Agenda
for Joint FTC/DOJ Hearings on Health Care and Competition
Law and Policy
September
2003
Wednesday,
September 24, 2003
Morning Session 9:15 a.m. – 12:30 p.m.
Title: Physician Product
and Geographic Market Definition
How should the relevant product and geographic markets
for physician services be defined and measured?
How do quality and reputation affect product market
definition and competition? How common is price
variation among physicians providing comparable
services in any given market? To what extent do
patients and payors factor price variation into
their decision-making? How, if at all, does integration
allow physicians to exercise market power or constrain
them from doing so? What are the barriers to entry
in physician markets? Do these barriers vary in
different geographic markets or at different points
in a physician’s career? What evidence, if
any, indicates that physician concentration and
price are related? How does managed care penetration,
individual practice association (“IPA”)
participation, physician concentration, and other
factors affect physician reimbursement?
Panelists:
Wednesday,
September 24, 2003
Afternoon Session 2:00 p.m. – 5:00 p.m.
Title: Physician Information
Sharing
What kinds of information (both price and non-price)
are physicians who provide services in separate
practices sharing (1) among themselves; (2) with
payors; and (3) with others such as employer organizations,
public interest groups and the media? Under what
circumstances, if any, does such information sharing
pose an unacceptable risk of competitive harm? What
forms of aggregation might permit the sharing of
pricing data and other information among competing
physicians, without facilitating tacit or explicit
coordination? What, if any, are the potential procompetitive
benefits and anticompetitive risks of physician
surveys of price, payor reimbursement amounts, and
non-price information? What, if any, are the likely
effects on physician competition of the recent business
review letter issued by the DOJ and the advisory
opinion issued by the FTC regarding such sharing
of information in Washington and Dayton, respectively?
What steps have providers taken to reduce the risk
that their collective sharing of price or non-price
information with payors or others might raise antitrust
concerns?
Panelists:
Thursday,
September 25, 2003
Morning Session 9:15 a.m. – 12:30 p.m.
Title: Physician IPAs:
Patterns and Benefits of Integration
Individual practice associations (“IPAs”)
are groups of independent physicians that contractually
form a physician network joint venture that can
contract with insurance plans. IPAs can integrate
financially, clinically, or both. Some IPAs have
adopted common medical protocols and made other
efforts to clinically integrate. Other IPAs focus
on contractually sharing risk, and devote minimal
attention to clinical integration. Does one structural
or contractual form of IPAs predominate in the market?
Are differences in organizational structure and
function related to geographic location, specialty,
or other factors? For example, are multi-specialty
IPAs structurally or functionally different than
single-specialty IPAs? What are the regulatory and
economic constraints on IPAs? Do IPAs enhance efficiency
and quality? What types of clinical and financial
integration have IPAs adopted? What, if any, strategic
advantages do IPAs offer independent physicians,
and how do these organizations affect the clinical
and financial decisions of participating physicians?
Panelists:
- Bartley
Asner, MD, California Association of Physician
Groups
- Lawrence
Casalino, M.D., [Document
2], [Document
3], [Document
4], [Document
5], University of Chicago
- Curt
R. Hawkinson, American Association of
Physician Assistants
- Albert
Holloway, The IPA Association of America
- Markus
H. Meier, Federal Trade Commission
Thursday,
September 25, 2003
Afternoon Session 2:00 p.m. – 5:00 p.m.
Title: Physician IPAs:
Messenger Model
The messenger model has attracted considerable criticism
from health care providers. What is the basis for
that criticism? How prevalent and functional are
the messenger model arrangements set forth in the
1996 Statements of Antitrust Enforcement Policy
in Health Care jointly issued by the DOJ and FTC?
What improvements could be made to those arrangements
without increasing the risk of competitive harm?
What approaches or methods could providers use as
efficient alternatives to the messenger model arrangements
described in the Health Care Policy Statements?
How timely and effective has Agency intervention
been with regard to anticompetitive IPA conduct?
Panelists:
- J. Edward Hill, M.D., American Medical
Association
- Arthur N. Lerner, Crowell & Moring,
LLP
- David
Marx, Jr., McDermott, Will & Emery
- Jeff
Miles, Ober, Kaler
- Richard
D. Raskin, Sidley & Austin
- Douglas
C. Ross, Davis, Wright & Tremaine,
LLP
Friday, September 26, 2003
Morning Session 9:15 a.m. – 12:30 p.m.
