The Census Bureau has reported that the number of new physicians in the United States increased 40 percent between 1970 and 1980. Waldholz, M., To Attract Patients, Doctors and Hospitals Cut Prices to Groups, Wall Street Journal, November 22, 1983, at 1, col. 1.Google Scholar

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Id. at 133–34. See also Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 484 (4th Cir. 1980), cert, denied, 450 U.S. 916 (1981) (insurer's decision regarding whom to reimburse for psychotherapy treatment is not part of the business of insurance).Google Scholar

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A court may carefully examine a plan to make sure it is a true employee welfare benefit plan under ERISA. See Bell v. Employee Security Benefit Ass'n, 437 F. Supp. 382, 390 (D, Kan. 1977). See also Brummond, D. J., The Legal Status of Uninsured, Noncollectively-Bargained Multiple-Employer Welfare Trusts under ERISA and State Insurance Law, Syracuse Law Review 28(3): 701–40 (1977).Google Scholar

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Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211 (1951). Payer or broker-based PPOs are not as susceptible to antitrust challenge as provider-based PPOs, because they should not involve horizontal arrangements among providers. See Advisory Opinion to Health Care Management Associates, 101 F.T.C. 1014, 1016 (June 7, 1983): The proposed Cooperating Provider Program, in essence, would be a form of vertical arrangement between individual sellers of services (cooperating providers) and purchasers of services (third-party payers, on behalf of their insureds or beneficiaries) for the sale and purchase of health care services. HCMA proposes to facilitate these transactions by performing certain functions much like an agent or brokerhellip;. Also, the Cooperating Provider Program involves no agreements among either competing providers or third party payers concerning any aspect of their involvement in the program.Google Scholar

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See Federal Trade Commission, Statement of Enforcement Policy, 46 Fed. Reg. 48,982 (October 5, 1981). But see Glen Eden Hosp., Inc. v. Blue Cross & Blue Shield of Michigan, No. 83-1165 (6th Cir. July 16, 1984) (hospitals participating in a Blue Cross reimbursement plan may be involved in a structural price-fixing conspiracy under antitrust law if the hospitals established the original reimbursement rates over which they retained veto power to block any change).Google Scholar

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