FTC Follows DOJ and Withdraws Antitrust Policy Statements
On July 14, the Federal Trade Commission (“FTC”), as anticipated, announced that it was withdrawing two antitrust policy statements related to enforcement in health care markets:
- Statements of Antitrust Enforcement Policy in Health Care (August 1996)
- Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (October 2011)
The FTC’s withdrawal follows the Department of Justice’s (“DOJ”) decision to rescind the same statements in February 2023. (See our previous blog post.)
In withdrawing the policy statements, the FTC stated that it had determined that the withdrawal of the statements is the best course of action for promoting fair competition in health care markets. According to the FTC, much of the statements are outdated and no longer reflect health care market realities, and, given what it describes as the “profound changes” in the market over the last 30 years, the statements no longer serve their intended purpose of providing accurate guidance to market participants
The policy statements that have now been withdrawn covered the following general areas:
- Mergers Among Hospitals
- Hospital Joint Ventures Involving High Technology or Other Expensive Health Care Equipment
- Hospital Joint Ventures Involving Specialized Clinical or Other Expensive Health Care Services
- Providers’ Collective Provision of Non-Fee-Related Information to Purchasers of Health Care Services
- Providers’ Collective Provision of Fee-Related Information to Purchasers of Health Care Services
- Provider Participation in Exchanges of Price and Cost Information
- Joint Purchasing Arrangements Among Health Care Providers
- Physician Network Joint Ventures
- Multiprovider Networks
- Accountable Care Organizations Participating in the Medicare Shared Savings Program
These policy statements generally established “safety zones” describing conduct that the FTC and DOJ would not challenge under the antitrust laws absent extraordinary circumstances. With the withdrawal of the statements, those “safety zones” no longer apply.
In withdrawing the policies, the FTC stated that its extensive record of enforcement actions, policy statements, and competition advocacy in health care provide more up-to-date guidance to the public. It further stated that it will continue its enforcement by evaluating on a case-by-case basis mergers and conduct in health care markets that affect consumers, and that, in making its enforcement decisions, it 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.”
