Health Care Antitrust Without the Health Care Guidelines: What Will the Future Hold?

In a largely unheralded announcement on February 3, 2023, the Department of Justice Antitrust Division (“DOJ”) withdrew three major antitrust policy statements applying to the health care industry (the Health Care Guidelines). The announcement has been met with widespread concern about the impact of the withdrawal on the industry, which over the last 30 years has arranged its affairs in the context of this guidance. The stated motivation for the DOJ’s withdrawal of the Health Care Guidelines is the significant changes in the health care industry over the period they have been in place. However, rather than engage in any industry consultation concerning the role of the Guidelines and whether to revise or withdraw them, the DOJ jettisoned the Guidelines in their entirety. Antitrust policy in health care needs to be nuanced to account for the complex set of political and regulatory factors applying to the industry, as well as broader challenges in health care and its extension to community health and access. Government health care policies have encouraged a broad range of collaborations, and the Guidelines have provided an important foundation upon which many of those collaborations are built. Before dismantling that scaffold, the agencies should engage in research, consultation, and provide clear and transparent guidance for the industry going forward.

By Dionne Lomax & Lisl Dunlop^[1]

I. INTRODUCTION

In a largely unheralded announcement on February 3, 2023,