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Nurse Practitioner Challenges to the Orthodox Structure of Health Care Delivery: Regulation and Restraints on Trade

Published online by Cambridge University Press:  24 February 2021

Karla Kelly
Karla Kelly*
Affiliation:
College of St. Catherine, St. Paul, Minnesota, George Washington University
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Abstract

Until recently, physicians have been the primary health care providers in the United States. In response to the rising health care costs and public demand of the past decade, allied health care providers have challenged this orthodox structure of health care delivery. Among these allied health care providers are nurse practitioners, who have attempted to expand traditional roles of the registered nurse.

This article focuses on the legal issues raised by several major obstacles to the expansion of nurse practitioner services: licensing restrictions, third party reimbursement policies, and denial of access to medical facilities and physician back-up services. The successful judicial challenges to discriminatory practices against other allied health care providers will be explored as a solution to the nurse practitioners’ dilemma.

Type
Articles
Information
American Journal of Law & Medicine , Volume 11 , Issue 2 , 1985 , pp. 195 - 225
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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References

1 See Kucera & Manson, Allied Health Professions: An Opportunity and a Challenge, 16 Forum 787, 789 (1980); Nord, Allied Health Practitioners and Antitrust Litigation: The Structure of Providing Health Care Services, 16 Forum 319, 321 (1980).

2 Kucera & Manson, supra note 1, at 790-91; Hershey, , Entrepreneurial Practice for Nurses: An Assessment of Issues, 11 Law, Med. & Health Care 253, 255 (1983)CrossRefGoogle ScholarPubMed.

3 For purposes of this article, specific categories of nurse practitioners, such as the nurse-midwife, pediatric nurse practitioner, and clinical nurse specialist are broadly grouped under the term “nurse practitioner.” Nurse anesthetists are not included under this heading because of their special status within the health care industry. Because of physician (anesthesiologist) acceptance, specialized educational requirements, and certification programs, nurse anesthetists are generally regarded as adjuncts of the medical profession, rather than the nursing profession. They generally function as independent practitioners, or under the indirect supervision of anesthesiologists. For specific information on the above nurse special-ties, see LaBar, The Regulation of Advanced Nursing Practice as Provided for in Nursing Practice Acts and Administrative Rules, (published by the Amer. Nurses’ Assoc, Aug. 31, 1983).

4 See Nord, supra note 1, at 320-21.

5 Nord, supra note 1, at 321-22.

6 See generally, Nord, supra note 1.

7 Dolan, , Antitrust Law and Physician Dominance of Other Health Practitioners, 4 J. Health Pol., Pol’y & Law 675, 676 (1980)CrossRefGoogle ScholarPubMed; Baker, , Entrepreneurial Practice for Nurses: A Response to Hershey, 11 Law, Med. and Health Care 257, 257-59 (1983)CrossRefGoogle ScholarPubMed.

8 Dolan, supra note 7, at 676.

9 See generally Kucera & Manson, supra note 1; see also Baker, supra note 7, at 257-58; Note, , Childbearing and Nurse-Midwives: A Woman’s Right to Choose, 58 N.Y.U.L. Rev. 661 (1983)Google Scholar; Wriston, , Nurse Practitioner Reimbursement, 6 J. Health Pol., Pol’y and Law 444, 456 (1981)CrossRefGoogle ScholarPubMed.

10 See Nord, supra note 1, at 323.

11 H. Sultz, O.M. Henry & J. Sullivan, Nurse Practitioners: U.S.A. 3 (1979) [hereinafter cited as Sultz].

12 M.E. Snyder & C. Labar, Issues in Professional Nursing Practice: Legal Authority for Practice 10 (1984).

13 Sultz, supra note 11, at 3.

14 Id.

15 See Snyder & Labar, supra note 12, at 7.

16 See, e.g., Wilk v. Ama, 719 F.2d 207 (7th Cir. 1983), reaff’d, 735 F.2d 217 (1983), cert. denied, 104 S.Ct. 2398 (1984); Ballard v. Blue Shield of Southern West Virginia, 543 F.2d 1075 (4th Cir. 1976); Nurse Midwifery Associates v. Hibbett, 549 F. Supp. 1185 (M.D. Tenn. 1982).

