DOJ withdraws three lengthy standing antitrust coverage statements, leaving well being care organizations in limbo

On February 3, 2023, the Antitrust Division of the U.S. Division of Justice (DOJ) withdrew three well being care coverage statements, which have supplied antitrust enforcement steerage to numerous segments of the well being care business for the previous few many years. Particularly, the DOJ withdrew the (1) Division of Justice and FTC Antitrust Enforcement Coverage Statements within the Well being Care Space (September 15, 1993), (2) Statements of Antitrust Enforcement Coverage in Well being Care (August 1, 1996), and (3) Assertion of Antitrust Enforcement Coverage Relating to Accountable Care Organizations Taking part in Medicare Shared Financial savings Program (October 20, 2011).

The 1993 and 1996 statements supplied antitrust steerage for merging well being care suppliers and hospitals in an effort to alleviate antitrust uncertainty within the business. These statements partly provided antitrust “security zones” and steerage for sure well being care operations, together with 

1. merging hospitals, 
2. hospital joint ventures for prime price care or excessive price tools,
3. physicians’ provision of data to purchasers of well being care companies,
4. hospital participation in exchanges of worth and price info,
5. well being care suppliers’ joint buying preparations,
6. doctor community joint ventures, and
7. multi-provider networks.

In brief, if a merger, three way partnership, or different exercise certified for a “security zone,” then the DOJ and FTC had been not possible to problem it, “absent extraordinary circumstances.” And for joint ventures, mergers, or different exercise exterior of a security zone, the statements supplied steps and elements for extra evaluation. Likewise, the 2011 assertion supplied related security zone and non-qualifying steerage for the formation and operation of Accountable Care Organizations underneath the Inexpensive Care Act. 

Merely put, the DOJ’s withdrawal terminates the “security zones” for qualifying exercise, with none alternative steerage now, and even indicated for the long run, leaving three way partnership operators and well being care suppliers in limbo. Previously “secure” mergers and joint ventures might now be topic to antitrust scrutiny. And with none formal steerage to interchange the statements, it’s unclear if the statements’ non-qualifying steerage nonetheless applies, because the DOJ might discover that the supplied steps of research are outdated.

Certainly, of their February 3 announcement, the DOJ said that the three statements are “overly permissive on sure topics, equivalent to info sharing, and not serve their supposed functions of offering encompassing steerage to the general public on related well being care competitors points in at this time’s surroundings.” The DOJ reasoned that “[w]ithdrawal due to this fact finest serves the curiosity of transparency with respect to the Antitrust Division’s enforcement coverage,” and by returning to an throughout the board case-by-case method, the DOJ believes it is going to be in a position to “higher consider mergers and conduct in well being care markets that will hurt competitors.”

In a contemporaneous February 2, 2023, speech, Deputy Principal Deputy Assistant Lawyer Basic of the DOJ Antitrust Division, Doha Mekki, supplied some further perception. She attributed the withdrawal of the well being care coverage statements to (1) an “advanced” understanding of well being care economics, largely on account of the “information intensive business that depends on the facility of machine studying, synthetic intelligence, and different superior instruments,” and (2) vertical integration, for instance “insurance coverage firms now personal suppliers, PBMs [pharmacy benefit managers], well being information analytics firms, and acute care clinics.” Deputy AAG Mekki additionally confirmed that though “[t]he Division is enterprise a assessment of our coverage and steerage paperwork,” DOJ has “no fast plans to interchange” the withdrawn steerage.  

As a result of DOJ has substituted outlined classes with ambiguity, well being care suppliers have to be cautious as they proceed with sure actions, together with mergers, ongoing joint ventures, and knowledge sharing. Though the DOJ’s temporary February 3 announcement was unclear as as to whether it had singled out info sharing as a selected focus for its efforts, Deputy AAG Mekki’s February 2 speech positioned particular emphasis on the “alternate of competitively-sensitive info.” 

She famous that “the construction of the business concerned,” was not restricted to concentrated markets (“having 5 or extra members … is not any assure that the alternate won’t hurt competitors”), and “the character of the knowledge exchanged” stays a priority, significantly with “forward-looking, competitively-sensitive info.” Though information aggregation was as soon as useful in avoiding anticompetitive sharing, “[t]he security zones had been written at a time when info was shared in manila envelopes and thru fax machines,” whereas the trendy surroundings shares, analyzes, and makes use of information “in ways in which could be unrecognizable many years in the past.” 

Consequently, these within the well being care business will need to revisit their insurance policies, practices, and antitrust compliance actions to make sure that their operations wouldn’t offend latest antitrust choices or coverage indications, no matter an exercise’s prior “security” standing. And well being care suppliers ought to carry out an identical evaluation for any future or pending actions, equivalent to mergers and joint ventures, significantly if the transacting events are extremely information pushed (e.g., use pricing algorithms) or are vertically built-in. 

The withdrawal of the well being care coverage statements additionally might have implications past the well being care business, significantly as to the knowledge sharing steerage and “secure harbor,” which has been utilized broadly to info sharing in different industries. For instance, the Antitrust Steerage for Human Useful resource Professionals, issued collectively by the DOJ and FTC in October 2016, particularly references the well being care coverage statements info alternate steerage as reference to “when written surveys of wages, salaries, or advantages are much less more likely to increase antitrust considerations.” The DOJ has not withdrawn or commented additional on this coverage.

The Federal Commerce Fee has not but introduced an identical withdrawal; nonetheless, given the FTC’s and DOJ’s earlier joint assist of the three coverage statements, it could not be shocking if the FTC points a comparable assertion.

Ed Harvey and Nicole Williams and Tom Groeller are attorneys in Thompson Coburn’s Antitrust observe group.