[ad_1]
The U.S. Division of Justice (DOJ), Antitrust Division, not too long ago withdrew three units of tips that had been relied upon closely by the healthcare trade: the 1993 Antitrust Enforcement Policy Statements Issued for the Health Care Industry; the 1996 Statements of Antitrust Enforcement Policy in Health Care; and the 2011 Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program.
Every of the three coverage statements was initially issued collectively by the Antitrust Division and the Federal Commerce Fee (FTC). Of the 2 businesses, the FTC has extra not too long ago taken the lead in investigating and litigating antitrust violations dedicated by healthcare suppliers. Considerably, the FTC has not but made an announcement concerning whether or not it is going to proceed to use these tips.
In withdrawing these coverage statements, the DOJ acknowledged that “the healthcare panorama has modified considerably” within the 30 years because the first of those tips was issued. “Consequently,” it acknowledged, “the statements are overly permissive on sure topics, comparable to data sharing.”
Background
Assertion 6 of the 1996 Coverage Statements addressed specifically the sharing of knowledge (comparable to costs and salaries) amongst healthcare suppliers, establishing a “security zone” for these exchanges that may not be challenged absent “extraordinary circumstances.” The protection zone was met if the survey was managed by a 3rd get together, the knowledge exchanged was a minimum of three months outdated, there have been a minimum of 5 suppliers reporting knowledge, and no particular person supplier’s knowledge represented greater than 25% on a weighted foundation of the statistics being reported. Assertion 6 additionally made clear that data exchanges falling exterior the protection zone wouldn’t essentially be challenged, relying on the circumstances.
Interpretation
This choice clearly alerts a extra aggressive stance by the DOJ on data exchanges and maybe different conduct lined by these withdrawn coverage statements. On the very least, it introduces new uncertainty into federal antitrust positions relative to probably anticompetitive conduct within the trade. With respect to supplier data exchanges, on condition that the Antitrust Division’s latest focus has been centered extra on healthcare payors than on suppliers, it’s exhausting to evaluate the possible affect of this announcement with out realizing whether or not the FTC will observe the DOJ’s lead.
It’s attainable that the DOJ withdrew these statements as a result of it considered them as hindering its present instances involving no-poach and wage-fixing agreements, a lot of which contain healthcare suppliers. The DOJ is taking the lead on these issues as a result of they’ve been introduced as felony instances within the wake of the agencies’ announcement in 2016 that such agreements could be handled as per se offenses and prosecuted criminally.
Takeaways
For now, further warning needs to be taken when endeavor any form of alternate of competitively delicate data, both immediately or not directly via a 3rd get together, with rivals. We’ll proceed to observe developments on this space.
© 2023 Perkins Coie LLP
[ad_2]
Source link