HEALTH CARE ORGANIZATIONS
DISCUSSION
ANTITRUST LAWS:
EVOLVING TRENDS
n By P. Dileep Kumar, MD, FACP, CPE
ABSTRACT: Federal laws prohibit collusion and restraint
of competition b ecause they reduce choices for consumers and increase prices. The effect of antitrust laws
in health care is changing with the rapid evolution of
the industry. Mergers and acquisitions are common,
but federal authorities have acted against them on
behalf of consumers. Meaningful reform is on the
horizon, and physician leaders should play a role in this
process.
“COMPETITION” IS DEFINED AS A CONDITION
where different economic firms seek to obtain a share of a
limited good by varying the elements of the marketing mix:
price, product, promotion and place. Competition will give
rise to development of new technologies and provide wider
choices that lead to lowering of prices. In the alternate scenarios of “monopoly” (no competition) and “oligopoly” (little
competition), the opposite w
ill occur, leading to market consolidation, lack of competition and high prices.
The word “trust” in the 19th century was used in reference
to big businesses. Large manufacturing companies emerged
in the late 1800s and were thought to have complete market power (see Figure 1). It was argued that for the American economy to succeed, small businesses should be given a
chance and that individuals deserve free and fair competition.
Sen. John Sherman (see Figure 2) was the proponent of the
Sherman Antitrust Act of 1890, which prohibited restraints
in trade and abuse of monopoly power and gave the Justice
Department broad enforcing powers.
The Clayton Antitrust Act was enacted in 1914 to prevent
anticompetitive acts. Other notable legislation is the Federal Trade Commission Act of 1914 (established the Federal
Trade Commission1), the Robinson-Patman Act of 1936 (provided protection against price discrimination to small retailers),
and the Celler-Kefauver Act of 1950 (closed the loopholes
regarding asset acquisition by potential competitors to limit
competition). The Celler-Kefauver Act is also referred to as an
antimerger act, giving the government power to prevent vertical and conglomerate mergers that would limit competition.
34
MAY/JUNE n 2019
The FTC and the Department of Justice are the enforcers of
antitrust laws in the United States.
Some well-known cases:
●● Standard Oil Co. of New Jersey v. United States,
221 U.S. 1 (1911): One of the earliest examples of
the government’s use of antitrust laws. In the late
1880s, Standard Oil (owned by John D. Rockefeller)
had a large market share of the oil refining capacity. Standard Oil allegedly threatened to undercut
prices in a “predatory pricing” scenario to force out
the competitors. The federal government sought to
prosecute Standard Oil u
nder the Sherman Act. The
issue before the court was to determine whether
Congress has the power to prevent a company from
acquiring numerous others through methods that
are not illegal while posing significant restraints in
trade because of its sheer size and market power. The Supreme Court concluded that it is within
Congress’ power to regulate companies u
nder the
“commerce clause.” The court found Standard Oil
showed an “intent and purpose to exclude o
thers”
demonstrated by its many mergers, acquisitions
and business alliances. There was no evidence of
consumer harm. 2 This resulted in the breakup of
Standard Oil into 34 separate companies.
●● Kodak and antitrust lawsuits (1954): The film
manufacturer had a long history of antitrust lawsuits. At one time, Kodak controlled 96 percent of
the U.S. film and camera market. In 1921, it was
prevented from selling private-label films. After this,
Kodak marketed Kodacolor film that could be developed only by Kodak. It included a fee in the pricing
structure for developing and delivery of film. This
was found to be in violation of the antitrust laws
in 1954.
●● United States v. AT&T (1974): The Justice Department filed an antitrust case against AT&T, which was
the sole provider of telephone services throughout
the United States. Most of the telephonic equipment
FIGURE 1: POLITICAL CARTOON
An 1889 political cartoon, from the U.S. Senate Collection, depicts the bosses of the Senate —monopoly corporate interests, as
money bags standing b
ehind the senators.
was produced by a subsidiary, Western Electric. This
vertical integration allowed the company to have an
almost monopoly in the communication technology.
L ater, AT&T agreed to break up the company into
seven regional operating companies (also known
as “Baby Bells”) providing local telephone services.
