Model be­hav­ior

For docs look­ing to form an IPA, nav­i­gat­ing an­titrust is­sues can be tricky

Modern Healthcare - - Legal Affairs -

Cur­rent trends aside, not all physi­cians want to be em­ployed, but many are find­ing the chal­lenges of main­tain­ing an in­de­pen­dent prac­tice more trou­ble than they are worth. One op­tion avail­able to these doc­tors is to hook up with like-minded souls in an in­de­pen­dent physi­cian as­so­ci­a­tion, but an­titrust is­sues may dis­cour­age even the bravest go-it-aloner.

“There are a lot of dark halls where you hope no one jumps out and grabs you,” says Dr. Rus­sell Libby, pres­i­dent of the Vir­ginia Pe­di­atric Group and chief of the gen­eral medicine sec­tion at the Inova Fair­fax Hos­pi­tal for Chil­dren.

Libby and his part­ners re­cently in­cor­po­rated the by­laws for the clin­i­cally in­te­grated Health Con­nect IPA and are in the process of de­vel­op­ing a time­line and busi­ness plan as well as look­ing at how to in­te­grate the in­for­ma­tion tech­nol­ogy sys­tems of some 250 doc­tors who will be part of the new or­ga­ni­za­tion. Need­less to say, the doc­tors have called their lawyers.

“Some think that, when your mo­ti­va­tions are pure, you won’t run afoul of the an­titrust laws,” Libby says. “But we will use legal coun­sel ev­ery step of the way— I can as­sure you of that.”

While some have viewed the doc­tors’ ef­forts as a re­buke of the Inova sys­tem, Libby says it’s any­thing but that be­cause health sys­tems can­not af­ford to hire all the physi­cians they need to build a net­work. Plus, he says, it’s not easy for sys­tems to build re­la­tion­ships with—let alone build med­i­cal of­fice build­ings for—doc­tors with whom the sys­tem has no prior his­tory.

“This won’t be any­thing but a bless­ing to them,” Libby says of the new IPA.

Dr. Eric Nielsen, a vice pres­i­dent with the Cam­den Group con­sul­tancy, agrees. “It seems to be a good model,” he says. “Be­cause hos­pi­tals can’t em­ploy them all, and they don’t all want to be em­ployed.”

Libby says there are two types of physi­cian in­de­pen­dence: Full au­ton­omy or be­ing part of a nonem­ployed group that con­sists of in­de­pen­dent prac­tices where you can have your own hi­er­ar­chy, cre­ate your own work en­vi­ron­ment, and “de­sign and de­ter­mine how you get paid.”

“If you are used to full au­ton­omy, you’re not go­ing to do well in that type of prac­tice,” he says. “You might as well con­tinue your solo concierge prac­tice and hope to find peo­ple who will like you.”

Ac­cord­ing to Jeff Miles, who chairs the an­titrust and competition group and is prin­ci­pal with the health law group at the Bal­ti­more­based law firm Ober Kaler, doc­tors have four mod­els to choose from with IPAs: They can form a risk-shar­ing fi­nan­cially in­te­grated group; a data-shar­ing-for-qual­ity-im­prove­ment-pur­poses clin­i­cally in­te­grated group; they can em­ploy the “mes­sen­ger,” non-ne­go­ti­at­ing model; or they can do none of the above— which he doesn’t rec­om­mend.

“You can break the law and take your chances—which some have done,” Miles says. “Some have got­ten away with it, and some haven’t.”

With the mes­sen­ger model, Miles ex­plains how it in­volves ask­ing a health plan to make an of­fer and then tak­ing that of­fer to each mem­ber of the IPA to in­di­vid­u­ally ac­cept or re­ject.

On May 10, the Fed­eral Trade Com­mis­sion set­tled a case in­volv­ing the BSA Provider Net­work, an Amar­illo, Texas-based IPA af­fil­i­ated with Bap­tist St. An­thony’s Health Sys­tem. The FTC ac­cused BSA of op­er­at­ing a “re­verse mes- senger model,” in which the net­work re­port­edly sur­veyed its mem­bers, de­vel­oped a fee sched­ule and then of­fered it to pay­ers. In the set­tle­ment, BSA ad­mit­ted to no wrong­do­ing but agreed to not con­duct joint ne­go­ti­at­ing in the fu­ture. BSA did not re­spond to a re­quest for com­ment.

“The ne­go­ti­a­tion trig­gers the prob­lem,” Miles says, be­cause ac­cord­ing to the FTC, “when you’re ne­go­ti­at­ing prices as a group with a man­aged-care plan, the ne­go­ti­a­tions con­sti­tute a form of hor­i­zon­tal price-fix­ing.”

Ridg­way, Colo.-based health­care at­tor­ney Leah Gates is coun­sel for the famed Mesa County Physi­cians IPA, one of the old­est such or­ga­ni­za­tions in the coun­try, and she says the com­po­si­tion of ev­ery IPA is a lit­tle bit dif­fer­ent—much to the dis­may of those seek­ing the “sil­ver bul­let or magic pill” to make them suc­cess­ful.

“Avoid ‘clin­i­cal in­te­gra­tion in a box’—I’ve had some of­fices call me and say: ‘What is it, in five words or less, that you do?’ ” she says. “One thing they don’t want to do is have lawyers draft pa­pers that look good to the FTC but are not some­thing the physi­cians want to prac­tice un­der.”

Be­fore join­ing the Cam­den Group, Nielsen was chief med­i­cal of­fi­cer of the Greater Rochester (N.Y.) IPA and helped guide it into clin­i­cal in­te­gra­tion. Now he ad­vises oth­ers on how to do it.

“GRIPA is still looked at as a model be­cause it was well rec­og­nized by the FTC,” he ex­plains. “Now I’m help­ing other or­ga­ni­za­tions to build pro­grams and, to me, it’s a re­ally good op­por­tu­nity to do what I did with GRIPA over and over.”

Nielsen adds, how­ever, that GRIPA could use a name change. Be­cause of its part­ner­ships with Rochester Gen­eral Hos­pi­tal and Ne­warkWayne Com­mu­nity Hos­pi­tal, Ne­wark, N.Y., it is more of a physi­cian-hos­pi­tal or­ga­ni­za­tion, or PHO, than an IPA.

Miles says PHOs—where physi­cians and hos­pi­tals con­tract to­gether with one or more pay­ers—are com­ing back in fash­ion. “I think there is go­ing to be a resur­gence in PHOs,” Miles pre­dicts. “They sort of went into vogue and then went to hell.”

Dr. Rus­sell Libby, pres­i­dent of the Vir­ginia Pe­di­atric Group, Fair­fax, and his part­ners are form­ing the Health Con­nect IPA.

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