The American Psychological Association (APA), a nonprofit scientific and
professional organization founded in 1892, is the major association of
psychologists in the United States. The APA has more than 52,000 members
-1,227 in Virginia-and includes the vast majority of psychologists holding
doctoral degrees from accredited universities in the United States. The
purpose of the APA, as set forth in its bylaws, is to "advance psychology
as a science and profession, and as a means of promoting human welfare by the
encouragement of psychology in all branches in the broadest and most liberal
manner." A substantial and growing number of APA's member psychologists
are health-care providers licensed to provide mental health services to
individual clients.
Since 1948, one of APA's major functions has been to accredit doctoral
programs in professional psychology. Another of APA's central functions is to
establish ethical standards and guidelines for the delivery of psychological
services. The Ethical Principles of psychologists have been
incorporated in the laws of most states, thus governing the professional
conduct of psychologists licensed in those states.
APA has undertaken several recent projects described in this brief which
have assisted the public and other interested institutions in identifying
qualified practitioners. And in order to provide consumers and third party
payers with a formal but readily accessible avenue of redress should a
question arise regarding services or fees, APA has actively participated in
the establishment of peer review programs on a nation-wide basis.
APA has long been active in the effort to improve and upgrade mental health
care delivery in the United States, and it is the vitality of a competitive
and cost-effective service delivery system which lies at the heart of this
case. For the reasons set forth in this brief, Amicus believes that the
judgment of the appellate court, if affirmed, will ensure fair price
competition in an open market for mental health services and will improve the
delivery to consumers of such badly needed services at a reasonable price.
Respondent is a subscriber to a pre-paid health plan who required services
for mental and emotional disorders.1/ Mental and emotional disorders
afflict more Americans than any other category of disabling condition.
According to the 1978 Report of the President's Commission on Mental Health,
at least 15 percent of the population -- approximately 33 million people require
some farm of professional mental health treatment at any given time. But as
the Commission found, the mental health field is plagued by a shortage of
personnel trained to deliver these much needed services.2/
Psychologists are fully trained and qualified to provide psychotherapeutic
mental health services, which studies have shown to be effective in curing or
ameliorating mental and emotional disorders. Indeed, no other mental health
profession -- psychiatry included -- requires of all its practitioners as high a
degree of education and training specifically in mental and emotional
processes as does the profession of psychology. Generally, a doctoral level
program in clinical psychology requires four to five years of rigorous and
extensive didactic and field placement experience. Additional assurance that
mental health services by psychologists will be of high quality is provided by
licensure and certification statutes regulating the practice of psychology in
all 50 states and the District of Columbia, by the APA's ethical principles
and professional standards, and by a nation-wide system of professional
standards review committees.
Recognition of psychology as an independent profession on a co-equal
footing with psychiatry is expressed in such major federal statutes as the
Federal Employees Health Benefits Act and the Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS). These and many other federal
statutes require direct recognition of clinical psychologists as independent
healthcare providers, i.e., as health professionals qualified to
deliver services without mandatory referral or supervision by a physician.
Moreover, 30 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
("freedom of choice" laws). (Point I)
Physicians have strenuously opposed recognition of psychologists as
independent health-care providers and view the economic competition posed by
psychologists as threatening. Their opposition is evidenced both in official
publications by organized psychiatry and in the statements of individual
psychiatrists. Blue Shield of Virginia, like other Blue Shield plans, has
historically had a policy of "control by the medical profession,"
which has been criticized both by Congress and by the Federal Trade
Commission's Bureau of Competition. As the Fourth Circuit observed,
petitioners were motivated by a wish to stamp out free competition for
psychotherapy services and to preserve as much as possible their domination
and control of the market. (Point II)
In the circumstances of this case, respondent and other consumers have
standing to assert antitrust violations which diminish their property by
increasing the net cost of psychotherapeutic mental health services. The
treble-damages provision of the Clayton Act was intended by Congress primarily
as a remedy for individuals, "especially consumers." Brunswick
Corp. v. Pueblo Bowl-0 Mat, Inc., 429 U.S. 477, 486 n.10 (1977 ) .
Moreover, 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 that consumer has suffered no business
or commercial injury. The private treble damages remedy was enacted to achieve
two major objectives -- compensation for private harm and enforcement of the
national economic policy in favor of competition. Both of these Congressional
objectives would be furthered by allowing consumers standing in a case such as
this. And because the injuries to psychologists and to consumers of
psychological services are quite distinct, compensation for the private harm.
done consumers can be furthered only by allowing consumer standing.
Recognition of respondent's standing in this case will also advance the
important societal objective of ensuring the delivery of psychological
services at a reasonable and affordable cast. (Point III-A)
None of the specific reasons for denying standing raised by petitioners in
this case hold up under scrutiny. First, because the economic injury to
psychologists and consumers is quite distinct, granting standing to both will
not result in the multiple or duplicative recoveries prohibited by Hawaii
v. Standard Oil Co., 405 U.S. 251 (1972 ) . Second, recognition of
respondent's standing is not inconsistent with the decision of this Court in Illinois
Brick Co. v. Illinois, 431 U.S. 720 (1977) because in that case this court
expressly did "not address the standing issue . . . ." Id. at 728
n.7. Third, petitioners' assertion that respondent's alleged injury results
from the independent decision of her employer to purchase a group contract
that did not cover psychologists' services is legally irrelevant and factually
erroneous. Finally, Amicus is puzzled by petitioners' contention that the
"target area" rule "was rejected by the majority" below.
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) . (Point III-B)
I. PSYCHOLOGISTS ARE FULLY TRAINED AND QUALIFIED TO PROVIDE
PSYCHOTHERAPEUTIC MENTAL HEALTH SERVICES
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.
1. The Doctoral Degree
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.
2. Licensure and Certification
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.
4. Peer Review
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.
C. The Effects of Such Illegal Practices on the Cost of Services to
Consumers
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.
III. IN THE CIRCUMSTANCES OF THIS CASE, RESPONDENT AND OTHER CONSUMERS
HAVE STANDING TO ASSERT ANTITRUST VIOLATIONS WHICH DIMINISH THEIR PROPERTY
BY INCREASING THE NET COST OF PSYCHOTHERAPEUTIC MENTAL HEALTH SERVICES
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,
PAUL R. FRIEDMAN
(Counsel of Record)
BRUCE J. ENNIS
DONALD N. BERSOFF
ENNIS, FRIEDMAN, BERSOFF & EWING
1200 Seventeenth Street, N.W. Suite 511
Washington, D.C. 20036
202/775-8100
Attorneys for Amicus Curiae
January 18,1982
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