• The state action doctrine under the Vermont single payment system

    This post is part of a series on Vermont’s single payment system law.

    The Vermont single-payment system legislation requires competitors to work together in a collaborative fashion generally prohibited by federal antitrust laws.  The Act protects Vermont providers and others from federal antitrust scrutiny through the “state action” doctrine, which grants antitrust immunity to actions by US states.  If a state wants to create monopolies in cable television, toll roads or public utilities, the federal antitrust statutes won’t stand in the way.

    Some implications in Vermont:

    • Anything the State does directly is immune; and
    • Acts by private parties (payers, providers, etc.) may be immune if they are acting pursuant to a clearly articulated state policy and are closely supervised by the State.

    18 VSA §9376(d) (§3 of the Act) intentionally provides state action immunity:

    (d) To the extent required to avoid federal antitrust violations and in furtherance of the policy identified in subsection (a) of this section, the [GMC] board shall facilitate and supervise the participation of health care professionals and health care provider bargaining groups in the process described in subsection (b) of this section.

    Also in §9377(a):

    It is also the intent of the general assembly to ensure sufficient state involvement and action in the design and implementation of the payment reform pilot projects described in this section to comply with federal and state antitrust provisions by replacing competition between payers and others with state-supervised cooperation and regulation.

    Other similar provisions are in 18 VSA §§9377(c) (§3 of the Act), 18 VSA §724 (§3c of the Act).

     

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