Doctor's orders: the government's war on medical "price fixing" squelches speech without helping consumers.

• Author: Oliva, S.M.

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DOCTORS WHO OWN independent practices sometimes band together to provide a bulk offering of services, at a collectively negotiated rate, for third-party payers such as large health insurance carriers. These groups are called "independent practice associations," or IPAs, and they've been around since the 1950s. IPAs provide tangible value for physicians and patients alike: Doctors get a middleman to deal with the insurance bureaucracies, and patients get access to a wide range of health care providers at discounted prices. But thanks to the ever-expanding mission of antitrust regulators, the associations are also under constant attack from the federal government.

Since 2001, the Federal Trade Commission (FTC) and the Department of Justice Antitrust Division have prosecuted 36 IPA groups, representing more than 18,000 physicians, for the crime of "price fixing"--that is, for jointly negotiating with insurance companies. By setting some of their prices on a group level, the theory goes, doctors are illegally colluding in a way that thwarts competition at the expense of insurance companies, other third-party payers, and ultimately patients.

This crackdown goes far beyond the level of business practice and into the realm of free speech. When the reds turned their attention in 2008 to the Boulder Valley Independent Practice Association, a 365-member organization in Colorado, its executive director, Mary Catherine Higgins, took the rare step of protesting in the press that the charges were "false" and "affirmatively disproved." Higgins was promptly hit with a "consent order" that banned her from individually dealing with any insurance company for two years.

Even Federal Trade Commissioner J. Thomas Rosch, one of the agency's staunchest advocates of antitrust intervention, found this order disturbing. "I am gravely concerned," he wrote in February, "that the Commission's abrupt decision ... can be viewed as retaliation for Ms. Higgins' decision to exercise her First Amendment rights" This was, the commissioner said, "a sad conclusion to an unnecessarily sordid tale."

Rosch's concern for free speech is admirable. But the FTC is systematically depriving physicians of their First Amendment and other constitutional rights, producing "unnecessarily sordid" tales from coast to coast. When antitrust lawyers butt into the private health care industry, rights and common sense go out the window.

Speech Codes for Doctors

Beginning in the 1990s, under President George H.W. Bush and with bipartisan support thereafter, the FTC and DOJ issued a series of "statements" on how they planned to expand health-care industry enforcement of antitrust laws, which until then had been only sporadically applied.

These statements were never debated or adopted by Congress. They never even rose to the level of a "rulemaking," the usual process of hearings and debate and public comment by which the FTC and other federal government agencies promulgate new regulations. Instead, the statements merely represented the prevailing views of the government's antitrust lawyers, who decided that IPAs could not negotiate physician reimbursement rates with insurance companies unless the doctors in question were clinically and financially "integrated"--that is, if they coordinated actual patient care and assumed the majority of the financial risk of providing that care. The FTC and DOJ wanted to minimize--to subsidize--the financial risk to insurers. Absent "integration," the associations were allowed to adopt a "messenger model," in which they'd relay offers from the payers to the physicians, so long as that conversation only went one direction: Doctors were forbidden from using the IPA "messenger" to deliver a joint price negotiation to insurers.

You may wonder what the FTC was so exercised about. After all, labor unions collectively bargain on behalf of thousands of individuals, and federal law even mandates exclusive union bargaining if a simple majority of employees demands it. In contrast, IPAs are fully voluntary, nonexclusive entities. Physicians can and do belong to multiple IPas and are free to negotiate with any payer without going through their associations.

Congress created this contradiction by exempting "the labor of a human being" from antitrust laws, thus permitting collective bargaining while excluding similar cooperation among self-employed professionals, such as physicians. The Fro therefore considers individual physicians "competitors," legally required to act independently unless the commission permits otherwise. Obtaining these permissions is a tricky, unpredictable process.

The three dozen IPAs prosecuted to date have mostly fallen into...