Antitrust and Fair Business Dealings
Purpose
ABAS competes with other ABA providers for employees, clients, referrals, and payer contracts, and federal and state antitrust laws require that it do so independently. This policy prohibits agreements or understandings with competitors on wages, hiring, rates, or markets, and sets the standard of honest, fair dealing with clients, payers, and vendors. It exists to protect ABAS and its employees from conduct that can carry criminal penalties for both the organization and the individuals involved.
Scope
This policy applies to all ABAS employees. It applies with particular force to the Executive Director, the Director of Operations, the Employee Relations Specialist, the Billing & Recovery Specialist, and members of the BCBA Team: the roles that set or influence compensation, recruit and hire employees, negotiate payer or vendor terms, or represent ABAS in trade associations and other industry settings. It covers all contact with competitors, whether in formal meetings, conferences, trainings, professional associations, or informal conversations with colleagues at other providers.
Definitions
| Term | Definition |
|---|---|
| Competitor | Any organization or individual that competes with ABAS for clients, referrals, payer contracts, or employees. For hiring and wages, any other employer that recruits from the same labor pool, including other ABA providers, clinics, and schools, is a competitor even if it does not compete for clients. |
| Price Fixing | An agreement or understanding between competitors to set, raise, stabilize, or coordinate the rates or prices they charge, or the terms they will seek from payers. The agreement does not need to be written or explicit to be illegal. |
| Wage Fixing | An agreement or understanding between competing employers to set or coordinate wages, salaries, benefits, or other terms of compensation. Wage fixing is prosecuted criminally by the Department of Justice. |
| No-Poach Agreement | An agreement or understanding between competing employers not to solicit, recruit, or hire each other's employees. Like wage fixing, no-poach agreements can be prosecuted criminally. |
| Market or Client Allocation | An agreement between competitors to divide territories, towns, school districts, referral sources, payers, or categories of clients, so that each stops competing for the other's share. |
| Competitively Sensitive Information | Non-public information about wages, benefits, rates, pricing, contract terms, costs, or business plans that, if shared between competitors, could be used to coordinate rather than compete. |
Policy Statement
5.1 Independent Decision-Making
ABAS sets its service rates, wages, benefits, hiring plans, and business strategy independently. Employees must never agree with a competitor, formally or informally, on what ABAS or the competitor will pay, charge, offer, or pursue. An unlawful agreement does not require a contract or a handshake; a mutual understanding reached in conversation is enough.
5.2 No Agreements on Wages or Hiring
ABAS prohibits wage-fixing and no-poach agreements in any form. Employees involved in compensation or hiring must not agree with, or signal to, another employer what either organization will pay its employees, what benefits it will offer, or whose employees it will or will not recruit or hire. This prohibition applies to casual conversations with peers at other providers, not just formal negotiations. The Department of Justice prosecutes wage-fixing and no-poach agreements as crimes, and individuals as well as organizations can be charged. For a provider of ABAS's size, this is the most realistic antitrust risk and the area requiring the most care.
5.3 No Rate or Price Coordination
Employees must not agree with another provider on the rates either organization charges, accepts, or will seek from any payer or client. Where a payer sets its rates by regulation or publishes a fee schedule, for example MassHealth's ABA rates, those public rates may be consulted; what is prohibited is any agreement or exchange of non-public information with competitors about pricing, negotiating positions with payers, or the terms either organization will accept.
5.4 No Market or Client Allocation
Employees must not agree with another provider to divide service areas, towns, school districts, referral sources, payers, waitlists, or client populations. Declining a referral for legitimate clinical or capacity reasons is permitted. Agreeing with a competitor about who serves which market is not.
5.5 Trade Associations and Industry Contact
ABAS encourages professional participation in trade associations, provider coalitions, and continuing education. In those settings, employees must not discuss or exchange competitively sensitive information with competitors. If such a discussion begins, employees must object, leave the conversation, and report it to the Compliance Officer promptly. Wage and rate benchmarking is permitted only through aggregated, third-party surveys reviewed and recommended by the Compliance Officer and approved by the Executive Director, never through direct exchange with a competitor. Aggregation does not by itself make participation in a survey lawful, and survey participation still requires the review in Section 6.
5.6 Fair Dealing
ABAS deals honestly with clients, families, payers, and vendors. Employees must not misrepresent ABAS's services, credentials, availability, or outcomes in marketing or intake; must not make false or misleading statements about competitors; and must not take unfair advantage of anyone through misrepresentation, concealment, or abuse of confidential information. Competing hard on quality, responsiveness, and service is expected. Competing through deception is prohibited.
Procedures
Responsibilities
| Role | Responsibility |
|---|---|
| Executive Director | Set rates, compensation strategy, and market decisions independently. Approve any benchmarking activity recommended by the Compliance Officer and any engagement of outside counsel on antitrust questions. |
| Director of Operations | Ensure operational decisions on staffing, scheduling, and service areas are made independently of competitors. Escalate competitor contact that touches restricted topics. |
| Employee Relations Specialist | Set and administer compensation and recruiting practices without coordination with other employers. Escalate any outside request to discuss wages, benefits, or hiring. |
| Billing & Recovery Specialist | Keep payer rates, contract terms, and negotiating positions confidential. Escalate any competitor request for rate or contract information. |
| BCBA Team | Apply this policy in professional associations, conferences, and contact with peers at other providers. Report restricted discussions. |
| Compliance Officer | Maintain this policy, advise before competitor contact on restricted topics, review benchmarking surveys and trade-association participation and recommend benchmarking for Executive Director approval, investigate reports under POL-003, and coordinate referral to outside counsel through the Executive Director. |
| All ABAS Employees | Avoid discussing wages, rates, hiring, or markets with competitors. Report suspected violations through established channels. |
Steps
- Before any planned discussion with another provider that could touch rates, wages, benefits, recruiting, or service territories (for example, a joint training, coalition meeting, or shared-staffing question), the employee consults the Compliance Officer.
- If a competitor raises wages, rates, hiring, or market division in any setting, the employee states an objection, ends the conversation, and reports it to the Compliance Officer promptly, noting who was present and what was said.
- The Compliance Officer reviews any proposed wage or rate benchmarking and recommends it to the Executive Director, who approves it only through aggregated, third-party surveys.
- The Compliance Officer logs and investigates reports under POL-003 and its Compliance Ticket Management SOP, and recommends engagement of outside counsel to the Executive Director when a report raises potential antitrust exposure.
- The Compliance Officer reports antitrust-related matters and any corrective action to the Compliance Committee.
Training Requirements
All ABAS employees receive awareness training on this policy during onboarding and at least annually thereafter, covering the topics that may never be discussed with competitors and the duty to report. Employees in roles named in Section 2 (Executive Director, Director of Operations, Employee Relations Specialist, Billing & Recovery Specialist, and BCBA Team) complete role-specific training annually on wage-fixing, no-poach, and rate-coordination risks, including how to respond when a competitor raises a restricted topic. The Compliance Officer tracks completion and reports it to the Compliance Committee as part of regular compliance reporting.
Reporting and Enforcement
Employees who become aware of a possible violation of this policy, including a conversation in which a competitor proposed or sought coordination, must report it through the channels in POL-003 (Compliance Reporting, Investigation, and Resolution), including the anonymous web form and the compliance ticketing system. Reports are investigated under POL-003 and its Compliance Ticket Management SOP, with outside counsel engaged through the Executive Director where the matter raises potential antitrust exposure. A confirmed violation may result in corrective action up to and including termination and, because antitrust violations can be prosecuted criminally, may be referred to legal counsel and government authorities as required. ABAS will not retaliate against any person who reports a concern in good faith.