IPAs and Per Se Rules: Arizona v. Maricopa County Medical Society

P.L. 93-222 §1301(c)(2). While sometimes referred to as “open-panel health maintenance organizations,” IPAs must be distinguished from the conventional or closed-panel HMOs. IPAs are associations of physicians in traditional private practices. They provide prepaid health services to consumers, and attempt to control health care costs and improve the quality of medical services through peer review. See generally, Steinwald C. , Foundations for Medical Care (Chicago, Blue Cross Ass'n) (1971); and Egdahl R. , Foundations for Medical Care, New England Journal of Medicine 288(10): 491–98 (March 8, 1973).

Arizona v. Maricopa County Medical Society, 643 F.2d 553 (9th Cir. 1980) [hereinafter Maricopa].

49 U.S.L.W. 3663 (March 10, 1981).

15 U.S.C.A. §1.

National Society of Professional Engineers v. United States, 435 U.S. 679 (1978) [hereinafter NSPE].

Chicago Board of Trade v. United States, 426 U.S. 231 (1918).

Northern Pacific Railway v. United States, 356 U.S. 1 (1958).

See, e.g., United States v. Topco Associates, 405 U.S. 596 (1972) (market divisions per se illegal); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 1 (1958) (tying arrangements per se illegal).

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223(1940).

Broadcast Music, Inc. v. Columbia Broadcasting System, 441 U.S. 1 (1979) thereinafter BMI].

Id. at 7.

Id. at 9.

Id. at 20.

Id. at 19.

Id. at 10.

Maricopa , supra note 2, at 556.

Id. at 557.

United States v. American Society of Anesthesiologists, 473 F. Supp. 147, 157 (S.D.N.Y. 1979), quoting from NSPE, supra note 5, at 692.

The individual user can negotiate with the copyright owner rather than purchase the blanket license, and the health care consumer can utilize physicians episodically rather than subscribe to the IPA.

See generally, Federal Trade Commission Bureau of Economics, Staff Report on the Health Maintenance Organization and Its Effects on Competition (July 1977).

See generally, Bloom , IPAs as Valid Joint Ventures, National Health Lawyers Association Symposium on Antitrust in the Health Care Field (January 7-8, 1981); Federal Trade Commission Bureau of Competition Report, Medical Participation in Control of Blue Shield and other Open-Panel Medical Prepayment Plans (April 1979).

BMI, supra note 10, at 19.

Id.

Id. at 10.

Health Maintenance Organization Act of 1973, P.L. 93-222, codified at 42 U.S.C.A. §300c et seq.

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) [hereinafter Goldfarb].

Maricopa , supra note 2, at 556 (emphasis added).

United States v. American Society of Anesthesiologists, supra note 18.

Id. at 161.

“Implied repeal” is a judicial determination that a valid statute is superceded because it conflicts with the policy or operation of a subsequent statute. For the implied repeal to be effective there must be either. 1) a clear Congressional expression of intent to repeal; or 2) a positive repugnancy between the two statutes. See, e.g., Essential Communication Systems, Inc. v. A.T. & T., 446 F. Supp. 1090, 1094–95 (D.N.J. 1978) rev'd 610 F.2d 1114 (3d Cir. 1979).

BMI, supra note 10, at 15-16.

Notional Gerimedical Hosp. and Gerontology Center v. Blue Cross of Kansas City, 628 F.2d 1050 (8th Cir. 1980). For more on this case, see Berriman W.T. , Antitrust and Health Planning, Medicolegal News 9(3):4–9 (June 1981).

National Gerimedical Hosp. and Gerontology Center v. Blue Cross of Kansas City, 49 U.S.L.W. 4672 (June 16, 1981).

42 U.S.C.A. §300c et seq.

S. Rep. 93-129, 93d Cong. 1st Sess.

Id.

42 U.S.C.A. §300c-1(5)(A), (B).

See Goldfarb , supra note 26; and NSPE, supra note 5.

Maricopa , supra note 2, at 560.

Courts believed that self-imposed restraints on competition via professional regulation of members’ ethical behavior benefited the public and insured acceptable standards of service.

Goldfarb , supra note 26, at 787.

Id. at 782-83.

Id. at 787-88.

Id. at 788, n. 17.

NSPE, supra note 5, at 692.

Id. at 696.

Id.

Id.

See, e.g., Viezaga v. National Board of Respiratory Therapy, (1977–1) Trade Cat. (CCH) §61,274 (N.D. Ill.) (suggesting a two-step analysis involving first a determination whether the challenged activity, by its nature and character, is “commercial” to which per se rules would apply; or noncommercial, to which Rule of Reason would apply).

Maricopa , supra note 2, at 560 (citations omitted).

Id. at 564.