With health industry consolidation and competition continuing to draw public and lawmaker scrutiny, the Department of Justice Antitrust Division today (February 3, 2022) signaled the Biden Administration plans to redirect health care antitrust policy by withdrawing three healthcare antitrust policy statements it says are outdated.
The withdrawn policy statements are three statements of antitrust principles adopted more than a decade ago by the DOJ and Federal Trade Commission (“FTC”) defining the agencies principles for interpreting and enforcing antitrust law in the healthcare industry:
- Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993);
- Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and
- Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).
The withdrawal of the statements follows growing activity by DOJ in challenging certain other health industry conduct as anticompetitive under Fdderal antitrust laws in recent years as well as new policies challenging noncompetition and other workforce practices used widely within the health care industry. (These developments were discussed in a September, 2022 Joint Committee on Employee Benefits webinar on Department of Justice Enforcement Update webinar moderated by Cynthia Marcotte Stamer.)
Following an uptake in DOJ health care and workforce antitrust enforcement in recent years, the announcement of the antitrust statement withdrawals confirms the Biden Administration led DOJ plans changes to care antitrust and other competition policies and enforcement impacting health care providers, payers, employers and other plan sponsors. In lieu of the principles previously provided by the withdrawn guidelines, DOJ says it will evaluate mergers and conduct in healthcare markets that may harm competition on the case-by-case basis. The announced plan to interpret antitrust law in health care on a case by case basis creates significant uncertainty about the scope of risk and safety of many contracting, business transaction and other activities in the health care industry. All segments of the marketplace should monitor developments and proceed cautiously to avoid inadvertently triggering challenges or liability as a result of the newly created ambiguity.
While employers, providers and others concerned about market power and consolidation among pharmacy benefit management companies (“PBMs”), mega healthcare systems and large health insurers are likely to welcome news of DOJ’s plan to update its policies and enforcement to reflect new market realities, DOJ’s announced plan to proceed on a case-by-case basis raises significant questions about the market participants and practices that will benefit or suffer under this new but undefined policy. Consequently, employer and other health plan sponsors, health industry providers, payers, and others concerned about health industry competition should proceed cautiously and carefully monitor developments at DOJ and FTC. Stay tuned for further developments.
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.
A Fellow in the American College of Employee Benefit Counsel, Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health and managed care and employer benefits legal, public policy and operational concerns.
Ms. Stamer’s work throughout her 30 plus year career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Her work has included ongoing involvement in health industry and workforce competition and antitrust issues.
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