Avoiding Antitrust Problems In Initial Collaboration Discussions Among Competing Health Care Providers
Hospitals and physicians keep hearing that new payment and delivery models demand collaboration among independent providers, but how can providers pursue possible opportunities given the restrictions imposed by antitrust laws? Given the harsh penalties for violating these federal and state laws, you may be reluctant to start or join discussions about alignment opportunities.
Providers interested in pursuing these conversations with competitors (i.e., anyone who is not part of the same organization that offers the same or similar goods or services) should follow a basic code of conduct in their preliminary discussions. Once they decide they are interested in exploring opportunities together, the providers should enter into a more formal confidentiality agreement to protect their individual interests as they work through the group process.
The following are six simple principles to include in a "code of conduct" for communicating with competitors about opportunities for collaboration and alignment:
First and foremost, keep in mind that e-mails and electronic files are permanent records. Once you create, send, and/or store an e-mail or electronic document, you are answerable for its content. Assume that any attempt to recall, hide, revise, or delete any electronic record will fail, and such actions could be construed as an attempt to conceal inappropriate behavior. Always think twice before hitting the send or save key.
Second, until the parties enter into a formal confidentiality agreement, do not assume any of your communications are confidential. Instead, assume anything you say or write to one of your competitors can be printed on the front page of the local newspaper or posted on-line.
Third, in dealing with competitors, there are five subjects that should be off limits, regardless of the way in which the parties communicate:
(1) Price fixing: any form of agreement (written, verbal, or inferred from conduct) among competitors that raises, lowers, or stabilizes prices or competitive terms.
(2) Bid rigging: competitors agreeing in advance which person/entity will win a bid.
(3) Market division or customer allocation: an agreement among competitors to assign sales or service territories or customers.
(4) Group boycott/refusals to deal: an agreement among competitors not to do business with targeted individuals or businesses except on agreed-upon terms.
(5) Exclusive member benefits: an agreement among competitors to withhold the benefits of their business association from would-be members who offer a competitive alternative that consumers want. If the agreement is exclusive to members and it is difficult for non-members to compete without access to those benefits, the agreement is a barrier to competition.
Any communication which could be interpreted as an attempt to garner support for such an agreement or as evidence of such an agreement should be avoided. Review all written communications prior to distribution to ensure they cannot be construed as furthering an impermissible purpose.
Fourth, communications should focus on working together to achieve clinical integration, quality improvement, and efficiency. Do not discuss banding together to gain economic clout to negotiate with insurance companies, employers, health systems, or other third parties.
Fifth, do not discuss referrals as leverage to get another provider (physician, hospital, long-term care, etc.) to act in a particular manner.
Finally, as a practical matter, avoid side-bar conversations. At this stage in the process, the goal is to develop trust among the participants needed to engage in productive conversations and negotiations. As soon as someone gets wind of the fact that x and y have been talking (and presumably making decisions for the entire group), it will be difficult to win back that party's trust.
Of course, every situation is unique, and you may require experienced advisors to guide you through more treacherous waters. By agreeing to such a code of conduct, however, you can start your collaboration-focused conversations on the right foot, rather than stumbling out of the gate.