17

In all cases, it should be remembered that it is the patients of these practitioners who are also being restrained in their choice of otherwise lawful alternatives. Likewise, it should be emphasized that privileges are not being denied because the practitioners are seeking to practice outside their lawful scope of practice. These therapeutic options are being foreclosed by one group of competitors ostensibly because of their opinion as to what is best for the patient.

Dolan, supra note 7, at 679.

18 Id.

19 Kucera & Manson, supra note 1, at 788.

20 (Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Virgin Islands, Washington, Wyoming). LaBar, supra note 3, at 106-21.

21 Currently, 24 states include “additional acts” clauses in their nurse practice definitions: Alabama, Alaska, Arizona, Arkansas, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Nevada, New Hampshire, New Mexico, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, Virgin Islands, Washington. Id. at 7, 9-11.

22 Nurse practice acts in 16 states include such definitions: Alaska, Arizona, Colorado, Delaware, Florida, Idaho, Indiana, Kansas, Kentucky, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, South Dakota, Wyoming. Id.

23 There are 24 states which use this method: Arizona, Arkansas, California, Florida, Georgia, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, New Hampshire, New Mexico, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Utah, Virgin Islands, West Virginia, Wisconsin. Id.

24 Id. at 7.

25 (Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin). Id. at 7, 9-11.

26 (Alaska, Colorado, Hawaii, Idaho, Kentucky, Maine, Nevada, New Mexico, North Carolina, North Dakota, Pennsylvania, Virgin Islands, Wyoming). Id.

27 (Alabama, Arizona, Florida, Iowa, Louisiana, Massachusetts, Mississippi, Montana, New Hampshire, North Dakota, Oregon, South Carolina, Texas, Vermont, Virginia). Id.

28 (Alaska, Arkansas, Georgia, Hawaii, Maryland, Nebraska, New Mexico, Oklahoma, Pennsylvania, South Dakota, Utah, West Virginia, Wisconsin). Id.

29 Id. at 55, 59.

30 Id. For a discussion of physician involvement with regulation of advanced nursing practice, see supra text accompanying notes 40-43.

31 LaBar, supra note 3, at 70-79.

32

Typically, the details are referenced in the rules and regulations and apply to a particular advanced practitioner group. Usually the protocol requirement takes the form of a written agreement between the nurse and the collaborating physician or employing agency and must cover certain details. Sometimes, however, only the name and address of the collaborating physician are required. In most instances, a copy of the written agreement must be submitted to the board of nursing for approval and may or may not have to be reviewed by an advisory committee prior to submission to the board.

Id. at 45.

33 Id. at 45, 51.

34 Id. at 8.

35 See Chapman, & Record, , Defensibility of New Health Professionals, 4 J. Health Pol., Pol’y & Law 30, 39-41 (1979)CrossRefGoogle ScholarPubMed.

36 See Note, supra note 9, at 670; see also Wriston, supra note 9, at 453-56. For a recent illustration of physician resistance to expansion of nursing roles, see The Washington Post, Oct. 31, 1985 at C3, col. 2 (doctors oppose proposal to delete physician-nurse collaboration requirements for advanced nurse practitioners).

37 See generally D. Hamburg, Toward Increasing Collaboration Among Health Professions, in The robert Wood Johnson Found., Nurses and Doctors (1981).

38 See Chapman & Record, supra note 35, at 35; see also Shelton, , Physicians’ Frankensteins—Health Care in the 1980’s: The Changing Spectrum of Providers, 10 Leg. Aspects of Med. Prac. 1, 2 (1982)Google Scholar. See also notes 12-14 and accompanying text.

39 Chapman & Record, supra note 35, at 37.

40 See, e.g., Hershey, supra note 2. For a discussion of physician dominance over the provision of health care, see Note, supra note 9.

