Antitrust Guidelines and FAQs
To provide constructive guidance to participants who wish to share economic information on the forums within legal boundaries, MGMA has developed a set of frequently asked questions (FAQs).
In 1996, the Justice Department and the Federal Trade Commission issued antitrust guidance to the health care industry in "Statements of Antitrust Enforcement Policy in Health Care."
Statement 6 of the document establishes a "safety zone" within which providers can exchange price and compensation data. It states that the Department of Justice and Federal Trade Commission "will not challenge, absent extraordinary circumstances, provider participation in written surveys of (a) prices for health care services (including billed charges for individual services, discounts off billed charges, or per diem, capitated, or diagnosis-related-group rates), or (b) wages, salaries or benefits of health care personnel, if the following conditions are satisfied:
- "The survey is managed by a third party (e.g., a purchaser, government agency, health care consultant, academic institution or trade association);
- "The information provided by survey participants is based on data more than three months old. [In fact, the document later states that "exchanges of future prices for provider services or future compensation of employees are very likely to be considered anticompetitive."]; and
- "There are at least five providers reporting data upon which each disseminated statistic is based, no individual provider's data represents more than 25 percent on a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices charged or compensation paid by any particular provider."
What kinds of information can be exchanged in the Member Community?
Members can exchange most any kind of information that is beneficial to participants, but must be careful with information that involves 1) prices of health care services charged or third-party reimbursement paid or 2) salary, wage and benefits information for health care personnel.
What should I avoid in Member Community discussions of 1) prices of health care services or 2) salary, wage and benefits information for health care personnel?
Avoid specific price and salary information. Exchanges of price and salary information are a concern to government agencies with responsibility for enforcement of antitrust laws. In 1996, the Justice Department and Federal Trade Commission jointly issued guidance that establishes a "safety zone" within which providers can lawfully exchange price and compensation data.
MGMA has determined that discussion forum exchanges cannot qualify for the "safety zone" described in that document and, therefore, cannot enable these e-forum discussions.
I do not have the resources to purchase an MGMA survey to get price or compensation information. Is there a way that I can obtain access to a few key data points?
As a free benefit of membership, MGMA members can contact the Survey Department and obtain three data points. The Survey Department can be reached at (877) ASK.MGMA (275-6462), ext. 1895 or via e-mail at firstname.lastname@example.org.
What are some examples of acceptable exchanges of pricing and compensation matters?
- "We treat XYZ position as non-exempt."
- "MGMA's Management Compensation Survey indicates that the median compensation level for that position is $80,000."
- "In the past we have paid anywhere from $40,000 to $60,000 for a CT Tech."
- "Over the past two years, our average reimbursement has been $35 to $75 for a 99211."
- "Do you provide professional courtesy discounts?"
- "What is the compensation methodology your practice uses for designated health services?"
- "What kinds of insurer issues are you encountering on eligibility verification and retroactive adjustments?"
- "What is XYZ Insurance Company’s track record on prompt payment of claims?"
What are some examples of unacceptable exchanges of pricing matters?
- "How much are you reimbursed for a 99214 from XYZ Health Plan?"
- "Our usual and customary charge for a 99211 is $79."
- "How much do you pay a CT Tech?"
- "Our group pays $42,000 for a CT Tech."
- "We don't deal with payers who don't reimburse us at least $X for a 99214."
- "We urge all physicians not to contract with XYZ Health Plan."
Participants who post information considered unacceptable will be reminded to follow these guidelines and asked to refrain from posting such information.
How can exchanges of pricing information among members in different markets be anticompetitive or violate antitrust rules?
Member Community participants share information with hundreds of people, not just the person to whom they are responding. A participant does not know the majority of the other Community participants and their locations. It is possible — and likely — that at least one of the recipients may be a competitor.
Why is it acceptable for MGMA and certain other organizations to collect and report price and wage information, and it is not acceptable for individual members?
MGMA substantially meets the requirements for what is referred to as an "antitrust safety zone." This safety zone was established by the Statements of Antitrust Enforcement Policy in Health Care, released in 1996.
To illustrate the manner in which this guidance is applied: In November 2003, MGMA requested an advisory opinion from the Federal Trade Commission to implement a new survey. The new survey collects information on reimbursement from health insurance plans, allowing providers to view anonymous statistical summaries of what others in their state are reimbursed and how satisfied they are with their payers' performance. The advisory opinion MGMA received drew heavily on the guidance outlined above and detailed exactly how MGMA needed to comply with the safety zone in producing this survey.
What if no source of relevant data exists about a critical issue? How can one go about obtaining such information?
As a free member benefit, MGMA members can contact the MGMA Information Center staff who will assist in your search.
Where can one obtain additional information about antitrust issues as it relates the health care industry?
Because MGMA cannot provide legal advice to members, specific questions of compliance would be best directed to your attorney. In addition, the Justice Department and Federal Trade Commission offer "Statements of Antitrust Enforcement Policy in Health Care” (1996). It provides a brief outline of antitrust concerns related to health care.