FTC withdraws 'outdated' healthcare antitrust policy statements, following DOJ's lead

Friday, the Federal Trade Commission (FTC) announced its withdrawal of two policy statements outlining its former position on antitrust enforcement in healthcare markets, echoing a similar decision from the Department of Justice (DOJ) earlier this year.

The documents, published in 1996 and 2011, were largely “outdated and no longer reflect market realities in this important sector of the economy,” the FTC wrote in a release announcing the move.

Due to the “profound changes” of the past 30 years, the regulator said its recent enforcement actions, policy statements and advocacy for competition in healthcare are sufficient and timely guidance for the public.

Rather than rely on the policy statements, the regulator said it will be weighing healthcare mergers and organizations’ other conduct affecting consumers on a case-by-case basis.

“In making its enforcement decisions, the Commission will rely on general principles of antitrust enforcement and competition policy for all markets, including markets related to the provision of health care products and services,” the commission wrote.

Commissioners voted 3-0 to rescind the two statements, according to the announcement.

The Statements of Antitrust Enforcement Policy in Health Care (PDF) and the Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (PDF) were each jointly issued by the FTC and the DOJ.

They broadly outlined circumstances in which the agencies would or would not challenge healthcare providers’ merger and acquisition transactions, joint ventures, information exchanges and accountable care organizations’ participation in the Medicare Shared Savings Program.

The DOJ had withdrawn the documents plus one other published in 1993 back in February. At the time, an antitrust expert representing healthcare industry clients said the withdrawal was “abrupt” and removed a needed resource for organizations making strategic decisions.

In a Monday statement, American Hospital Association General Counsel and Secretary Melinda Hatton said the organization was "deeply disappointed that the FTC made the same mistake as the DOJ in withdrawing antitrust guidelines."

She said her group had been advocating for a modernization of the guidelines over a full withdrawal.

"Withdrawing all the guidance without consultation with the field is both unnecessary and reckless,” she said.

The agencies’ decisions come amid tightened scrutiny of dealmaking within the healthcare industry. More broadly, the FTC proposed a change to its pre-merger notification requirements that would give regulators more information to review during a deal’s initial waiting period. The proposed changes would nearly quadruple the per-hour filing burden on merging organizations and would hand the agency more fuel with which to block mergers it views as anticompetitive.