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FOOTNOTES

BLUE SHIELD OF VIRGINIA,
BLUE SHIELD OF SUTHWESTERN VIRGINIA
and
NEUROPSYCHIATRIC SOCIETY OF VIRGINIA,  INC.,
Petitioners,

v.

CAROL McCREADY, Respondent.


Read the Full-Text Amicus Brief

1/ Respondent brought this case as a class action. But no ruling an that issue has occurred because the District Court granted petitioners' motion to dismiss for lack of standing.

2/ 1 PRESIDENT'S COMMISSION ON MENTAL HEALTH, REPORT TO THE PRESIDENT 2-10 (1978). [PRESIDENT'S COMMISSION REPORT

3/ 2 PRESIDENT'S COMMISSION REPORT, supra note 2, at 4-8; GARFIELD & BERGIN, HANDBOOK OF PSYCHOTHERAPY AND BEHAVIOR CHANGE: AN EMPIRICAL ANALYSIS 3 (2d ed. 1978).

4/ 2 PRESIDENT'S COMMISSION REPORT, supra note 2, at 4.

5/ Id.

6/ GARFIELD & BERGIN, supra nabs 3.

7/ E.g., OFFICE OF TECHNOLOGY ASSESSMENT, UNITED STATES CONGRESS, BACKGROUND PAPER NO. 3: THE EFFICACY AND COST EFFECTIVENESS OF PSYCHOTHERAPY, 37-47 (1980) ; SMITH, GLASS, MILLER, THE BENEFITS OF PSYCHOTHERAPY (1980) ; Bergin & Lambent, The Evaluation of Therapeutic Outcomes, in GARFIELD & BERGIN, supra note 3, at 139; Smith & Glass, Meta-Analysis of Psychotherapy Outcome Studies, 32 AMERICAN PSYCHOLOGIST 752 (1977) ; See generally GARFIELD & BERGIN, supra note 3.

8/ E.g., Olbrisch, Psychotherapeutic Intervention in Physical Health: Effectiveness and Economic Efficiency, 32 AMERICAN PSYCHOLOGIST, 761 (1977) ; Kellner, Psychotherapy in Psychosomatic Disorders, 32. ARCH. GEN. PSYCHIATRY 1021 (1975) ; EMRICK, A Review of Psychologically Oriented Treatment of Alcoholism, 36 JOURNAL OF STUDIES ON ALCOHOL 88 (1975) .

9/ See generally, STONE, COHEN & ADLER, HEALTH PSYCHOLOGY (1979).

10/ See generally Kaufman, Psychiatric Findings in Admission to a Medical Service in a General Hospital, 26 JOURNAL OF THE MOUNT SINAI HOSPITAL 160 (1959) ; Kellner, Psychiatric Ill Health Following Physical Illness, 112 BRITISH JOURNAL OF PSYCHIATRY 71 (1966); Nigro,, A Psychiatrist's Experiences in General Practice in a Hospital Emergency Room, 214 JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION 1657 (1970).

11/ It has been repeatedly demonstrated that psychological intervention lowers the cost of medical services and eases the load on our overburdened medical facilities. Studies have consistently shown that emotionally distressed individuals are unnecessarily heavy users of general health services, and that significant declines in the use of those services occurred when such persons received psychological services. E.g., Jones & Vischi, Impact of Alcohol, Drug Abuse and Mental Health Treatment on Medical Care Utilization: A Review of the Research Literature, 17 MEDICAL CARE 1 (Dec. 1979); Cummings & Van den Bas, The Twenty Year Kaiser Permanente Experience with Psychotherapy and Medical Utilization: Implications for National Health Policy and National Health Insurance, 1 HEALTH POLICY QUARTERLY 159 (1981); Rosen & Wiens, Changes in Medical Problems and Use of Medical Services Following Psychological Intervention, 34 AMERICAN PSYCHOLOGIST 240 (1979) ; Cummings & Follette, Brief Psychotherapy and Medical Utilization in DORKIN, THE PROFESSIONAL PSYCHOLOGIST TODAY: NEW DEVELOPMENTS IN LAW, HEALTH, INSURANCE ANDS HEALTH PRACTICE (1976) ; Goldberg et al., Effect of Short-term Outpatient Psychiatric Therapy Benefit on the Utilization of Medical Services in a Prepaid Group Practice Medical Program, 8 MEDICAL CARE 419 (1970).

