Reed Smith Client Alerts

On February 3, 2023, the Antitrust Division (the Division) of the Department of Justice (DOJ) withdrew three antitrust policy statements related to enforcement in the health care industry, which it called “outdated”: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011). These now withdrawn statements provided antitrust “safety zones” for certain conduct by health care companies, including the exchange of certain price and cost information. The policy statements similarly provided “safety zones” from federal challenge covering certain hospital mergers, joint ventures, the joint purchasing of medical equipment through a joint venture, collaborations between health care providers and physician networks, certain exchanges of information between health care companies, group purchasing organizations, and the conduct of accountable care organizations participating in the Medicare Shared Savings Program. The Division provided no indication that it will replace the now withdrawn guidance.

The Division said that the policy statements, dating back to 1993, were “overly permissive” on subjects such as information sharing. The statements included safe harbors for the sharing of “non-price information” between physicians and insurers, as well as for the sharing between hospitals of aggregated price and cost information about services, wages, salaries, or benefits for personnel. At the time of the statements, enforcers believed the “safety zones” were consistent with promoting the procompetitive benefits of collaboration.

The Federal Trade Commission (FTC), which jointly issued the statements with the Division, has not yet formally withdrawn these statements. Given the FTC’s expansive policy goals, which include improving compliance with the Hart-Scott-Rodino Premerger Notification Act in conjunction with the Division and enhancing collaboration with domestic agencies to check unfair methods of competition, it will come as no surprise if that agency ultimately withdraws its support for the policy statements.