Final Antitrust Policy Statement Regarding ACOs in Medicare Shared Savings Program

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The 2010 healthcare reform laws—the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 — established accountable care organizations (ACOs) as the mechanism through which healthcare providers may participate in the federal government’s Shared Savings Program (SSP). Because ACOs bring together otherwise independent physicians and hospitals, providers had clamored for the government to issue a position statement about the antitrust implications of such a structure.

On October 20, 2011, the U.S. Federal Trade Commission and the Department of Justice, which coordinate enforcement of the antitrust laws, issued their final Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (the "Enforcement Policy"). The fundamental principle of the Enforcement Policy is that the agencies will apply the rule-of-reason analysis to all ACOs applying for or participating in the SSP and, if the same services are involved, to commercial insurance products modeled on the SSP.

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