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Preparing for the future of antitrust scrutiny in healthcare

Posted on by darion

Now more than ever, healthcare organizations face complex antitrust issues as their mergers/acquisitions, hiring, contracting and private financing are scrutinized by federal and state governments. Proper planning of any competitive initiative, including day-to-day decisions, is essential to avoid potential competition law risks. Just in the last few weeks, law enforcement officials have announced that they believe health care antitrust laws are under-enforced and called for increased investigations and lawsuits.


To this end, the Federal Trade Commission (FTC), the Antitrust Division of the Department of Justice (DOJ), and the Department of Health and Human Services (HHS) have published a new website, healthcompetition.gov, to actively encourage the submission of anonymous and self-identified complaints on a number of topics. The Department of Justice also announced the creation of a new task force to combat alleged health care monopolies and collusion (HCMC) by helping the Antitrust Division promote policy, investigation, and enforcement activities in health care markets.


The healthcompetition.gov website highlights several practices and topics that the FTC and the Department of Justice believe may warrant complaints and potential investigations, including:


  • Affiliations and other acquisitions

  • Any practice that hinders freedom of employment or higher wages

  • Practices that hinder price transparency for patients

  • Conditions or practices that affect other market participants (e.g. price parity clauses or anti-tiering provisions)

  • Data collection processes that hinder competition

  • Unnecessary certification or accreditation requirements


To achieve these goals, the Department of Justice established the HCMC Task Force to “bring together civil and criminal prosecutors, economists, health care industry experts, technologists, data analysts, investigators, and policy advisors from across the division’s civil, criminal, and litigation departments and Policy Programs and Expert Analysis Group to identify and address pressing antitrust issues in health care markets.” As a result, Senator Amy Klobuchar (D-Minn.) wrote on April 29, 2024, to the heads of the Antitrust Division of the Department of Justice and the FTC asking them to investigate “the use of algorithms that collect and process data in the network insurance payment industry to determine payments for doctors and out-of-pocket expenses for patients to determine whether any of this behavior violates the law.1 Senator Klobuchar stressed that algorithms should not be used “to enable competitors to collude to increase the cost of health care for patients.”


We recommend that those working in the healthcare ecosystem conduct a detailed risk assessment in each of these areas to be prepared for the range of questions and requests that an enforcement officer may ask. There is no one-size-fits-all antitrust compliance program, rather all compliance programs must be tailored to a company’s competitive strategies and policy objectives, taking into account all levels at which an entity may be involved in the provision of health care.


On Tuesday, June 11, Manatt’s antitrust team will host a webinar to discuss antitrust issues and how your organization can best prepare. Click here to register.


1 Lt. Gov. Senator A. Klobuchar to AAG J. Kanter and FTC Chairman L. Khan (April 29, 2024), https://www.klobuchar.senate.gov/public/_cache/files/4/4/4463fdf7-457e -4e48-b885-9dca394c57d4/7F84E808973057BD75668746A378A06B.4.29.2024-list-do-doj-ftc-re-multiplan-insurance-payments.pdf.