Tuesday, June 10, 2003

Antitrust News: Take No Half-Measures Protecting Doctors from Antitrust

Today I provided oral testimony to the District of Columbia Council Committee on Consumer and Regulatory Affairs on The Physicians Joint Negotiating Act of 2003. As I indicated in my testimony, the bill before the Council
[i]s an implicit confession that the current regime has failed. Yet rather than address the source of that failure—which is a cornucopia of price control schemes over health care—this bill, in key areas, simply repackages that failure and tries to sell it as an improvement. Rather than acknowledge and protect the freedom of doctors to negotiate their own price terms, this bill subjects them to yet another set of complex and onerous regulations. To subject the exercise of a doctor’s legitimate rights to regulatory approval effectively denies these rights. Specifically, the bill denies doctors the unrestricted right to collectively negotiate price and compensation terms with health plans. Only if the health plan possesses a certain market share—a figure that has a history of being arbitrarily manipulated by hostile regulators—are doctors permitted to enjoy even limited rights to control their economic destiny.
I argued that the Council ought to pass a modified version of the current bill that eliminates the distinction between collectively negotiating the terms of patient care—which the current bill exempts fully—and negotiating price and compensation terms. A doctor’s right to negotiate price and compensation terms should not be assigned to a regulatory ghetto, but should instead be affirmed proudly as the cornerstone of the doctor-patient relationship.

I spoke after representatives of the Medical Society of the District of Columbia and a team of lobbyists for the health insurance industry. Unfortunately the one member of the Council who was most enthusiastic to use antitrust to limit doctor's economic rights (typically enough, a Republican) left early on other business, I was not able to refute his position directly to his face. His view was that since the District has a mandate to provide the poor with medical services and had a finite budget to do this, anything that raises prices is reflexively bad. Other members of the Council seemed to understand that artificial barriers on price would reduce the supply of doctors, but were reluctant to constantly integrate this fact with a position that would fully protect doctor’s rights.

The Council was interested in CAC's analyses of FTC antitrust enforcement efforts and we will endeavor to provide it with further analyses. We'll also seek private meetings with council members to brief them more fully on our position.

The most important achievement of the day was we made friends with the DC Medical Society. While from their perspective, even limited reform is a step in the right direction, they appreciated that our position fully protects doctors. We intend to educate them on our efforts against the FTC’s reign of terror against doctors and we are looking forward to working with them mounting a defense.

All in all, a good day. I know Skip will want to weigh in on this further, so I yield the floor to my honorable colleague.

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