A. The Nature of Services Required by Mentally and Emotionally Disturbed Persons

Ms. McCready, the respondent in this case, seeks to represent a class of persons who are subscribers to Blue Shield's prepaid health plan and who are in need of services for mental and emotional disorders including but not limited to depression, anxiety, drug use problems, alcohol-related disorders, phobias, obsessive-compulsive behavior, hysterical symptoms, schizophrenia, and psychosomatic conditions. ^3/

As a Task Panel of the President's Commission on Mental Health recently noted, "the burden of mental illness in the United States is very large and probably constitutes our primary public health issue. For the past few years, the most commonly used estimate is that at any one time, 10 percent of the population needs some form of mental health care . . . . There is new evidence that this figure may be closer to 15 percent of the population." ^4/ According to the National Institute of Mental Health, Division of Biometry and Epidemiology, direct expenditures for treatment of psychological and emotional disorders are $17 billion a year, which represents about 11 percent of all health care expenditures nationally.^5/

Psychotherapy, which can be informally defined as. "an interpersonal process designed to bring about modifications of feelings, cognitions, attitudes and behavior which have proven troublesome" ^6/ has been repeatedly established as efficacious in curing or ameliorating such conditions.^7/ Psychological services have also proved valuable in treating the emotional aspects of many health conditions previously viewed as purely "physical" or "medical" in nature. For example, psychological principles have been successfully applied in the assessment and treatment of such conditions as tension (heart disease, ulcers), addiction ( alcohol, drugs), and chronic pain.^8/ Additionally, psychological techniques are being used for such purposes as physical rehabilitation of stroke victims, correction of curvature of the spine, controlling asthma attacks, and decreasing the risks associated with surgery. ^9/

The interdependence between mental and physical health has been recognized even in traditional medicine for some time. ^10/ Mental health is increasingly viewed as a necessary component of overall human health, and health care planners are acknowledging the role that psychology plays in decreasing the need for medical services by improving the physical and mental well-being of individuals afflicted with many diseases and disabilities. ^11/

B. Qualifications of Psychologists to Provide Mental Health Services

Since the last century, psychology and psychologists have figured prominently in research and teaching concerning mental, emotional and behavioral processes. Psychology is the scientific study of behavior and experience and the application of what is learned by that study to human problems. The practice of psychology has been defined as the rendering of services involving the application of principles, methods and procedures of understanding, predicting and influencing behavior, including diagnosis, prevention, treatment and amelioration of psychological problems and emotional disorders. ^12/Psychologists, by virtue of their training and experience, are recognized as fully qualified to diagnose and provide psychotherapeutic treatment for mental disorders.

Generally, a doctoral level program in clinical psychology requires four to five years of rigorous and extensive didactic and field placement experience, with approximately three years devoted to coursework, one year to a full time supervised internship at a clinic, hospital or other training center, and one year of dissertation research. The basic training model of doctoral programs in clinical psychology is the scientist-professional model, i.e., the teaching of the basic science and methods of psychology combined with the theory and techniques of clinical intervention.^13/ By way of contrast, physicians are not required to have any training specifically related to mental or emotional disorders in order to call themselves psychiatrists and practice psychiatry -- all they need is an M.D. degree.^l4/ Moreover, the basic medical education includes only very limited coursework or clinical experience with mentally or emotionally disordered persons.

At present, all 50 states and the District of Columbia have enacted laws regulating the practice of psychology.^15/ These are either certification or licensure laws; certification laws limit the use of the title "psychologist" while licensing laws regulate the use of the title and also define the scope of those activities for which a license to practice is required. Most state psychology laws establish the doctoral degree in a field of study primarily psychological in nature plus two years of supervised experience as the minimum requirement for licensure or certification. State examining boards administering laws regulating the practice of psychology also require that applicants pass an examination, either written, oral or both. Most state boards employ a standardized written test developed by the Professional Examination Service in conjunction with the American Association of State Psychology Boards.

Ordinarily, psychology licensure is generic. That is, certificates or licenses issued by statutorily constituted examining boards refer to "psychology" and to "psychologists," not to any specialty grouping within the profession. ^16/

3. Ethical Codes and Professional Standards

To further ensure a high quality of professional practice, the states have adapted ethical codes identical or quite similar to the APA's Ethical Principles of Psychologists: ^17/ The Ethical Principles deals with a variety of professional and scientific issues such as confidentiality, utilization of assessment techniques, consumer welfare and professional relationships. The Ethical Principles also mandates that psychologists practice only within their areas of expertise and specifically states that the psychologist is to seek consultation when necessary.