41 LaBar, supra note 3, at 4, (citing American Nurses’ Association, Nursing: A Social Policy Statement 26 (1980)).

42 Id. at 4, 5.

43 Id. at 4 (quoting American Nurses’ Association, the Nursing Practice Act : Suggested State Legislation 3 (1981)).

44 See supra notes 1-2 and accompanying text.

45 A collaboration requirement may, for example, provide that nurses with advanced training may practice as nurse practitioners, provided that they do so in accordance with written guidelines developed in collaboration with a licensed physician. LaBar, supra note 3, at 46.

46 See Baker, supra note 7, at 259; Hershey, supra note 2, at 25; Note, supra note 9, at 678.

47 See Baker, supra note 7, at 259; Note, supra note 9, at 678.

48 Hershey, supra note 2 (citing Health Insurance Assoc. of America, Source Book of Health Insurance Data 1981-1982, at 7 (1982)).

49 Note, supra note 9, at 677 (citing Hackley, Independent Reimbursement From Third-Party Payers to Nurse Midwives, 26 J. Nurse-Midwifery May-June 1981, at 15).

50 Note, supra note 9, at 677.

51 Nord, supra note 1, at 327.

52 For a discussion of specific state and federal laws governing reimbursement for nursing services, see Cohn, Survey of Legislation on Third Party Reimbursement for Nurses, 11 Law, Med. & Health Care 260 (1983).

53 Id.

54 See, e.g., Md. Ann. Code art. 48A, § 470 (1983).

55 Social Security Act, 42 U.S.C. § 1395(x)(s)(2)(A) (1982).

56 LaBar, supra note 3, at 13-19. See, e.g., infra notes 58-60, 62 and accompanying text.

57 Cohn, supra note 52, at 260.

58 32 C.F.R. § 199.12(c)(3)(iii)(d) (1985) (nurse-midwives); id., § 199.12(c)(iii)(e) (nurse practitioners generally). CHAMPUS is a federal program that reimburses civilian health care providers for certain services to members of the Armed Forces and their dependents. Under CHAMPUS, nurse-midwives and nurse practitioners were made directly reimbursable be-cause they were perceived to be competent health care extenders and because in 1978, there had been a growing shortage of physicians in the armed services. See Dept. of Defense Authorization for Appropriations for Fiscal Year 1979: Hearings Before the Committee on Armed Services, 95th Cong., 2d. Sess. 2657 (1978).

59 42 C.F.R. § 440.60(a) (1984) (licensed practitioners generally); 42 C.F.R. §§ 440.165, 441.21 (1984) (nurse-midwives).

60 Compare 32 C.F.R. § 199.12 (1985) (enumeration of authorized CHAMPUS providers) and 42 C.F.R. §§ 440.1-.180 (1984) (enumeration of authorized Medicaid providers) with, e.g., S.D. Codified Laws Ann. § 58-17-54 (Supp. 1984) (broad coverage for all licensed providers). Nurse-practitioner and nurse-midwife services were made reimburseable under Medicaid as a competitive cost control measure that was not expected to affect quality of service. See Hearings Before the Subcommittee on Civil Services, Post Office, and General Services of the Committee on Governmental Affairs, 98th Cong., 1st Sess. 13 (1983).

