ACO verdict reveals antitrust risks to specialists

Physicians involved in accountable care organizations (ACOs) should be careful not to abuse their roles as gatekeepers of services, as illustrated by a recent $40 million antitrust judgment against a New York-based specialty benefits management company accused of blocking certain specialists from its network for competitive reasons.

The defendant in the case, CareCore National, owned and managed by several groups of competing radiologists, obtained the exclusive right to operate as the gatekeeper for radiology services provided to subscribers of several large insurers in New York, such as Oxford, HIP, Aetna and Health Net. A jury determined on Nov. 30 that it was not a coincidence--nor a medically based decision--that every radiologist practice offering Upright MRI services was denied inclusion in the network, Becker's Hospital Review reports.

"The jury found that CareCore, in league with New York-area radiologists and radiology practices that owned and/or governed CareCore, conspired to unreasonably restrain trade in the market for commercially-insured outpatient radiology procedures," stated a press release from the plaintiffs' law firm, Constantine Cannon LLP. According to Constantine attorneys, it also appears that CareCore considered Upright MRI--the only MRI that can scan patients in the weight-bearing positions that trigger their pain--to be medically necessary, and nonetheless blocked access in a way that harmed patients.

"The new ACOs will attempt to create incentives for specialists or large 'must have' health systems or providers groups that will be justified as providing the volume-price tradeoff of a limited network," said Constantine partner Axel Bernabe. He warns that specialists and other large providers will need to be very careful in how they structure such agreements with insurers.

"At the very least, the insurance company, not the radiologists, should have the final say on who gets into the network," said Bernabe. "The insurance company shouldn't hand over that responsibility. You can't give away the keys to the kingdom."

To learn more:
- read the article in Becker's Hospital Review
- see the press release from the plaintiffs' attorney

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