In 1977 the APA Council of Representatives ( the Association's policy making body) adopted a set of generic Standards for Providers of Psychological Services,^l8/ which specify minimally acceptable levels of performance for psychologists engaged in providing services.

The generic Standards for Providers are now supplemented by Specialty Guidelines ^19/ for clinical, counseling, industrial/organizational, and school psychology, adopted in 1980. These four areas constitute the principal fields of specialization in applied psychology.

Still another quality control mechanism which operates with respect to psychologists is peer review. As encouraged by the American Psychological Association, each APA-affiliated state psychological association has established a Professional Standards Review Committee (PSRC) to provide consumers and third-party payers with a formal but readily accessible avenue of redress should a question arise regarding the customary, usual, and reasonable nature of any fee or service rendered. PSRC determinations are advisory in nature, and are based upon regional standards of practice as perceived by psychologist peers. The. APA Committee on Professional Standards, which coordinates PSRC review activity nationwide, is also encouraging psychology's involvement in the implementation of the federal peer review and quality assurance program known as "PSRO." ^20/

C. Recognition of Psychology as an Independent Profession

Given their intensive training, the rigorous licensure/ certification and ethical standards, and peer review, all of which ensure the quality of their work, it is not surprising that psychologists are viewed as leaders among mental health-care professionals. Recognition of psychology as an independent profession providing psychotherapy an a coequal footing with psychiatry is expressed not only in public attitudes but also in federal and state statutory and regulatory law and in private sector practices.

Most relevant federal statutes require direct recognition of clinical psychologists as independent health-care providers, i.e., as persons qualified to deliver services without mandatory referral or supervision by a physician.^21/Two notable examples of such statutes are the Federal Employees Health Benefits Program ^22/ which covers approximately 10 million federal workers and their beneficiaries, and the Civilian Health and Medical Program of the Uniformed Services ( CHAMPUS ), ^23/ which covers both inpatient and outpatient services for approximately 7 million dependents of military personnel, retired military personnel, and other beneficiaries. In its 1978 report, The President's Commission on Mental Health recommended independent status for clinical psychologists under Medicare and under any future national health insurance program. ^24/

Thirty states and the District of Columbia, representing more than 80 percent of the American population, have enacted laws establishing the direct recognition of psychological services for reimbursement purposes.^25/ In effect, these laws allow consumers a "freedom of choice" among state licensed practitioners.^26/ The Health Insurance Association of America, which represents more than 300 insurance companies that write approximately 80 percent of all health insurance contracts issued by United States companies, formally supports the introduction of such "freedom of choice" legislation in the remaining states and has endorsed a model statute.

In addition to "freedom of choice" legislation, many other state statutes recognize the expertise of psychologists in such areas as civil commitment proceedings,^27/ participation in rehabilitation programs for convicts, ^28/ forensic examinations of criminal defendants, ^29/ service on community services boards, ^30/ and reports on incidents of child abuse.^31/ A majority of the states provide that communications between psychologists and their clients are privileged, ^32/ and numerous federal and state courts have recognized the competence of clinical psychologists to testify as expert witnesses in the field of mental disorders.^33/

These facts are consistent with the holding of the Fourth Circuit that clinical psychologists are equally qualified to provide mental health services and that under ordinary circumstances they compete with psychiatrists in the marketplace for the delivery of such services:

The record demonstrates that psychologists and psychiatrists do compete; indeed it is susceptible to judicial notice. Both provide psychotherapy, 469 F.Supp. at 560, and are licensed to do so by state law. See Va. Code § § 54-273 (10 ) , -274, -309.1, -936 (1978 Replacement Vol.) Competition in the health care market between psychologists and M.D. providers of psychotherapy is encouraged by the legislature, see Va. Code § 38.1-824, and its existence is well documented. Virginia Academy of Clinical Psychologists v. Blue Shield of Va., 624 F.2d 476, 485 ( 4th Cir. 1980 ) , cert. denied, 450 U.S. 916 (1981) (footnote omitted) (incorporated by reference in McCready v. Blue Shield of Va., 649 F.2d 228, 230 ( 4th Cir. 1981) ) .

