1. Antitrust Compliance Policy
American Academy of Physical Medicine and Rehabilitation’s (“AAPM&R”) policy is to comply with all federal, state and local laws, including the antitrust laws. It is expected that all AAPM&R members involved in activities and AAPM&R staff will be sensitive to the unique legal issues involving trade associations and accordingly, will take all measures necessary to comply with U.S. antitrust laws and similar foreign competition laws.
Antitrust laws prohibit concerted activities or agreements between competitors in restraint of trade. By their nature, associations bring competitors together to discuss items of importance to the industry and otherwise facilitate communications and the exchange of information among competitors. Accordingly, the leaders and members of an association must be particularly attuned to the potential for situations/discussions/information exchanges that could give rise to antitrust allegations. The potential harm to an association and its members related to allegations of an antitrust violation would be severe in terms of lost time and resources. Allegations and any finding of an antitrust violation could significantly impact the Academy’s ability to promote the highest quality patient-centered care and enhance member career satisfaction.
3. Antitrust Violations Can Have Severe Consequences
Violations of the antitrust laws can have very serious consequences for AAPM&R, its members and their employees.
- a) Antitrust violations may be prosecuted as felonies and are punishable by steep fines and imprisonment.
- b) In contrast to criminal actions, civil cases can be initiated by individuals, companies, and government officials. They can seek to recover three times the amount of the damages, plus attorney’s fees. Even unfounded allegations can be a significant drain on AAPM&R and membership financial and human resources, and an unproductive distraction from AAPM&R’s exempt purpose. For these reasons, AAPM&R strives to avoid even the appearance of impropriety in all its dealings and activities.
4. Application & Compliance
- a) The Academy complies with federal and state antitrust laws. The Academy will not become involved in the competitive business decisions of AAPM&R members, nor will it participate in activities or discussions that suppress fair and open competition among Academy members.
- b) This Policy applies to, and its compliance is the responsibility of, Academy officers, Board, members of committees, other Academy delegated groups, employees, and AAPM&R members.
- c) To assist in recognizing situations that may give rise to antitrust concerns, this Policy will be distributed to Academy officers, Board, members, employees and representatives. Any questions about this Policy, or concerns about the antitrust implications of a particular course of action, conversation, etc. concerning Academy activity, should be directed to Academy compliance officer.
- d) Academy member meetings (e.g., Annual Assembly) should have an agenda circulated in advance and minutes of all Academy meetings must properly reflect the actions taken at the meeting, except for items deemed confidential by legal counsel. At the request of Academy compliance officer: i. this Policy will be included in agenda material and referenced at the start of any Academy meeting; ii. compliance officer may review agenda materials and draft minutes of any Academy meeting; and iii. compliance officer may discuss any specific agenda items or activities directly with the Academy board, committee, subcommittee, section, workgroup, or taskforce. Any Academy Board, committee, subcommittee, etc. or staff recommendations or decisions that potentially impact competition should be reviewed in advance by Academy compliance officer.
- e) It is critically important for members, committee members, Board members and staff to be on the lookout for potential antitrust issues and address them before they become concerns. Academy staff and Board members can help determine whether a potential antitrust issue exists or whether a potential topic of discussion should be avoided. A member who has a concern about a topic of discussion should bring the concern to the attention of Academy compliance officer so that it can be addressed appropriately as soon as possible.
- f) Potential or actual violations of this Policy must be brought promptly to the attention of Academy compliance officer. Any Academy officer, Board member, employee, or committee member, or AAPM&R member involved in a violation of this Policy may be subject to disciplinary action.
5. Prohibited Conduct
The Academy prohibits conduct (including activities and communications) between competitors that has the effect of suppressing competition, and encourages members to work together to help the Academy and each other comply with antitrust rules. Academy activities, communications (whether in-person or via Academy email listserves or other online communications), publications, or meetings (formal or informal,) must not include any discussion or action that may be construed as an attempt to:
- a) Raise, lower, stabilize, fix, or establish minimum or maximum prices, fees, or salaries;
- b) Withhold patronage or services from, discourages dealings with or boycott, or encourage exclusive dealings with any individual or business entity, including health care providers, suppliers or purchasers of health care products or services, third party payors, or federal or state governmental entities or their programs;
- c) Allocate markets or territories;
- d) Discourage entry into or competition in any segment of the health care market;
- e) Foster unfair trade practices;
- f) Assist in monopolization or attempts to monopolize; or
- g) Violate applicable federal or state antitrust laws or regulations in any way.
Exceptions are limited to discussions or actions expressly authorized in a lawful manner by the applicable Academy Board of Governors or within the course of legitimate lobbying efforts.
6. Additional Areas of Scrutiny
The Academy is aware of the potential antitrust implications when the Academy engages in the following activities:
- a) Standard setting;
- b) Gathering and publication of salary, benefit and employment-related information via surveys;
- c) Accreditation;
- d) Establishing membership criteria & ethical rules of conduct; or
- e) Denying of membership benefits.
7. Document and E-mail Guidelines
Many antitrust investigations and lawsuits are fueled by poorly phrased or exaggerated statements in internal documents, with e-mails being a leading culprit. Common sense should be used when composing documents and e-mails. No matter how informal or private a communication is intended to be, it must be assumed that anything written in a documents or e-mail is potentially discoverable in an investigation or lawsuit. As a general rule, nothing should be put in writing that you would not want read aloud to a prosecutor, plaintiff’s lawyer, or jury composed of people who know nothing about you or your business.
Examples of statements that should be avoided:
- Language suggesting guilt (such as “read and destroy”);
- Words of aggression or competitive exclusion (such as “dominate the market, “kill the competition,” or “get rid of the discounters”);
- Statements or speculation regarding the legality or legal consequences of any action of AAPM&R; and
- Statements suggesting or advocating that members of AAPM&R make joint decisions on pricing, production, capacity or other aspects of the competition, such as references to “industry consensus,” “industry understanding,” “industry acceptance,” or “rational competition.”
8. Executive Responsibilities
The Board of Governors and the Executive Director & CEO have the responsibility to oversee the implementation of AAPM&R’s antitrust compliance policy. The Executive Director & CEO shall appoint a staff member responsible for day-to-day management and implementation.
All staff members will receive a copy of this compliance policy as part of their initial orientation and sign an acknowledgment that they have read it and have been given an opportunity to ask questions. This compliance policy, will be available on AAPM&R’s website. AAPM&R’s orientation for new directors and officers will include education on antitrust compliance and member responsibilities.
10. Complaint Investigation and Internal Enforcement
Reports of noncompliance or other complaints should be quickly sent to the Executive Director & CEO or, if the Executive Director & CEO is not available, the Assistant Executive Director of Finance & Operations. If there is reason to believe that an antitrust violation may have been committed, an investigation will be undertaken promptly. If an instance of questionable conduct is presented, one or both of the aforementioned Academy leaders will consult with AAPM&R’s legal counsel promptly to determine whether an internal investigation is appropriate.
Employees who violate or fail to comply with this compliance program are subject to disciplinary action, ranging from adverse reviews to termination.
Members who violate or fail to comply with this policy will receive a letter from AAPM&R’s legal counsel. Because compliance with AAPM&R’s polices is a membership requirement, membership can be terminated as a results of member company violation of AAPM&R’s antitrust compliance program.
Last modified: April 29, 2017