The healthcare industry is comprised of numerous types of providers and suppliers who are generally considered competitors from an antitrust standpoint, but their collaboration has been accepted in certain circumstances by governmental regulators due to the benefits derived by the patients from such arrangements without being detrimental to competition. For decades these healthcare market participants were able to utilize multiple policy statements and guidance issued by the United States Department of Justice and Federal Trade Commission to assist in properly developing various business arrangements and exchanging information among competitors.  Additionally, these authorities provided a guidebook whereby the parties were able to determine whether federal antitrust laws were negatively implicated in the process. However, the United States government has recently taken action to withdraw this guidance and revise the method by which healthcare business arrangements are reviewed. The end result is that valuable resources long relied upon by healthcare market participants are no longer available for legal authority in conjunction with the federal government’s heightened level of scrutiny in the analysis of such proposed transactions.

By Patrick D. Souter[1]

 

I. INTRODUCTION

On July 9, 2021, the healthcare industry was provided the first official pronouncement by the Biden Administration of how antitrust analysis and enforcement would substantially deviate from th

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