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J Oncol Pract. 2006 September; 2(5): 247.
PMCID: PMC2793627

Antitrust Law Focus of Second Annual State Society Meeting

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For the second year, officers from ASCO state affiliate societies took advantage of the opportunity to meet during the ASCO Annual Meeting. State affiliate officers, representing over 1,000 oncologists met in Atlanta, Georgia to discuss the subject of antitrust, and the important nuances of compliance with Federal antitrust law.

Representatives from Northern California, Oklahoma, Michigan, New England, Georgia, and Florida attended this event, which was hosted by the Georgia Society of Clinical Oncology (GASCO). Russ Still, GASCO's Executive Director, and Karen Beard, GASCO's Director, organized the meeting, and Jose Gonzalez of the Association of Northern California Oncologists served as discussion moderator.

Beard set the stage for the discussion and keynote address. She was candid about the state societies' need for counsel. “The changes in Medicare reimbursement methodology over the past two years have created a snowball effect, and commercial health plans are adopting cost-saving features that are similar to Medicare's. Many commercial plans also use Medicare's reimbursement as the basis of their fee schedules. Because of the drastic changes in oncology reimbursement, antitrust issues have been heightened,” Beard said.

However, the issues involved in representing other physicians, including other members of your state society, when discussing payment terms with these commercial payers are substantially different than discussing Medicare payment. More than one meeting participant reported being asked by constituent members to represent them to the commercial payers on reimbursement issues. Innocent as the request may seem, these requests may present big problems for the involved physicians.

Commercial payers, on the other hand, typically negotiate directly with individual practices, or via an integrated health system such as a Physician Hospital Organization (PHO). “The antitrust laws prohibit discussions regarding commercial plan reimbursement among market competitors, and reimbursement contracts may not be negotiated on behalf of member practices by their Societies.” The Federal Trade Commission has issued extensive guidance governing Societies' communications with commercial payers,” said Beard.

Anne Claiborne of Ropes & Gray LLP delivered the keynote presentation titled “Antitrust Compliance in Communications With Private Payors.” Lawrence Sherman of the Physicians Academy for Clinical and Management Excellence was the lunchtime speaker, and his remarks were titled “The Good, the Bad, and the Ugly of Commercial Support, 2006 Edition.” A series of roundtable discussions moderated by Gonzalez reviewed the subjects of redefining and communicating the mission of the society and society collaboration within new Medicare Administrative Contractor Regions.

For state societies representing oncologists to commercial payers on reimbursement issues, the subject of antitrust is very relevant. Claiborne is uniquely qualified to address the subject. She practices in the Washington office of Ropes & Gray and counsels clients on health care reimbursement and other regulatory compliance matters, including Medicare Part D, antitrust compliance, and conflicts of interest, among other things. She has advised several provider networks regarding compliance with the antitrust laws in their payer contracting practices.

“From a legal standpoint, communications with private payers are treated differently than advocacy and other representation of a medical society in front of a governmental entity in connection with a regulated program like Medicare or Medicaid,” said Claiborne. Under these government programs, which have been established through legislative action, reimbursement is made according to fixed formulas that are available to the public. Discussions and advocacy in connection with these programs are considered to be constitutionally protected.”

On the lighter side, Lawrence Sherman gave a witty presentation about the changes and challenges of securing commercial support for Society activities. He observed that almost every potential sponsor has new guidelines for application and approval of funds, and that individual societies are slowly trying to sort them out. His humorous remarks put the issue into perspective and sparked a lively discussion. Sherman is Chief Executive Officer of The Physicians Academy for Clinical and Management Excellence, a provider of medical education solutions. He is also a clinical instructor in emergency medicine for the North Shore Long Island Jewish Health System in Long Island, New York.

“As busy as our physicians are, they depend on their Societies to keep them informed of major issues in Oncology practice management,” Beard concluded. “We hope ASCO will encourage such programs for affiliates at the Annual Meeting in 2007.”

Articles from Journal of Oncology Practice are provided here courtesy of American Society of Clinical Oncology