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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