Saturday, January 7, 2012
Posted by D. Daniel Sokol
Ken Glazer and Catherine A. LaRose (K&L Gates) ask Accountable Care Organizations: Antitrust Business as Usual?
ABSTRACT: The Final Statement is broadly consistent with earlier guidance from the antitrust agencies regarding competitor collaborations and joint ventures in the health care arena. It reiterates the same basic principles of preserving competitive markets, and uses familiar mechanisms of analysis and review. Like the Health Care Statements, the Final Statement also provides stricter safe harbor thresholds for ACOs that require exclusivity from their providers/participants. It also maintains
some of the emphasis on market share.
Despite this general consistency with the antitrust agencies’ prior guidance, the Final Statement raises two interesting issues. First, because the CMS rules require participants to meet strict performance requirements and because CMS will collect substantial data regarding quality of care, antitrust challenges to ACOs may give rise to some unusually detailed rule of reason analyses of the kind rarely, if ever, seen in antitrust cases. Second, although Medicare reimbursements are subject to set fees for services, which eliminates the possibility that an ACO might conspire to fix prices for various services it provides to beneficiaries, the government will still be alert to anticompetitive schemes regarding non-price elements of competition.