CLIENT ALERT: DOJ Withdraws Long-Standing Health Care Antitrust Enforcement Guidance
On February 3, 2023, the U.S. Department of Justice (DOJ) announced the withdrawal of three “outdated” health care antitrust policy statements that had been issued jointly by the DOJ and Federal Trade Commission (FTC). Over the last thirty years, the guidance documents alleviated uncertainty within the health care industry by helping providers know whether they could enter into mergers and joint ventures without violating the antitrust laws.
Former Policy Statement Protections
Notably, the policy statements established “antitrust safety zones,” which described the circumstances under which the DOJ and FTC would not challenge conduct under the antitrust laws. The statements also summarized the legal analysis that the DOJ and FTC would use to review conduct that falls outside the antitrust safety zones.
Addressing a broad variety of circumstances in health care markets, the policy statements offered guidance to providers in sharing and exchanging information with each other, developing joint ventures for high technology and specialized clinical services, and establishing clinically and financially integrated networks that contract with managed care organizations and other health insurers. The most recent policy statement issued in 2011 addressed ACOs participating in the Medicare Shared Savings Program (MSSP).
What Changes Mean for Providers
The withdrawal of the policy statements may leave providers at risk for activities previously approved under the policy statements. The DOJ described the withdrawn policy statements as “overly permissive on certain subjects.” Consequently, the health care industry should anticipate enforcement activity that interprets the antitrust laws more aggressively than the withdrawn policy statements.
Because the DOJ announced that it will take a “case-by-case enforcement approach,” providers should exercise caution in engaging in activities that implicate the antitrust laws until there is sufficient enforcement activity to act as guidance for the health care industry.
If you have any questions regarding the policy statements that were withdrawn, contact Adam Falcone at AFalcone@ftlf.com.
