Antitrust Advisory: FTC Emphasizes Human Capital Investment over Financial Investment in Recent Clinical Integration Advisory Opinion


One important issue for health care provider joint ventures is determining when the venture is sufficiently clinically integrated so that, if the venture jointly contracts with providers, its activities will be tested under the more forgiving antitrust rule of reason rather than being condemned as per se illegal. The Federal Trade Commission (“FTC” or “Commission”) has given limited guidance in the past on this issue,1 and industry participants have pressed the Commission for additional guidance. On April 14, 2009, the FTC released an advisory opinion regarding a clinical integration proposal from TriState Health Partners, Inc. (“TriState”) which provides some additional nuggets of guidance, but demonstrates that the Commission has not strayed far from its three previous clinical integration advisory opinions. Importantly, the TriState advisory opinion also signals the Commission’s willingness to allow clinical integration programs to proceed that consist of minimal financial investment, but require significant investment of human capital.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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