The Federal Trade Commission has made several recent moves in the legal and regulatory space that will have a sustained impact on competition and development for ASCs.
1. FTC reaches preliminary settlement with U.S. Anesthesia Partners: The commission reached an agreement in principle with USAP over allegations brought against the company in 2023, claiming that it violated antitrust laws by engaging in a scheme to consolidate anesthesia services in Texas.
The years-long case against USAP and its private equity backers Welsh, Carson, Anderson & Stowe surrounds claims that USAP executed a roll-up scheme, buying up almost every large anesthesia practice in Texas to create a single dominant provider that could demand higher prices. USAP and Welsh Carson then allegedly drove up prices further through billing agreements with remaining independent practices. USAP later allegedly sidelined a competitor by agreeing to a deal to keep it out of USAP’s territory, according to the original complaint.
The terms of the confidential agreement would “restore a competitive market structure and will be consistent with longstanding FTC settlement best practices” should they be executed in full by USAP.
USAP physician and Board Chairman Scott Holliday, DO, underscored USAP’s dedication to finding a resolution to the case that minimizes disruptions to patient care and avoids exacerbating uncertainties in an April 23 news release.
Greater FTC scrutiny of roll-ups — especially in anesthesia — could limit aggressive consolidation strategies and reshape contracting dynamics for ASCs. Leaders may see more competition among anesthesia providers, but also increased regulatory oversight on partnerships and pricing arrangements.
2. New pressure on certificate-of-need repeal: In an April 1 letter from the FTC addressed to Tennessee Representative David Hawk,a Republican from Greeneville, the organization urged the Tennessee General Assembly to repeal CON laws “as soon as possible.”
Tennessee’s bid for funding as a part of the federal Rural Health Transformation program was hanging in the balance of CON reform as CMS and President Donald Trump’s administration have tied some of that funding to certain policies at the state level, including the elimination of CON, according to a summary of the RHT published by the American Medical Association in September.
The bill to repeal passed out of the state Senate in a 28-1 vote April 16, in concurrence with the House’s version. The bill had been scheduled to appear in front of the Senate for weeks, but faced numerous delays in the legislative process.
The situation in Tennessee may serve as a case study for other states with CON laws, especially those with significant rural populations seeking RHT funding.
The repeal could accelerate ASC development, competition, and physician-led expansion. At the same time, existing ASCs may face margin pressure as new entrants and health systems move more aggressively into outpatient surgery markets.
3. Ramping up healthcare market scrutiny: The FTC is intensifying its regulatory efforts within healthcare markets. Chair Andrew Ferguson directed multiple agencies to establish the task force, coordinating efforts across the Bureau of Competition, Bureau of Consumer Protection, Bureau of Economics, the Office of Policy Planning and the Office of Technology, according to a March 20 memo.
Rather than siloing enforcement by department, the task force will lead targeted enforcement and advocacy efforts, develop agencywide investigation strategies, proactively identify opportunities to file amicus briefs and statements of interest, and flag emerging areas of concern across healthcare markets. The task force will collaborate with other federal agencies and law enforcement partners, including HHS and the Department of Justice, broadening the scope of oversight across healthcare
Heightened, coordinated enforcement signals more oversight of ASC deals, joint ventures, and payer-provider arrangements. ASC leaders will need to be more deliberate with growth strategies, ensuring compliance as consolidation, partnerships, and pricing practices face deeper review.
At the Becker’s 32nd Annual Meeting: The Business and Operations of ASCs, taking place October 29-31 in Chicago, ASC leaders, surgeons and healthcare executives will explore strategies to drive growth, enhance operational performance, navigate reimbursement challenges and prepare for the future of ambulatory surgery. Apply for complimentary registration now.