61 Cohn, supra note 52, at 260.

62 Id. at 260. States with either mandatory benefit or mandatory option laws: Alaska-Alaska Stat. § 21.42.355 (1984); California-Cal. Health & Safety Code § 1373 (West Supp. 1985), Cal. Ins. Code §§ 10176, 10177, 11512.8 (West Supp. 1985); Maryland-Md. Ann. Code art. 48A, §§ 354-S, 470-0, 490-A-l, 490-A-2 (Supp. 1985); Minnesota-Minn. Stat. §62A.15, subd. 3(a) (Supp. 1985); Mississippi-Miss. Code Ann. §83-41-213 (Supp. 1984); Montana-Mont. Code Ann. §33-22-111 (1983); New Jersey-N.J. Stat. Ann. § 17:48A-34 (West 1985); New Mexico-N.M. Stat. Ann. §59-18-19 (Supp. 1984); New York-N.Y. Ins. Law § 3221(k)(5) (McKinney 1985); Oregon-Or. Rev. Stat. § 743.128 (1981); Pennsylvania-Pa. Stat. Ann. tit. 40, §§ 3001-3003 (Purdon Supp. 1985); South Dakota-S.D. Codified Laws Ann. §58-17-54 (Supp. 1984); Utah-Utah Code Ann. §31-27-24(1) (Supp. 1985); Washington-Wasii. Rev. Code Ann. §§48.20.411, 48.21.141, 48.44.290 (1984); and West Virginia-W. Va. Code § 33-15-4b (Supp. 1985).

63 Cohn, supra note 52, at 261-62.

64 Id.

65 Lynch, , Allied Practitioners and Health Insurance Coverage, 16 Forum 1126, 1127-29 (1980)Google Scholar; Hershey, supra note 2, at 255.

66 Minn. Stat. § 62A.15, subd. 3(a) (Supp. 1985). The Minnesota law covers “advanced nursing practice,” defined to include only nurse anesthetists and nurse-midwives.

67 The CHAMPUS regulation governing nurse-midwives is 32 C.F.R. §199.12 (c)(3)(iii)(d) (1984). The reimbursement policy provides that:

  1. (1)

    (1) A certified nurse-midwife may provide covered care independent of physician referral and supervision, provided that the nurse-midwife: (i) is licensed, when required, by the local licensing agency for the jurisdiction in which the care is provided; and (ii) is certified by the American College of Nurse-Midwives. . . .(2) The services of a registered nurse who is not a certified nurse-midwife may be authorized only where the patient has been referred for care by a licensed physician and a licensed physician provided continuing supervision of the course of care . . . .

Id.

68 Hershey, supra note 2, at 254.

69 Cohn, supra note 52, at 260. See supra notes 59, 62, 67.

70 Miss. Code Ann. § 83-41-213 (Supp. 1984).

71 Md. Ann. Code art. 48A, §§ 354-S, 470-0 (Supp. 1985).

72 Baker, supra note 7.

73 Snyder & Labar, supra note 12, at 9.

74 Baker, supra note 7, at 258.

75 See generally Snyder & Labar, supra note 12, at 9.

76 One writer states:

Nurses are independently licensed to practice. As such, they do not require the supervision of physicians. They are accountable to their patients for their clinical decisions, regardless of whether or not the physician is immediately available for consultation. Entrepreneurial nurses and doctors should be able to work as partners—both ultimately accountable to their patients. To be effective, these relationships must be based upon mutual respect for contributions to patients’ care rather than on hierarchical terms.

Baker, supra note 7, at 258-59.

77 Cohn, supra note 52, at 263.

78 Physicians frequently use the same duplicative costs argument that non-physician providers use but from an opposite perspective: where patients may eventually need the services of a full-licensed physician, it is a waste of time and resources for a patient to use the services of a provider who has only a restricted license. Hershey, supra note 2, at 256.

79 Baker, supra note 7, at 259.

80 See infra text accompanying note 87.

81 Dolan, supra note 7, at 679.

82 Note, supra note 9, at 679 (citing Pollard & Leibenluft, Antitrust and the Health Professions: Policy Planning Issues, Paper of the Federal Trade Commission, 10-11 (1981)).

83 See, e.g., Shelton, supra note 38.

84 See Grad, Allied Health Professionals and Hospital Privileges: An Introduction to the Issues, 10 Law, Medicine and Health Care 165, 166 (1982); Nord, supra note 1, at 326. See also Chapman, supra note 35, at 30.

