160.016 General Antitrust Compliance Principles

160.016

General Antitrust Compliance Principles: Following are General Antitrust Compliance Principles of the Texas Medical Association:

  • TMA will not become involved in the competitive business decisions of its individual members, nor will it take any action that would tend to restrain competition. TMA is firmly committed to the principle of competition served by the antitrust laws, and good business judgment demands that every effort be made to ensure compliance with all applicable federal and state antitrust laws and trade regulations.
  • TMA members cannot come to understandings, make agreements, or otherwise concur on positions or activities that in any way tend to raise, lower, or stabilize prices or fees, allocate or divide up markets, or encourage or facilitate boycotts. Individual TMA members must make business decisions on their own and without consultation with their competitors or TMA.
  • The antitrust laws are complicated and often unclear. If any member on TMA business is concerned about being in a “gray area,” the member should consult with TMA. If the conversation among competitors at a TMA meeting turns to antitrust-sensitive issues, participants should discontinue the conversation until legal advice is obtained or leave the meeting immediately and request that their absence from the remainder of the meeting be recorded in the minutes.
  • Discussions of pricing or boycotts as part of TMA-scheduled programs or at TMA-sponsored meetings could implicate and involve TMA in extensive and expensive antitrust challenges and litigation. In addition, the United States Supreme Court has determined that an association can be held liable for statements or actions in antitrustsensitive areas by volunteer leaders who claim to speak for the association, even if they are not authorized to speak in that area. Trustees and officers of TMA must, therefore, make clear whether they are speaking in their official capacity when they address such issues. A speaker making personal remarks outside a TMA setting should clearly state that he or she is speaking for himself or herself, and not on behalf of TMA (BOT Rep. 17-A-08).
  • To assist TMA staff, officers, trustees, and committee chairs in recognizing situations that may give the appearance of an antitrust concern, the Board of Trustees shall provide to each such person copies of this Antitrust Statement. In addition, TMA’s Antitrust Statement shall be referenced at the start of each meeting where TMA business will be discussed, and this action will be noted in the minutes of the meeting.
  • Any violation of the antitrust policy will be brought to the attention of the Board of Trustees, and the board will deal with it in a timely and appropriate manner. The Board of Trustees will consult with legal counsel when questions arise as to the manner in which the antitrust laws may apply to the activities of TMA.

Specific Rules of Antitrust Compliance

  1. TMA activities shall not be used for the purpose of bringing about, or attempting to bring about, any understanding or agreement, written or oral, formal or informal, expressed or implied, among competitors with regard to prices or fees, terms or conditions of sale, discounts, territories, or customers. For example, any agreement by competitors to “honor,” “protect,” or “avoid invading” one another’s geographic areas, practice specialties, or patient lists would violate the law.
  2. TMA activities and communications shall not include discussion or actions, for any purpose or in any fashion, of prices or pricing methods or other limitations on either the timing of services or the allocation of territories or markets or customers in any way. For example, TMA members cannot come to understandings, make agreements, or otherwise concur on positions or activities that are directed at fixing prices, fees, or reimbursement levels. Likewise, TMA members cannot make agreements as to whether they will or will not enter into contracts with certain managed care plans. Even if no formal agreements are reached on such matters, discussions of prices, group boycotts, or market allocations followed by parallel conduct in the marketplace can lead to antitrust scrutiny or challenges. Members may, however, consult with each other and freely discuss the scientific and clinical aspects of the practice of medicine.
  3. TMA shall not undertake any activity that involves exchange or collection and dissemination among competitors of any information regarding prices, pricing methods, cost of services or labor, or sales or distribution without first obtaining the advice of legal counsel, when questions arise as to the proper and lawful methods by which these activities may be pursued. For example, caution should be exercised in collecting data on usual and customary fees, managed care payment levels, workforce statistics, and job market opportunities. While the mere collection of data on such matters is permissible if certain conditions are met, antitrust concerns may arise if the data become the basis for collective action.
  4. In general, TMA activities and communications shall not include any discussion or action that may be construed as an unlawful attempt to: (1) raise, lower, or stabilize prices; (2) allocate markets or territories; (3) prevent any person or business entity from gaining access to any market or to any customer for goods or services; (4) prevent or boycott any person or business entity, including managed care organizations or other third-party payers, from obtaining services freely in the market; (5) foster unfair trade practices; (6) assist in monopolization, or attempts to monopolize; or (7) in any way violate applicable federal or state antitrust laws and trade regulations. The actual purpose and intent of TMA’s policies and programs are important in this regard. They cannot be aimed at accomplishing anticompetitive objectives.

