The idea of "accountable care organizations" is raising legal questions as federal officials weigh how to regulate them in light of existing antitrust and fraud- and abuse-prevention laws.
To allow physicians to share savings from better care and efficiency, the groups would need waivers from federal antikickback laws, said James Blumstein, professor of constitutional law and health law and policy at Vanderbilt Law School.
The arrangements could also run afoul of existing antitrust laws that prohibit competitors from collaborating to set prices, Blumstein said.
"I think it actually makes a lot of sense [to waive laws] in the context of the fraud and abuse law, the antikickback law," he said. "It's much more dangerous in the context of the antitrust law ... if, in fact, groups use this to come together as a way of suppressing competition. You want cooperation where cooperation is appropriate. But you cannot have good cooperation to fix prices."
Right now federal regulators are writing rules for enforcing these laws when it comes to accountable care organizations, he said. The medical community is lobbying hard for such organizations to be considered a single entity instead of a group of providers. That could give it greater leverage when bargaining with insurance companies, Blumstein said.
"That's a risky scenario," if ACOs use that leverage to negotiate high reimbursement rates, he said.
Dr. Alex Stratienko, a local cardiologist in private practice, worries that ACOs will be hospital-centric. He said without some allowances in antitrust regulations, doctors won't be allowed to come together -- independent of a hospital -- to form their own accountable care organizations.
"It appears we're being funneled into an [accountable care organization] that's exclusively run by hospitals," he said.
But Dr. B W. Ruffner, president of the Tennessee Medical Association, said the health care law "clearly" allows for physicians to create their own such organizations.
"Don't assume [ACOs] are going to be driven by the hospitals," he said. "That's one of my big messages, to prevent physicians from having that defeatist attitude that the hospitals are going to control it."
Contact staff writer Emily Bregel at ebregel@timesfree press.com or 423-757-6467.