DOJ Cancels Three Healthcare Antitrust Policies

Declaring three healthcare antitrust enforcement policies “outdated” and “overly permissive,” the Department of Justice (DOJ) antitrust division announced the withdrawal of the policy statements with a Friday afternoon press release on February 3, 2023. While guidance documents are non-binding, DOJ considers their withdrawal as “the best course of action for promoting competition and transparency” in a healthcare landscape that has changed significantly the past three decades.

The withdrawn policy statements are:

• Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (September 15, 1993)
• Statements of Antitrust Enforcement Policy in Health Care (August 1, 1996)
• Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (October 20, 2011).

The Antitrust Enforcement Policy Statements in the Health Care Area from 1993 provided antitrust safety zones in which the DOJ and FTC would not challenge hospital mergers, hospital joint ventures involving high technology or other expensive medical equipment, physicians’ provision of information to purchasers of healthcare services, hospital participation in exchanges of price and cost information, joint purchasing arrangements among providers and physician network joint ventures.

The 1996 Statements of Antitrust Enforcement Policy in Health Care provided additional guidance with respect to physician network joint ventures and multi-provider networks, while the 2011 Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program addressed when the Agencies would apply rule of reason treatment to ACOs, established an antitrust safety zone and provided additional antitrust guidance for ACOs that fell outside the safety zone.

Stating that the policies no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues, the DOJ indicated that recent enforcement actions should provide sufficient guidance to the public and that a case-by-case enforcement approach will allow the antitrust division to evaluate mergers and conduct in healthcare markets that may harm competition. While guidance such as the Statements are non-binding, they have provided a framework in which parties may review and structure their conduct, while a case-by-case analysis will increase uncertainty. The American Hospital Association has already issued a press release expressing disappointment with the withdrawal of the Guidelines, without Division consultation with healthcare providers. For now, the Policy Statements remain in effect with the FTC.