FTC Opposes COPA Bid for Crouse / SUNY Upstate Merger

The federal watchdogs also raised concerns about a lack of transparency in the process.

The Federal Trade Commission is opposing a certificate of public advantage (COPA) sought by SUNY Upstate Medical University and Crouse Health System that would shield the Syracuse-based providers' proposed merger from antitrust laws.

On a 4-0-1 vote, the commission approved the submission of its staff analysis to the New York State Department of Health.

"We do not believe granting this COPA will benefit the people of the state of New York," Elizabeth Wilkins, director of the FTC Office of Policy Planning, says in a media release.

"Research has shown that Certificates of Public Advantage frequently lead to higher prices and lower quality care for patients and lower wage growth for nurses, pharmacy workers, and certain other non-medical skilled workers."

SUNY Upstate Medical University and nearby Crouse Health System announced the proposed merger in April 2022, then filed a COPA application in July. The New York State Department of Health has invited public comments on the application.

Upstate issued a statement Monday morning saying: "We're aware that the FTC filed a comment opposing the COPA application."

"We are also aware that the FTC consistently has filed similar comments opposing COPAs in other states," Upstate says. "We are reviewing the contents carefully, but the letter appears consistent with other public statements that the FTC has made about COPAs in general."

The FTC comments note that the effects of the merger "would likely be felt most acutely by patients and hospital workers" in Onondaga County, where a merged system would share nearly 67% of commercially insured inpatient hospital services, and would reduce the hospital choices for nearly all patients in the county from three to two.

The FTC notes that Crouse and SUNY Upstate are competitors, a relationship that benefits patients and improves wages and benefits for hospital workers. The FTC also says that the health systems provided "insufficient evidence to conclude that any benefits of the merger would outweigh the potential harms."

"And it is doubtful that regulatory conditions imposed by the state under the COPA would offset the potential anticompetitive harm to patients," the FTC says.

The federal watchdogs also raised concerns about a lack of transparency in the COPA process, noting that the application has not yet been made readily available to the public.

The opposition to the COPA status comes amid what the FTC says is a "resurgence" in COPA laws. The commission's 2017 policy project assessed the impact of COPAs on prices, quality, access, and innovation for healthcare services.   

"The studies of past COPAs have revealed significant increases in commercial inpatient prices, as well as declines in quality of care. More broadly, access to affordable healthcare is of the utmost importance to American consumers," the commission says. "Promoting competition in the healthcare sector is a key priority for the FTC, including preventing anticompetitive hospital mergers.