DOJ axes 3 antitrust healthcare policies, 'vigorous' enforcement ahead

The Justice Department paved the way to more closely scrutinize healthcare mergers, acquisitions and collaborations by withdrawing three antitrust policy statements.

ASC owners and operators watch antitrust rules closely, as many markets have consolidated over the years. The antitrust rules govern joint ventures, mergers and group purchasing, according to a JDSupra report penned by John Carroll, David Garcia and Bevin Newman of Sheppard Mullin Richter & Hampton.

The three withdrawn policy statements are:

1. Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Arena

2. Statements of Antitrust Enforcement Policy in Health Care

3. Statements of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program

The policy statements were issued between 1993 and 2011, and the Justice Department now finds them "overly permissive" on subjects including information sharing. The DOJ's Feb. 3 statement reads: "Recent enforcement actions and competition advocacy in healthcare provide guidance to the public, and a case-by-case enforcement approach will allow the Division to better evaluate mergers and conduct in healthcare markets that may harm competition."

The Biden administration has directed the Federal Trade Commission to be tough on anticompetitive behavior, and this move will mean more scrutiny on healthcare deals and collaborations.

"The withdrawal of the Healthcare Statements also means that activities that previously may have presented low antitrust risk, such as those within the antitrust enforcement safety zones, may now be in the Agencies' crosshairs," according to the JDSupra report. "The Agencies have steadily expanded their enforcement activity and have adopted ever broader positions concerning their enforcement authority under the current leadership, so the healthcare industry should expect this announcement to portend increasingly vigorous federal antitrust enforcement in the healthcare space."

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