Background on the ASTRO anti-trust legal argument

[elementaryschooleconomics]

I was annoyed that we're all forced to conjecture on what the structure of the "anti-trust" legal argument is for ASTRO to not come out officially on the residency expansion issue. So, I pulled up the panel discussion from the ARRO session at this year's ASTRO conference, and made a relevant transcript. I'm trained as a physician-scientist, not a court stenographer, so I apologize for any errors.

***
Source:
The Radiation Oncology Workforce: A Panel Discussion
ASTRO Annual Meeting 2019

Royce [to Falit]: Can you briefly speak to the anti-trust concerns of specialty society workforce and self-regulation?

Falit: Sure, and I’m glad we’re starting with that, I think it’s an important issue to get off the table and I have to say that despite the skepticism the anti-trust concerns associated with collective action to restrict residency spots is very, very real.

So there have been a few organizations that are similar to ASTRO or SCAROP that have gotten in trouble in the past for similar types of activity. For example, the American Bar Association was sued by the Justice Department because they felt like the accreditation standards that it had weren’t letting in new entrants into the law school market. And then the Association of Family Practice Program Directors was also sued by the Justice Department because there was an ostensible agreement between the Practice Directors not to offer more economic incentives for residents to come into the program. And so I think there’s a real risk that if that happened, if there was an agreement within ASTRO or SCAROP or some other organization to restrict residency spots that there would be a lawsuit brought by an aggrieved person or by the Justice Department, and if that happens then I think it actually would be unlikely that the defendant (ASTRO or SCAROP) would be able to even make any pro-competitive arguments. They wouldn’t be able to even offer policy justifications because this type of activity is traditionally held as what we call “per se illegal” by the courts, meaning that there’s some anti-competitive behavior that, on its face, looks so bad for the market that you can’t even offer pro-competitive justifications, and a horizontal agreement amongst competitors to restrict output is one such thing, and on its face that’s what this really looks like, it looks like a bunch of interested market participants that would be getting together to restrict supply in order to enrich themselves and increase compensation. So I don’t think there would even be an opportunity to make counter-arguments to that and this is not something that I’m saying independently, it’s something that I researched heavily when we wrote that 2016 article. So I asked several anti-trust experts including an anti-trust Professor who I really trust, and universally they all felt like this wouldn’t pass that “per se illegality” – you wouldn’t be able to make “rule of reason" review.

It is true that in Healthcare, sometimes things are weird with the courts and they give a little bit more deference and you might be able to get past it, especially when there’s educational issues. But even if you got the “rule of reason" review, meaning that you were able to offer pro-competitive justifications, still, I don’t think it’s an easy case to make to say that restricting residency spots is necessary to achieve some other over-arching goal like preserving quality. There’s probably other ways to do that, and so there’s a lot of concern and you have to ask yourself, with all of that concern can you imagine that the answer really is for ASTRO or anybody else to really get together and agree to restrict spots?

It's just not a viable solution.

Royce: [brings up Emergency Medicine]…there was a release from Emergency Medicine where they essentially expressed concern about their own EM workforce and they’re having similar issues with the number of trainees that they have in their programs nationwide has increased dramatically. I don’t know if any of the panelists have a comment on that?

Falit: The only thing that I would say is that I think that’s very problematic, and I’m surprised that their lawyers didn’t reign them. You can kind of interpret it as maybe just a “call to action” but, in theory, if there was a restriction in the supply of EM residents someone could point to that and I think it would be problematic for them.
***

Discuss.

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[Mandelin Rain]

ASTRO neither accredits physicians nor admits physicians to residencies, as was the case in the two examples cited. They can comment freely on the job market. It should be one of their primary functions as an organization. In fact, they do this all the time. In their journal, they published peer review articles stating there would be a shortage of rad oncs and a subsequent article stating there would be an overabundance. Did this violate anti-trust? Of course not.

