They already had produced better deals with United HealthCare Plans of Florida and Guardian Life Insurance Co., he said. Moreover, when all of the federation's physicians rejected Aetna's contract because they said it paid too little to provide quality care, Aetna came back to the table. According to the Justice Dept., representatives of Knoxville, Tenn.-based Pershing Yoakley and Associates, P.C., told health plans to improve contract terms for all of the physicians in the federation, or face mass resignations. The physicians defended their use of the firm, saying it was a legitimate third-party messenger. Federal antitrust guidelines allow independent physicians to designate a representative messenger to communicate with payers about fees and contract terms, provided that the messenger conveys only objective information about proposed terms and offers, and provided that the messenger does not represent the competing physicians collectively.
Observers say both defenses represent a misunderstanding of the proper use of a messenger.
Absent clinical integration or risk-sharing arrangements, competitors are not allowed to conduct joint negotiations. To guard against that, messengers can relay only objective information, without making recommendations or influencing price and contract terms. Under the 1996 antitrust enforcement guidelines published by Justice and the Federal Trade Commission, messengers who serve as negotiating agents for competing doctors risk violating federal and state antitrust laws. A reluctant decision to settle The 29 physicians involved in the Federation of Certified Surgeons and Specialists and the consulting firm opted to settle the Justice Dept.'s charges, rather than litigate them. We don't agree with the government's allegations, but their position was either spend a lot of time and money on an investigation or accept this.