85 Dolan, supra note 7, at 679.

86 Id. at 681-83. See also text accompanying note 133.

87 Note, supra note 9, at 680-81. The pending case was Nurse-Midwifery Assoc, v. Hibbett, 549 F. Supp. 1185 (M.D. Tenn. 1982). See infra text accompanying note 133.

88 Grad, supra note 84, at 166; Hershey, supra note 2, at 255; Nord, supra note 1, at 326; Note, supra note 9, at 673.

89 Grad, supra note 84, at 165.

90 Id.

91 Wriston, supra note 9, at 672.

92 Nord, supra note 1, at 323.

93 See, e.g., Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982) (maximum-fee agreements to fix maximum fees for physician services were per se unlawful under § 1 of the Sherman Act); Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir. 1975) (denial of staff privileges to podiatrist violated due process).

94 26 Stat. 209 (1890) (codified at 15 U.S.C. §§ 1-7 (1982)).

95 Dolan, supra note 7, at 683 (citing the Sherman Act). Section 1 of the Sherman Act declares illegal “every contract, combination . . ., or conspiracy in restraint of trade or commerce . . . .” 15 U.S.C. § 1 (1982). Section 2 prescribes penalties for “[e]very person who shall monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce . . . .” 15 U.S.C. § 2 (1982).

96 Northern Pac. R. Co. v. United States, 356 U.S. 1, 4 (1957).

97 246 U.S. 231 (1918).

98 Id. at 238.

99 Id.

100 The justification and standard for the application of the per se rule was set forth in Northern Pac. R. Co.:

There are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.

356 U.S. at 5.

101 Arizona v. Maricopa County Med. Soc, 457 U.S. 332, at 344.

102 L.A. Sullivan, Handbook of the Law of Antitrust 197 (1977).

103 The Supreme Court has “always assumed that uniform price-fixing by those controlling in any substantial manner a trade or a business in interstate commerce is prohibited by the Sherman Law, despite the reasonableness of the particular prices agreed.” U.S. v. Trenton Potteries Co., 273 U.S. 392, 398 (1926).

104 “Because boycotts rarely have any purpose other than an anti-competitive one, courts denote them as per se offenses and waive a number of evidentiary requirements for those charging them.” Dolan, supra note 7, at 684.

105 Practices that have been judicially deemed unlawful per se include tying arrangements. See, e.g., International Salt Co. v. United States, 332 U.S. 392 (1947); Fashion Originator’s Guild v. Federal Trade Commission, 312 U.S. 457 (1941); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210 (1940); United States v. Addyston Pipe & Steel Co., 175 U.S. 211 (1899).

106 See S.C. Oppenheimer, G. Weston & J.T. Mccarthy, Federal Antitrust Laws: Cases, Text and Commentary 26 (4th ed. 1981).

107 421 U.S. 773 (1975).

108 Id. at 788-89 n.17.

109 Dolan, supra note 7, at 686; Goldfarb, 421 U.S. at 788 n.17, 792.

110 See, e.g., Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982); Maricopa, 457 U.S. 332 (1982); Group Life and Health Ins. Co. v. Royal Drug, 440 U.S. 205 (1979); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531 (1978); National Society of Professional Engineers v. United States, 435 U.S. 679 (1978).

111 See Maricopa, 457 U.S. at 348-49.

112 See, e.g., St. Paul Fire & Marine Ins. Co., 438 U.S. 531 (1978).

113 See, e.g., Wilk v. Ama, 719 F.2d 207 (7th Cir. 1983), reaff'd, 735 F.2d 217 (1983),cert. denied, 104 S. Ct. 2398 (1984); Nurse Midwifery v. Hibbett, 549 F. Supp. 1185 (M.D. Tenn. 1982).

114 L.A. Sullivan, supra note 102, at 289. See e.g., United States Steel Corp. v. Fortner Enterprises, 429 U.S. 610, 619-21 (1977).

115 See Northern Pac. R. Co., 356 U.S. 1, 5-6; International Salt Co., 332 U.S. 392. See also L.A. Sullivan, supra note 102, at 445.

