Centers for Disease Control, “Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures,”Morbidity & Mortality Wkly. Rep., 1 (1991).
5.
29 U.S.C. § 5(a)(1).
6.
Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984).
7.
National Realty & Construction Co. v. OSHRC, 489 F.2d 1252 (D.C. Cir. 1973).
8.
56 Fed. Reg. 64007 (1991).
9.
448 U.S. 607 (1980).
10.
Id. at 644.
11.
56 Fed. Reg. 64034 (1991).
12.
56 Fed. Reg. 64036 (1991).
13.
American Dental Association v. Martin, 984 F.2d at 829.
14.
Id. at 826.
15.
Id. at 827.
16.
Id.
17.
Id. at 828.
18.
Id. at 829.
19.
Id.
20.
Id.
21.
Id. at 825.
22.
Id. at 826.
23.
U.S. Department of Justice & the Federal Trade Commission, Statements of Antitrust Enforcement Policy in the Health Care Area (1993) [hereinafter, Antitrust Enforcement Policy].
24.
RobertsAlicia W., “FTC and DOJ Release Antitrust Guide in Tandem with Reform,”Managed Care Outlook, Sept. 24, 1993.
25.
Antitrust Enforcement Policy, supra note 1, at 1.
26.
American Health Security Act of 1993, H.R. 1200, 103d Cong., 2d Sess. (1993); see also PearRobert, “Clinton's Health Plan: The Overview,”The New York Times, Oct. 28, 1993, at A1.
27.
See BlochRobert E., “The Clinton Health Plan,”National Law Journal, Oct. 11, 1993, at S2; see also JacobsMichael S., “Recent Developments in Antitrust Law and Their Implications for the Clinton Health Care Plan,”J. Law, Med. & Ethics, 21 (1993): 163.
28.
See, generally, Bloch, supra note 5, discussing in detail the antitrust issues created by the structure of the Clinton plan.
29.
BrodleyJoseph F., “Joint Ventures and Antitrust Policy,”Harv. L. Rev., 95 (1982): 1521, 1530–34 (describing anticompetitive risks—collusion, loss of potential competition, and market exclusion—of joint ventures). See, generally, RobleDaniel T.MasonJohn H., “The Legal Aspects of Health Care Joint Ventures,”Duq. L. Rev., 24 (1986): 455.
30.
Cf. American Health Security Act of 1993, supra note 4, calling for repeal of McCarren-Ferguson Act exemption from antitrust laws for health insurers.
31.
Antitrust Enforcement Policy, supra note 1, at 1.
32.
Id. at 4–5.
33.
Id. at 8.
34.
Id. at 9, note 3; see also id. (defining “costs”); id. at 10 (describing what information should be considered to determine whether costs may be recovered during this time).
35.
See id. at 11–14 (outlining rule of reason analysis); see also id. at 14–17 (giving examples of joint ventures that are unlikely to evoke antitrust concerns).
36.
Id. at 18.
37.
Id. at 22.
38.
Id. at 26.
39.
Id. at 33. Both exclusive and nonexclusive networks can qualify for safety zone treatment. “An ‘exclusive’ venture significantly restricts the ability of its members to affiliate with other physician network joint ventures and to contract individually with health insurance plans.” Id. at 35. “A ‘non-exclusive’ venture…does not impose any significant explicit or implicit restriction on the ability of its members to affiliate or contract with such other organizations.” Id. at 35–36.
40.
See id. at 35 (giving examples of joint ventures in which members share substantial financial risk).
41.
See id. at 37–39 (outlining rule of reason analysis); see also id. at 39–45 (giving examples of physician joint venture networks that would avoid antitrust scrutiny).
42.
Roberts, supra note 2.
43.
But see National Health Lawyers Association, American Health Security Act of 1993: Summary Outline and Selected Analysis, 10 (1993) (noting the first zone, regarding hospital mergers, represents a significant departure from traditional hospital merger analysis).
KnoxRichard A., “Health Plan Sweetened for Doctors: Late Change Offers Antitrust Exemption,”The Boston Globe, Oct. 30, 1993, at 1.
48.
See Goldfarb v. Virginia State Bar, 421 U.S. 784, 787 (1975) (holding that members of the learned professions, such as physicians, are not exempt from antitrust law).
