FTC Commissioner Addresses Tension Between the ACA, ACOs, and Antitrust Law

In a recent speech to a healthcare trade group in Washington, Federal Trade Commissioner Julie Brill addressed an issue of concern to many in the healthcare industry – the apparent tension between the Affordable Care Act (“ACA”), Accountable Care Organizations (“ACOs”), and antitrust law. Addressing this perceived tension, Commissioner Brill sought to distinguish between what she views as “legitimate collaborative activities”, which she maintained do not present antitrust problems, and joint conduct that fails to promote lower costs or improved quality, which may raise antitrust concern. Commissioner Brill noted that, instead of merging, some providers might be better off entering into contractual relations that are well short of a merger, such as a joint venture or other ACO arrangements, and observed that the CMS rules permit ACO participants “to use a variety of collaborative organizational structures, including collaborations short of merger” to achieve their goals.
A link to Commissioner Brill’s remarks can be found here: http://www.ftc.gov/speeches/brill/130611cprspeech.pdf.
A more detailed article analyzing the speech will be available in the next issue of the DW Healthcare Legal News. The latest issue and all archived issues of the DW Healthcare Legal News are available here.