Antitrust Law Daily Wrap Up, ANTITRUST NEWS: New York health department rules could be anticompetitive, FTC staff says, (Apr 24, 2015)

By Greg Hammond, J.D.

FTC staff from the Office of Policy Planning, Bureau of Competition, and Bureau of Economics has issued a letter to the New York State Department of Health concerning the potential competitive impact of Certificate of Public Advantage (COPA) regulations—which purport to provide antitrust immunity to certain approved health care collaboratives. A COPA, according to FTC staff, would provide each performing provider system with federal antitrust immunity for specific collaborative activities among participating health care providers.

“FTC staff fully recognizes that collaborations among health care providers often are procompetitive,” the letter stated. “We write to express strong concerns that the COPA regulations, as well as the underlying authorizing legislation, are based on inaccurate premises about the antitrust laws and the value of competition among health care providers.”

The staff’s main point is that a COPA is unnecessary in order to engage in collaborative activities among three new performing health provider systems. Specifically, federal antitrust laws are not barriers to the formation of efficient health care collaborations that benefit consumers, and very few health care provider collaborations are actually challenged by federal antitrust agencies.

“Because procompetitive health care collaborations already are permissible under the antitrust laws, the main effect of the COPA regulations is to immunize conduct that would not generate efficiencies and therefore would not pass muster under the antitrust laws,” FTC staff wrote. “Therefore, COPAs are likely to lead to increased health care costs and decreased access to health care services for New York consumers.”

FTC staff urges the Department of Health to “carefully consider” each of the performing provider system’s potential impact on competition, such as whether any procompetitive benefits of collaboration would be outweighed by anticompetitive effects of immunizing potentially unlawful conduct.

News: Antitrust FederalTradeCommissionNews