Can they attempt to compel members of ASTRO to act in an anticompetitive way? No. Can they comment and say we have too many residency spots for the number of jobs available? Sure. Can they make recommendations based on available data? Yes.

It. Is. Bull. ****.

The better question is; is flooding the market with an oversupply of employees to fix wages anticompetitive? You have one academic chairman admitting to this publicly in the same ASTRO sponsored journal cited above. DOJ can prosecute this as a criminal (read: jail time) offense.

 

[elementaryschooleconomics]

ASTRO neither accredits physicians nor admits physicians to residencies. They can comment freely on the job market. It should be one of their primary functions as an organization. Can they attempt to compel members of ASTRO to act in an anticompetitive way? No.

It. Is. Bull. ****.

Agreed, however, I'm going to see if I can dig into the Family Practice thing a little more. To me, that sounds like the equivalent of ADROP. I could see the argument being that ASTRO is the parent of SCAROP and ADROP, and if the DoJ went after the Family Medicine program directors, they could go after ASTRO.

However, based on the way Falit worded this, it sounds like a different situation?

 

[elementaryschooleconomics]

Here's the case:

https://www.justice.gov/atr/case-document/file/487251/download

Haven't had time to read the thing entirely and digest it, but it sounds COMPLETELY different to what we're discussing here.

 

[evilbooyaa]

Let's actually talk facts: here's the results of the Justice Department Anti-Trust lawsuit against the ABA. Their crimes (bolded for emphasis below) were much more severe than what is being asked of ASTRO to do: Justice Department and American Bar Association Resolve Charges That the ABA's Process for Accrediting Law Schools was Misused (Copied below)

​

FOR IMMEDIATE RELEASE TUESDAY, JUNE 27, 1995​

AT (202) 616-2771 TDD (202) 514-1888​

JUSTICE DEPARTMENT AND AMERICAN BAR ASSOCIATION RESOLVE CHARGES THAT THE ABA'S PROCESS FOR ACCREDITING LAW SCHOOLS WAS MISUSED WASHINGTON, D.C. — The Department of Justice and the American Bar Association today resolved charges that the ABA process for accrediting law schools had been misused to inflate faculty salaries and benefits. The Antitrust Division filed a civil lawsuit and settlement in U.S. District Court in Washington, D.C., alleging that the ABA used its power as the law school accrediting agency to protect law faculties' economic interests and working conditions. Anne K. Bingaman, Assistant Attorney General in charge of the Antitrust Division, said, "The ABA's accreditation process required that universities raise salaries to artificially- inflated levels, and meet other costly accreditation requirements that had little to do with the quality of the legal education they provided. The settlement reached today stops this anticompetitive conduct." Under today's proposed settlement, the ABA would be prohibited from: Fixing faculty salaries; Refusing to accredit schools simply because they are for-profit; and Refusing to allow ABA-approved law schools to accept credits for classes at schools that are state-accredited but not ABA-approved. The settlement also: Establishes a special committee to determine if ABA accreditation requirements in six other areas should be revised-- student to faculty ratios, teaching loads, sabbaticals, bar preparation courses, facilities, and other resources. Opens up the ABA accreditation process so that it is no longer controlled by legal faculty who benefit from requiring better pay and working conditions. "The powerful status of the ABA does not insulate it from the antitrust laws," said Bingaman. "The Antitrust Division has sued many professional trade associations, which, like the ABA, have violated the antitrust laws. Lawyers must keep their own house in order as well." The complaint charges that the ABA's accreditation process had the effect of pressuring law schools to raise salaries to the national or regional median. The Department said by pressuring schools to pay the median salary, the ABA kept raising the target that schools had to meet. About 90 percent of the ABA's Section of Legal Education members are law faculty. The section is responsible for the law school accreditation program, which has operated without adequate oversight. The complaint alleges that the lack of oversight has led to abuses in the accreditation process, leading to an undue focus on guild concerns rather than quality education. Through the process established by the consent decree, the ABA will work in the months ahead to revise its accreditation standards to address the problems identified in the government's complaint. Bingaman said, "We are pleased that the ABA has acted promptly and responsibly to address these issues, so that its important role in accrediting the nation's law schools can be performed appropriately and effectively." The ABA, which is headquartered in Chicago, is the world's largest professional association for lawyers. There are currently 177 ABA-approved law schools. To become effective, the consent decree must be approved by the court following a 60-day comment period as required by the Antitrust Procedures and Penalties Act. If the consent decree is approved by the court, it will settle the suit. 95-363

