It has already been a busy 2023 for the U.S. antitrust enforcement agencies. Right on the heels of the Federal Trade Commission’s announcement of a proposed rule that potentially would ban non-compete agreements nationally, on February 3, 2023, the United States Department of Justice’s Antitrust Division (“DOJ”) announced the withdrawal of three antitrust policy statements related to enforcement in healthcare markets. Published in 1993, 1996, and 2011, these statements have been relied upon heavily by the healthcare industry and their counsel, even though these guidance documents are non-binding and do not create legal rights or obligations. Specifically, the 1993 statement created safety zones where the DOJ and the Federal Trade Commission would not challenge certain hospital mergers, hospital joint ventures involving technology and expensive medical equipment, physician provision of information to purchasers of healthcare services, hospital participation in exchanges of price and cost information, joint purchasing arrangements among healthcare providers, and physician network joint ventures. The 1996 statement also addressed these safe harbors but added a safe harbor for multi-provider networks, and the 2011 statement specifically addressed enforcement policy related to accountable care organizations participating in the Medicare Shared Savings Program.
The DOJ’s Press Release does not provide much clarity on the Department’s position on certain conduct on a going-forward basis. On the one hand, it indicates that withdrawal of the statements is the best course of action for “promoting competition and transparency,” which suggests the statements were overly restrictive. On the other hand, the announcement also mentions that the statements were overly permissive on certain subjects, such as information sharing, and that they are essentially outdated when considered in conjunction with today’s healthcare environment. Rather than revising the guidance, the DOJ references its intent to steer clear of providing encompassing guidance and directs the public to “recent enforcement actions and competition advocacy in healthcare” to provide guidance on the Department’s views on violative conduct and indicates its intent to treat enforcement activity on a case-by-case basis.
The result is, for the interim, to leave the DOJ’s position on these important issues subject to at least some degree of speculation, with huge implications for physician and multi-provider networks, as most of the DOJ’s recent enforcement activity has focused on mergers and price transparency. In any event, the DOJ has signaled its commitment to further the Biden Administration’s stated goal of promoting competition via robust antitrust enforcement in identified markets, including healthcare. Consultation with antitrust and healthcare counsel will be essential in the wake of the DOJ’s withdrawal of this longstanding guidance, particularly for physician and multi-provider networks for which it may be something of a new frontier.