ACOs And Antitrust Enforcement: Familiar Rules Raise New Concerns

On March 31, 2011, the Federal Trade Commission (“FTC”) and the U.S. Department of Justice (“DOJ”) released a joint Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (the “ACO Statement” or “Statement”). The ACO Statement incorporates a market-share based “safety zone,” a feature common to both the Antitrust Guidelines for Collaborations Among Competitors (2000) and the Statements of Antitrust Enforcement Policy in Health Care (1996). Unlike these prior guidelines, however, the ACO Statement requires mandatory agency review if a certain threshold is met. Because CMS (the U.S. federal agency that administers health insurance programs such as Medicare) will not approve ACOs that the antitrust enforcement agencies determine are subject to challenge, careful up-front attention to antitrust risk will be of vital importance to providers in navigating successfully the requirements for establishing ACOs.