Where We Stand
Section: Antitrust Guidelines
Policy: OMA Antitrust Guidelines

Appendix E

  1. Statement of Policy

    It is the policy of the Oregon Medical Association to comply with all laws applicable to association activities.  The OMA emphasizes its ongoing commitment to full compliance with federal and state antitrust laws.  This statement is distributed to all officers, trustees, committee chairmen, committee members and staff as a reminder of the commitment and as a general guide for activities and meetings.

  2. Responsibility of Antitrust Compliance

    The OMA’s programs have been carefully designed and reviewed to ensure conformity with antitrust standards.  An equivalent responsibility for antitrust compliance rests with members.  The Association depends on good judgment to avoid all discussions and activities which may involve improper subject matter or improper procedures or even an appearance of improper activity.  Association staff members work conscientiously to avoid subject matter discussion which may have unintended implications, and OMA counsel routinely provides guidance with regard to these matters.  It is important to realize, however, that the competitive significance of a particular conduct or communication probably is most evident to those who are directly involved in medicine.  For this reason members have an important and individual responsibility to further antitrust compliance in Association activities.  Moreover, no officer, trustee, or any other OMA member, whether acting in his or her individual capacity or as a committee or in any other way, is authorized to propose or carry out on behalf of the Oregon Medical Association any program, agreement, or other activity in violation of state or federal antitrust laws.

  3. Antitrust Statues and Legal Background

    The federal antitrust laws consist of four principal statutes: the Sherman Act, the Clayton Act, the Robinson-Patman Act, and the Federal Trade Commission Act.  The most important statutes relating to the activities of a professional association or society are the Sherman Act and the Federal Trade Commission Act.

    The Sherman Act was passed in 1890 and contains two principal prohibitions.  Section 1 prohibits any agreements between two or more persons or legal entities which is deemed to restrain trade.  Section 2 forbids monopolization of conspiracies to monopolize.

    The Supreme Court has ruled that not every contract or combination in restraint of trade is a violation.  Only those which unreasonably restrain trade are unlawful.

    Certain types of conduct have been held to be so inherently or nakedly anticompetitive that such activities are “per se” violations of the law, and further proof is unnecessary.  Such violations include:

    1. Price fixing agreements
    2. Agreements to refuse to deal with certain third parties (boycotts)
    3. Agreements to allocate markets or to limit production
    4. Tie-in sales, which require the customer to by an unwanted product or service in order to obtain the desired item.

    Since a professional association, by its nature, brings competitors together to carry out its programs, the potential for collusion exists.  Because of this potential, enforcement agencies are watching professional organizations, especially in the medical profession, very carefully.

    For antitrust purposes, the term “agreement” is very broadly applied.  It includes oral or written, formal or informal, express or implied agreements.  There are cases where an unlawful agreement has been inferred from circumstantial evidence, such as the words and conduct of the parties and their course of dealing.

  4. Enforcement and Penalties

    The consequences of an antitrust violation by any individual or business entity are severe.  All federal statutes may be enforced by prospective orders and injunctions obtained by the government to compel compliance in the future.  In addition, criminal penalties and private treble damage suits are likely.

    Civil suits may also be brought by any person injured in his/her business or property by violations of the Sherman or Clayton Acts.  Under Section 4 of the Clayton Act, any plaintiff establishing actual damages automatically receives judgment for three times the damages sustained, plus an award against the defendants for the amount of the plaintiff’s attorney fees.  See for example, Patrick v. Burget, et al.. 100 L Ed. 2nd 83, 108 S Ct. 1658,  (1988), U.S. reh. den. 108 S. Ct. 2921.

  5. Antitrust Problem Areas of Association Activity

    The areas of antitrust law which seems to arise most frequently in connection with the activities of a professional association are:

    1. Price for free fixing, keeping or publishing fee schedules
    2. Standardization or stabilization of fees or charges
    3. Agreements to divide patients or market areas
    4. Membership restrictions which seek solely to exclude economic competitors
    5. Certain peer review activities

  6. Avoidance of Antitrust Problems

    In the absence of specific legal advice on matter, at or during Association activities, please follow the guidelines set forth below.

    1. Topics of Discussion to be avoided by members during Association activities:
      1. Do not discuss one’s own or other physicians’ current or future fees.This does not prohibit private discussion among partners or shareholders at meeting of one’s own clinic members.
      2. Do not discuss possible increases or decreases in fees. (note exception regarding partners, etc. in paragraph 1 above).
      3. Do not take part in any discussion of what should be considered a fair fee for procedure (note exception in paragraph 1 above).
      4. Do not make any public statements about one’s own fees or the fees of competitors, or about any other matters which could affect fees.
      5. Do not discuss with other physicians what one’s plans are in a particular geographic area or market, or with particular patients or with third party payers.
      6. Do not express any intent to refuse to deal with an HMO, a PPO, or any other third party payer, or with any group or class of patients.
      7. Do not encourage any other physicians to refuse to deal.
      8. Do not disclose any other person, at meetings or otherwise information which may be sensitive competitively.
      9. If one is present when any discussion as mentioned above takes place, and is unable to prevent such discussion, one should remove oneself from the meeting.
      10. Decline service on a peer review panel when a direct competitor is being reviewed.
    2. Meeting Procedures:

      To avoid even the appearance of questionable activity, as well as to guard against any inadvertent illegal conduct, all Association meetings, including committees, should be conducted in accordance with the following procedures:

      1. In advance of every meeting, a notice of the meeting should be sent to each member of the group; and the agenda should be specific.Broad topics, such as “Marketing Practices” which might look suspicious from an antitrust standpoint should be avoided.
      2. The discussion at the meeting should be limited to agenda items.Topics such as “old business” and “new business” may be discussed; however, caution should be exercised in bringing up non-agenda topics which could be construed as antitrust-sensitive.
      3. If a member brings up a subject of doubtful legality, that person should be advised the subject is not a proper one for discussion.This would primarily be the responsibility of legal counsel for the Association.If a member has reservations concerning remarks or nature of discussion at an Association meeting, those reservations should be expressed and, if the discussion is not terminated or satisfactorily resolved, that member should leave the meeting.
      4. Accurate minutes only of the actions of meetings should be prepared and if reasonably possible, sent to the chairman and other group members before the next meeting.Periodic review of the minutes should be conducted by legal counsel.
      5. Secret or “rump sessions” should be strictly avoided.It is desirable if possible that a staff member attend all meetings.
      6. No recommendations or actions should be taken with regard to antitrust, sensitive subjects, without the advice of the Association’s legal counsel.
  7. Conclusion

Compliance with these guidelines is intended not only to avoid antitrust violations, but also any behavior which could be so constructed.  However, it should be understood that the antitrust laws are complex and far-reaching, and this statement is not a complete summary of the law.  It is intended only to highlight an emphasize certain basic precautions designed to avoid antitrust problems.  Members must therefore seek the guidance of either Association staff, its legal counsel, or one’s own attorney if antitrust questions arise.  For further information concerning OMA’s antitrust compliance procedures, please contact the Association staff.