Antitrust Illustrative Fact Situations

  1. A TMA member is participating in a meeting of a TMA committee regarding issues related to health insurer marketplace conduct. The information presented indicates that a particular insurer is undertaking a contracting practice that will have a generally adverse financial impact on many physician practices. In response to the information presented, the TMA member states and proposes that he will never contract with this insurer and that it is the duty of every physician in the room to let his or her colleagues know that they should not contract with that insurer, either.

    Consistent with TMA policy, the chair, another member of the committee, or staff should discontinue the discussion. If there is any doubt that this discussion is not lawful, TMA legal counsel should be consulted.
  2. A TMA member is participating in a meeting of a TMA council on issues related to health insurer marketplace conduct. The information presented indicates that a particular insurer is undertaking a contracting practice that will have a generally adverse financial impact on many physician practices. In response to the information presented, the TMA member declares to those present that no one should accept less than X percent of Medicare.

    Consistent with TMA policy, the chair, another member of the council, or staff should discontinue the discussion. If there is any doubt that this discussion is not lawful, TMA legal counsel should be consulted.
  3. A TMA member is participating in a meeting of a hospital medical staff regarding issues related to patient safety. The information presented leads to the discussion of the care provided by a physician. A competing physician offers to those present his opinion that if other physicians agreed to refrain from offering weekend call coverage to Dr. “X,” this doctor likely would be forced to leave the community.

    Consistent with TMA policy, the TMA member should request that this line of discussion be discontinued. If the discussion continues, the member should leave the meeting and request that his absence be recorded in the minutes.
  4. A TMA member is participating in a meeting of a TMA council on issues related to competence and patient safety. The information presented leads to the discussion of the care provided to patients by physicians practicing specialty “X.” A physician of competing specialty “Y” states that TMA should discipline physicians who refer patients to “X” specialists for this kind of care and that TMA should adopt an official position that physicians of specialty “Y” are the only physicians who should provide the type of service in question. In exchange, TMA should stake out an official position outlining when physicians are permitted to refer to “X” specialists, thus ensuring they have market presence.

    Consistent with TMA policy, the council chair, council member, or staff shall discontinue the discussion. If there is doubt as to the lawfulness of this line of discussion, TMA legal counsel should be consulted.
  5. A TMA member is serving on a TMA board. The TMA board has an agenda item before it relating to the rising costs of practicing medicine. While discussing the agenda item, a TMA member decides to comment on the failure of payment rates to keep pace with the rising costs of practicing medicine. To address this issue, he further decides to share the prices he has been offered under a particular contract and asks that his fellow TMA members do the same in order to jointly determine a fair contract rate before signing a contract with that payer. Additionally, he suggests that after determining such a rate, members should sign a pledge stating their willingness to accept only rates that comply with the jointly-determined reasonable rate.

    Consistent with TMA policy, the board chair, board member, or staff shall discontinue the discussion. If there is doubt as to the lawfulness of this line of discussion, TMA legal counsel should be consulted.
  6. A TMA member is participating in a meeting of a TMA committee regarding issues relating to the scope of practice of nonphysician health care providers. The information provided indicates that a particular class of licensed nonphysician health care providers is seeking a change in its scope of practice to match certain activities currently being offered to patients in Texas. In response, the TMA member states and proposes that TMA members be advised not to refer patients to this class of health care provider and that such action should be publicized through Texas Medicine, TMA Action, and press releases.

    Consistent with TMA policy, the committee chair, member, or staff shall discontinue the discussion. If there is doubt as to the lawfulness of this line of discussion, TMA legal counsel should be consulted (BOT Rep. 17-A-08; reaffirmed BOT Rep. 13-A-18).

Last Updated On

August 16, 2018