By Scott F. Roberts The advent of federally subsidized private pay health insurance under the Affordable Care Act has the potential to expand the application of the federal anti-kickback statute beyond just Medicare, Medicaid, and Tricare. The Affordable Care Act (sometimes referred to as “Obamacare”) currently allows individuals to purchase and receive private health insurance …
Legislation Permitting Healthcare Providers to Negotiate Jointly with Health Insurers Introduced in Congress
By James M. Burns Legislation was recently introduced by Representative John Conyers (D-Michigan) that would permit healthcare providers to negotiate jointly with health insurers concerning contract terms without running afoul of the antitrust laws. The bill, the “Quality Health Care Coalition Act of 2014,” (H.R. 4077), has been referred to the House Judiciary’s Subcommittee on …
FTC Commissioner Criticizes Proposed Legislation That Would Permit Health Providers to Negotiate Jointly with Health Insurers
By James M. Burns In a February 26 speech before the Connecticut Bar Association, Federal Trade Commissioner Maureen Olhausen expressed strong opposition to proposed legislation that would create an antitrust exemption for collective negotiations with health insurers by otherwise competing health care providers. Describing such proposals, which have been introduced at both the federal and …
“Any Willing Insurer” Legislation Introduced in Pennsylvania
By James M. Burns A significant number of states have “Any Willing Provider” statutes that require a health insurer to admit all requesting providers into the health insurer’s preferred provider network. While some of these statutes are limited in scope (covering only pharmaceutical providers), others require insurers to admit any “willing” hospital or physician that …
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Health Insurers in Rhode Island and Western New York Sued by Providers for Alleged Antitrust Violations
By James M. Burns In the last two months, two new antitrust actions have been filed against health insurers that raise interesting issues about an insurer’s obligation to contract with a health care provider that it chooses not to deal with, and whether a refusal to do so can give rise to antitrust liability. In …
FTC Commissioner Addresses Tension Between the ACA, ACOs, and Antitrust Law
By Scott Roberts In a recent speech to a healthcare trade group in Washington, Federal Trade Commissioner Julie Brill addressed an issue of concern to many in the healthcare industry – the apparent tension between the Affordable Care Act (“ACA”), Accountable Care Organizations (“ACOs”), and antitrust law. Addressing this perceived tension, Commissioner Brill sought to …
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FTC Seeks to Derail Hospital’s Acquisition of A Physician Practice Group on Competitive Grounds
By James M. Burns The FTC, together with the Idaho Attorney General, recently announced that they have filed an action in the United States District Court for the District of Idaho seeking to block St. Luke’s Health System from acquiring Idaho’s largest independent, multi-specialty physician practice group, Saltzer Medical Group. In announcing the decision to …
Fraud and Abuse Concerns Regarding Physician Owned Medical Device Companies (With Application to All Physician Owned Entities)
On March 26, 2013, the United States Office of Inspector General (“OIG”) issued a Special Fraud Alert (the “Alert”) specifically addressing its longstanding fraud and abuse concerns regarding physician-owned distributorships (“PODs”) that earn revenue from the sale of implantable medical devices (including those that design and manufacture such devices under contractual arrangement) while generally noting …
Anti-Kickback Safe Harbors for Physician Groups
By Scott Roberts, Esq. The federal Anti-Kickback Statute (“AKS”) makes it unlawful to knowingly or willfully pay, offer, solicit or receive any “remuneration” in exchange for referrals of any services or items payable under a federal health care program. There are a number of “safe harbors” to this general prohibition, including safe harbors for office …
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FTC allows Organization Proposal to Negotiate Rates with Payors to Go Forward
By James M. Burns On February 13th, the Federal Trade Commission (“FTC”) issued an Advisory Opinion in which they indicated that they would not challenge a decision by an Oklahoma physician hospital organization (“PHO”) to negotiate rates jointly with payors as a horizontal price fixing agreement. As explained in the Opinion, the PHO was successful …
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