Certificate-of-need in an antitrust context

Recent cases such as National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City have found that certificate-of-need (CON) legislation did not intend to remove antitrust considerations. This note discusses the exemptions from antitrust provided by the state action doctrine of Parker v. Brown as well as the Noerr-Pennington doctrine, both of which appear to protect provider input into the CON process. Providing information that assists decision-making must be carefully distinguished from providing data that serve the interests of physicians and hospitals.

Private credentialing of health care personnel: an antitrust perspective. Part One

This Article explores the antitrust and other implications of private credentialing and accrediting programs in the health care industry. Although such programs are usually sponsored by powerful competitor groups, they serve the procompetitive purpose of providing useful information and authoritative advice to independent decision makers. Part One examines the risk that credentialing will sometimes be unfair to competitors and deceive consumers. Its survey of common-law, antitrust, and regulatory interventions to correct such unfairness and deception seeks to determine the degree of oversight to which credentialing and similar activities have been and should be subjected. In recommending that judicial or regulatory scrutiny should be limited to discovering whether standards and practices have a rational relation to a procompetitive purpose, the Article argues that greater intrusion into credentialing schemes would be inconsistent with market theory and first amendment values and would discourage line-drawing efforts that stimulate competition and facilitate consumer choice. By emphasizing throughout that personnel certification and institutional accreditation embody ideology and opinion as well as factual information, Part One sets the stage for the argument in Part Two that antitrust law can and should be used to contest the dominance of a single ideology of health care and to facilitate the development of alternative sources of consumer information. The Article's overall thesis is that, whereas the quality of advice given to the public about health care personnel and similar matters should not be closely regulated, neither should the supply of competing information and opinion be artificially curtailed.

Exclusive contracts under antitrust attack

Physicians excluded from hospitals by reason of exclusive contracts are increasingly challenging these arrangements under the antitrust laws. With the exception of the recent case of Hyde v. Jefferson Parish Hospital District No. 2, the cases reject antitrust attacks on exclusive contracts between hospitals and physicians.