Journal of Health & Life Sciences Law
Antitrust Implications of the Affordable
Care Act
Toby G. Singer
ABSTRACT: Unlike many other areas of health law, the antitrust laws are
relatively unaffected by the Patient Protection and Affordable Care Act (ACA).
Indeed, the ACA itself contains a provision stating that the statute should not
be construed to affect the operation of the antitrust laws. On the other hand,
the incentives to collaborate and the pressure to control costs inherent in the
ACA may lead to activities that create antitrust risks.The creation of Accountable Care Organizations (ACOs) to participate in the Medicare Shared Savings
Program (MSSP) has gotten the most attention in this regard. In addition, many
healthcare providers and others have cited the ACA as encouraging consolidation, which may have antitrust consequences. This Comment addresses the
antitrust implications of ACOs and the impetus for consolidation. It provides
background on the antitrust treatment of collaboration among competitors
and describes the antitrust issues raised by MSSP ACOs and ACOs participating in commercial markets. The Comment then describes applicable laws and
merger enforcement in healthcare, provides a history of antitrust challenges to
provider and health plan mergers, and addresses relevant defenses to merger
challenges, including practical considerations for establishing these defenses.
KEYWORDS: Accountable Care Organization, Rule of Reason, Per Se Illegal,
Federal Trade Commission, Department of Justice, mergers, efficiencies, ACO
Antitrust Enforcement Policy Statement
Toby G. Singer, Esquire, is a partner in the Washington, DC office of Jones
Day. Her practice focuses on antitrust counseling and litigation in the healthcare field. Contact her via email at [email protected].
CITATION Toby G. Singer, Antitrust Implications of the Affordable Care Act, J. Health &
Life Sci. L., February 2013, at 57. © 2013 American Health Lawyers Association, www.
healthlawyers.org/JHLSL. All rights reserved.
Journal of Health & Life Sciences Law—Vol. 6, No. 2
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Singer: Antitrust Implications of the ACA
Singer: Antitrust Implications of the ACA
CONTENTS
Introduction............................................................................................. 59
Accountable Care Organizations............................................................ 60
Competitors’ collaboration: Background on
antitrust laws and enforcement in healthcare................................ 60
Antitrust issues raised by ACOs.......................................................... 66
Antitrust analysis as applied to ACOs................................................. 67
ACA’s Implications for Merger Enforcement........................................ 76
Background on applicable laws and merger
enforcement in healthcare.............................................................. 77
Relevant defenses to merger challenges............................................ 80
Conclusion............................................................................................... 86
Journal of Health & Life Sciences Law—Vol. 6, No. 2