ACOs, Clinical Integration and Managing Antitrust Risk

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Last week, at the Antitrust in Healthcare Conference held by the American Bar Association (ABA), the Federal Trade Commission (FTC) and the Department of Justice (DOJ) affirmed their commitment to monitoring the competitive effects of accountable care organizations (ACOs). ACOs are established under the Medicare Shared Savings Program administered by the Centers for Medicare & Medicaid Services (CMS). ACOs are groups of doctors and other healthcare providers who aim to improve healthcare delivery and reduce costs, in part, through “clinical integration,” broadly defined as the coordinated delivery of clinical care to patients.

Notwithstanding the potential benefits of ACOs, collaborations among competitors can raise concerns under the antitrust laws. At the ABA’s Antitrust in Healthcare Conference, FTC Chairman Jon Leibowitz explained that the FTC would continue to scrutinize ACOs to ensure that they actually provide the promised cost savings and quality improvements. Likewise, Joshua H. Soven, Chief of the DOJ's Litigation I Section, noted that the DOJ is paying close attention to the “ACO phenomenon.” In this regard, the two antitrust enforcement agencies underscored that they will continue to monitor collaborations in the healthcare industry and provide guidance, as needed.

The FTC and DOJ’s comments follow on the heels of CMS’s announcement of the first 27 ACOs approved to participate in the Medicare Shared Savings Program. The goal of the program is to ensure that patients, especially the chronically ill, get the right care at the right time, while avoiding unnecessary duplication of services, preventing medical errors, and reducing overall healthcare costs.

This article provides healthcare providers interested in ACOs – and clinical integration in general – with a brief overview of the antitrust laws that govern such arrangements and suggests best practices to minimize the antitrust risk of a collaboration with clinical integration.

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