 

[RickyScott]

we need an transparent written opinion from big law antitrust lawyer. Likely to be several thousand. Would certainly support go fund me for this. Would be happy to try organize if there is interest.

 

[elementaryschooleconomics]

we need an transparent written opinion from big law antitrust lawyer. Likely to be several thousand. Would certainly support go fund me for this. Would be happy to try organize if there is interest.

I would be interested. People always say SDN should do something instead of just making noise...this would be it.

 

[Mandelin Rain]

Agreed, however, I'm going to see if I can dig into the Family Practice thing a little more. To me, that sounds like the equivalent of ADROP. I could see the argument being that ASTRO is the parent of SCAROP and ADROP, and if the DoJ went after the Family Medicine program directors, they could go after ASTRO.

However, based on the way Falit worded this, it sounds like a different situation?

Sounds like the FP program directors colluded to fix wages. They agreed none of them would offer incentives to attract candidates. That is obvious anti-competitive behavior.

 

[RickyScott]

Thinking how to do this anon. Will find out some names and rates and post to see if there is interest.

 

[RickyScott]

aba restricting lawyers hurts consumers/public. Not true with docs.

 

[elementaryschooleconomics]

Thinking how to do this anon. Will find out some names and rates and post to see if there is interest.

Could we make "Radiation Oncologists of SDN" an LLC or something?

 

[seper]

is FP example relevant? If not, ASTRO should let Falit go,

 

[scarbrtj]

Could we make "Radiation Oncologists of SDN" an LLC or something?

Pessimist's take:
SDN hires lawyers. ASTRO decides to ignore their lawyers in favor of SDN lawyers. ASTRO decides to say "There are too many radiation oncologists; time to cull residency slots." Victory! Then what? It's like when a neurologist sees a severely neurologically impaired patient, writes a beautiful consult note, tells you "this was a very interesting and unfortunate patient," and walks away without actually doing anything.

 

[elementaryschooleconomics]

Pessimist's take:
SDN hires lawyers. ASTRO decides to ignore their lawyers in favor of SDN lawyers. ASTRO decides to say "There are too many radiation oncologists; time to cull residency slots." Victory! Then what? It's like when a neurologist sees a severely neurologically impaired patient, writes a beautiful consult note, tells you "this was a very interesting and unfortunate patient," and walks away without actually doing anything.

I would argue that that's the best ASTRO could actually do. The ABR and ACGME actually control the specialty, ASTRO does not.

 

[Mandelin Rain]

Pessimist's take:
SDN hires lawyers. ASTRO decides to ignore their lawyers in favor of SDN lawyers. ASTRO decides to say "There are too many radiation oncologists; time to cull residency slots." Victory! Then what? It's like when a neurologist sees a severely neurologically impaired patient, writes a beautiful consult note, tells you "this was a very interesting and unfortunate patient," and walks away without actually doing anything.

I always said I could never be a neurologist because once you “localize the lesion” there’s usually nothing to do for it.

 

[Mandelin Rain]

I do think astro could make broad commentary on requirements for residency i.e. case numbers and site specific numbers that the RRC could take under advisement.

 

[medgator]

I always said I could never be a neurologist because once you “localize the lesion” there’s usually nothing to do for it.

Q: What does a neurosurgeon call a neurologist?

A: A great historian