12/ See Cal. Bus. & Prof. Code Ann. § 2903 (Supp. 1981) ; Va. Code Ann. § 54-936 (c) (d) (1978).

13/ See generally AMERICAN PSYCHOLOGICAL ASSOCIATION, CRITERIA FOR ACCREDITATION OF DOCTORAL TRAINING PROGRAMS AND INTERNSHIPS (January 1978).

14/ Sobel, Freud's Fragmented Legacy, New York Times, October 26, 1980 (magazine) at 102.

15/ LAHMAN, LICENSURE REQUIREMENTS FOR PSYCHOLOGISTS: USA AND CANADA (1978) 

16/ To give consumers, third-party payers, and government planners a clear idea of which generically licensed or certified psychologists are specially trained and qualified to render health services, the National Register of Health Service Providers in Psychology was established in 1976. Approximately 13,000 providers are listed in the most current edition of the National Register. The Register has been recognized as identifying qualified providers by the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), the Aetna and Blue Cross/Blue Shield Federal Employees Health Benefit Plans, and other groups.

17/ APA, Ethical Principles of Psychologists, 36 AMERICAN PSYCHOLOGIST 633 (1981) See e.g., Md. Code Ann. art. 43, § 627 (1980); Regulations of Virginia Board of Psychology § V, POR 5.1 (1979).

18/ APA, Standards of Providers of Psychological Services, 32 AMERICAN PSYCHOLOGIST 495 (1977).

19/ APA, Specialty Guidelines for the Delivery of Services by Clinical Psychologists, 36 AMERICAN PSYCHOLOGIST 640 (1981).

20/ Another development in the area of quality assurance and peer review is the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) Peer Review Project. Under contract to CHAMPUS, a panel of psychologist consultants has engineered a system for retrospective review of claims for services provided to CHAMPUS beneficiaries to ensure that the services are appropriate and of high quality. The CHAMPUS Program, which provides health coverage for military dependents, military retirees, and some others, represents the largest unified group health plan in the country. Under the processing system which is now in operation, claims failing to meet the screening criteria developed by the CHAMPUS Project Panel of psychologists are subjected to "third level" review by teams of local psychologists.

Claims screening systems drawing upon the experience of the APA CHAMPUS Project have been established by the APA in conjunction with the Aetna Life and Casualty, Provident Mutual and Prudential Insurance Companies.

21/E.g., Federal Employees Compensation Act, 5 U.S.C. § 8101(2) (1976) ; Vocational Rehabilitation Act, 29 U.S.C. § 723(a) (1) (1976) ; Health Maintenance Organization Act, 42 U.S.C. § 300e-1 (1976) ; 42 C.F.R. §§ 110.101, 110.104 (1980) ; Disaster Relief Act, 42 U.S.C. § 6183 (1976) ; 42 C.F.R. § 38.2(e) (1980) ; Veterans Health Care Expansion Act, 38 U.S.C. § 613(b) (1976) ; Comprehensive Employment and Training Act, 29 U.S.C. §§ 801 et seq. (1976) ; 29 C.F.R. § 94.4(bb) (1978).

22/ 6 U.S.C. § 8902 (k) (1976).

23/ 10 U.S.C. §§ 1071 et seq. (1976) ; 32 C.F.R. § 199.12(c) (3) (iii) (a) (1981).

24/ 1 PRESIDENT'S COMMISSION REPORT, supra note 2, at 29 -30.

25/ American Psychological Association State Association Bulletin, App. 4 (1982) (unpublished monograph. in American Psychological Association Professional Affairs Office).

26/ E.g., Ark. Stat. Ann. § 66-3212.6 (1980) ; Md. Code Ann. art. 48A, § 490A (Cumm. Supp. 1981) ; Miss.. Code Ann. § 83-41-211 (Cumm. Supp. 1981); N.Y. Ins. Law §§ 164.7-d, 221.5(e), 250.1 (Supp. 1981) ; Tenn. Code Ann. § 56-7-108 (1980) ; Va. Code Ann. § § 38.1-824, 38.1-347.1 ( Cumm. Supp. 1979 ) .

27/ E.g., Va. Code Ann. § 37.1-65.1C2 (Cumm. Supp. 1981).

