Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC’s health care enforcement efforts are topic of Commissioner Ohlhausen’s remarks, (Sep 16, 2013)

By Jeffrey May, J.D.

Health care providers should not think of the Patient Protection and Affordable Care Act’s emphasis on clinical integration and efficiency gains as a call for increased consolidation without regard to the antitrust laws, FTC Commissioner Maureen K. Ohlhausen warned in a speech delivered on September 13 in Berlin. In her remarks prepared for delivery at the Forum for EU-US Legal-Economic Affairs, entitled “Protecting Consumer Welfare in the U.S. Health Care Sector,” Ohlhausen pledged that the FTC would scrutinize consolidation and other arrangements in the health care area “to mitigate the possible adverse effects of potential increases in provider market power, prevent tacit pricing coordination, and minimize the risk of outright collusion.”

Ohlhausen also discussed how the FTC uses its law enforcement, competition advocacy, and advisory opinion tools to protect consumer welfare in the U.S. health care sector. Some of the agency’s recent enforcement actions to halt anticompetitive mergers and business conduct were highlighted. Among these was the recent U.S. Supreme Court victory in the Phoebe Putney case in which the agency challenged a merger that resulted in a near-monopoly in general, acute-care hospital services in the area around Albany, Georgia. In its February 2013 decision, the Court ruled that the Georgia legislature’s grant of general powers to acquire hospitals to a local hospital authority did not shield the transaction from antitrust attack pursuant to the state action immunity doctrine.

Also noted were the efforts of the FTC, together with the Idaho Attorney General, to block the acquisition by St. Luke’s Health System—the largest health care system in Idaho—of Saltzer Medical Group—Idaho’s largest independent, multi-specialty physician practice group.

The agency’s targeting of anticompetitive behavior among groups of providers in the guise of joint negotiation also was discussed. A recent action against providers of nephrology services in southwestern Puerto Rico should be viewed as a cautionary tale for providers thinking about unlawful joint negotiations in the future, according to Ohlhausen.

With respect to the FTC’s mission of advocating for competition, the FTC uses its expertise in competition, consumer protection, and economics to persuade other government actors to pursue policies that promote competition and consumer welfare, Ohlhausen noted. Lastly, the commissioner discussed the role of the FTC’s advisory opinion program in assisting health care providers working toward clinical integration while guarding against the possibility of provider market power, collusion, or other conduct that could harm consumers.

News: Antitrust FederalTradeCommissionNews