Even if one group of health care providers persuades a health plan to exclude another group of providers from its network, that is not necessarily enough to constitute a violation of federal antitrust laws.
A 3-judge panel serving in Salt Lake City on the 10th U.S. Circuit Court of Appeals reached that conclusion in a ruling on Abraham et al. vs. Intermountain Health Care Inc. et al.
The plaintiffs in the case, optometrists, have been trying to persuade Intermountain Health Care, Salt Lake City, Utah, to let them participate along with ophthalmologists on its panel of eye care providers, just as its competitors have.
Utah has let optometrists provide all forms of nonsurgical eye care since 1991, and the optometrists have argued that they could save Intermountain Health more than $400,000 per year if it would add them to its provider network.
Intermountain Health has argued that it prefers to use ophthalmologists in part because ophthalmologists have admitting privileges at hospitals, and using providers with hospital staff privileges is a cost-effective method of assuring provider quality control, Chief Circuit Judge Deanell Reece Tacha writes in an opinion for the court.
Tacha cites an internal Intermountain Health memo in which a company employee writes, “Our members want to see [optometrists]; they do not create any anti-selection; they are cost effective; and yet they are not added because the ophthalmologists at the hospitals don’t want the competition.”
Tacha concedes that the Utah ophthalmologists went to great lengths to keep optometrists out of the Intermountain Health provider network.
But the ophthalmologists did not threaten a mass resignation, and simply lobbying Intermountain Health as a group did not amount to forming anything that federal case law would treat as a conspiracy, Tacha writes.
“Simply because IHC acted in response to ophthalmologists’ complaints is not enough to establish the concerted action requirement,” Tacha writes.
Representatives for the optometrists, the ophthalmologists and Intermountain Health were not immediately available to comment on the ruling.