How the 2024 Election Will Impact Healthcare and Antitrust

With the U.S. presidential election looming in November, our antitrust and competition team will offer thoughts and insights on what antitrust enforcement will look like under the next presidential administration. While there is at least some uncertainty about antitrust enforcement under a Harris or Trump administration, there is no doubt that the current Biden administration is extremely active.

Healthcare has been one of the centers of this activity. As we have previously discussed, the Biden Administration has focused on the healthcare industry, including the launch of “whole-of-government” policy initiatives, investigations into private capital investments, enforcement actions, and a healthcare task force. The Biden Administration has also proposed sweeping changes to the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) filing process, which was first announced in June 2023. The proposed regulations would significantly expand the scope of information that merging parties across all industries must submit in pre-merger notifications. These changes are intended to provide the FTC and DOJ (“Agencies”) with more information specifically related to private capital investments and would have a significant impact on the healthcare industry.

One might expect the Harris administration to continue to face antitrust scrutiny of the health care sector, but the previous Trump administration was also aggressive in this area, and health care has been an enforcement priority for agencies for several years.

A key antitrust enforcement issue that we will be examining over the next several months is the likelihood that either Administration will continue, expand, or reverse various initiatives and ongoing enforcement actions undertaken by the Agencies, including the proposed HSR rules described above and the relatively new merger guidance and, with respect to health care in particular, the health care revocation of claims.

Many factors contribute to this, including not only what candidates say on the campaign trail, but also agency leadership, potential planned transactions by major players, and the regulatory and financial challenges facing the health care industry.

Moreover, we should remember that the push for antitrust enforcement in health care has not been limited to federal enforcement agencies. States have begun vigorously enforcing their own antitrust statutes, and state legislatures have been busy providing their attorneys general with more investigative and enforcement tools. Many states, such as Oregon, have recently enacted or proposed enacting their own “mini-HSR Acts” to review and potentially challenge transactions that could lead to consolidation in the health care industry. California recently proposed Assembly Bill 3129, which would require a private equity firm to provide written notice at least 90 days before closing any transaction involving a health care facility, provider group, or supplier.

As the fall election approaches, we will continue to examine potential health care antitrust enforcement priorities under a Harris or Trump administration.

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