|March 3, 2014|
Previously published on February 21, 2014
The Federal Trade Commission (“FTC”) recently announced that it will be hosting a two-day workshop in Washington, DC on March 20-21 to examine competition issues related to current developments in the U.S. health care industry. According to the FTC’s press release, the goal of the workshop is “to enhance the Commission’s expertise and knowledge base regarding competitive dynamics in this critical sector of the economy.” The workshop will focus on five key topics:
Professional regulation of health care providers
Innovations in health care delivery
Advancements in health care technology
Measuring and assessing quality of health care
Price transparency of health care services
The workshop is the latest confirmation that the health care sector is and will continue to be a core focus of the FTC’s resources. In fact, this is the FTC’s second health care-oriented workshop in two months. Earlier this month, the agency held a workshop exploring competition issues involving biologic medicines. That workshop focused on the state of follow-on biologic competition in the United States and the European Union and the impact of state regulations on competition in the area.
Also in the recent past, the FTC held a workshop examining whether and how to create antitrust safe harbors for accountable care organizations (“ACOs”), a key component of the Affordable Care Act. The FTC and DOJ issued a joint policy statement outlining the ACO safe harbor a year later in October 2011.
In addition to workshops, the FTC has continued to focus enforcement efforts in the health care field, both in connection with merger and non-merger matters. For example, earlier this month the FTC prevailed at the district court level in its antitrust challenge to the consummated merger of St. Luke’s and Saltzer Medical Group, requiring St. Luke’s to divest its recent acquisition of Saltzer. Similarly, the FTC recently required Thermo Fisher Scientific Inc. and Community Health Systems, Inc. to divest certain assets before completing their proposed acquisitions. Outside of the merger context, the FTC has continued to be active investigating pricing activities of physician groups and pharmaceutical “reverse payment” settlements. The latter area in particular is receiving a lot of attention following the recent Supreme Court decision in FTC v. Actavis, where the Supreme Court ruled that reverse payment settlement agreements are not immune from antitrust scrutiny, but must be analyzed under the rule of reason.
The forthcoming health care workshop may provide more insight into some of the FTC’s enforcement priorities in the industry. As Chairwoman Ramirez recently told the House Subcommittee on Regulatory Reform, Commercial and Antitrust law, the FTC views health care as one of two sectors in which “[the FTC’s] action will provide the greatest benefit to the largest number of consumers.”