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AHLA Healthcare Antitrust FAQ Handbook (AHLA Members)

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In March 2012, the Federal Trade Commission (FTC) ordered two hospitals to unwind the merger that they had previously agreed to, and a month later in April a United States District Court temporarily blocked the merger of two hospitals pending FTC administrative proceedings challenging the merger. These are two recent examples of how antitrust laws can affect business deals in the healthcare industry. Whether you are in-house counsel with a healthcare organization, a healthcare attorney not generally involved with antitrust issues, or even one more familiar with how antitrust issues impact healthcare organizations, you will benefit from this handy guide to what is and isn't allowed in the healthcare antitrust context.

Coverage includes:

  • When is it permissible to talk to a competitor about merging and what information can be shared? 
  • How do federal antitrust agencies determine when to challenge mergers? 
  • How can you take advantage of the immunity protection of the Health Care Quality Improvement Act of 1986 (HCQIA) in credentialing matters? 
  • When are exclusive contracts with primary payers permissible? 
  • What authority do state attorneys general have to investigate federal antitrust violations? 
  • In addition, the questions and answers are bolstered by extensive footnotes to aid the reader in further expanding their research into each area of coverage.

Mark L. Mattioli, Esquire

Alexander M. McIntyre, Jr., Esquire, Stephen P. Murphy, Esquire, David M. Narrow, Esquire, Patricia M. Wagner, Esquire, Hillary A. Webber, Esquire

David A. Argue, Ph.D., Saralisa C. Brau, Esquire, Christi J. Braun, Esquire, Joseph M. Miller, Esquire

The eBook versions of this title feature links to Lexis Advance for further legal research options.

Table of Contents

Chapter 1 -- Mergers, Joint Ventures, and Affiliations

1.1 A Competitor Called and Wants to Talk About a Merger or Other Affiliation. Is It Possible to Meet with the Competitor? What Can Be Discussed?

1.1.1 Gun Jumping General Preclosing Guidelines Guidelines Concerning Preclosing Information Exchanges

1.2 Is Approval Needed from the Federal or State Agencies to Consummate a Merger?

1.3 What Is a "Virtual" Merger? How Does It Differ from Other Mergers?

1.3.1 Virtual Mergers Susquehanna Health System

1.4 How Do the Federal Antitrust Agencies Analyze Whether to Challenge Mergers? Does the Analysis Differ Depending on Whether the Merger Is between Hospitals, Physicians, Hospitals and Physicians, or Health Plans?

1.5 What Are the Circumstances Under Which the Government Can Challenge, Retrospectively, a Hospital Merger?

Chapter 2 -- Medical Staff and Peer Review

2.1 Can a Hospital "Conspire" with Its Medical Staff with Regard to a Peer Review Proceeding?

2.2 What Immunities Are Available to Peer Review Committee Members to Protect Them from Antitrust Liability? How Can Members Take Advantage of Those Immunities?

2.2.1 What Does HCQIA Require?

2.2.2 What If State Law or the Bylaws Mandate a Different Procedure?

2.2.3 What Is Immunized?

2.2.4 Who Is Immunized Under HCQIA?

2.3 A Staff Physician Is Disciplined by Medical Staff Members Who Compete with the Physician. What Can Be Done to Limit Potential Antitrust Liability?

2.4 A Hospital at Which Physicians Practice Enters into an Exclusive Contract for Anesthesia Services. What Are the Antitrust Issues These Physicians Need to Worry About?

2.4.1 Issues of Dual Market Definition: National Job Market and Local Patient Market

2.4.2 Efficiency and Business Justifications

2.5 Do State Law Peer Review Privilege Laws Apply in Federal Antitrust Cases?

2.6 Are Governmental Hospitals Treated Any Differently the Private Hospitals Under the Antitrust Laws?

2.7 What Are the Antitrust Implications of Economic Credentialing Policies?

2.7.1 Is the Policy Concerted Activity or Unilateral?

2.7.2 Are Exclusive Contracts Predatory Conduct?

2.7.3 Can the Coercion of Physicians Be Deemed Predatory Conduct?

2.8 Business Justifications for Economic Credentialing: Protecting Against Free-Riding

Chapter 3 -- Healthcare Competition Issues

3.1 The Local Hospital Enters into an Exclusive Contract with the Primary Payer That Will Not Contract with a Surgery Center. Is This Legal?

3.2 The Local Hospital Opposes a Surgery Center's Request for a Certificate of Need. Is This an Antitrust Violation?

3.3 May a Hospital Refuse to Deal with a Competing Surgery Center by Refusing to Sign a Transfer Agreement or Provide Other Services?