Title: Physician Unionization
Many employed physicians and other allied healthcare
service providers are unionized. Expanding the scope
of physician unionization to include non-employee
physicians has been proposed to address disparities
in bargaining power between payors and providers.
What is known about the effects of unionization,
if any, on the cost, quality, and availability of
health care to consumers? Does collective negotiation
focus on enhanced quality, higher salaries/prices
for the services that are being provided, or both?
Panelists:
Friday,
September 26, 2003
Afternoon Session 1:30 p.m. – 4:30 p.m
Title: Group Purchasing
Organizations
The hospital group purchasing organization industry
is currently in a state of flux as individual GPOs
begin to modify their membership requirements and
contracting practices in response to recent Congressional
and public criticism. Given the recent changes,
what current practices or attributes of the industry,
if any, raise legitimate antitrust concerns? In
particular, how prevalent are bundling of products,
lengthy manufacturer/GPO sole source contracts,
and high hospital/GPO commitment contracts? Does
the analysis of Health Care Policy Statement 7 on
joint purchasing arrangements remain valid, or should
it be modified? In particular, should the safety
zone provision in Health Care Policy Statement 7
for purchases that account for less than 35 percent
of the total sales of the purchased product or service
in the relevant market be modified? What, if any,
are the circumstances under which bundling is anticompetitive
or procompetitive? What is the proper approach for
determining whether the term of a particular manufacturer/GPO
sole source contract is sufficiently long to, on
balance, harm competition rather than promote it?
Panelists:
Tuesday,
September 30, 2003
Morning Session 9:15 a.m. – 12:30 p.m.
Title: International
Perspectives on Health Care and Competition Law
and Policy
A number of countries other than the United
States have grappled with the application of competition
law and policy to health care. How do other countries
apply competition law to their systems for the coverage
and delivery of health care services? What, if any,
is the applicability of those experiences to U.S.
competition law and policy?
Introduction
- Commissioner Mozelle W. Thompson
Panelists:
- Sitesh Bhojani, Commissioner Australian
Competition & Consumer Commission
- Bruce Cooper, Australian Competition &
Consumer Commission
- Michael Jacobs, DePaul Law School
- Dr.
Liu, Len-Yu, Fair Trade Commission
- Declan
Purcell, [Document
2] Irish Competition Authority
Tuesday,
September 30, 2003
Afternoon Session 2:00 p.m. – 5:00 p.m.
Title: Medicare and
Medicaid
Medicare and Medicaid are major purchasers of health
care services. For certain populations and illnesses,
they are the sole purchaser of services, and their
actions have spill-over effects on the rest of the
market. How should the government’s roles
as regulator and purchaser of health care services
be reconciled? How can the government utilize its
purchasing power to encourage the disclosure of
information and make healthcare coverage and delivery
markets more efficient? What, if any, are the limitations
on the government’s ability to employ its
purchasing power in this fashion? What steps, if
any, should the government take or avoid so that
its purchasing power does not harm consumers and
competition?
Panelists:
Wednesday,
October 1, 2003
Morning Session 9:15 a.m. – 12:30 p.m.
Title: Remedies: Civil/Criminal
Health care antitrust violations, like other antitrust
violations, can be addressed through both civil
and criminal enforcement proceedings. With respect
to civil enforcement, under what circumstances,
if any, should the Agencies seek relief beyond merely
prohibiting the unlawful conduct? What are the comparative
advantages and drawbacks of structural remedies
such as dissolution and divestiture versus conduct
remedies such as membership bars, restitution and
firewalls? Have the civil remedies employed in past
cases been effective? Have the Agencies sufficiently
monitored and enforced compliance with final judgments
once they have been entered?
With respect to criminal enforcement,
prosecutions of health care professionals by the
DOJ are relatively rare. What circumstances, if
any, justify criminal enforcement in health care
antitrust cases, and what are the impediments to
such prosecutions? Given the rarity of criminal
prosecutions, are civil remedies adequate? How,
if at all, should the availability of private treble
damages affect the relief sought by the Agencies?
What changes in remedies might make the application
of competition law to health care more effective?
Panelists:
- Jack
Bierig, Sidley & Austin
- James A. Donahue, III,
Pennsylvania Office of the Attorney General
- Kevin Grady, Alston
& Bird
- Gail Kursh, Department
of Justice
- Kevin
J. O'Connor, [Addendum
Documents] Godfrey & Kahn
- Melvin H. Orlans, Federal
Trade Commission
- Toby Singer, Jones
Day
- Gregory Vistnes, Charles
River Associates
Last Updated:
Tuesday, November 25, 2003
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