Monday, January 9, 2012
Posted by D. Daniel Sokol
Jeff Miles (Ober Kaler) suggests The Final ACO Antitrust Statement: Much Improvement.
ABSTRACT: Hooray, hooray, hooray! The Federal Trade Commission and Department of Justice Final Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program,1 issued on October 20, 2011, jettisons the requirement of the previously issued Proposed Statement 2 that certain accountable care organizations obtain a favorable antitrust review letter from the FTC or DOJ as a condition to participating in the Medicare Shared Savings Program. Without question, this was the most criticized aspect of the Proposed ACO Antitrust Policy Statement that the federal antitrust agencies issued on March 31 of this year. Many of the 127 public comments filed in response to the proposed Statement 3 argued that the requirement turned the agencies into regulators rather than law enforcers and was not needed to ensure detection of ACOs exercising market power. In addition to this major and welcome change, the Final ACO Antitrust Statement includes subtle changes from the Proposed Statement, most of them for the better and many of which likely resulted from public comments invited by the antitrust agencies. All in all, the antitrust agencies did an excellent job fulfilling a difficult mandate—crafting a “one-size-fits-all” statement that nevertheless provides helpful guidance in varied factual situations.