Healthcare organizations now face more complex antitrust issues than ever before, as mergers/acquisitions, employment, contracts, and private funding are scrutinized by federal and state governments. Proper planning for any competitive initiative, including day-to-day decision-making, is essential to avoid potential antitrust risks. In recent weeks alone, enforcement agencies have announced that they believe antitrust enforcement in the healthcare sector is inadequate and have called for increased investigations and litigation.
To this end, the Federal Trade Commission (FTC), the Department of Justice (DOJ) Antitrust Division, and the Department of Health and Human Services (HHS) have launched new websites. HealthyCompetition.govactively encourages anonymous and self-reported complaints on a number of topics. The Department also announced the formation of a new Task Force to target alleged healthcare monopolies and collusion (HCMC) by facilitating the Antitrust Division’s policy advocacy, investigations, and enforcement activities in the healthcare market.
of HealthyCompetition.gov This website covers some practices and topics that the FTC and DOJ believe may be the subject of complaints and potential investigations.
- Partnerships and other acquisitions
- Actions that impede freedom of employment and wage increases
- Practices that hinder price transparency for patients
- Terms or practices that affect other market participants (e.g., price parity clauses or anti-tiering clauses)
- Anticompetitive data collection processes
- Unnecessary certification or accreditation requirements
To achieve these goals, the Department of Justice formed the Ho Chi Minh City Task Force to “bring together civil and criminal prosecutors, economists, health care industry experts, technologists, data scientists, investigators, and policy advisors from the Department’s civil, criminal, litigation, policy programs, and expert analysis groups to identify and address pressing antitrust issues in the health care market.” Relatedly, Senator Amy Klobuchar (D-MN) said: I have written On April 29, 2024, the agency contacted the Director of the Department of Justice’s Antitrust Division and the Director of the FTC, requesting that they “investigate the use of algorithms in the out-of-network insurance payment industry that collect and process data to determine physician payments and patient out-of-pocket expenses and determine whether this conduct violates the law.”1 Senator Klobuchar stressed that algorithms should not be used “to allow competitors to collude to drive up health care costs for patients.”
Stakeholders in the healthcare ecosystem are advised to conduct detailed risk assessments in each of these areas to prepare for the various questions and demands that enforcement agencies may make. While there is no one-size-fits-all antitrust compliance program for all companies, every compliance program should be tailored to a particular company’s competitive strategy and policy objectives, taking into account all levels of potential involvement in healthcare delivery.
1 Letter from Senator A. Klobuchar to AAG J. Cantor and FTC Chairman L. Kahn (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.
