A Certificate of Public Advantage
Dr. Chmiel’s ENT group is currently awaiting a response from the NYS Department of Health on its application for a Certificate of Pubic Advantage, which would allow independent doctors with their own tax ID numbers to negotiate collectively, under very close scrutiny and strict rules for clinical integration, with immunity from state and federal civil and criminal action.
This “supergroup” model allows for all groups to maintain private finances, but to benefit from economies of scale. They pursue hospital contracts together and offer creative approaches to improving quality and reducing costs. It is a local approach funded and developed by the physicians participating in the group, using agreed-upon concepts for clinical integration with an emphasis on disease process/diagnosis management.
Such an arrangement must, by nature, be local or regional, but other MSSNY members can benefit from information on the process, and what to anticipate in terms of application expenses, legal fees, and costs for consultants and staff to complete the lengthy application.
The task force voted to support the concept with the caveat that it is still in progress and has not yet been tested at the federal level. Decisions have been favorable so far, but a positive ruling is not guaranteed.
BRIEF SYNOPSIS OF COPA WE APPLIED FOR CONTACTS AT DOH
James Chmiel, MD
Our group of ENTs has explored mechanisms to integrate, and improve care and our professional lives for greater than a decade. We felt that the best model was complete financial integration, but our doctors did not want to give up their independence.
Our group – ENTOCS – organically grew from a handshake agreement to cover ‘after hours’ call for each other, to a formal LLC, and finally to a Clinically Integrated PLLC. We studied the writings of the FTC. We also studied clinical Integration and brainstormed ideas on how we could improve care and cut costs. We were about to submit our case to the FTC for a summary opinion, when the concept of a NY State Certificate of Public Advantage (COPA) came along.
The COPA application was made available in December 2014. We did not find out about it until late January, 2015. The application was painful to fill out and the application process was expensive. Thankfully, we already had done most of the conceptual work. We also had a well thought out legal framework and, finally, had doctors motivated to participate. Of note, we demoted some doctors we thought were not likely to participate. We completed the application in late July/early August 2015. The application is now actively under review by the DOH.
HOW IT RELATES TO DISEASE PROCESS MANAGEMENT AND COLLECTIVE NEGOTIATION
- To paraphrase a fellow task force member, if you’re not doing Clinical Integration, you need to be.
- We as physicians all intuitively know how to improve care and cut costs, we just don’t have the time, the money or the business skills to take great ideas and bring them to fruition. Clinical Integration is a legal framework that allows pooling resources, collective negotiation, economies of scale, and the ability to reward physician participation in care that benefits the community. We presented 30 ideas with a plan to cherry pick the best ideas and implement about 3 per year over 5 years.
- A COPA provides state action antitrust immunity from civil and criminal prosecution and does not suffer the weakness of the messenger model.
- Washington DC Antitrust attorney Roberto Castillo said it best in an article published in Bureau of National Affairs Health Law Reporter (2015) “state certification… may deter FTC action to a certain extent. The more onerous and robust the certification scheme and state supervision, the likelier the FTC is to leave investigation and enforcement to the state. Such is the case with New York’s new COPA regulations, which appear to be quite rigorous.”
- See Supreme Court: Parker v. Brown, and FTC v. Phoebe Putney.