Antitrust Regulation

Robert F. Leibenluft, J.D.

George Eads commented that organizations should not hide behind the antitrust laws as an excuse for not collaborating to improve quality. This is good advice; and as Clark Havighurst, who gave an excellent summary of the applicable antitrust laws, indicated, collaboration efforts generally can be carried out in a manner consistent with the antitrust laws. Organizations should make sure, however, that they are complying with the antitrust laws in substance and not just in form.

A number of imperfections in the health care market could be addressed by collaborative efforts, including initiatives aimed at measuring quality and collecting data. In regions where providers contract with many plans, such efforts may be particularly worthwhile. It is important, however, to draw the distinction between collaboration that attempts to deal with market failures so as to make the market work better and joint efforts that attempt to supplant market competition. The latter course can be done lawfully under the antitrust laws only by federal or state governments or by private entities under active government supervision pursuant to a clear government policy to supplant competition. Of course, it is also permissible for organizations to lobby and petition the government to take certain actions (including actions that might limit competition).

When examining the actions of private parties, the antitrust enforcement agencies consider whether the collaborative efforts likely will have the effect of creating efficiencies and promoting competition or, whether they will likely have the effect of stifling competition and working to the detriment of consumers. Collaborative activities among competitors, including information sharing and standard setting, are common in many industries and do not raise serious antitrust concerns. For example, efforts to gather and interpret physician data, jointly perform outcomes studies, and develop practice guidelines, all can be procompetitive, and indeed the federal antitrust enforcement agencies have explicitly provided guidance on these issues in their Statements of Antitrust Enforcement Policy in Health Care.45 Actions to exclude providers from plans to achieve better quality or more cost-effective care are also generally acceptable, provided that they are unilateral efforts. However, agreements among competitors to adhere to standards, for example, with respect to what types of medical services are covered or which providers should be included in a network, can raise significant antitrust issues since such joint action limits consumer choice and is less likely to be necessary to achieve efficiencies. Thus, plans should make such decisions independently, without agreement with other competing entities. Also problem-

45  

Department of Justice and Federal Trade Commission. 1993 Statements of Antitrust Enforcement Policy in Health Care. Online. (URL:http://www.ftc.gov/reports/ hlth3s.htm). Accessed, June 10, 1998.



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