Anticipating Future Health Care Antitrust Probes: Essential Guide
TL/DR –
Health care organizations are increasingly facing complex antitrust issues, leading to heightened scrutiny from federal and state governments. To target alleged Health Care Monopolies and Collusion, several US departments including Federal Trade Commission, Department of Justice Antitrust Division, and Department of Health and Human Services have jointly launched a website, healthycompetition.gov, for anonymous and self-identified complaints. The website encourages complaints about practices like affiliations and acquisitions, hindrance to employment freedom or wages, lack of price transparency, impact on market participants, competition-impeding data collection and unnecessary certification requirements.
Antitrust Risks in Health Care: Government Scrutiny and Mitigation Measures
Health care organizations are currently under close scrutiny from both federal and state governments due to complex antitrust issues. Plans for mergers/acquisitions, hiring choices, contracting decisions, and private funding are all under the microscope. The last few weeks have seen governmental bodies arguing for heightened enforcement of antitrust laws in health care, urging for increased investigations and lawsuits.
The Federal Trade Commission (FTC), Department of Justice (DOJ) Antitrust Division, and Department of Health and Human Services (HHS) have recently launched a new website, healthycompetition.gov, to encourage the submission of anonymous and self-identified complaints. The DOJ has also established a new task force aiming to combat alleged Health Care Monopolies and Collusion (HCMC) through improved policy advocacy, investigations, and enforcement of health care markets.
The healthycompetition.gov website identifies a number of practices likely to trigger complaints and investigations:
- Mergers and acquisitions
- Practices obstructing employment freedom or wage growth
- Practices affecting price transparency for patients
- Terms/practices impacting other market participants
- Data collection procedures affecting competition
- Unnecessary certification or accreditation demands
The HCMC task force, composed of prosecutors, economists, industry experts, technologists, data scientists, investigators, and policy advisors, is set to tackle key antitrust issues in health care markets. In a related move, Sen. Amy Klobuchar (D-Minn.) requested the DOJ Antitrust Division and the FTC to investigate the use of data-collecting algorithms in the insurance payment industry, highlighting potential legal issues and the risk of collusion to inflate health care costs.
As a response to these developments, it’s crucial for those within the health care ecosystem to conduct detailed risk assessments. Preparing for potential enforcer inquiries requires tailored antitrust compliance programs that accurately reflect the competitive strategies and policy objectives of each organization.
1 Ltr., Sen. A. Klobuchar to AAG J. Kanter and FTC Chair L. Khan (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.
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