This divesture reduced the book value of AT&T by
70 percent.
FIGURE 2: SHERMAN PORTRAIT
●● United States v. Microsoft Corp., 253 F.3d 34
(D.C. Cir., 2001): In 1999, a coalition of 19 states
and the Department of Justice alleged that Microsoft
abused monopoly power on Intel-based personal
computers in its h
andling of the operating system
and web browser sales. Microsoft did this to prevent
competition from Netscape, another browser. Even
though the trial court ruled Microsoft should be
split into two companies, Microsoft appealed and
later settled with the federal government, stopping
several practices the government challenged.
CURRENT ANTITRUST ISSUES
Several potential antitrust issues are brewing. In 2018, AT&T,
the second-largest wireless carrier, bought Time Warner, a
media company, for $85 billion. AT&T was sued by the Justice
Department, but AT&T won approval from a judge. The Justice
Sen. John Sherman of Ohio, who helped establish antitrust
laws. Photo from Library of Congress Collection.
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TABLE 1: TIMELINE OF U.S. ANTITRUST LAWS AND RELATED ISSUES
1890
Sherman Antitrust Act
1911
Standard Oil Co. of New Jersey v. United States, 221 U.S. 1
1914
Clayton Antitrust Act
1914
Federal Trade Commission Act
1936
Robinson-Patman Act
1950
Celler-Kefauver Act
1954
Kodak antitrust lawsuit
1974
United States v. AT&T
1980s-90s
Successful prosecution of for-p rofit hospitals by Department of Justice
Late 1990s
Justice loses a string of antitrust lawsuits
2000
The Federal Trade Commission and Justice Department publishes collaboration guidelines
2001
United States v. Microsoft Corp.
Late 2000s
Pioneer ACO models established
2010
Affordable Care Act
2010
ProMedica Health System v. Federal Trade Commission
2015
St. Alphonsus Medical Center v. St. Luke’s Health System
2015
Partners HealthCare’s acquisition of South Shore Hospital
2017
Merger of Advocate Health Care Network and NorthShore University Health System
2018
CVS acquisition of Aetna
2018
United acquiring DaVita
Department is appealing the decision. This verdict is expected
to be followed by a wave of mergers and acquisitions. Walt
Disney Co. acquired the entertainment assets of Twenty-First
Century Fox Inc. for $71.3 billion.
Criminal charges in no-poach agreements is another area
of the Justice Department’s current focus. The department
has signaled it could file criminal charges over anticompetitive effects of business-to-business, no-poach agreements
about employees. The Justice Department and the Federal
Trade Commission announced they would criminally prosecute
“wage fixing” and no-poaching agreements.3 Until then, only
civil charges had been filed in t hese investigations.
Modern tech g
iants might act as monopolies and present
new perspectives. In his book, Economics for the Common
Good, Jean Tirole offers some answers.4 Tirole is a French
thinker on market power and regulation who won a Nobel
Prize in 2014 for work in this area. He thinks monopolies
are not ideal, but they deliver value to consumers as long as
potential competition keeps them on their toes.
and lowering production and other costs. The FTC website
has extensive directions about the issue of collaborating with
competitors.5
In today’s marketplace, competitors interact in many ways,
such as trade associations, professional groups, joint ventures,
standard-setting organizations and other industry groups. Such
dealings often are not only competitively benign but procompetitive. But there are antitrust risks when competitors interact
to such a degree that they are no longer acting independently,
or when collaborating gives competitors the ability to wield
larger market power together. For the most blatant agreements not to compete —such as price fixing, bid rigging
and market division —the rules are clear. The courts decided
many years ago that these practices are so inherently harmful
to consumers that they are always illegal. For other dealings
among competitors, the rules are not as clear-cut and often
require intensive inquiry into their purpose and effect, including any business justifications. Enforcers must ask: What is the
purpose and effect of dealings among competitors? Do they
restrict competition or promote efficiency?