II. PHYSICIANS AND BLUE SHIELD PLANS HAVE HISTORICALLY MADE AND CONTINUE TO MAKE ATTEMPTS TO DISCOURAGE COMPETITION FROM PSYCHOLOGISTS, AND OTHER QUALIFIED PROVIDERS OF MENTAL HEALTH SERVICES, AND HAVE THEREBY INCREASED THE COST T0, THE CONSUMERS OF SUCH SERVICES

A. Anti-competitive Policies of Psychiatry

Recognition of psychologists as independent health care providers has met with strenuous opposition from physicians in general and psychiatrists in particular. Psychiatrists view their "territory" as being "assailed from every side" by psychologists and view the economic competition as threatening.^34/

The oft-stated policy of the American Psychiatric Association is to do everything possible to keep psychologists and other professionals in a subordinate role under the direction of physicians/psychiatrist ^35/ The likely result of allowing psychiatrists to determine which competing psychotherapists will be reimbursed is indicated in an American Medical News article noting that "psychiatrists are declaring war on anyone trying to move in on their territory . . . In the fight for professional survival...^36/ The president of the American Psychiatric Association is quoted in the same article as suggesting that psychiatrists should "push for treatment supremacy over allied health professionals practicing in the mental health field." ^37/

One example of this effort is the attempted "remedicalization" of psychiatry, i.e., an attempt to define all treatment of mental health problems as "medical" treatments An official of the American Psychiatric Association has described the effects of the process as follows:

Medical care becomes equated with health care. This brings psychiatry back into the mainstream of the medical establishment, because the equation of medical care with health care is the basis on which organized medicine claims the right to exert control over the total health-care industry.^39/

B. Anti-competitive Policies of Blue Shield

This policy of "control by the medical profession" has long been the policy of Blue Shield of Virginia as well. Indeed, Blue Shield grew out of "medical service bureaus" organized by county medical societies to combat plans developed by employers to deliver medical care to their employees an a contract basis. The direct ancestors of the present Blue Shield plan were established in the 1940s, offering prepaid coverage through medical societies and other physician-controlled organizations. ^40/ And as early as 1947, the medical profession's control over Blue Shield plans was being criticized, particularly because of the impact of that control on physicians' fees.^41/

Today, Blue Shield plans comprise by far the nation's largest source of private third-party payments for health services. During 1977, Blue Shield plans underwrote or administered coverage for approximately 85.3 million Americans, or about 39.5 percent of the nation's total population. ^42/ Physician dominance of Blue Shield has continued, as medical societies and other physician organizations "participate extensively in the control of most Blue Shield plans."^43/ Many Blue Shield plans continue to act on the premise that physician organizations should control all aspects of health care, including the services of non-physicians.^44/

Although many Blue Shield plans extended coverage for mental health services in the 1960s, some -- particularly in areas with high concentrations of psychiatrists refused to recognize and reimburse clinical psychologists as independent providers, even though psychologists were licensed to practice independently in most states. ^45/ On the national level, Blue Shield refused to afford psychologists independent status in its program for federal employees until Congress mandated coverage for psychologists' services in 1974. ^46/ As explained in a staff report to the Federal Trade Commission, one of the

". . . important decisions each Blue Shield plan must make in carrying on, its business is determining which providers it will pay for supplying covered services to its subscribers. The decision as to which providers are eligible to receive reimbursement has a significant impact on competition in the health care services market. To the extent that providers' services are not covered by Blue Shield contracts, those providers may be virtually eliminated as competitors in the portion of the market represented by Blue Shield subscribers. If the plan in question has a substantial market share, such providers may in fact be seriously hampered in competing in the market as a whole." ^47/

As a consequence of these decisions, "effective competition" from licensed non-physician health providers has been delayed and obstructed. Some professions have been excluded; others have been kept in a "complementary" or "physician-support" status, although their authority to practice independently has been recognized by state law. ^48/

Such anti-competitive attitudes and practices are at issue in this case. As the court found in the companion case Virginia Academy o f Clinical Psychologists v. Blue Shield o f Va., 624 F.2d 476, 485 n.11 (4th Cir. 1980) , "one could scarcely find a more revealing statement of competitive conditions than the statement of [the medical director of the Richmond plan] concerning the need to stop `encroachment' by non-M.D. providers of therapy." That statement appeared in the May 25, 1972 minutes of the Committee on Mental Health of the Medical Society of Virginia, which read as follows:

Dr. Hulley assured the Committee of the interest of Blue Cross/Blue Shield where psychiatric services are concerned and discussed a report prepared under the direction of Dr. Wingfield and a special committee of the Neuropsychiatric Society.

The report is concerned with services provided by psychiatrists and charges involved. It has been referred to the Blue Shield Board for consideration and final disposition.

It was brought out that a number of groups, which have a part in the overall mental health picture, are little-by-little working their way into the therapy field. It seemed to be the consensus that the Medical Society of Virginia should take a firm stand on this encroachment and seek to stop it once and for all.

