On July 14, the Federal Trade Commission (“FTC”) voted to withdraw two antitrust policy statements related to health care: the Health Care Antitrust Enforcement Policy Statements (1996), and the Antitrust Enforcement Policy Statement Regarding Responsible Care Organizations Participating in the Medicare Shared Savings Program (2011). The FTC’s announcement followed in the footsteps of the Department of Justice (“DOJ”), which announced that it plans to retire from the same statements in February 2023. The FTC reiterated DOJ concerns that the two statements were “outdated” and no longer reflected “market realities.” Defunct policy statements provided antitrust “safety zones” for certain behavior by healthcare entities, protecting them from agency scrutiny of certain cost information exchanges, joint purchasing agreements, and other collaborations between healthcare providers and physician networks, and group purchasing organizations, as well as Manage accountable care organizations participating in the Medicare Shared Savings Program.
The FTC has made clear its intention to rely on its “extensive record of enforcement actions, policy statements, and competition advocacy in the healthcare field” as well as its “General Principles of Antitrust Enforcement and Competition Policy” going forward. This is consistent with the DOJ’s announcement, although the DOJ has clearly stated that it does not intend to replace the policy statements. The FTC will continue to enforce it by evaluating mergers on a case-by-case basis and the behavior in health care markets affecting consumers.
Going forward, healthcare industry participants should expect increased individual scrutiny of their behavior. Without “safety zones,” healthcare industry players should be wary of relying too much on past data and engaging in objective, thoughtful reviews of current and planned behavior to ensure other sources comply with healthcare antitrust guidelines and current trends. Increasingly detailed assessments of all facts and circumstances of proposed transactions will be warranted and conducted by healthcare companies. Do you think this might affect your business?
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