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The Federal Trade Commission (FTC), which jointly issued the statements with the Division, has not yet formally withdrawn these statements.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.