The substance of the ACO antitrust rules

My summary: If a provider is clinically integrated enough to qualify as a Medicare ACO, that’s good enough for antitrust law too.  From the October 20, 2011 DoJ/FTC joint Final Statement:

The Agencies have determined that CMS’s eligibility criteria are broadly consistent with the indicia of clinical integration that the Agencies previously set forth in the Health Care Statements and identified in the context of specific proposals for clinical integration from health care providers. The Agencies also have determined that organizations meeting the eligibility requirements for the Shared Savings Program are reasonably likely to be bona fide arrangements intended to improve the quality, and reduce the costs, of providing medical and other health care services through their participants’ joint efforts.

In other words, familiar health care antitrust rules will apply. As for safe harbors, an ACO will be considered “highly unlikely to raise significant competitive concerns” if institutional providers participate non-exclusively and the combined market share is 30% or less. Behavior the government hopes to discourage includes:

  1. Blocking commercial payers that want to direct or incentivize patients to choose certain providers;
  2. Tying sales of ACO services to sales of other services (ie, the ACO cannot require health plans wanting ACO services to contract with all of provider’s network for non-ACO services);
  3. Contracting with ACO non-primary care physicians, hospitals, ASCs, or other providers on an exclusive basis (only primary care docs can be exclusive);
  4. Restricting a commercial payer’s ability to provide cost and quality performance data and information to its enrollees; and
  5. Sharing sensitive price information amongst competing ACO members.

All very sensible; as we’ve said before, ACOs raise competitive concerns and don’t need special antitrust exceptions.

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