COMPETITORS IN MODERN TIMES
ANTITRUST LAWS AND HEALTH CARE
To compete in modern markets, competitors sometimes
need to collaborate. Competitive forces are driving firms
toward complex collaborations on such goals as expanding
into foreign markets, funding expensive innovation efforts,
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MAY/JUNE n 2019
Why are antitrust laws important in health care t oday? These
laws, enacted in the past century, have an important role because health care constitutes a significant portion of the U.S.
economy. U.S. health care spending was $3.3 trillion in 2016,
amounting to 17.9 percent of the nation’s gross domestic
product6 and growing. The financial future of the Medicare
Trust Fund is looking grim each year, and it is currently projected to be depleted by 2026. Social Security Trust Funds
for old-age benefits and disability insurance, taken together,
could be depleted in 2034.7
Competition in this vast market ultimately will benefit consumers by containing costs, improving quality and encouraging
innovation. The FTC has provided wide-ranging guidelines to
health care market participants, including physicians, hospitals,
pharmaceutical companies, other sellers of health care products and insurers.8 Antitrust laws explicitly prohibit practices
such as price fixing, bid rigging, market division and customer
allocation. The exception here is competitors working together to a certain extent, to develop new products and
serv ices and meaningfully integrate practices to share the
risks. 8
According to a 1996 statement jointly issued by the trade
commission and the Justice Department, physician network
joint ventures will be analyzed under the rule of reason if
such a collaboration increased efficiency.9 “Rule of reason”
is a judicial doctrine of antitrust law that says a trade practice
violates the Sherman Act only if the practice is an unreasonable restraint of trade, based on economic f actors.
In the 1980s and early 1990s, the Justice Department successfully prosecuted several for-profit hospitals, such as American Medical International (1984) and Hospital Corporation of
America (1986), and the nonprofit Rockford Memorial (1990).
However, state and federal authorities suffered a series of setbacks in the late 1990s.10 Underlying issues in antitrust laws in
health care are hospital-hospital relations, hospital-physician
relations, and hospital-payer relations. An unanswered question in each of these areas is how government regulation
and public purchasing affect competitive markets for hospital
services. T hese relations are complex and open to various
interpretations.
STATE ANTITRUST LAWS
Most states also have produced some type of antitrust statutes
aligned with federal law. Many state statutory provisions are
similar to sections 1 and 2 of the Sherman Act, and sections 3
and 7 of the Clayton and Robinson-Patman acts. State laws
generally include a provision that federal laws should guide
courts’ interpretation of antitrust issues. The Federal Trade
Commission has successfully litigated to limit the application
of state laws in some cases.
MARKET POWER IN HOSPITAL MERGERS
In a typical merger case, the Justice Department can win if it
properly defines the product and the geographic market and
demonstrates that the postmerger entity will have the market
power. Some hospitals successfully argue they will not raise
prices even a fter gaining market power. Some lower courts
have expanded the geographic market areas of the hospitals,
thus reducing their market power and shielding them from
antitrust issues. This principle was applied in United States v.
Carilion Health Serv ice, 707 F. Supp. 840 (W.D. Va., 1989)
where the Justice Department sought to prevent merger of
two hospitals in Roanoke, V
irginia.12
The court held that the market for primary and secondary
services included a 16-county area surrounding Roanoke, and
the market for tertiary services reached Charlottesville, Richmond and Winston-Salem and Durham in North Carolina. The
court concluded that the government failed to prove that the
planned merger would constitute an unreasonable restraint
of trade.
The complex nature of the health care reimbursements
and removed status of the client —that is, the patient —are
unique. Health care market structure might not follow the
conventional market structure, allowing the courts to draw
conclusions based on the market power alone.
Hospitals, even those for profit, also act as social institutions. This f actor might play out in a court battle, prompting
the court to base judgments on “heart” rather than “cold
laws.” The most common antitrust violations result from
“horizontal” arrangements that involve collusive activities by
competitors in a given market. Examples are a market for a
specific drug or a geographic market for hospitals in a certain
region. Certain categories of restraints, such as price fixing,
group boycotts, bid rigging and market-allocation agreements
are per se illegal. In other cases, activities that are generally
legal may violate antitrust law b
ecause they have anticompetitive effects.13
Although antitrust laws generally prohibit conduct among
competitors that seeks to restrain trade, it does not forbid all
interactions between competitors. Forums designed to promote value-b ased purchasing by providing quality information and technical support to the participants — e ven if
competitors — is legal u
nder antitrust laws, as long as the
participants do not collectively set uniform prices, fees, bonus
amounts or other competitively sensitive terms. This arrangement is thought to encourage competition in the market by
giving consumers more information to better evaluate the
products or service providers.
