Cade applies BRL 2.7 million in fines for price-fixing of medical services

The Administrative Council for Economic Defense - CADE condemned on 15 October 2014, seven cases of price-fixing of medical services in the health insurance market. Anticompetitive behaviors were carried out by organizations representing the medical profession in the states of Paraiba, Santa Catarina, Bahia, Rio Grande do Norte, Mato Grosso, and Rondônia. The Federal Council of Medicine - CFM, the Brazilian Medical Association - AMA, the National Federation of Physicians - FENAM and the National Union of Self-Management Institution in Healthcare - UNIDAS were also fined. In total, fines of approximately BRL 2.7 million were applied.

During the judgment session, Commissioner Ana Frazão said that medical organizations sought unilaterally to fix the minimum value of medical appointments and fees paid by health plans operators. In six cases, this fixation was led by the Brazilian Hierarchical Classification of Medical Procedures - CBHPM, which was considered a table of minimum prices both for doctors’ fees and for hospital procedures and examinations. In another case there was no imposition of the table, but the entities sought to negotiate minimum prices with the argument of promoting the restoration of the inflationary loss of the services’ prices.

Furthermore, some of these entities promoted movements of stoppage and boycott of the services of operators which did not accept the stipulated values. In most cases, non-adherence to these movements subjected the physicians to ethical disciplinary sanctions.

"I sought to consider the legality of some of the behaviors based on regular exercise of countervailing power, because I understood that doctors could unilaterally set minimum values of their fees, provided that they were reasonable and aimed at protecting only doctors (individuals) due to the apparent asymmetry in negotiations between these healthcare operators", said the Commissioner.

However, the understanding of the Commissioner was not followed by other members of CADE’s Tribunal, which moved away the theory of countervailing power. Nevertheless, the only exception concerns the Rio Grande Norte proceeding, in which the Regional Council of Medicine of that state was acquitted due to the existence of a state law that expressly attributes to it power to set values for physicians' fees and hospital procedures.

On the other hand, the understanding of the Tribunal was unanimous regarding the impossibility of unilateral price fixing for exams and hospital procedures in favor of clinics, hospitals and laboratories. The Council members also agreed that the representative bodies cannot coerce doctors, including with threats of ethical and disciplinary sanctions, to adhere to the terms of the collective bargaining table.
Besides paying the fines, CADE’s Tribunal also determined that the entities refrain from promoting, supporting or encouraging the boycott movement, collective stoppage of services to health plans beneficiaries, as well as mass de-accreditations. Entities also cannot prevent the direct and individual negotiation of fees between doctors and health insurance providers or hospitals.

Paraíba (Administrative Proceeding no. 08012.005374 / 2002-64) - the Union of Medical Doctors of Paraíba, the Medical Association of Paraíba, Academy of Medicine of Paraíba, the Regional Council of Medicine of the State of Paraíba and the National Union of Self-Management Institutions in Healthcare - UNIDAS were sentenced to pay fines totaling BRL 617,178.00.

Santa Catarina (Administrative Proceeding no. 08012.008477 / 2004-48) - The Union of Medical Doctors of Santa Catarina, the Medical Association of the State of Santa Catarina and the Regional Council of Medicine of Santa Catarina will have to pay fines totaling BRL 367,114.50.

Bahia (Administrative Proceeding no. 08012.004020 / 2004-64) - The Regional Council of Medicine of Bahia was sentenced to pay a fine in the amount of BRL 212,820.00.

Rio Grande do Norte (Administrative Proceeding no. 08012.005135 / 2005-57) - the Union of Medical Doctors of Rio Grande do Norte, the Medical Association of Rio Grande do Norte and UNIDAS were sentenced to pay fines totaling BRL 292,627.50.

Mato Grosso (Administrative Proceeding no. 08012.006552 / 2005-17) - The Union of Medical Doctors of Mato Grosso, the Medical Association of Mato Grosso and the Regional Council of Medicine of Mato Grosso must pay fines totaling BRL 340,512.00.

Rondônia (Administrative Proceeding no. 08012.007833 / 2006-78) - the Medical Association of Rondônia and the Regional Medical Council of the State of Rondônia were sentenced to pay fines totaling BRL 250,063.50.

CFM, AMB and FENAM (Administrative Proceeding no. 08012.002866 / 2011-99) - The Federal Medical Council, the Brazilian Medical Association and the National Federation of Doctors must pay fines totaling BRL 638,460.00.