The Federal Trade Commission’s consent order requiring Ascension to divest seven ASCs before closing its $3.9 billion acquisition of Amsurg was designed to preserve local competition in five states. Whether it will actually accomplish that is a different question, and several ASC leaders are not convinced.
The order, published June 2, requires six of the seven divested centers to be sold to SC Affiliates, a subsidiary of SCA Health and Optum. The seventh will go to a physician-owned gastroenterology group in Panama City, Fla.
The mechanics of the remedy have drawn as much scrutiny as the deal itself.
“Payer-aligned platforms like SCA, which is Optum-owned, are still favored as divestiture buyers. So even when one entity has to divest, another is eligible to consolidate,” Janet Carlson, MSN, RN, founder of Louisville, Ky.-based Vertex Surgical Solutions, told Becker’s. “That means there’s disruption, but no guarantee it will prevent the creation or continuation of a monopoly.”
Jim Freund, managing partner of Physician Transaction Advisors, raised a related concern about buyer concentration.
“I do not understand why they oversaw the sale or transfer of almost all these centers to a single organization,” he said. “At the same time, if the FTC is truly concerned about competition and cost, they should focus on eliminating the disparity between what hospitals and their HOPDs are being paid for procedures versus what ASCs are being paid for the same cases.”
Sean Gipson, CEO and ASC Division President of Houston-based Remedy Surgery Center, said the FTC is not trying to block ASC consolidation; rather, it is trying to surgically reconstruct local competition through targeted divestitures. However, he noted that approach works only if the buyer can actually compete.
“Divestitures only preserve competition if the buyer is operationally credible,” Mr. Gipson said. “Otherwise, the remedy can fail in practice even if it looks clean on paper.”
Mr. Gipson also said the order signals a specific geographic theory of competition.
“The FTC is defining ASCs as highly localized monopoly markets,” he said. “Competition is not national or even statewide — it is metro-area specific and service-line specific.”
The seven divestitures across Nashville, Tenn., Tulsa, Okla., Waco, Texas, Wichita, Kan., and Panama City reflect what he described as a pattern of regional market concentration, not isolated overlaps.
That local-market framing is significant beyond this transaction. In an analysis of the order, law firm Akerman said the case reinforces a long-standing FTC enforcement theme of healthcare antitrust analysis that remains local even when the parties operate nationally, making targeted divestitures and ongoing oversight a recurring feature of merger review.
Akerman also said Ascension’s nonprofit status provided no insulation from the review. Nonprofit organizations remain fully subject to the Clayton Act and Sherman Act, and the FTC applies the same functional analysis, which is asking whether an organization is genuinely operated for charitable purposes or functions more like a commercial enterprise, regardless of tax-exempt status.
Shakeel Ahmed, MD, CEO of St. Louis-based Atlas Surgical Group, called it a necessary and overdue signal.
“I have been voicing my concerns for years regarding the surreptitious violation of the antitrust laws by larger institutes around the country,” Dr. Ahmed said. “This is one of those pushbacks that was needed in our industry by the regulators.”
Melissa Rice, administrator of Loyola Ambulatory Surgery Center, a facility owned by Livonia, Mich.-based Trinity Health that is based in Oakbrook Terrace, Ill., noted the precedent value of the 10-year prior notice requirement for future acquisitions in the affected markets.
“That 10-year lookback on future acquisitions in those markets is a big signal,” Ms. Rice said. “For ASC leaders, it’s a reminder that growth strategies need to clearly show how they’ll maintain access, quality and affordability — not just expand footprint.”
Nyleen Flores, administrator and COO of Lake Oconee Orthopedics in Greensboro, Ga., supported the FTC’s intervention on competition grounds but pushed back on the broader regulatory direction.
“The question should not be who owns it, the question should be whether it benefits patients, preserves competition and delivers quality care,” she said. “If regulators are genuinely focused on preserving competition, scrutiny should be applied consistently across all forms of consolidation, including large health systems that continue to expand their influence over physician practices, outpatient facilities and local healthcare markets.”
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.