 billion and $80 billion. Some 44 million Americans already lack insurance coverage. HR-1304 would exacerbate this dire situation and expose up to 2 million more Americans at risk of losing their health insurance.

Simply put, an antitrust exemption is not the right medicine for the health care system.

Snell is the immediate past chair of the Political and Economic Affairs Section of the American College of Nurse Midwives, and director of the Nurse Midwifery and Women’s Health Care Nurse Practitioner Graduate Programs at the University of Southern California.


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