It was brought out that psychotherapy apparently means different things to different people and it was agreed that it should be defined as that performed by psychiatrists or under the direct supervision of psychiatrists. 624 F.2d at 481 n.6.

That evidence, which is incorporated by reference into the Fourth Circuit's decision in this case (649 F.2d at 230) , shows with shocking clarity the extent to which petitioners were motivated by a wish to stamp out free competition in the marketplace for psychotherapy services and to preserve as much as possible their domination and control of the field.

The elimination of psychologists and other non-physician providers from the marketplace of mental health services leads inevitably to higher costs for such services.^49/ And from a cost perspective, the requirement that psychologists bill through physicians is little better than the practice of excluding psychologists from the market entirely. As a Senate committee has concluded, "there is little if any benefit derived from the practice of [physician] supervision of [mental health] service other than the earning of money by doctors of medicine . . ."^50/

When such anti-competitive practices as have been alleged here and proved in the companion case are allowed to persist, the real victims are persons such as respondent and the class she seeks to represent who must pay artificially high prices for artificially scarce mental health services. Persons in need may even be denied such services entirely because the existing supply of qualified psychotherapists will be grossly inadequate if non-physician providers have been driven from the marketplace.

Noting that "[t]he Blue Shield plans are a dominant source of health care coverage in Virginia" and that "[t]heir decisions as to who will be paid for psychotherapy necessarily dictate, to some extent, which practitioners will be chosen from among those competent under the law to provide such services," the Fourth Circuit found the plans' requirement that psychologists' fees be billed through physicians to be illegal. Virginia Academy of Clinical Psychologists v. Blue Shield of Va., 624 F.2d 476, 485 (4th Cir. 1980). "The Blue Shield policy forces the two independent economic entities to act as one, with the necessary result of diminished competition in the health care field." Id. As the Fourth Circuit held, the elimination of the bill-through-provision would not preclude a variety of other cost control and quality control measures by Blue Shield. But it would "expand consumer and provider alternatives" and would be likely to "result in lower costs." Id. at 486.

It is undisputed that respondent and other consumers of psychological services have standing, in the constitutional sense, to assert antitrust violations which diminish their property by increasing the net cost of such services.^51/ The question, therefore, is not whether Congress has the power to confer standing in these circumstances, but whether it has done so. In Amicus' view, Congress manifestly intended for consumers to have standing in cases such as this.

A. Standing Will Further the Purposes Underlying the Antitrust Laws and Will Ensure the Delivery of Necessary Psychological Services at Reasonable cost

Several important points relating to consumer standing are by now well-settled. First, as this Court unanimously ruled in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 486 n.10 (1977) , the treble-damages provision of the Clayton Act was intended by Congress primarily as a remedy for individuals,"especially consumers."

Second, as this Court unanimously ruled in Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979 ), a "consumer whose money has been diminished by reason of an antitrust violation has been injured 'in his . . . property' within the meaning of Section 4" of the Clayton Act, even if the consumer has suffered no "business" or "commercial" injury.

Third, as commentators and this Court have acknowledged after reviewing the legislative histories of the Sherman and Clayton Acts, the "private treble-damages remedy was enacted to achieve two great public purposes: compensation for private harm and enforcement of the national economic policy in favor of competition." Berger and Bernstein, supra note 51, at 845 ^52/

Both of these Congressional objectives would be furthered by allowing consumer standing in the circumstances of this case. And because the injuries to psychologists and to consumers of psychological services are quite distinct, the first objective -- compensation for private harm can be furthered only by allowing consumer standing.

Petitioners contend that since psychologists do have standing to assert antitrust claims against them, granting standing to consumers "advances no rational goal of the antitrust laws," Cert. Pet. at 20, and "the policies of the antitrust laws can be fully vindicated" by psychologists. Cert. Pet. at 9. But that contention overlooks the very different economic injuries which psychologists and consumers of psychological services suffer by reason of the same antitrust violation. The economic injury to psychologists consists of the income they would have received from potential clients who would have chosen their services but who chose instead the services of psychiatrists in order to obtain reimbursement from petitioners. If, as in this case, a client nevertheless chooses and pays a psychologist, the psychologist will have "suffered no damage in this respect," because the consumer will have "already paid" the psychologist in full. McCready v. Blue Shield of Va., 649 F.2d 228, 232 (4th Cir. 1981). The only economic injury, in this circumstance, is to the consumer.^53/ Accordingly, unless consumers who do choose psychologists are granted standing to sue for the particular economic injury they and they alone suffer by reason of the antitrust violation, the Congressional objective of ensuring compensation for every private harm will be completely frustrated.

