As discussed previously here, here, and here, antitrust matters are a key consideration in the design of the Shared Savings Program and ACO development.  For example, antitrust review of prospective ACOs by the FTC and/or DOJ is a critical aspect of the ACO application process. Despite the release of the joint statement, there is evidence that the relationship between the FTC and DOJ regarding ACO antitrust review may not be as harmonious as the Joint Statement suggests.
A recent article in The Wall Street Journal suggests that the fight over ACO antitrust review has “generated unusual heat” between the Agencies. One commissioner at the FTC has even suggested that Christine Varney’s prior representation of the American Hospital Association creates a significant conflict of interest for the DOJ.
The article further suggests that much of this discord arises from perceived differences in philosophy among the Agencies with respect to antitrust enforcement: the FTC is perceived as more willing to challenge a proposed arrangement while the DOJ is considered to be more lenient.   The article notes that these differing philosophies appear evident in the tone of the Agencies’ public statements.
For example, Christine Varney of the DOJ has stated that “there is no area of the economy that would benefit more from collaboration than healthcare.”  Conversely, FTC Chairman Jon Leibowitz has stated that the FTC is “not going to roll over and play dead and allow a lot of health-care consolidation.”  In sum, the article suggests that some at the FTC fear that the DOJ may “go easy” on ACO applicants in order to further the Administration’s health care policy at the expense of antitrust enforcement.
The FTC’s philosophy regarding health care consolidation, and possibly its approach to ACO antitrust reviews, may be found in Richard Feinstein’s recent comments regarding the now-abandoned move by Providence Health & Services to acquire cardiology groups in Spokane, Washington.   While recognizing that health care consolidations may have the potential to generate cost savings and quality benefits for patients, Director Feinstein noted that “such arrangements can create highly concentrated markets that may harm consumers through higher prices or lower quality of care,” and that the FTC “will aggressively enforce the antitrust laws to ensure that consolidation among health care providers will not increase health care costs in local communities across the United States.”
Even though the Joint Statement provides valuable antitrust guidance for health care providers considering development of ACOs, we’re not provided with insight as to how the task of antitrust review will be divided between the Agencies.   We’re also left to wonder whether the issue will be settled before January 1, 2012, and any failure of the Agencies to settle this matter before that time could delay processing of some ACO applications.  Also, if the Agencies’ enforcement philosophies differ as suggested in the article, failure to settle on a single reviewing Agency, whether it be the FTC or DOJ, could lead to inconsistent review standards and results, injecting a degree of uncertainty into the ACO application process.