Saturday, May 03, 2003

Expanding the war on physicians

Nick Provenzo arrived in Vail, Colorado earlier this evening (after an arduous journey) and is ready to wow the folks at the Colorado Medical Society this weekend. Tomorrow the CMS conference will feature Jeffrey Brennan, the Federal Trade Commission’s chief health care prosecutor, who will present a talk called “We’re the FTC and we’re here to help.” No, seriously, he is.

Actually, it seems Brennan took care of some business before heading off to Vail himself. This morning the FTC announced that they decided to “help” a New Mexico physician group by putting a (proverbial) gun to their head and forcing them to sign a consent order. Carlsbad Physician Association, Inc., and seven individuals named separately agreed to never, never again try and assert themselves in the marketplace. Brennan and his thugs accused CPA of collectively bargaining with insurance companies. Or, as the FTC complaint describes the situation:

Since its inception, CPA has operated solely to exert the collective bargaining power of its members. It engages in no activities or functions other than health plan contracting. Further, in connection with health plan contracting, its members do not engage in any cooperative activities to benefit consumers.

Respondents have succeeded in forcing numerous health plans to raise fees paid to CPA members, and thereby raised the cost of medical care in the Carlsbad area. As a result of the challenged actions of respondents, CPA members receive the highest fees for physician services in New Mexico. By orchestrating agreements among CPA members to deal only on collectively determined terms, together with actual or threatened refusals to deal with health plans that would not meet those terms, respondents have violated Section 5 of the FTC Act.


It’s hard to overemphasize the problem here: The FTC wants us to believe that every other professional in this country is entitled to collectively bargain, yet somehow doctors may only exist as serfs beholden to their HMO masters. Not only that, the FTC also wants you to believe that it’s illegal for doctors to want to earn more money for their services! There’s no law which actually says this, but the FTC has taken it upon themselves to deal with the nation’s rising health care costs. Of course, the FTC is supposed to be in the business of law enforcement, not policy making, but such distinctions are irrelevant when you have unrestricted power and a taxpayer-funded budget.

The most noxious argument in the FTC’s complaint is their charge that physicians broke the law by refusing to deal with health plans individually. In other words, a physician who voluntarily decides to negotiate through a physician group is a criminal simply for exercising his right of free association, a right specifically enumerated in the First Amendment. Indeed, the FTC seems to implicitly understand the importance of the First Amendment. That’s why one of the consent order’s terms prevent the CPA physicians from even exchanging contract information among themselves. That’s right: the basic act of speech is unprotected against antitrust enforcement. And if speech isn’t protected, free association sure is hell isn’t.

In a odd way, however, today’s FTC decision may be useful. No doubt Nick will use this travesty of justice in New Mexico to impress upon the Colorado physicians the importance of waging a vigorous counter-attack against the FTC and all those who seek to destroy the medical profession via antitrust.

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