In addition to furthering this nation's economic objectives, granting standing to consumers of psychological services will further other equally important societal objectives. As we have demonstrated above, there is an enormous and unmet need for psychological services in this country. 1 PRESIDENT'S COMMISSION REPORT 2-10; see generally discussion supra at 5-7. Increasing the pool of therapists available to meet that need will directly and substantially benefit individuals, and will indirectly benefit the national economy by reducing the time employees are absent from work because of psychological problems.

In sum, recognition of respondent's standing in this case will further important societal objectives as well as the purposes of our anti-trust laws, "the essence of [which] is to ensure fair price competition in an open market." Reiter v. Sonotone Corp,., 442 U.S. 330, 342 (1979).

B. In the Circumstances of This Case, Standing Will Not Result in Duplication of Recovery, Speculative Damages, or any of the Other Problems Which Have Persuaded Courts, in Other Circumstances, to Deny Standing ^54/

Petitioners contend that "this case presents exactly the situation of multiple lawsuits against the same defendants that the `target area' rule was designed to prevent." Cert. Pet. at 9. But since the economic injuries to psychologists and consumers are quite distinct, granting standing to both will not result in "multiple" or "duplicative recoveries," which was the "central premise" and reason for denying standing in Hawaii v. Standard Oil Ca., 405 U.S. 251 (1972 ). See Reiter v. Sonotone Corp., 442 U.S. 330, 342 (1979 ).

The economic injuries suffered by consumers are not at all speculative. They are fixed by the terms of their Blue Shield contracts, and "can be readily ascertained to the penny." McCready v. Blue Shield of Va., 649 F.2d 228, 231 ( 4th Cir. 1981) .

Petitioners also assert that respondent should "not be accorded standing, because her alleged `injury' results from the independent decision of her employer to purchase a group contract that did not cover psychologists' services." Cert. Pet. at 17; see also, Id. at 20. That assertion is irrelevant, and seriously misleading, in several respects. First, if it were true that respondent's injury was caused not by petitioners but solely by her employer, that factual issue could not be resolved on standing grounds, but only on the merits. Second, the assertion is not factually accurate. "Between 1962 and 1972, Richmond Plan coverage included direct payment to psychologists for psychotherapy rendered to subscribers." Virginia Academy of Clinical Psychologists r. Blue Shield of Va., 624 F.2d 476, 478 (4th Cir. 1980 ) . In 1972, petitioners decided, apparently without changing the wording of the plans, to re-interpret the plans so that payment would be allowed for the services of psychologists only if those services were billed through a physician. Id. But in 1973, Virginia enacted a statute which required the plans "to pay directly for services rendered by licensed psychologists." Id.^55/

As petitioners know, respondent sues on her own behalf and on behalf of a not yet certified class of consumers who incurred unreimbursed costs for services by licensed clinical psychologists "since 1973." Cert. Pet. at 3; McCready v. Blue Shield of Va., 649 F.2d 228, 229 ( 4th Cir. 1981) . Thus, at all times relevant to this suit, state law required petitioners to reimburse directly for services rendered by psychologists. Given this history of direct reimbursement and a state law requiring direct reimbursement in 1973 and thereafter, it was certainly not unreasonable for respondent's employer to believe that it had contracted for a plan which would provide direct reimbursement. ^56/

Petitioners contend that the "target area" rule "was rejected by the majority" below, and they stress that point repeatedly. Cert. Pet. at 7-8; see also Id. at 10-19. Amicus is puzzled by that contention. Far from "rejecting" the rule, the majority squarely held that both psychologists and consumers "were in the target area." McCready v. Blue Shield of Va., 649 F.2d 228, 231 (4th Cir. 1981) . Moreover, in explaining its ruling, the majority indicated that the target area rule should be applied to deny standing "only when the underlying purposes of the phrase are served"; surely petitioners do not quarrel with that qualification. Petitioners may disagree with the majority whether the target area rule permits or prohibits standing in the particular, factual circumstances presented by this case; but to suggest that the majority below rejected the target area rule as a matter of law, thus creating a supposed conflict with other circuits, is disingenuous. Because there is no true conflict between the decision below and other circuits on this point, it would be appropriate to dismiss the writ of certiorari as improvidently granted an that question.^57/

CONCLUSION

The writ of certiorari should be dismissed; or, in the alternative, the judgment of the United States Court of Appeals for the Fourth Circuit should be affirmed.

Respectfully Submitted,