Tuesday, December 27, 2011
Posted by D. Daniel Sokol
Robert F. Leibenluft (Hogan Lovells) has written on The ACO Antitrust Policy Statement: Antitrust Enforcement Meets Regulatory Rule Making.
ABSTRACT: As the Obama Administration began to draft regulations governing Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program (MSSP), the federal antitrust agencies faced a significant challenge. Critics of health care reform had charged that the Affordable Care Act1 contained little to control health care costs. The Administration’s response was that ACOs and similar initiatives would transform how care is delivered and, in the long run, result in both lower cost and higher quality care. ACOs were therefore a critical component of the Administration’s health care reform agenda. But ACOs are founded on the premise that the best way to reduce costs and improve quality is to encourage greater collaboration among health care providers. Such an infrastructure, however, would inevitably result in greater consolidation and coordination in the health care sector. The Department of Justice and the Federal Trade Commission therefore needed to develop rules that would address concerns that ACOs would improperly collude or exercise market power when dealing with commercial health plans, but at the same time would not create undue roadblocks to the formation and operation of ACOs that were being touted as key to Medicare payment reform. The FTC/DOJ statement on ACOs2 reflects how the antitrust agencies addressed these conflicting demands. It also illustrates fundamental differences in the approach and tools available to antitrust enforcers wary of prescribing detailed rules of conduct, as compared to Medicare officials who operate