3.4 A Home Health Agency Demands Access to Hospital Patients. Must This Demand Be Honored?

3.5 May a Hospital Require That Physicians Employed by the System Refer All Cases to the Hospital?

Chapter 4 -- Physician and Other Healthcare Provider Networks

4.1 What Antitrust Concerns Arise Regarding Physician or Other Healthcare Provider Networks?

4.2 What Types of Provider Network Arrangements Are Permissible Under the Antitrust Laws?

4.3 What Must a Provider Network That Involves Agreement Among Competitors Do to Demonstrate That It Is Integrated, May Qualify for Rule-of-Reason Treatment, and Ultimately May Be Lawful?

4.4 What Is Meant by Efficiency?

4.5 What Are Acceptable Ways for Providers to Integrate Through a Network to Qualify for Rule-of-Reason Analysis?

4.6 If We Are Integrated, Can We Agree on Prices and Other Terms Under Contract to Sell Our Services to Payers or Other Purchasers?

4.7 To What Kinds of Provider Network Arrangements Does This Analysis Apply?

4.8 How Can I Get Guidance About Whether a Provider Network Arrangement Is Permissible Under the Antitrust Laws?

4.9 What About Accountable Care Organizations That Are Established and Operate Under Arrangements with Centers for Medicare & Medicaid Services Under the Medicare Program as Part of the Health Reform Law?

Chapter 5 -- The Robinson-Patman Act

5.1 May a Manufacturer Offer Discounts to Our Competitor Without Offering Us the Same Discounts?

5.1.1 Does the Transaction Involve a Sale of a Commodity?

5.1.2 Are There Two Sales?

5.1.3 Is There a Price Difference in Similar Products?

5.1.4 Did the Sales Occur in Interstate Commerce?

5.1.5 Is There Competitive Injury, and If So, at What Level? Primary Line Injury: Predatory Pricing Secondary Line Discrimination: Lost Profits Tertiary Line Discrimination: Crossing the Border

5.1.6 Defenses to a Robinson-Patman Claim Meeting Competition Cost Justification Changing Conditions Functional Availability

5.2 May a Not-for-Profit Hospital Provide Pharmaceuticals to Its Patients for Use Outside the Hospital Without
Violating the Robinson-Patman Act?

5.3 Can Nonprofit and For-Profit Affiliate Corporations in the Same Health Network Share Products Purchased by the Not-for-Profit Entity Without Violating the Robinson-Patman Act?

Chapter 6 -- Healthcare Payer Issues

6.1 When Are Most Favored Nation Provisions Illegal Under the Antitrust Laws?

6.2 The Dominant Payer Will Not Agree to Our Reasonable Rate Increases. What Can We Do?

6.3 The Local Tertiary Healthcare System Insists on a Significant Rate Increase. Is This an Antitrust Violation?

6.4 Is It Legal for a Hospital System to Offer a Package of Bundled Services to a Payer?

6.4.1 Tying

6.4.2 Bundling

Chapter 7 -- Sharing Healthcare Price and Nonprice Information and Group Purchasing

7.1 Providers Are Asked to Participate in a Pricing Information Survey. Are They Permitted to Participate?

7.2 May Hospitals Share Nonprice Information with Each Other?

7.3 May Wage Surveys Be Used to Assist in Paying Competitive Salaries?

7.4 May a Hospital Enter into Group Purchasing Arrangements?

7.5 Are Local Hospitals Permitted to Collaborate to Develop Clinical Practice Guidelines? What Precautions Do the Hospitals Need to Take?

7.5.1 Standards Must Be Commercial

7.5.2 Conflicts of Interest and Procedural Safeguards

7.5.3 Anticompetitive Harm

Chapter 8 -- Litigation and Enforcement

8.1 Do We Need to Comply with a Third-Party Subpoena or Request from the Government for Detailed Market Information, Including Information in Electronic Form?

8.2 Is There a Statute of Limitations for Antitrust Violations?

8.3 How Are Antitrust Laws Enforced?

8.3.1 Federal Enforcement

8.3.2 State Enforcement

8.3.3 Private Enforcement

8.4 What Authority Do State Attorneys General Have to Investigate Federal Antitrust Violations?

8.5 What Damages Are Available to Plaintiffs in Private Antitrust Lawsuits?

8.6 How Do We Make a Complaint to the Governmental Agencies Regarding a Competitor's Potential Anticompetitive Practice?

8.7 What Type of Antitrust Guidance Is Available from the Government?