February 7, 2023

I just received a note from Chuck Ingolia, CEO at the National Council for Mental Wellbeing (formerly the National Council for Behavioral Health).  Interestingly, the NYS Council hosted a recent webinar facilitated by our contracting consultant Adam Falcone entitled Antitrust Laws and Implications for Behavioral Health Providers.  A recording of that one hour training is on our website at:  www.nyscouncil.org  in the ‘Archived Events’ section.

Here’s the message from Chuck.  Sounds like we need to bring Adam back for a command performance, and to clarify this new information.  I’m on it!

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Members,

Last week, the U.S. Department of Justice (DOJ) announced the withdrawal of three health care antitrust policy statements that they consider outdated and I want to inform you about the decision and its impact. The three statements the DOJ has withdrawn are:

• Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993).
• Statements of Antitrust Enforcement Policy in Health Care (August 1, 1996).
• Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).

For the last 30 years, these policy statements guided providers in sharing and exchanging information with each other. The statements also helped in establishing clinically and financially integrated networks that negotiate contracts with managed care organizations and other health insurers. The guidance established certain “safety zones,” similar to safe harbors, for structuring arrangements that would be unlikely to result in enforcement action by the DOJ or Federal Trade Commission (FTC).

In explaining its decision, the DOJ said the statements are “overly permissive on certain subjects, such as information sharing, and no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues in today’s environment.”

So where does that leave you?

Withdrawal of the policy statements may leave providers at risk for activities that had been previously approved under the policy statements. Because the DOJ said it will take a “case-by-case enforcement approach,” providers will have no other choice than to exercise caution in engaging in activities that involve competitors until there is sufficient enforcement activity to act as guidance.

Rest assured we will provide more information on this issue as it becomes available.