On February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) announced It has announced that it will withdraw three “outdated” antitrust enforcement policy statements related to the healthcare market. “After careful consideration and consideration, the division has determined that withdrawing the three statements is the best course of action to promote competition and transparency,” the agency said in a press release, referring to the DOJ Antitrust Division. Jonathan Kanter, Head of , explains: The healthcare industry has changed a lot since his 1993, and a withdrawal of outdated guidance for that era has been long overdue. “
Included in the three guidance documents was the August 1996 Health Care Antitrust Enforcement Policy Statement Jointly issued by the DOJ and the Federal Trade Commission (FTC). At Statement 6.A of that document, the DOJ and FTC declared:[p]Involvement by competing providers in investigations into the prices of health care services or into investigations into employee salaries, wages and benefits does not necessarily raise antitrust concerns, noting that “such investigations are “It can bring great benefits to people,” he admits. In an effort to establish an “antitrust safe zone,” DOJ and the FTC will: (1) prohibit a provider’s participation in written investigations, “unless there are exceptional circumstances,” if the investigation is administered by a third party; I have declared that I will not object. (2) Information provided by participants was based on data older than 3 months. (3) there are at least 5 participants and no individual participant’s data exceeds her 25% of the statistics, so the recipient cannot identify the price charged or the reward paid by any particular participant; bottom.
Although issued as guidance specific to the healthcare industry, DOJ/FTC healthcare statementIn particular, Statement 6.A and its definition of the “antitrust safe zone” have been used by antitrust practitioners in a variety of industries over the past 25 years to minimize the antitrust risk of information exchange and benchmarking activities. It’s been done. Statement 6.B healthcare statement It describes the DOJ and FTC’s approach to the exchange of price and cost information outside of the more general “antitrust safe zone” and argues that the exchange of historical data “has an anticompetitive effect that outweighs any impact of the exchange of historical data.” It will be evaluated to determine whether it is likely to have This kind of information exchange follows a long-standing precedent that describes it as being subject to the so-called “principle of reason” for antitrust purposes. Statement 6.B also warns:[e]Any exchange of future prices for provider services or future compensation for employees is highly likely to be considered anti-competitive and reaching agreements among competitors as to prices to be paid for services or wages If so, the agreement will be considered illegal. itself. It also follows a long-standing precedent prohibiting price-fixing arrangements under Section 1 of the Sherman Act.
because of statement 6 healthcare statement Building on long-standing precedents for information exchange and benchmarking activities, the DOJ’s recent withdrawal of policy statements is unlikely to have significant impact outside of the healthcare industry. DOJ’s recent announcements prevent healthcare industry participants from relying on the “antitrust safe zone” as defined by US law. healthcare statementand guidance provided in two other DOJ documents: 1996 policy statement It focuses on collaborative cost-saving arrangements between healthcare providers.and 2011 Policy Statement For Accountable Care Organizations Participating in the Medicare Shared Savings Program. However, as DOJ acknowledged in his February 3, 2023 press release, “[g]Guidance documents are non-binding and do not create legal rights or obligations. The DOJ’s latest announcements certainly hint at stronger antitrust enforcement in the healthcare industry, but it is Congress and Congress, not his DOJ, that defines and determines the scope of antitrust law in the United States. Court.
