How can PPOs control prices without violating antitrust laws?
Preferred provider organizations (PPOs) have caused concern because they raise the question whether providers can establish mechanisms to control the price of medical care without violating antitrust laws. The U.S. Supreme Court recently decided in Arizona v. Maricopa County Medical Society that the practices of a physicians' organization which set fee schedules by majority vote constituted price fixing because "independent competing entrepreneurs" made the agreements. The decision implies that PPOs must carefully structure collective efforts to set prices in order to avoid unlawful agreement among competitors. To avoid antitrust exposure, hospitals may independently determine prices and contract individually with providers, or they may act as brokers for individual physicians, establishing fees and claims-processing procedures and then contracting with physicians who agree to these requirements. Setting fees independently may be difficult, however, since hospitals need to know what payment physicians will accept. Thus some physician involvement is probably inevitable. No antitrust liability results, however, if individual physicians are sampled in an information-gathering process but do not collectively set fees. In addition, a PPO that is structured as a partnership or other joint arrangement involving true risk sharing should withstand antitrust challenge. In recent business review letters, the Department of Justice approved two different PPO structures: A Hospital Corporation of America subsidiary would contract (nonexclusively) with providers, hospitals, and third party payers to treat the third party payers' beneficiaries at discounted rates. The charges would be negotiated individually with each physician and hospital. A management consultant firm would act as an intermediary between providers and third party payers, negotiating patient discounts but not participating in fee setting. A PPO need not be structured in every respect like these programs. Individual situations vary, and with sound antitrust advice, PPOs can avoid legal pitfalls.