The American Association of Neuromuscular & Electrodiagnostic Medicine (AANEM) is committed to strict compliance with the nation’s antitrust laws.  These laws were intended to prevent businesses and professionals from engaging in practices that limit or restrain competition.  The penalties for violations of the antitrust laws can be very severe — not only for the AANEM but for its individual members as well.

Members must be alert to the proscriptions of the antitrust laws because physicians can be considered competitors in the context of antitrust challenges even if their practices are not in the same geographic areas or in exactly the same area of medicine.  Associations are viewed as groups of competitors that are, according to the U.S. Supreme Court, “rife with opportunities” to violate antitrust laws.  The AANEM and its physician members must take special care in association-sponsored meetings and activities to avoid agreements that might be proper in other contexts.

Under antitrust laws, AANEM members cannot come to understandings, make agreements, or otherwise concur on positions or activities that are directed at fixing prices, fees, or reimbursement levels, dividing markets or encouraging boycotts.  Members can consult with each other and freely discuss the scientific and clinical aspects of the practice of medicine.  By contrast, each member must decide individually, without concurrence of competitors, how to engage in the business aspects of the practice of medicine, i.e., for what price, on what terms, and so forth.

In general, the AANEM and its members should not agree on, and should avoid discussions about:

	Current or future prices or fees, including reimbursement levels, changes in prices or fees, discounting and other terms and conditions of providing services.  Except under extremely limited circumstances, agreements on prices or fees are per se illegal.  Even mere price discussions by competitors, if followed by parallel decisions on pricing, can lead to antitrust investigations or challenges.
	Allocating areas or patients. Any agreement by competitors to “honor,” “protect,” or “avoid invading” one another’s geographic areas, practice specialties, or patient lists would violate the law.
	Refusing to deal with particular providers, suppliers, or third-party payors whose policies or practices members may oppose.  Again, mere discussions followed by parallel decision-making could at least trigger close antitrust scrutiny by government or private enforcers.

If the AANEM seeks to influence government policy on reimbursement levels, then certain protections from antitrust liability should be available. Organizations such as the AANEM are exempted from the application of the antitrust laws if they are seeking government action, regardless of their intent in seeking the action and regardless of the effect on competition. This exemption is broadly applied unless the effort to influence government action is a “sham” i.e., where the intent was to harm a competitor by the petitioning process itself, rather than through the outcome of the petitioning process. While the extent of this exemption in unclear, its availability should at least be analyzed when determining whether the AANEM should undertake activities related to fees, relative value units, and reimbursement levels in government reimbursement programs such as Medicare or Medicaid.

Discussions of pricing or boycotts as part of AANEM-scheduled programs or at AANEM-sponsored meetings could implicate and involve the association in extensive and expensive antitrust challenges and litigation.  In addition, the U.S. Supreme Court has determined that an association can be held liable for statements or actions in antitrust-sensitive areas by volunteer leaders who claim to speak for the association, even if they are not authorized to speak in that area.  Directors and officers of the AANEM must make clear whether they are speaking in their official capacity when they address such issues; by contrast, if they are making personal remarks outside of an association setting, the speaker should clearly state that he or she is speaking for him or herself, and not on behalf of AANEM.

The antitrust laws are complicated and often unclear.  If any member is concerned about being in a “gray area,” the member should consult with the AANEM.  If the conversation among competitors at an AANEM meeting turns to antitrust-sensitive issues, participants should discontinue the conversation until legal advice is obtained or leave the meeting immediately.

