Top Ten Practical Antitrust Compliance Tips for Health Care Providers (and Other Entities)

by Baker Donelson

To minimize the antitrust risk your hospital, physician group, health plan, or other health care organization faces in its day-to-day operations, such as contracting with providers and payors, or strategic activities, such as mergers and acquisitions, there are a number of practical tips and considerations that you should keep in mind. These tips will reduce the likelihood of inadvertent violations of the antitrust laws, and ultimately put your organization in the best position to defend any investigation by the Federal Trade Commission (FTC), Department of Justice Antitrust Division (DOJ), or a state Attorney General (AG) that might result from your activities. This advice will not apply to every situation all of the time, however, as the antitrust analysis is fact-specific and will vary from one situation to another. As a result, we recommend consulting with counsel regarding your particular situation.

Top Ten Tips

  1. When initially considering a merger, joint venture or simply a new contracting strategy, ensure that the potential efficiencies or business justifications for the merger or new practice are well-planned and play a primary role in motivating your organization’s decision to move forward.
  2. As part of those efficiencies or justifications, emphasize the quality-of-care improvements that will result from the merger, venture or new practice (but don’t forget any cost reductions too). Improvements in quality of patient care are key in this Accountable Care Act era, and they are highly persuasive when making your case to the FTC, DOJ or AGs.
  3. Carefully document your efficiency plans as early in the process as possible, including quantifying any “before and after” quality measures using outcome criteria that are becoming increasingly important under “value-based-purchasing” payment methodologies used by Medicare/Medicaid, and in turn, more credible to the FTC, DOJ and AGs as a justification for any merger or contracting practice.
  4. Recognize and account for the role of your organization’s market position, typically measured by its market share, in the evaluation of any merger, contracting with provider or payors, or other conduct in which you engage. The actions of a firm with a high market share, or a merger resulting in a high share, will be viewed much more critically (and if the share is sufficiently high to constitute a “monopoly” share, will even be subject to additional antitrust liability under Section 2 of the Sherman Act), than those of a firm with little or no market power.
  5. But also recognize that certain conduct such as price-fixing or market allocation agreements (which can result from conduct as seemingly simple as non-integrated providers using a common fee schedule, or two competing hospitals agreeing to divide certain services), can be per se, or automatically, unlawful regardless of your organization’s market share or its justifications for the practice.
  6. Implement an antitrust compliance program, with written guidelines and regular training, to educate your employees and avoid inadvertent – or deliberate – violations.
  7. Implement a document retention/destruction policy that applies to your organization’s electronic records as well as paper documents, and vigorously apply the policy. Unnecessarily retaining documents always increases the cost of defending a government investigation, and it can increase your antitrust risk and liability.
  8. Particularly in the merger context, engage any other affected parties, such as payors or even competing providers, early in the process to obtain their input, reaction and ideally their buy-in for the merger or new practice.
  9. Similarly, decide early in the process whether to engage the FTC, DOJ, or AG regarding your organization’s planned merger or new practice. Obtaining some signal that the government will not challenge the practice can provide a great deal of comfort going forward; on the other hand, you must be prepared to determine how to respond if the answer from the agency is negative or ambiguous. This decision will vary greatly from case to case, and will depend in large part on your organization’s tolerance for risk.
  10. In any dispute that arises with another private party such as a competitor or payor, consider alternative dispute resolution mechanisms such as arbitration or mediation, which can reduce public exposure, be less expensive, and in some circumstances reduce the antagonism and ill-will resulting from the dispute where that may be an important consideration (such as hospital-medical staff disputes).

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.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.