28/ E.g., Md. Code Ann. art. 31B, § 5 (Cumm. Supp. 1980).

29/ E.g., Ohio Rev. Code Ann. § 2947.06 (1975).

30/ E.g., N.Y. Mental Hygiene Law § 41.11 (1978).

31/ E.g., Del. Code Ann., tit. 16, §§ 902, 903 (1974 & Cumm. Supp. 1980).

32/ E.g., Ky. Rev. Stat. Ann. § 319.111 (1977) ; Tenn. Code Ann. § 63-1117 (19'76) ; Va. Code Ann. I§ 8.01-399 (1977). See also Rule 501, Fed. R. Evid.

33/ E.g., United States v. Riggleman, 411 F.2d 1190, 1191 (4th Cir. 1969) ; United States v. Brawner, 471 F.2d 969, 994 (D.C.Cir. 1972) (en banc) ; United States v. Portis, 542 F.2d 414, 419 (7th Cir. 1976) ; Hogan v. State, 496 S.W.2d 594, 597 (Tex. Crim.), cert.. denied, 414 U.S. 862 (1973) ; Rollins v. Commonwealth, 207 Va. 575, 580, 151 S.E.2d 622, 62.6 (1966), cert. denied, 386 U.S. 1026 (1967) ; Roberts v. State, 41 Wis.2d 537, 551, 164 N.W.2d 525, 532 (1969). See also Rule 702, Fed. R. Evid.

34/ Province of Psychiatry Questioned, Said to Need Defining, Clinical Psychiatry News, November 1977, at 1.

35/ E.g., Position Statement on Hospital Privileges for Psychologists, 128 AMERICAN JOURNAL OF PSYCHIATRY 1456 (1971) ; Position Statement on Psychiatrists' Relationship, with Non-Medical Mental Health Professionals, 130 AMERICAN JOURNAL OF PSYCHIATRY 386 (1973) ; Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, 130 AMERICAN JOURNAL OF PSYCHIATRY 1058 (1973) ; Position Statement on Administration of Psychiatric Facilities, 133 AMERICAN JOURNAL OF PSYCHIATRY 604 (1976-) ; see also Guidelines of Psychiatrists in Consultative, Supervisory, or Collaborative Relationships with Non-medical Therapists, 137 AMERICAN JOURNAL OF PSYCHIATRY 1489-90 (1980).

36/ Psychiatry Faces Survival Battle, Threats to Profession Seen, May 26, 1978 at 1, col. 1.

37/ Id. at col. 2.

38/ For example, the fourth edition of A PSYCHIATRIC GLOSSARY (AMERICAN PSYCHIATRIC ASSOCIATION 1974) introduced a new term, "medical psychotherapy." Advertising material emphasized that this "new definition will be helpful to psychiatrists in relation to the third-party payment problem."

39/ Tension Rising Between Psychology, Psychiatry, Clinical Psychiatry News, November 1977, at 1 (summarizing remarks of director of membership services and studies division of American Psychiatric Association).

40/ FEDERAL TRADE COMMISSION, MEDICAL PARTICIPATION IN CONTROL OF BLUE SHIELD AND CERTAIN OTHER OPEN-PANEL MEDICAL PRE-PAYMENT PLANS 54-60 (1979) [FTC BUREAU OF COMPETITION].

41/ REED, BLUE CROSS AND MEDICAL SERVICES PLANS 236 (1947) . For more recent criticism, see KENNEDY, IN CRITICAL CONDITION: THE CRISIS IN AMERICA'S HEALTH CARE 210 (1972).

42/ FTC BUREAU OF COMPETITION, supra note 40, at 80, quoting Blue Cross/Blue Shield Fact Book 1978, at 16.

43/ Id. at 87.

44/ Id. at 159.

45/ Id. at 163.

46/ 5 U.S.C. §8902(k) (1976). See S.REP. No. 93-961, 93d Cong., 2d Sess. 3 (1974) ("no justification" for requiring supervision of psychologists by physicians).

47/ FTC BUREAU of COMPETITION, supra note 40, at 210-211. See also FEDERAL TRADE COMMISSION, ENFORCEMENT POLICY WITH RESPECT TO PHYSICIAN AGREEMENTS TO CONTROL MEDICAL PREPAYMENT PLANS ( September 25, 1981) .

