On Friday, February 3, 2023, the US Department of Justice's Antitrust Division announced it would be withdrawing three policy statements related to information exchanges in the healthcare space. Effective immediately, the DOJ has withdrawn Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993), Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996), and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).
The DOJ kept its statements on the withdrawal general in nature, explaining only that the prior policy statements were "overly permissive" in allowing certain types of information sharing and that, due to changes in the healthcare industry, the prior guidelines no longer reflect "'modern market realities.'" The topics covered in the withdrawn policy statements included hospital exchanges of pricing and cost information, hospital joint ventures around technology and equipment, and hospital mergers. The policies provided a "safety zone" for the exchange of information by providers in the healthcare space if certain guidelines were followed, such as using third parties to collect data, exchanging information that was at least three months old, and aggregating data so that it would not be identifiable by provider. The DOJ has not provided detailed guidance about what types of information exchanges are permitted after the withdrawal of these policy statements and has stated that there are no current plans to replace the prior guidelines.
The DOJ said that the withdrawal of the guidance policies will enable the DOJ to focus on "a case-by-case enforcement approach" that "will allow the Division to better evaluate mergers." This strongly suggests that the DOJ will also be sharpening its focus on scrutinizing and challenging mergers and joint ventures in the healthcare space.
This move follows increased DOJ interest in and enforcement regarding information exchanges in the protein industry, evidenced by the consent decree entered in United States v. Cargill Meat Solutions Corp. (D. Md. 2022), and the DOJ's failed prosecutions of a series of broiler executives in 2022 for allegedly sharing information about pricing and bids to customers.
In light of the increased uncertainty resulting from the withdrawal of this guidance, it is even more important to receive legal guidance if your company is considering mergers, joint ventures, or participating in exchanges of information in the healthcare space. Mayer Brown is prepared to advise and counsel companies on the implications of the withdrawal of this guidance on their current and future business activities.
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