Justice Dept. withdraws outdated enforcement policy statements

The U.S. Department of Justice’s Antitrust Division announced last Friday the withdrawal of three outdated antitrust policy statements related to enforcement in healthcare markets: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011).

After careful review and consideration, the division has determined that the withdrawal of the three statements is the best course of action for promoting competition and transparency.

Over the past three decades since this guidance was first released, the healthcare landscape has changed significantly. As a result, the statements are overly permissive on certain subjects, such as information sharing, and no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues in today’s environment. Withdrawal therefore best serves the interest of transparency with respect to the Antitrust Division’s enforcement policy in healthcare markets.

Recent enforcement actions and competition advocacy in healthcare provide guidance to the public, and a case-by-case enforcement approach will allow the Division to better evaluate mergers and conduct in healthcare markets that may harm competition.

“The healthcare industry has changed a lot since 1993, and the withdrawal of that era’s out of date guidance is long overdue,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “The Antitrust Division will continue to work to ensure that its enforcement efforts reflect modern market realities.”

Guidance documents are non-binding and do not create legal rights or obligations. Antitrust enforcement and competition advocacy in healthcare remain important parts of the division’s mission, and the division will continue to vigorously enforce the antitrust laws in the healthcare industry.