Clinical Integration: The Balancing of Competition and Health Care Policies

The reason that clinical integration is a topic on which the Federal Trade Commission (“FTC”) and the Department of Justice Antitrust Division (“DOJ”) have written and spoken extensively is that providers who develop and operate clinical integration networks do so with the intent to jointly sell their services to health insurance plans, self-insured employers, and other third-party payers (collectively, “payers”). Concerned about the market power that joint contracting by otherwise independent, competing providers can generate and, thus, the potential harm of higher prices and reduced consumer access to high quality care, the federal antitrust authorities have prosecuted many provider organizations for unreasonably restraining competition through joint contracting. To date, though, neither federal agency has prosecuted, or entered a consent order with, a provider-contracting network that implemented a legitimate program of clinical integration among its participating providers. The reason is their desire to promote, rather than stifle, the development of innovative arrangements through which providers will work collaboratively to improve the quality of care patients receive and to control the spiraling rise of health care costs. And that reason is not surprising, given that controlling costs and improving quality was, and will remain, a major focus of health care reform.