Antitrust case may impact physician referrals

July 25, 2018

In an amicus brief, the American Medical Association warns of interference with medical judgments.

The U.S. Supreme Court has issued a ruling in an antitrust case that has the potential to affect patient care and the extent to which physicians can refer patients to out-of-network specialists.

The case, decided June 25 in a 5-4 decision, actually dealt with whether American Express could impose anti-steering provisions in its contracts with retailers. The court ruled that the plaintiffs, which included Ohio and 10 other states, had “not carried out their burden to show anticompetitive effects” of American Express’ prohibitions against merchants encouraging customers to use other credit cards with lower transaction fees.

 

While the case involves the credit card industry, the American Medical Association (AMA) believes it can have a direct impact on physicians and their patients.

 

A threat to physician autonomy

Thus, the AMA filed an amicus brief with the Ohio State Medical Association warning that supporting American Express’ position would mean dominant health insurers or dominant hospital systems could create contracts that include anti-referral rules prohibiting physicians from referring patients to out-of-network specialists for innovative or medically necessary tests that would provide the patient with the best care.

“Material interference with physicians’ medical judgments threatens physician autonomy, damages the doctor-patient relationship, decreases medical innovation, and lowers the overall quality of patient care,” the AMA’s brief states. “The antitrust laws have historically played an instrumental role in preventing such outcomes. This court should ensure that antitrust law’s vital role in health care continues.”

Also see: Urologists weigh value-based options

The AMA said that “dominant health insurance networks (or their agent benefit managers) have imposed and could further impose rules or effectively erect barriers that prohibit physicians from referring patients to certain specialists, particularly out-of-network specialists.”

That could happen, the AMA said, despite the fact that such restraints interfere with physician judgment and harm patient care.

The high court upheld a decision by the 2ndU.S. Circuit Court of Appeals, under which the AMA said it would be extremely difficult for a patient or physician to prove to a court that antitrust laws were being violated.

“I have a big problem with dominant systems that are out there trying to devour physicians’ independence,” LUGPA President Neal Shore, MD, told Urology Times.“It has negative implications for the consumer. This is all part of that same concern.”

Dr. Shore said patients should be able to select the physician of their choice and that physicians should have the ability to refer patients to other physicians with special skills and expertise who can best serve patients’ needs.

“Urologists want to do what’s in the best interest of our patients, not what’s in the best interest of payers or hospital systems,” said Dr. Shore. “Any payer will want to corral patients and limit choice, but that sacrifices what is in the best interest of the patient. If I am a patient and I believe I should be sent to a provider who is not in my plan, I should be able to do so.”

Dr. Shore said the high court’s ruling is contrary and limiting “to the important concept of choice” in the physician-patient relationship.

The Supreme Court’s decision did not directly address the concerns expressed in the AMA’s amicus brief. It noted that the case was brought against American Express claiming that its anti-steering provisions violate the Sherman Antitrust Act and that the appeals court found that those provisions did not violate the antitrust law. It upheld that ruling.

The high court said the plaintiffs failed to prove that Amex’s anti-steering provisions increased the cost of credit card transactions above a competitive level, reduced the number of transactions, or otherwise stifled competition.

Next: Alliance comments on drug price initiatives

Alliance comments on drug price initiatives

Meanwhile, the AUA, as part of the Alliance of Specialty Medicine, has sent detailed comments to the Department of Health and Human Services regarding efforts to reduce drug prices and out-of-pocket costs for consumers. Their comments, which can be read in full at bit.ly/Alliancecomments, covered the following topics:

Moving drugs from Part B to Part D. The Alliance opposes moving products from Part B into Part D in its current form.

Part B Competitive Acquisition Program (CAP). Should the Centers for Medicare & Medicaid Services (CMS) move forward with CAP, the Alliance urges the agency to allow physicians to remain in the current direct buy-and-bill system should they choose to do so, ensure a minimum of three vendor choices per physician, allow physicians to easily switch among vendors or move back to direct buy-and-bill, should they be dissatisfied with vendor performance, and prohibit CAP vendors and carriers from engaging in any utilization management or medical review work.

Also by Bob Gatty: Urology groups react to USPSTF grades

Site neutrality. Any change in payment policy must carefully consider patient access. As such, this may be a good topic to fine-tune through a demonstration project.

Copay discount cards. Any policy limiting use of copay discount cards must have an exception for products without a generic or biosimilar alternative.

Pharmacy Benefit Managers (PBMs) and list prices. The Alliance supports a prohibition on rebates but oppose leveraging the protected classes to bring down list prices. Additionally, it supports creating a fiduciary duty for PBMs to hold them accountable to patients.

 

Biosimilars. The Alliance says it is eager to assist the FDA in further education efforts for prescribers on biosimilars, their interchangeability, and the role states should play in pharmacy substitution practices and clinician education.