Provider Networks

The recent health care reform has prompted many providers to consider forming networks through which they can negotiate and/or contract with Managed Care Organizations (MCOs) or band together to form an Accountable Care Organization (ACO). Notwithstanding health care reform, federal antitrust laws generally prohibit collective (or joint) fee negotiations by separate, non-integrated providers.

Collectively known as the Agencies, the federal courts and the Department of Justice (DOJ) and Federal Trade Commission (FTC), which jointly enforce the nation’s antitrust laws, have repeatedly found fee negotiation by non-integrated providers — those providers which are not substantially financially or clinically integrated as described in the following — to constitute naked price-fixing among competitors, a per se violation of the Sherman Act.

Nevertheless, those antitrust risks may be avoided if a network is structured under certain approved models, known as “safety zones”. The DOJ and FTC Policy Statements describe a number of safety zones for certain collaborative arrangements (and the activities conducted under these arrangements) that, absent extraordinary circumstances, will be protected from antitrust enforcement. Several types of arrangements—the messenger models and the integrated models—fall within the safety zones.

Our Health Law attorneys have assisted providers in developing integrated and non-integrated provider networks that fall within the safety zones. Our team works with providers to review the options when forming a separate legal entity and the tax implications of forming a for-profit or non-profit corporation.

Lead Attorney — Edward T. Waters

Managing Partner

“At FTLF we believe in our clients and understand their businesses and their challenges. We deliver insightful, focused, quality legal services each and every day so our clients can get back to helping make the world a better place.”

Lead Attorney — Jacqueline C. Leifer

Senior Partner,
Health Law Practice Leader

“Our Health Care group features a cadre of attorneys who, in addition to providing excellent service, share with our clients the belief that health care is a right, not a privilege. ”