Providers concerned about potential DOJ scrutiny should follow the HCMC’s activities for guidance on DOJ’s policies in this area.
On May 9, 2024, the U.S. Department of Justice (DOJ) announced the formation of its Antitrust Division’s Task Force on Health Care Monopolies and Collusion (HCMC). The HCMC will investigate competition concerns in healthcare to identify targets for DOJ investigations and enforcement actions and to guide DOJ’s overall healthcare policies. The announcement provides little detail on the task force’s activities, but recent federal activity in this area, as well as the announcement’s focus on public input, suggest that the HCMC may soon play an active role in the DOJ. Providers concerned about potential DOJ scrutiny should follow the HCMC’s activities for guidance on DOJ’s policies in this area.
On one hand, this announcement is very general: It gives much information on what factors the task force will examine (e.g., payor-provider consolidation, serial acquisitions, quality of care and billing issues) and who all it will involve in its activities (e.g., prosecutors, economists, industry experts and data scientists)―but gives little information on what discrete activities the HCMC will perform, saying only that the task force will “guide the [antitrust] division’s enforcement strategy and policy approach.” On the other hand, this announcement is the latest in a series of moves federal entities have taken in response to competition concerns in healthcare. Among other matters, in 2022 alone, the Federal Trade Commission (FTC) and DOJ provided seven public statements scrutinizing private equity and antitrust concerns in healthcare. In September 2023, FTC brought its first enforcement action against a private equity entity, alleging that the entity consolidated anesthesia practices across Texas and drastically raised prices. And in December 2023, DOJ settled for $345 million Stark law allegations it brought against a health network for allegedly paying physicians to refer patients to other providers within the network. Since DOJ and other federal agencies appear to be taking an increasingly active role addressing competition concerns in healthcare, DOJ’s announcement of the HCMC suggests that this trend will only continue and may result in more high-profile actions in the near future.
The announcement also requests public input and provides a website where anyone can submit healthcare competition complaints. The website outlines major United States antitrust and competition laws, provides “Examples of Conduct That Can Harm Competition in Healthcare” and details the sorts of complaints and other information the HCMC would like to receive from the public. Thus, not only does the task force intend to consult outside parties for guidance, it also may plan to rely on public complaints as a key means of identifying targets.
Therefore, the establishment of the HCMC may prove to be useful for any providers interested in competition regulation in healthcare. Providers with concerns about potential DOJ scrutiny can follow the task force’s investigations and review its guidance for insight into DOJ’s policies in this area and how best to stay within those policies. All interested parties are encouraged to follow the task force’s activities to see how federal policy will continue to evolve in this area.
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