Discussions among physicians and physician groups contemplating the formation of an ACO can raise concerns under antitrust laws, particularly when those physicians or physician groups are considered competitors in the market. In the absence of contradictory guidance in the forthcoming ACO rules, it is important that physicians engaging in such discussions abide by the following guidelines to ensure that their activities comply with antitrust laws.
The following can help ensure compliance:
- Exchange only the information necessary to assess the feasibility of the ACO or for its establishment.
- Consider entering into a development agreement with the prospective ACO members that outlines the types of information required to establish the ACO and provides a plan to build clinical and financial integration among the prospective members.
- Use a third party to collect and manage information regarding fees and costs of the prospective ACO members to the extent such information is required by a purchaser or government agency.
- Discuss ways to provide higher-quality and more efficient services, such as investments in technology to improve the transfer of patient information and acceptance of payments.
- Consult your lawyer if you are uncertain whether the exchange of a particular type of information raises anticompetitive concerns.
- Do not discuss or agree with any competitor to raise, lower, x, stabilize or in any way aect fees, prices or costs of services.
- Do not discuss or agree with any competitor to limit the quality or quantity of services provided.
- Do not discuss or exchange information with any competitor regarding market power, market shares or ways to dominate the market. These types of issues should be discussed with your lawyer, particularly if the combined share of the prospective ACO would be greater than 20 percent of the relevant market.
- Do not compare or otherwise discuss with any competitor contract negotiations involving other physician groups or third-party payers.
- Do not discuss ways to eliminate or reduce competition or how to exclude other physicians or physician groups.
- Do not propose refusals to deal with or boycotts of particular providers or third-party payers.
- Do not discuss or agree with any competitor to divide or allocate markets or customers.