116 A boycott may also involve a group’s refusal to deal with a single trader. Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213 (1959).

117 See, e.g., Fashion Originators’ Guild of America, 312 U.S. 457 (1951); Eastern States Retail Lumber Dealers’ Assoc, v. United States, 234 U.S. 600 (1914). See also Dolan, supra note 7, at 683.

118 See, e.g., Wilk, 719 F.2d 207; Hibbett, 549 F. Supp. 1185.

119 Ballard v. Blue Shield of Southern West Virginia, 543 F.2d 1075 (4th Cir. 1976), cert. denied, 430 U.S. 922 (1976).

120 Hibbett, 549 F. Supp. 1185.

121 To sustain jurisdiction under federal antitrust laws, a plaintiff must demonstrate that interstate commerce is involved. In order to invoke federal jurisdiction, federal antitrust laws require the plaintiff to demonstrate that the wrongful activity affects interstate commerce. This jurisdictional requirement has not constituted a real bar to antitrust litigation because of broad judicial interpretation of “affecting interstate commerce.” The flow of health care services across state lines has been sufficient to meet this jurisdictional requirement. See, e.g., McClain v. Real Estate Bd. of New Orleans, 444 U.S. 232 (1980); Cardio-Medical Assoc, v. Crozer-Chester Medical Center, 721 F.2d 68 (3rd Cir. 1983).

122 Other hurdles faced by plaintiffs bringing antitrust litigation may include defendants’ motions to dismiss for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Grounds for this motion may include: a) exemption from antitrust scrutiny under the McCarran-Ferguson Act, see infra, note 125, b) exemption under the state action doctrine. Parker v. Brown, 317 U.S. 341 (1943); c) exemption under the Noerr-Pennington doctrine (freedom to petition the government). See United Mine Workers of America v. Pennington, 381 U.S. 657 (1965); Eastern Railway President’s Conference v. Noerr Motor Freight, 365 U.S. 127 (1961).

123 Both per se and rule of reason analysis have been applied in antitrust challenges by other allied health care providers. Supra notes 97-111 and accompanying text.

124 543 F.2d 1075 (4th Cir. 1976).

125 The McCarran-Ferguson Act provides in relevant part:

Sec. 2 (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.

(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance; Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.

Sec. 3 (b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.

61 Stat. 448, current version at 15 U.S.C. §§ 1012, 1013(b) (1976 ed.). For a discussion of this McCarran-Ferguson provision, see Group Life and Health Insurance, 440 U.S. 205; see also Weller, The McCarran-Ferguson Act’s Antitrust Exemption for Insurance: Language, History and Policy, 1978 Duke L.J. 587 (1970).

126 Ballard, 543 F.2d at 1079.

127 Id.

128 Id.

129 Id. at 1075.

130 624 F. 2d 476 (4th Cir. 1980), cert. denied, 450 U.S. 916 (1981).

131 Id. at 484-85. In any antitrust action, the plaintiff must define the relevant market and demonstrate that competition actually exists in that market. United States v. E.l. DuPont De Nemours & Co., 351 U.S. 377 (1956); Konik v. Champlain Val. Physicians Hosp. Med. Ctr., 733 F.2d 1007 (2d Cir. 1984). Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, is unusual in that the appellate court took judicial notice of the competition between the psychiatrists and psychologists and the fact that the state legislature encouraged competition. In most cases the non-physician must first prove that competition does exist before he can demonstrate that competition was restrained. Id.

132 Virginia Academy, 624 F.2d at 485.

133 Hibbett, 549 F. Supp. at 1185.

134 Supra note 125.

135 Hibbett, 549 F. Supp. at 1190.

136 719 F.2d 207.

137 Id. at 214.

138 Id. at 216.

139 Id.

140 Id. at 221.

141 Id.

142 Id. at 225.

143 Interview with George P. McAndrews, counsel for plaintiffs in Wilk (Apr. 2, 1985); The Washington Post, March 6, 1985, at A8, col. 5.

