FTC/DOJ Remove Mandatory Antitrust Review for MSSP-Participating ACOs in Final Policy Statement

McDermott Will & Emery
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On October 20, 2011, the Federal Trade Commission and Department of Justice issued a final policy statement on accountable care organizations (ACOs) participating in the Medicare Shared Savings Program (MSSP). Significantly, the Agencies eliminated mandatory antitrust review of certain ACOs seeking to participate in the MSSP, but declined to adopt other stakeholder recommendations.

Introduction

On October 20, 2011, the Federal Trade Commission (FTC) and Department of Justice (DOJ and, with the FTC, an Agency, and, collectively, the Agencies) issued a final “Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (Policy Statement). The final Policy Statement differs from the Policy Statement the Agencies proposed in March 2011 in a couple of key respects, but does not incorporate many other comments that stakeholders submitted in response to the proposed Policy Statement. Most significantly, the Agencies eliminated mandatory antitrust review prior to participation in the Medicare Shared Savings Program (MSSP) for accountable care organizations (ACOs) with a combined primary service area (PSA) share in excess of 50 percent in any common service. In its place, the Agencies implemented a process for “newly formed” ACOs to seek expedited voluntary antitrust review.

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