FTC Withdraws 2 Healthcare Antitrust Policy Statements

The decision 'is the best course of action for promoting fair competition in healthcare markets,' according to the FTC.

The Federal Trade Commission (FTC) announced the withdrawal of two policy statements related to healthcare market antitrust enforcement.

The commission, which voted to rescind the statements 3–0, have withdrawn Statements of Antitrust Enforcement Policy in Health Care (August 1996) and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (October 2011).

The decision follows a February decision from the Department of Justice, which withdrew the same two policy statements, as well as a third: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (September 1993).

"Much of the statements are outdated and no longer reflect market realities in this important sector of the economy," the FTC said in a press release about the decision.

"Given the profound changes in these markets over the last 30 years, the statements no longer serve their intended purpose of providing accurate guidance to market participants. Rather, the Commission’s extensive record of enforcement actions, policy statements, and competition advocacy in health care provide more up-to-date guidance to the public."

"The Commission will continue its enforcement by evaluating on a case-by-case basis mergers and conduct in health care markets that affect consumers," the FTC said in a statement. "In making its enforcement decisions, the Commission will rely on general principles of antitrust enforcement and competition policy for all markets, including markets related to the provision of health care products and services."

Additionally, the FTC said that "guidance documents are non-binding and do not create legal rights or obligations. Antitrust enforcement and competition advocacy in healthcare remain important parts of the FTC mission, and the Commission will continue to vigorously enforce the antitrust laws in the healthcare industry."

The American Hospital Association released a statement against the decision, citing the withdrawal as unnecessary and reckless. Melinda Hatton, AHA general counsel and secretary, wrote:

"AHA is deeply disappointed that the FTC made the same mistake as the DOJ in withdrawing antitrust guidelines for hospitals and other health care providers. 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."