On March 31, 2011, the Federal Trade Commission and Department of Justice issued a joint proposed antitrust enforcement policy statement (Proposed Antitrust Policy Statement) to accompany the release by the Department of Health and Human Services of its proposed regulations to cover Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program. The agencies ask for comment on the proposed statement by May 31, 2011. While additional details and insights will emerge in the coming weeks, we thought it was important to provide interested parties an initial summary and analysis of the Proposed Antitrust Policy Statement.

The Proposed Antitrust Policy Statement only applies to competitor collaborations formed after March 23, 2010 that seek to participate in the Shared Savings Programs. Physician practice groups or integrated health systems that form ACOs through merger transactions will be evaluated under the Agencies’ Horizontal Merger Guidelines.