	The actual purpose and intent of AANEM policies and programs are important, i.e.; they cannot be aimed at accomplishing anti-competitive objectives.
	Agreements on maximum prices that physicians will charge are just as offensive to the antitrust laws as minimum fee schedules. This is because an agreement on a “maximum” price schedules may also set a minimum price schedule if most competitors charge near or at the maximum fee permitted. In other words, today’s price ceiling may be tomorrow’s price floor.
	The pro-competitiveness of any antitrust-sensitive action should be documented. The focus should be on how the action will lead to increased quality, efficiency, or competition within the health care system.
	Any collection of fee-related data for use in dealing with reimbursers must neither encourage nor facilitate collective pricing or reimbursement demands by members. There should be no agreement among members, expressed or implied, to adhere to the data or to use it in any way. Also, AANEM staff should not be involved in subjectively establishing “consensus” fees or terms based upon interpretations or experience, as well as reported data.
	According to Department of Justice/Federal Trade Commission guidelines, any collection of fee-related data by health care providers should be handled by a third party such as a consultant, accounting firm, or association, and participation by members should be voluntary. The information should be historical only (i.e., at least three months old), not current or projected data. There must be a least five providers reporting data on which each disseminated statistic is based, no individual provider’s data can represent more than 25 percent on a weighted basis of that statistic, and any report based on the information should be sufficiently aggregated so that it would be impossible to attribute the information to specific members.

The AANEM can collectively provide medical or practice-related data that may improve health care providers’ or payors’ resolution of issues relating to the mode, quality, or efficiency of treatment, provided that the association and its member physicians do not use coercion, threat, or duress to force health care providers or payors to act on the data. As an example, the AANEM could collect information from its members about a particular procedure that the members believe should be covered by payors and then provide the information to payors. As another example, the AANEM could obtain input from its members, then evaluate and suggest ways that other types of health-care providers, such as limited license professionals, can be most effectively utilized.

Caution should be exercised however, in collecting data on workforce statistics and job market opportunities. While the mere collection of data on such matters is permissible, antitrust concerns may arise if the data becomes the basis for collective action, such as efforts to restrict the number of residency positions in a given specialty.

As with the collection of fee-related data, the Justice Department and FTC have issued guidelines on the antitrust implications of collecting and disseminating statistical data. To comply with these guidelines, all surveys should ensure that: 1) participation in the survey is voluntary; 2) data on prices or other practices must be at least 3 months old; 3) any reports on the survey findings must be sufficiently aggregated so that individual participants cannot be identified; and 4) findings are made available to all survey participants whether or not they are AANEM members or nonmembers.

Physicians can use the AANEM as a forum in which to discuss and arrive at consensus on the scientific or clinical aspects of medicine. For example, they can develop, through the AANEM, suggested Practice Guidelines or standards for patient management intended to assist them in clinical decision-making. However, such standards should follow the guidelines below.

Any membership decisions, credentialing, peer review, standard setting, or ethics enforcement activities of the AANEM should utilize criteria that are objectively reasonable (i.e., based on sound medical or ethical principles), have been published in advance, and are consistently and impartially applied. The criteria should be no more stringent than necessary to assure that minimum competency or quality levels have been attained. Any such activities must also afford minimum due process to those affected -- notice of the decision, opportunity to address it and right of appeal.

The AANEM should strive to comply with the due process and other requirements of the Health Care Quality Improvement Act of 1986. The AANEM also should avoid adopting ethical standards, Practice Guidelines, or other rules that have the effect of excluding or limiting the economic opportunities of whole classes of specialists or limited license practitioners unless such rules are based on objective medical or scientific principles and are the least restrictive means of protecting the health and safety of patients. Whenever possible, compliance with the AANEM’s ethical standards and practice guidelines should be voluntary.

Physicians and the AANEM must not attempt to coerce the decision-making of health-care providers or payors by implying or threatening a boycott if the recommendations of the association are not followed. Any joint statement, policy or program of the AANEM that had the purpose or effect of discouraging members from dealing with particular reimbursers, providers, suppliers or patients would raise serious antitrust risks.

	The AANEM’s seminars, educational publications, certification program, and other products or activities that are valuable and essential to electrodiagnostic physicians should be made available to both members and nonmembers, although a reasonable price differential may be charged to reflect the fact that the costs of such products or services have been subsidized by member dues.
	The AANEM should not require membership in the association as a condition of eligibility for certification by the American Board of Electrodiagnostic Medicine. The tying of AANEM membership to ABEM certification could lead to an antitrust challenge, especially if ABEM certification becomes essential to the practice of electrodiagnostic medicine.
	The AANEM should not restrict the rights of its members to advertise truthful, nondeceptive information about the practice, experience, and qualifications.  The Federal Trade Commission has repeatedly challenged advertising guidelines that restrict truthful, nondeceptive information.