FTC v. DOJ on ACOs

Take a look at the WSJ article today on the FTC and DOJ fighting over jurisdiction on health care antitrust issues, especially ACOs:

Mr. Kovacic [a FTC Commissioner] said his agency had a better working relationship with the European Union than it did with the Justice Department, just two blocks away.

The bureaucratic issue is work flow = protected jobs, especially in an era of cuts to discretionary spending.  The agencies also have different policy perspectives:

The FTC sees a risk in that they could allow too much consolidation and effectively permit health providers to fix prices. The Justice Department is widely seen to be more receptive to the entities because of the consumer benefits they could provide, according to people with knowledge of the interagency debate.

What the article lacks is actual substantive discussion of the Proposed ACO Statement of Antitrust Enforcement Policy, released on March 31, 2011.  It appears that the FTC won round I of the policy battle with the DOJ.  My short summary:

Federal ACOs are deemed to meet clinical integration rules (not a surprise).  The statement breaks ACOs into 3 categories, depending on market share.  Those with less than 30% market share get a free pass; those with more than 50% get mandatory federal review; those in the middle can request review. Healthcare antitrust lawyers full employment act.

I think the FTC has the stronger argument here, as we’ve blogged before (Austin, Kevin). h/t to Brad F. for the pointer


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