DOJ withdraws certain health care antitrust enforcement guidance

The Department of Justice today withdrew three policy statements on health care antitrust enforcement, saying they are “overly permissive on certain subjects, such as information sharing,” and that “a case-by-case enforcement approach” would allow it to better evaluate health care mergers and competition.

The policies include a 1993 statement describing circumstances under which DOJ and the Federal Trade Commission would not challenge certain hospital mergers and health care joint ventures; a 1996 statement on health care provider networks; and a 2011 statement regarding accountable care organizations participating in the Medicare Shared Savings Program. 

“AHA is deeply disappointed with the precipitous withdrawal of guidelines for hospitals and other health care providers and with DOJ’s unsupported assertion that some were ‘overly permissive,’” said AHA General Counsel Melinda Hatton. “Over the years, AHA has urged both federal antitrust agencies to modernize the guidelines to accommodate the need for more flexibility in enforcement actions to support hospitals’ ability to navigate a changing health care landscape. And, AHA was instrumental in securing appropriate ACO guidance that allowed hospitals to fully participate in that important program. Withdrawing all the guidance without consultation with the field is both unnecessary and reckless.”

The FTC is expected to follow DOJ’s lead in the coming weeks.