U.S. Healthcare Industry Remains Antitrust Enforcement Priority

Representing a sizable portion of the American economy, few industries in the United States have received more attention from the press, legislators, and antitrust agencies than the healthcare industry—particularly in recent years. Recent developments at the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") reaffirm that healthcare remains a top antitrust enforcement priorities in the United States.

FTC Chair Lina Khan recently remarked that the agency remains "committed to challenging unlawful deals...in critical sectors of the economy," including healthcare.¹ Khan's commitment is tangible in the agency's recent actions: of the six mergers the FTC has sued to block thus far in 2022, three are in the healthcare industry.² Among them is the proposed acquisition of an independent New Jersey hospital by one of the largest hospital systems in the state, which the FTC alleged would—among other harms—leave consumers in New Brunswick with a sole provider.³

Both the FTC and DOJ also recently affirmed their commitment to rooting out unilateral anticompetitive behavior among healthcare players. At the ABA's 2022 Antitrust in Healthcare Conference, Deputy Assistant Attorney General Andrew Forman announced that the division now views Section 2 enforcement as a top priority, citing the significant "cost, delay, and burden" that unscrupulous unilateral actors can impose on healthcare consumers.⁴

These issues and more are explored in the newest edition of the ABA's Antitrust Healthcare Handbook, which provides a detailed and up-to-date treatment of antitrust issues in U.S. healthcare and is available for purchase here.

In the 11 years since the publication of the fourth edition of the ABA's Antitrust Healthcare Handbook, individuals and companies in the industry have had to grapple with significant changes, including new laws and regulations, changes in managed care contracting, and a variety of significant economic pressures. At the same time, antitrust agencies have promised to keep up with these changes and continue their robust enforcement in health care markets.

Topics addressed in the fifth edition include:

1. Thorough antitrust overview, application of the antitrust laws to health care and enforcement and penalties.
2. Basic concepts and principles, including interstate commerce, market power, monopolization, mergers and private actions.
3. Relevant markets for health care: hospitals, physician services, health plans, etc.
4. Pricing conduct in health care industries, such as price-fixing agreements, competitor exchanges and unilateral pricing conduct.
5. Nonprice conduct in health care industries, including hospital medical staff privilege decisions, and vertical nonprice exclusionary conduct.
6. Antitrust exemptions and immunities, such as state action, labor unions, and local government antitrust act.
7. Best practices for preventing and minimizing problems.

Footnotes

1. Senate Antitrust Testimony 09202022.pdf (ftc.gov) at 3.

2. Id. at 4.

3. See FTC Sues to Block Merger Between New Jersey Healthcare Rivals RWJBarnabas Health and Saint Peter's Healthcare System | Federal Trade Commission.

4. Deputy Assistant Attorney General Andrew Forman Delivers Keynote at the ABA's Antitrust in Healthcare Conference | OPA | Department of Justice.

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