The House Health Committee has passed a bill allowing for the state to convene a primary care collaborative and nurture new methods of payment for healthcare providers, but not before Sen. Chip Shields, D-Portland, won some key concessions about the state’s blanket expansion of antitrust exemptions for the businesses that participate.
The House committee approved Senate Bill 231 before the deadline last week with an amendment from Rep. Mitch Greenlick, D-Portland, that stipulates the collaborative shall fall under the auspices of the Oregon Public Meetings Law, and only discussions supervised by the Oregon Health Authority will be immune from anti-competitive behavior that antitrust laws are designed to protect. The collaborative also will expire at the end of 2018.
The Oregon Primary Care Collaborative is an attempt to get the state’s numerous health insurers to develop some uniformity around alternative payment models, allowing a switch to be administratively simple, and creating an environment where more primary care providers will agree to move away from billing insurers for every procedure, a protocol known as fee for service.
Health insurers, the Public Employees Benefit Board and the Oregon Educators Benefit Board must report data to the Oregon Insurance Division on the proportion of their expenses spent on primary care.
SB 231’s supporters argued the antitrust protections are needed to allow competitors to discuss forms of payment openly without running into legal trouble.
Federal law allows states to provide antitrust exemptions if and only if the state supervises the negotiations, and if the state has the ability to approve or strike down agreements, according to Keith Dubanevich, a former assistant Oregon attorney general.
But the Oregon Primary Care Collaborative will still likely fall in a legal gray area, at risk of a challenge from the Federal Trade Commission, which has criticized antitrust immunity granted to other states’ collaboratives, charging that they give opportunities for healthcare providers to collude on prices and drive up healthcare costs.
Greenlick tried to more explicitly amend the bill to rule out any untoward arrangements between the collaborative’s participants, drafting language that stated the exemptions given the collaborative do “not permit insurers, purchasers and providers of healthcare to manipulate the healthcare market by agreeing, directly or indirectly, to adopt uniform prices or reimbursement methodologies.”
But Doug Barber, a contract lobbyist representing the Oregon Academy of Family Physicians, successfully argued that amendment would prevent the collaborative from doing the work it was designed to do.
“We do have experience in those collaboratives where antitrust laws are in place and find the discussions are not very fruitful,” said Barber. “Our whole point of doing this is to reach some agreement on payment methodologies.”
Shields challenged the anti-trust protections sought by the proponents of the collaborative as needless and reckless. He wished the stronger language had been included, but said the Oregon Health Authority had lobbied against it.
"I think it's better, particularly bringing those meetings into public meetings laws, and limiting the scope of the anti-trust immunity only to what happens in the meetings," Shields said. "I would have liked it to go further but I think it's a step in the right direction."
The proposed Oregon Primary Care Collaborative is strikingly similar to attempts at payment reform by the New York Department of Health, which has received sharp criticism from the Federal Trade Commission that New York has overstepped its authority in letting healthcare providers bypass antitrust laws and providing them an opportunity to collectively leverage higher prices for their work.
A key difference in the Oregon and New York situations is that while health insurance companies have fought New York’s antitrust provisions, insurers in Oregon are not fighting that aspect of SB 231, although they have expressed concerns with the bill, including Ken Provencher, president of PacificSource Health Plans, who argued the original bill was too prescriptive.
