On Their Silver Anniversary, It’s Time to Burnish the Healthcare Guidelines

Twenty-five years have passed since the United States Department of Justice and the Federal Trade Commission last revised their Statements of Antitrust Enforcement Policy in Health Care (the “Healthcare Guidelines”). Given legal developments and advancements in economic analysis, the agencies should now solicit public input on how to revise these guidelines and then issue updated guidelines. In particular, the agencies should add three new statements to address the following issues: (1) what types of steering restrictions are permissible in hospital-payer contracts; (2) how hospitals may structure discounts to payers; and (3) how competitors may collaborate to address healthcare crises, incorporating lessons from the response to the COVID-19 crisis. These and other updates to the Healthcare Guidelines would help foster greater competition, innovation, and consumer welfare in the healthcare sector.

By Peter Mucchetti & Eva Kurban¹

In 1996, the United States Department of Justice and the Federal Trade Commission issued revised Statements of Antitrust Enforcement Policy in Health Care (the “Healthcare Guidelines”).² These nine statements address a variety of issues concerning healthcare providers and health insurance companies. But the federal antitrust agencies have not subsequently updated these now 25-year old guidelines. Some of the statements have aged well, providing guidance that is regularly used. Other statements, however, have largely been i