144 Supra note 143.

145 L.A. Sullivan, supra note 102, at 230.

146 15 U.S.C. § 1 (1982).

147 This is the Colgate doctrine. United States v. Colgate & Co., 250 U.S. 300 (1919) (unilateral refusals to deal).

148 See, e.g., United States v. Parke, Davis & Co., 362 U.S. 29 (1960); St. Paul Fire & Marine Ins. Co., 438 U.S. at 531.

149 Parke, Davis, 362 U.S. at 29.

150 See Albrecht v. Herald Co., 390 U.S. 145 (1968).

151 See, e.g., Jefferson Parish Hospital, 104 S. Ct. at 1551 (1984), Maricopa, 457 U.S. at 332; Goldfarb, 421 U.S. at 778.

152 104 S.Ct. 1464, reh’g. denied, 104 S.Ct. 2378 (1984).

153 See id. at 1471.

154 See e.g. Goldfarb, 421 U.S. 773 (state bar acting alone cannot immunize from federal antitrust laws its anticompetitive conduct in fixing minimum fees for lawyers since state interest in regulating the conduct of its lawyers and other professionals is high); Jefferson Parish Hospital, 104 S.Ct. 1551 (1984) (tying arrangement contracted between a hospital and a group of anesthesiologists was found not to violate § 1 of the Sherman Act, in the absence of a showing of market control). Both cases involved members of the learned professions which traditionally were thought to be immune from antitrust analysis.

155 Nurse practitioners are specially trained and qualified for autonomous practice. See notes 11-15 and accompanying text.

156 One writer defines competition as:

[A] cross-elasticity of demand for two products or services so that a price rise in one results in a shifting of demand toward the other . . . . Cross elasticity is really the economic consequence of the patient’s perception of equal services. In the choice between a physician’s services and a non-physician’s services, there are factors of education, training, licensure, specialty, and even malpractice liability which enter the equation. These tend to decrease the cross-elasticity of physicians’ services and allied health services and therefore render less likely the success of antitrust litigation involving non-physicians.

Shelton, supra note 38, at 3.

157 Supra notes 97-105 and accompanying text. See also Oppenheimer & Weston, supra note 106, at 13-19, 50-70, 149-163.

158 Goldfarb, 421 U.S. 773.

159 Dolan, supra note 7, at 684.

160 Northern Pac. R. Co., 356 U.S. 1. In Northern Pacific R. Co., the defendant argued that its restraint of trade was justified by fact that its market power came from its “intrinsic superiority” because of the quality of its services. However, the Court was unpersuaded by this argument and held that the source of an offending party’s economic power was irrelevant for establishing an illegal tying arrangement. The Court also noted that a defendant need not have a monopoly on a market for there to be an illegal tying arrangement.

161 Dolan, supra note 7, at 684.

162 Jefferson Parish Hospital, 104 S.Ct. 1551.

163 Id. at 1553.

164 Hyde v. Jefferson Parish Hosp., 686 F.2d 286, 293 (5th Cir. 1982).

165 Id. at 294.

166 Id. at 293-94.

167 Jefferson Parish Hospital, 104 S.Ct. at 1568.

168 Id. at 1560.

169 Id. at 1563.

170 Id. at 1566.

171 733 F.2d 1007 (2d Cir. 1984).

172 Horizontal combinations (agreements between competitors on the same level of production) traditionally have been subject to per se analysis. Vertical combinations (involving competitors on different levels of distribution) generally have been analyzed under the rule of reason. See Konik v. Champlain Valley Physicians Hospital Medical Center, 561 F. Supp. 700, 715 (N.D.N.Y. 1983); see also Continental T.V. Inc. v. Gte Sylvania, Inc., 433 U.S. 36 (1977) (non-price vertical restraints).

