Now, more than ever, health care organizations are facing complex antitrust issues as their mergers/acquisitions, hiring, contracting, and private funding are being scrutinized by the federal and state governments. Proper planning for any competitive initiative, including day-to-day decisions, is essential to avoid potential antitrust risks. In just the last couple weeks, enforcers have announced that they believe there has been underenforcement of the antitrust laws in health care and have called for increased investigations and lawsuits.
To this end, the Federal Trade Commission (FTC), Department of Justice (DOJ) Antitrust Division and Department of Health and Human Services (HHS) have published a new website, healthycompetition.gov, to actively encourage anonymous and self-identified complaints about many topics. The DOJ has also announced the formation of a new task force committed to target alleged Health Care Monopolies and Collusion (HCMC) by facilitating the Antitrust Division's policy advocacy, investigations, and enforcement efforts in health care markets.
The healthycompetition.gov website highlights several practices and topics that the FTC and DOJ believe may warrant complaints and potential investigations, including:
- Affiliations and other acquisitions
- Any practice that hinders employment freedom or higher wages
- Practices that hinder price transparency to patients
- Terms or practices that have an impact on other market participants (e.g., price parity clauses or anti-tiering provisions)
- Data collection processes that hinder competition
- Unnecessary certification or accreditation requirements
To accomplish these purposes, the DOJ put together the HCMC task force to "bring together civil and criminal prosecutors, economists, health care industry experts, technologists, data scientists, investigators, and policy advisors from across the division's Civil, Criminal, Litigation and Policy Programs, and the Expert Analysis Group, to identify and address pressing antitrust problems in health care markets." Relatedly, Sen. Amy Klobuchar (D-Minn.) wrote to the heads of the DOJ Antitrust Division and the FTC on April 29, 2024, and asked them to investigate "the use of algorithms that collect and process data in the out-of-network insurance payment industry to determine payments for physicians and out-of-pocket costs for patients to determine whether any of this conduct violates the law."1 Sen. Klobuchar emphasized that algorithms should not be used "to allow competitors to collude to make health care more costly for patients."
We recommend that those in the health care ecosystem conduct a detailed risk assessment in each of these areas to prepare for a range of questions and requests that an enforcer may make. There is no one-size-fits-all antitrust compliance program, but rather all compliance programs need to be tailored to the competitive strategies and policy objectives of a given enterprise, accounting for all levels an entity may be involved in the provision of health care.
Footnote
1. Ltr., Sen. A. Klobuchar to AAG J. Kanter and FTC Chair L. Khan (April 29, 2024), https://www.klobuchar.senate.gov/public/_cache/files/4/4/4463fdf7-457e-4e48-b885-9dca394c57d4/7F84E808973057BD75668746A378A06B.4.29.2024-letter-to-doj-ftc-re-multiplan-insurance-payments.pdf.
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