• Which ACO antitrust lobbyists won?

    The draft FTC/DOJ Joint Statement on ACO Antitrust Enforcement attracted 127 written comments by health system stakeholders and lobbyists (synonyms?). The new Final Joint Statement was released yesterday. Who won this battle? Let’s narrow our focus on comments by 3 big players: AHIP was concerned about provider market power against health plans and certainly didn’t want to see additional anti-competitive flexibilities (prior TIE health care antitrust coverage here, generally concerned about growing provider market power); MGMA , naturally, wanted fewer limits on medical group market power. AHA focused on procedural issues.

    Providers got 2 concessions, one major and one minor.  The latter is a very reasonable grandfather rule, extending the Joint Statement to groups formed before the passage of the ACA. The more important change was to eliminate any mandatory antitrust review as a part of the Medicare ACO process. This provision, similar in some ways to the Hart-Scott-Rodino Act (pre-merger notification to the FTC/DOJ), would have required many ACOs to pass mandatory antitrust review before ACO approval. In the new Final Joint Statement, all antitrust reviews are voluntary. This result generally tracks the AHA and MGMA comments. AHIP avoided any substantive relaxation in health care antitrust rules.

    In short, the providers failed to get any weakening of substantive antitrust rules, but obtained some procedural flexibility. Antitrust lawyers and economists will still have plenty of ACO work.

    In a completely unrelated development, Washington, D.C. is now the richest city in the USA.

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    • I am aware of at least one large health system that has decided that it would be strategically risky to apply as a shared savings ACO without including ALL of the physicians who do MOST of their work at one of its hospitals — ie, its hospitals’ hospital market share’s worth of the physician market. Even though they have employed physicians, the employed physicians are substantially less numerous. They fear retaliation from the non-employed hospital users that would cost them volume. The system is not willing to expose itself to a market dominance review as part of an ACO application, and so it chooses — has so far chosen — to sit out on an initiative that it might otherwise embrace. Would we want it to embrace it? At the cost of that greater consolidation? Complicated world, health care.