Several important antitrust points of interest in the hot-off-the-presses ACO regulations issued today:

  1. The Department of Justice and the Federal Trade Commission have a new challenge – figuring rules of the road as joint administrators of the ACO antitrust review process, acting through a newly formed joint working committee. The agencies will either have to work very closely together or delegate enough authority to the work group so the group can complete analysis of ACO developments and respond to inquiries.
  2. And that joint working committee or the FTC/DOJ is going to be busy.  Here’s why: Any ACO that has more than 50 percent market share in any particular physician specialty where independent physicians in that specialty are in the ACO needs joint DOJ/FTC blessing to be in the federal program. This could require many ACOs to seek and obtain federal review or forsake a “complete” panel of providers in their ACO.
  3. If an ACO qualifies as a federal ACO, the organization can jointly negotiate on price under certain circumstances in the commercial payor space. This is good news for those developing ACOs and makes sense given the efficiency and value components required at the Federal/CMS level to participate.