The Department of Justice’s (DOJ's) Antitrust Division has withdrawn three “outdated” policy statements on antitrust enforcement in healthcare, according to a Friday notice.
The statements initially released in 1993, 1996 and 2011 (PDF) outlined circumstances in which the DOJ and the Federal Trade Commission would or would not challenge transactions related to hospitals and physicians’ groups.
Alongside mergers, the statements also addressed provider joint ventures, joint purchasing arrangements, information provision to purchasers, participation in information exchanges and accountable care organizations’ participation in the Medicare Shared Savings Program.
Policy statements and guidance documents such as these are nonbinding and are intended to give market players a better look into regulators’ priorities as they review deal proposals.
In the announcement, DOJ said that its recent enforcement actions and advocacy for competition in healthcare are sufficient and timely guidance for the public. Moving past the broader guidelines will also allow the agency to weigh healthcare deals’ competitive impacts on a case-by-case basis, DOJ said.
“The healthcare industry has changed a lot since 1993, and the withdrawal of that era’s out of date guidance is long overdue,” Assistant Attorney General Jonathan Kanter of the DOJ's Antitrust Division said in a release. “The Antitrust Division will continue to work to ensure that its enforcement efforts reflect modern market realities.”
The withdrawn guidances had become “overly permissive on certain subjects, such as information sharing,” with the passage of time, DOJ wrote, and no longer serve their intended purposes of providing encompassing guidance to the public.”
Justin Bernick, a partner at Hogan Lovells who defends clients in antitrust lawsuits, said the DOJ’s withdrawals were “abrupt” and “unfortunate” for healthcare players trying to get a bead on regulatory enforcement.
“[DOJ’s decision] continues the trend of the agencies straying further from established—and appropriate—precedent that companies, including companies outside the healthcare industry, have relied upon for decades,” Bernick wrote in an email statement. “In particular, the safe harbor for aggregating data across companies clearly is not ‘outdated.’ It is more important than ever not to disincentivize the procompetitive benchmarking, data analytics and consumer transparency tools, for example, that help drive efficiency and innovation in the modern healthcare economy and across industries.”
Federal regulators have broadly signaled their interest in cracking down on consolidation and other anticompetitive practices in healthcare. Recent years have seen a handful of hospital deals either blocked or opposed by government agencies, though DOJ had a bit more trouble in the payer space with last year’s UnitedHealth Group-Change Healthcare deal.