Confronted with the legal issues already mentioned, the
Justice Department suffered a string of losses in antitrust litigations against hospitals in late 1990s, and hospital mergers
and acquisitions rose. More than 300 hospital acquisitions
occurred between 2007 and 2012.14
COLLABORATION AMONG COMPETITORS
In 2000, the trade commission and the Justice Department
published guidelines15 providing the analytical structure followed by the agencies in evaluating joint ventures. They are
meant to clarify the law and not depart from the established
judicial principles. A collaboration analysis starts with an examination of the “nature of the relevant agreement.” The
agencies assess the anticompetitive effects of the collaboration itself and any agreements within the collaboration. A
“rule of reason” analysis based on facts also could be used
instead of the “per se” analysis to assess the procompetitive
benefits of such collaborations.
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37
Here are some well-known cases:
●● ProMedica Health System v. Federal Trade Commission, 2010: ProMedica, a dominant system in
the Toledo region of Ohio acquired rival St. Luke, a
community health system, in 2010. This resulted in
more than a 50 percent market share for ProMedica
in primary and secondary services and more than
80 p ercent in obstetrical services. The FTC challenged the merger under the Clayton Act with the
state of Ohio. The chief administrative law judge
ruled that ProMedica’s acquisition harmed competition and would allow ProMedica to raise prices of
general acute care inpatient hospital serv ices in
Lucas County. The judge ordered ProMedica to divest
St. Luke to an FTC-approved buyer within 180 days.
ProMedica appealed the decision to the Sixth Circuit,
which upheld the commission’s order.16
●● St. Alphonsus Medical Center v. St. Luke’s
Health System, 2015: St. Luke’s Health System, the
largest in Idaho, acquired Saltzer, a medical group
with 16 primary care providers in Nampa, the
state’s second largest city, 20 miles from Boise.
St. Alphonsus Medical Center, located in Nampa,
alleged that this v iolated the Clayton act. St. Luke’s
had eight PCPs and St. Alphonsus had nine in the
area. The trade commission and the state of Idaho
filed a complaint in the District Court in 2015.
The District Court noted the troubled nature of
U.S. health care and did not dispute that the merger
might confer increased efficiency. Nonetheless, the
court found that the “huge market share” of the
postmerger entity “creates a substantial risk of anticompetitive price increases” in the market. The
court ordered divesture, rejecting the St. Luke’s argument that the anticipated postmerger efficiencies
excused the potential anticompetitive price effects.
The U.S. 9th Circuit Court of Appeals affirmed the
lower court’s verdict.17
●● Partners HealthCare’s acquisition of South
Shore Hospital, 2015: Boston-b ased Partners
Health Care (the largest in Mass achus etts) and
South Shore Hospital, located 17 miles south of
Boston, executed an agreement for Partners to
acquire three acute-care hospitals and 800 physicians in Greater Boston. A previous state attorney
general proposed a settlement with Partners —a
guarantee of no price increase for a certain length
of time. The District Court rejected the agreement18
in 2015. The new AG threatened to sue Partners if
they pursued the acquisition any further. Partners
later decided not to proceed with the acquisitions.
Interestingly, the court noted Partners’ high quality
of care among the accompanying public comments.
The court also noted that that was not the question before it.
●● Merger of Advocate Health Care Network and
NorthShore University Health System called
off: In 2014, Downers Grove, Illinois-based Advocate Health Care, with eight hospitals, and Evanston,
38
MAY/JUNE n 2019
Illinois-based NorthShore University Health System,
with four hospitals, decided to merge to create the
largest health care system in northern Chicago with
a market power of more than 50 percent. The trade
commission and the state of Illinois complained, but
the District Court sided with the hospitals. On appeal, the 7th Circuit Court granted a request for
a preliminary injunction, following which the parties abandoned the plans for merger19 in 2017. The
court partly based its decision on the analysis of an
expert, who used the Herfindahl-Hirschman Index,
an accepted measure of market concentration. It is
calculated by squaring the market share of each firm
competing in a market and then adding the resulting
numbers. The expert found the proposed merger
would result in an unlawful increase in the market
concentration.
