by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July/August 1994 issue of the Journal
Question: What is the current status of the MDA peer review system regarding dental fee cases? I understand the Federal Trade Commission recently rendered an opinion on fee peer review and the antitrust laws.
Answer: On Feb. 14, 1994 the FTC issued a significant 16-page advisory opinion on peer review of fees. The opinion was sought by the American Medical Association along with a number of constituent and component medical societies.
The petition described a two-tier peer review process. A patient grievance committee would be established to review doctor fee disputes. Participation would be obligatory for association members, but the committee's recommendations would be purely advisory and confidential. A disciplinary committee would be established to discipline members who exert undue influence or engage in other fraudulent or exploitive behavior in the fee context. Discipline could include censure, fines, suspension or membership termination. The disciplined doctor's name would be made public.
For the first time ever, the FTC has expressly allowed professional associations to require their members to participate in fee peer review procedures, so long as the committee recommendations are purely advisory and not used to coerce members into accepting the recommendations. This restriction on enforcement would extend to "fee gouging" where there has been no other abusive conduct.
The basis for the FTC's refusal to allow discipline in fee peer review cases, even to the extent of fee gouging, is because, according to the FTC, it could result in a price-fixing agreement whereby competitors would agree not to charge above a certain level. The FTC did agree to allow discipline or fraudulent or abusive behavior in the context of fee agreements, on the reasoning that "such regulation is likely to promote, rather than impede, competition, by enabling consumer purchase decisions to be made free from deceptive practices." Examples of such practices would include intentionally ordering unnecessary services, misrepresentation of material facts about fees to be charged, services to be performed, or the basis for the fee.
Although the advisory opinion was issued by the FTC pursuant to a petition by the AMA, it is equally applicable to dental associations as well as medical societies. The FTC's approval of fee peer review is good news for the MDA, its members and their patients, even though there are limits imposed upon discipline in fee cases. Under the MDA peer review system, cases involving fees are handled by the MDA Committee on Peer Review/Dental Care, rather than the component society. This exception to the general procedures of the MDA peer review/dental care system has been in place for many years and is due to continuing antitrust and FTC concerns.
This new FTC opinion will now guide the MDA, its components and specialty societies in fee peer review cases without fear of antitrust liability. The MDA peer review committee/dental care committee is reviewing this opinion and will provide its recommendations as to the application of the FTC ruling to the MDA peer review procedures.