173 Konik, 733 F.2d at 1019-20.

174 See Konik, 561 F. Supp. 700.

175 Town of Hallie v. City of Eau Claire, 105 S. Ct. 1713, 1716 (1985); Parker, 317 U.S. at 350-52.

176 Parker, 317 U.S. at 341.

177 Town of Hallie at 1716; See Dolan, supra note 7, at 477.

178 See, e.g., Town of Hallie, 105 S.Ct. at 1713; City of Lafayette, Louisiana v. Louisiana Power Light, 435 U.S. 389 (1978).

179 Dolan,supra note 7, at 687; See, e.g., Radiant Gas Burners, Inc. v. Peoples Gas Light & Coke Co., 346 U.S. 656 (1961) for a case in which the court struck down anti-competitive requirements of a self-regulated industry, which were ostensibly created “for the protection and safety of the consumer.”

180 See, e.g., England v. Louisiana State Board of Medical Examiners, 263 F.2d 661 (5th Cir. 1959), cert. denied, 359 U.S. 1012 (1959).

181 Courts are reluctant to second-guess legislatures as to the wisdom or rationality of a particular statute, provided there is a rational basis for its enactment. However, where state action is arbitrary, unreasonable or capricious, courts will intervene by striking down the particular statute for lack of a rational relationship between the means and objectives of the legislature. The authority to regulate is limited by constitutional standards defined and applied by the courts. The Supreme Court has found that a state may not regulate in a particular field when the regulations have no rational relation to the legislature’s objective and therefore are beyond constitutional bounds. Williamson v. Lee Optical Co., 348 U.S. 483, 491 (1955). It is up to the individual court to determine from the evidence the legislative purpose or objective and then determine if the regulation has a rational relation to that purpose or objective.

182 State, ex. rel. Iowa Dept. of Health v. Van Wyk, 320 N.W.2d 599 (Iowa 1982); England v. Louisiana State Board of Medical Examiners, 246 F. Supp. 993 (E.D. La, 1965), aff’d mem. per curiam, 384 U.S. 885 (1966), reh’g denied, 385 U.S. 890 (1966).

183 For a thorough analysis of due process considerations, see generally, Cray, Due Process Considerations in Hospital Staff Privileges Cases, 7 Hastings Constitutional L. Q. 217 (1980); Grad, supra note 84; Hollowell, Decisions About Hospital Staff Privileges: A Case for Judicial Deference, 11 Law, Med. & Health Care 118 (1983); McCall, A Hospital’s Liability for Denying, Suspending, and Granting Staff Privileges, 32 Baylor L. Rev. 175 (1980).

184 See, e.g., Assum. v. Good Samaritan Hospital, 542 F.2d 792 (9th Cir. 1976); Chico Feminist Women’s Health Center v. Butte Medical Society, 557 F. Supp. 1190, 1195, n.7 (E.D. Cal. 1983).

185 Id.; see also Bussey v. Harris, 611 F.2d 1001 (5th Cir. 1980) (denial of Medicare reimbursement to physicians’ assistants found rational); Pushkin v. Califano, 600 F.2d 486 (5th Cir. 1979) (denial of Medicare reimbursement to optometrists found rational); Berman v. Florida Medical Center, 600 F.2d 466 (5th Cir. 1979) (regulations on osteopath residency were reasonable). Cf. Brodie v. New Jersey Board of Medical Examiners, N.J. Super. A.D., 427 A.2d 1068 (1981), aff’d mem., 707 F.2d 1389 (3rd Cir. 1983) (regulation prohibiting discrimination based on chiropractor’s status was reasonable).

186 See Shaw v. Hospital Authority of Cobb County, 507 F.2d 625 (5th Cir. 1975).

187 See Shaw v. Hospital Authority of Cobb County, 614 F.2d 946 (5th Cir. 1980) (per curiam), reh’g en banc denied, 620 F.2d 300 (5th Cir. 1980), cert. denied, 499 U.S. 955 (1980) (no violation of due process).

188 Kucera & Manson, supra note 1; Dolan, supra note 7.

189 See supra notes 133-35 and accompanying text.