Friday, February 11, 2011

Between A Rock and a Hard Place

Contradictory government demands are putting doctors and hospitals in a bind, according to a recent article in the February 8, 2011 New York Times, "Health Law Provision Raises Antitrust Concern".

ObamaCare rules are "encouraging" doctors and hospitals to form large entities known as "Accountable Care Organizations" (ACOs). In theory these integrated care models are supposed to allow providers to exchange information and achieve efficiencies of scale. So ACOs are being fostered via a variety of financial carrots and sticks by the Department of Health and Human Services (HHS) and reportedly supported by the Department of Justice.

However, a senior member of the Federal Trade Commission is also warning doctors and hospitals not to get too "integrated" -- lest they be charged with violating anti-trust laws. In other words, too much cooperation between providers will be viewed as "anti-competitive" -- and punished by the federal government.

So how is a doctor or a hospital supposed to know whether they will run afoul of a government regulator? The short answer is, they don't.

Doctors and hospitals have to somehow please simultaneous (and sometimes inconsistent) rules set by the FTC and the Department of Justice, both of which have jurisdiction over Accountable Care Organizations. As the NYT notes:
In discussions between the two agencies, Mr. Rosch [of the FTC] said, the department has taken the position that health care providers should be free to choose which agency would review their plans. Such an arrangement, he said, could lead to "a lack of regulatory consistency," with the two agencies applying different standards. Justice Department officials declined to comment.
When non-objective laws are the norm, it's no longer possible to have rule of law.

Instead, all we are left with is rule of men -- something we've already seen with the hundreds of discretionary ObamaCare waivers granted by the HHS.

In this new battle, doctors, hospitals, and patients will find themselves at the mercy of competing bureaucracies seeking to assert their jurisdictional dominance over each other -- and over us.

Talk about being caught between a rock and a hard place...