U.S. DOJ Announces Withdrawal of Health Care Market Policy Statements

Last Friday, Feb. 3, the U.S. Department of Justice (“DOJ”) issued a press release in which it announced the withdrawal of what it described as three “outdated” antitrust policy statements related to enforcement in health care markets. The three statements are:

• Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (9/15/93)
• Statements of Antitrust Enforcement Policy in Health Care (8/1/96)
• Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (10/20/11)

In the press release, the DOJ stated that it has determined that the withdrawal of the three statements is the best course of action for promoting “competition and transparency.” Further, “over the past three decades since this guidance was first released, the health care landscape has changed significantly. As a result, the statements are overly permissive on certain subjects, such as information sharing, and no longer serve their intended purposes of providing encompassing guidance to the public on relevant health care competition issues in today’s environment.”

Significantly, the DOJ explained that the withdrawal of the three statements best serves the interest of transparency with respect to its current enforcement policy in health care markets. The agency points out that its recent enforcement actions and competition advocacy in health care provide guidance to the public at this time, and that what it terms as a “case-by-case enforcement approach” will allow it to “better evaluate mergers and conduct in health care markets that may harm competition.” The implication seems to be that the DOJ in its recent enforcement activities has moved beyond the statements and providers should not be using them from a planning or advocacy standpoint.

Assistant Attorney General Jonathan Kanter of the DOJ’s Antitrust Divisions is quoted as saying, “the Antitrust Division will continue to work to ensure that its enforcement efforts reflect modern market realities.”

The policy statements that have now been withdrawn covered the following general areas: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

We plan to discuss implications of the withdrawal in follow-up posts.