●● CVS acquisition of Aetna, 2018: CVS Health, the
parent of CVS Pharmacy, acquired Aetna, one of the
largest health care insurers. This has provoked a congressional hearing and reactions from stakeholders,
including the American Medical Association, who
asked regulators to block the deal. The AMA said20
the deal would result in an “increase in premiums
due to a substantial increase in market concentration
in 30 of 34 Medicare Part D regional markets.” Drug
spending and out-of-pocket costs would increase as
Aetna and CVS fortify their dominant positions in the
health insurance, pharmaceutical benefit management, retail and specialty pharmacy markets that
already lack competition. In the past, attempts by
Aetna to merge with competitor Humana and the
acquisition of Cigna by Anthem were successfully
challenged by the Justice Department. A U.S. district
judge is considering delaying the CVS-Aetna merger.
●● United and DaVita: Optum, a leading health ser
vices company, agreed to acquire DaVita Medical
Group, one of the nation’s leading independent medical groups, in 2017 for $4.9 billion. Optum is a United
Health Group subsidiary and a leading information-
and technology-enabled health services business
company. Denver-based DaVita operates medical
groups in six Western states that serve 1.7 million
patients through 300 clinics. The Federal Trade Commission has requested more information under the
Hart-Scott-Rodino Antitrust Improvements Act.21
CRITICS OF ANTITRUST LAWS
Antitrust laws are in place to protect consumers and smaller
businesses. However, some economists say that, in reality,
these laws simply punish businesses that are d
oing well. Some
companies are deemed natural monopolies, and critics say that
they should be allowed to operate with immunity instead of
being governed by heavy regulations.
Spencer Waller, in an analysis,22 suggests that we should
decide whether to pursue traditional antitrust laws in health
care or change the course. Current antitrust laws are intended as laws of general applicability, subject to any legislative
exemptions and immunities. The U.S. Supreme Court has referred to antitrust laws as the “Magna Carta” of the enterprise
system. A large body of case law precedents has been established over the years about antitrust issues. However, Waller
notes that lower courts often wage a “guerilla campaign” and
have carved out their own health care antitrust doctrines. On
the contrary, the Supreme Court is consistent in applying the
traditional view of antitrust laws to health care.
Accountable care organizations are a new initiative by
Medicare to streamline clinical care, reduce costs and improve
quality. Starting from pioneer ACO models in the late 2000s,
there are 561 ACOs23 all over the country with 10.5 million
assigned patients. Medicare envisions ACOs as providing coordinated, high-quality care to their patients. The goal of
coordinated care is to ensure that the patients get the right
care at the right time, while avoiding unnecessary duplication
of services and preventing medical errors. When an ACO succeeds both in delivering high-quality care and spending health
care dollars more wisely, the ACO will share in the savings it
achieves for the program with Medicare, according to various
formulas.24 There is an arduous process to get approval from
the Centers for Medicare & Medicaid Services. The startup costs
of an ACO could be up to $589,000 and the average annual
operating cost is $1.27 million. In response to several queries,
the trade commission and the Justice Department released
guidelines in 2011 regarding ACOs participating in Medicare
shared savings programs.25
Antitrust issues are more relevant to private payers rather
than to Medicare, because they set their own fees. However, the federal McCarran-Ferguson Act26 exempts insurance
businesses from most federal regulations, including federal
antitrust laws to a limited extent. It is also worth noting that
two interested parties —Medicare on one side and the Federal
Trade Commission and the Justice Department on the other —
have different positions on ACOs. The commission and Justice
have no interest in making sure ACOs work. Medicare, on
the other hand, has stayed away from antitrust issues and is
immune to a certain extent b
ecause of its payment structure.