48/ FTC BUREAU OF COMPETITION, supra note 40, at 161-162.

49/ Frank, Pricing and Location of Physician Services in Mental Health, 1 HEALTH POLICY QUARTERLY 3 (1982) (in press).

50/ S.REP. No. 92-861, 92d Cong., 2d Sess. 5 (1972). See also S.REP. No. 93-961, 93d Cong., 2d Sess. (1974).

51/ See Berger and Bernstein, An Analytical Framework for Antitrust Standing, 86 Yale L.J. 809, 813 n.11 (1977) ; and Comment, Closing the Door on Consumer Antitrust Standing, 54 N.Y.U. L.Rev. 237 n.6 (1979) ; and the cases and authorities cited therein.

52/ See also, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 485-486 (". . . the treble-damages provision . . . is designed primarily as a remedy.") ; Reiter v. Sonotone Corp., 442 U.S. at 344 ("Congress created the treble-damages remedy of Section 4 precisely for the purpose of encouraging private challenges to antitrust violations. These private suits provide a significant supplement to the limited resources available to the Department of Justice for enforcing the antitrust laws and deterring violations.") (emphasis in original).

53/ Petitioners stress that "there is no allegation in the complaint that the alleged boycott increased the price of clinical psychologists' services or that the alleged boycott hindered McCready in finding a clinical psychologist to treat her." Cert. Pet. at 4. Both of those points are irrelevant. But for the antitrust violation, respondent would have been reimbursed for 80 percent of the cost of her psychologist's services. McCready Deposition Transcript at 67; McCready v. Blue Shield of Va., 649 F.2d at 231. Thus, even if the violation did not increase the gross cost of psychological services, it very substantially increased respondent's net or out-of-pocket cost, and substantially diminished the money she would have had but for the violation. Similarly, the fact that respondent was able to purchase the services of a psychologist, although at an increased cost to her, is no more relevant than the fact that the plaintiffs in Reiter v. Sonotone Corp., 442 U.S. 330, were able to purchase hearing aids, although at an increased coat to them. The fact that goods or services are available at some price does not preclude suit under the antitrust laws if, because of an antitrust violation, the cost of those goods or services to the consumer is increased.

54/ Although respondent will discuss the cases relied upon by petitioners in more detail, Amicus simply wishes to state that all of the cases cited by petitioners in support of their argument that respondent should be denied standing are readily distinguishable. Indeed, some of them are not "standing" cases at all. For example, petitioners assert that the "standing" principle of Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), "was elaborated" in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). Cert. Pet. at 16. But in Illinois Brick this Court expressly did "not address the standing issue . . ." 431 U.S. at 728 n.7. Rather, the Court "stressed the difficulties of proving passing-on of overcharges in the course of holding that indirect purchasers could not recover treble damages under Section 4." Berger and Bernstein, supra note 51, at 855. The "direct-purchaser rule of Illinois Brick," as this Court phrased it in Reiter v. Sonotone Corp., 442 U.S. at 337 n.3, is thus a substantive rule fashioned to avoid the special and complex problems of proof of damages in chain-of-distribution cases. But none of those proof problems is present in the circumstances of this case, and Illinois Brick is therefore irrelevant on substantive grounds, as well as an the issue of standing.

55/ Va. Code § 32-195.10:1 (now amended and codified at § 38.1824 (1978)).

56/ Of course state law did not preclude petitioners from raising the cost of the plans they offered, if they had chosen to do so.

57/ The remaining question raised by petitioners was resolved against them in the related case of Virginia Academy of Clinical Psychologists v. Blue Shield of Va., 624 F.2d 476 (4th Cir. 1980), cert. denied, 450 U.S. 916 (1981). As petitioners note, that case involved "a similar complaint" "filed in the same court against the same defendants . . . . The material allegations in the two complaints are identical." Cert.. Pet at 8-9. In that case, as in this, petitioners contended unsuccessfully that their plans were exempt from the antitrust laws as part of the "business of insurance" under Section 2 of the McCarran-Ferguson Act. Petitioners were represented by the same lawyers, for the most part, in both cases. In our view, petitioners are collaterally estopped from attempting here to relitigate that issue. Accordingly, the writ should be dismissed as improvidently granted on that question as well.

 


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