Hospitals, physicians and other providers, provider organizations, managed care and insurance and other health and managed care industry participants should proceed cautiously in response to the Justice Department Antitrust Divisions withdrawal of three decades-old healthcare antitrust policy statements it says are outdated. The Policy Statements are:
- 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 follows growing activity by DOJ and Federal Trade Commission in recent years challenging certain other health industry conduct as anticompetitive under Federal 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, Department of Justice Antitrust Enforcement Updateebi, 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 In lieu of the principles previously provided by the withdrawn guidelines, DOJ says it will evaluate mergers and conduct in healthcare markets that may harm competition on a case-by-case basis.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 transactions and other activities in the health care, insurance, health information technology, pharmaceutical and related industries. 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.
In the face of these developments, health industry providers, payers, employers and other plan sponsors 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 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 35 plus 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 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 in the healthcare, employer benefits, and insurance and financial services industries. She speaks and publishes extensively on HIPAA and other related compliance issues.
Ms. Stamer’s work throughout her 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.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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