The Patient Protection and Affordable Care and the Health
Care and Education Reconciliation acts, both enacted in 2010,
seek to improve the quality and reduce the costs of U.S.
health care. They encourage physicians, hospitals and other
stakeholders to be responsible for the health of a population through integrated health care delivery systems. One
delivery mechanism is the Medicare Shared Savings Program,
implemented through ACOs. This was the motivation for the
federal guidelines25 outlined earlier. Despite somewhat relaxed
rules, the federal agencies clearly state that they are committed to fostering competition, even in ACO markets involving
non-ACO participants. They are also closely monitoring ACO
behavior.
The guidelines establish an “antitrust safety zone” for
ACOs. ACOs can request an expedited review from the trade
commission and the Justice Department for situations outside
this safety zone. The guidelines specifically state that “antitrust
laws treat naked price-fixing and market-allocation agreements among competitors as per se illegal.” The guidelines
leave several gray areas that are still open to interpretation.
ACOs and other practitioners are cautioned not to exceed their
mandates in forming joint collaborations. The guidelines also
stipulate that an ACO s hall not have more than 30 percent of
the primary service market share.
Another important caveat is that federal guidelines do not
describe clearly what “clinical integration” means. They define
it in broad, conceptual terms. This flexibility is a departure from
the approach of CMS, Health and H
uman Services’ Office of
Inspector General, Internal Revenue Service and other agencies that oversee the highly regulated health care sector.27
Agencies such as Medicare are a “monopsony” (lone
buyer) power and providers are “price takers.” B
ecause of
this, traditionally there has been little interaction between
Justice and Medicare in the antitrust enforcement realm. The
effects of ACOs in the private insurers’ world is another unknown factor if ACOs expand to cover patients insured by
private payers. Moving forward, CMS is g
oing to share ACO
participant data and claims data with the trade commission
and the Justice Department.23
EFFICIENCY DEFENSE
It is common in health care for merging parties to argue that
the transaction will result in greater efficiency. Bjorklund has
extensively studied this issue.28 Before asserting an efficiencies
defense, a plaintiff must first establish on the surface that a
merger is anticompetitive. Once a plaintiff has established
a prima facie showing of a Section 7 Clayton Act violation,
the burden of proof shifts to the defendant to rebut the
presumption of anticompetitive effects.
The entity or entities seeking the merger (usually the defendant) carry the burden of showing that the alleged efficiencies created by the merger are verifiable, not attributable to
reduced output or quality, merger-specific and sufficient to
outweigh the transaction’s anticompetitive effects. The evidence of the alleged efficiencies cannot be “mere speculation
and promises about post-merger behavior.” In the St. Luke’s
case, the court demanded proof of extraordinary efficiencies
because of the high market concentration to refute anticompetitive concerns.
FUTURE OF HEALTH CARE ANTITRUST
New antitrust bills or amendments are likely to be introduced
in both in the House and Senate in the near future. The Congressional Antitrust Caucus plans to back bills to “modernize” antitrust laws. A current House bill would direct antitrust
agencies to study the impact of mergers by requiring the trade
commission and Justice to assess a merger’s effect on price
and quality of products, along with job cuts and pay.
Amendments to the Clayton Act also have been suggested.
It is also important for various federal agencies such as Medicare, the trade commission and Justice to work together to
formulate an efficient and dynamic antitrust policy.
Physicians, physician leaders and physician executives have
a vital role to play in this regard. Physician organizations should
advocate for modernized antitrust laws by lobbying and working with Congress. Exposure to business principles, including
American Association for Physician Leadership® n Physician Leadership Journal
39
enrolling in business courses, will prepare the 21st-century
physician to face t hese challenges.
As evidenced by the current laws and the court cases described e arlier, it is clear the antitrust environment in health
care is evolving. We cannot afford the ever-increasing cost of
health care that threatens the very fabric of the U.S. economy
and adversely affects its competitiveness. The options are
either to retain the classic antitrust laws as currently practiced
with some exceptions or change course.
The logical approach will be to develop comprehensive antitrust policies specific to health care. Even though this might
be the ideal solution, the task can be difficult and long-drawn
because of the current political environment and the clout of
the stakeholders involved.
P. Dileep Kumar, MD, FACP, CPE, is a hospitalist for East Michigan Hospitalists, based in
Port Huron.
ponondileep@hotmail.com
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