By Steve Brannock

Ever feel concerned that insurance companies are not offering you fair and reasonable reimbursement rates? Ever feel lost in your negotiations with insurance companies?

Big insurance companies appear to have all the leverage, and the contracts they offer are complex, difficult to understand and difficult to compare.

The question is: Can you do anything about it?

No joint action

The problem is that antitrust laws prohibit independent business persons, such as O&P facilities, from taking joint action against insurance companies. In fact, joint action is prohibited both through informal agreements with other business owners or through trade associations such as AOPA.

For example, state and federal antitrust laws absolutely prohibit competing health care providers from entering into joint negotiations with insurance companies. Competing providers may not as a group decide not to accept a particular rate or contract term offered by an insurance company.

Group efforts of this sort are considered "per se," meaning automatically illegal under the antitrust laws. It is problematic even for competing providers to exchange information with other providers concerning what terms they will or will not accept. Such information exchanges are viewed as leading to collusion among competing providers.

Nor can a trade association facilitate joint negotiations. AOPA or other national or local associations may not serve as a conduit to share information concerning the rates or contract terms its members will accept or to recommend particular rates or terms to its members.

The government is serious about enforcing the antitrust laws in this context.

Physicians have felt the same pressure from insurance companies for years and have tried every conceivable creative method of pooling their bargaining power to engage in joint negotiations.

Many physician groups engaging in such activities have found themselves on the wrong end of expensive and time-consuming enforcement actions by the government.

You have options

Despite the prohibition against joint negotiations, you can take steps to improve your bargaining position.

Nothing is stopping you from ensuring that the government, insurance companies and patients are fully informed of the consequences of their decisions.

So, lobby the government. Trade associations such as AOPA and its members have the right under the First Amendment of the U.S. Constitution to lobby their local, state and federal governments for competitive solutions to the current negotiating climate which seems slanted so heavily in favor of insurance companies.

As long as you are seeking governmental action or a governmental solution, AOPA members may plan and act together to achieve their goals.

For example, it would be illegal for AOPA members to engage in collective negotiations with an insurance company. But, AOPA has a constitutional right to lobby the government to make such joint negotiations by O&P providers completely legal.

"Any willing provider" laws are an excellent example of effective governmental lobbying. Many providers found themselves shut out of networks based on the excuse that the network already had enough providers.

The antitrust laws were no help because such laws generally permit a company to pick and choose the parties with whom it will do business.

Physicians and other providers successfully lobbied many states to pass legislation requiring networks to contract with any provider able to meet the networks' contract terms. Check to see the status of "any willing provider" legislation in your state.

Other lobbying opportunities include seeking legislation requiring insurance companies to cover certain types of procedures or devices that are not currently or routinely covered. And, legislation requiring reasonable rates of reimbursement or legislation requiring or prohibiting certain contract provisions helpful or hurtful to the O&P industry are other possible avenues for lobbying.

Bottom line: You can educate the government concerning the problems facing the industry today and lobby for solutions to those problems.

Educate yourself

Educate yourself about the contracting process. Although you must make your own individual decisions about the contract rates and terms you will accept, you need not make these decisions in the dark.

Use AOPA or other national, state and local resources to educate yourself about the meaning of contract terms and the legal and financial impact of accepting certain terms. Use organizations such as AOPA to help you understand what is going on in the marketplace.

Although AOPA cannot share specific information regarding specific contracts, it can gather and publish general information regarding contract provisions that may help its members benchmark their performance.

Educate yourself about the antitrust laws. Generally the antitrust laws prohibit joint negotiations, but there are exceptions, such as situations in which providers enter into legitimate joint ventures or contract using the messenger model. The messenger model is fairly complex, so be sure to consult your attorney with any questions. Look for seminars on the topic and educate yourself on what is and is not permissible.

Get the data

Organizations such as AOPA can engage in best practices or other surveys useful to its members in the operation of their business. Such surveys could include information on average salaries and benefits, software products used, organizational structure and other business practices. Check to see what information might be available to assist you. Always make sure, however, that these surveys are conducted in accordance with antitrust guidelines. If you are not sure, talk to someone in the organization who knows how these surveys were conducted and whether antitrust counsel was consulted.

One source for information is the AOPA 2004 Operating Performance & Compensation Report (OPC Report). The OPC Report provides a comprehensive financial profile of the O&P industry, including balance sheet, income statement, compensation information, employee benefit analysis and payer information organized by total revenue size, community size and profitability. This report represents over 800 facilities which participated in the survey.

If your facility didn't provide a survey response for this report, consider participating in future surveys for reports of this type.

Educate payers

You are also free to educate payers or the government. The antitrust risk is minimal when sharing scientific or outcome data to convince an insurance company or the government that a particular procedure or orthotic or prosthetic device should be covered.

You can also provide financial information to insurance companies or lobby the government about the inadequacy of particular reimbursement rates for particular devices.

Educate patients

You can engage in marketing activities directed to the ultimate consumer through advertising, discussions with business trade groups, employers or labor unions, or one-on-one discussions with individual consumers.

By using information gathered from your own experience, as well as from AOPA and other sources, you can educate consumers about procedures or devices that should be covered or reimbursement rates that are unfairly low.

In other words, you need not stand completely alone against the insurance company. Enlist the aid of your patients, businesses and the government when you can. Although the insurance company might not listen to you, they might pay attention to a big group customer that is concerned about coverage issues.

Be fair and honest

Obviously, any information you disseminate about insurance companies and their practices must be truthful. The publication of false information may give rise to liability for defamation, unfair competition or other business torts.

And remember, although you must negotiate on your own and make your own financial decisions, you can educate yourself and rely on the resources of organizations such as AOPA to learn about contracting decisions and the marketplace in which you compete.

The insurance company might seem like a Goliath, but every once in a while David wins.

Steve Brannock is a partner in the Tampa, Fla., office of Holland & Knight LLP. He focuses much of his practice on antitrust law, including antitrust issues faced by health care professionals. More information on Holland & Knight or Mr. Brannock can be found at www.hklaw.com.