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FTC studies the new age of competitive concerns in healthcare


By Joe Carlson
Posted: March 13, 2014 - 7:00 pm ET
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The Federal Trade Commission is exploring whether outdated regulations are squelching the potential of telemedicine and retail clinics to take costs out of the healthcare system. The agency also wants to know whether non-physicians should be allowed to take on more job duties, and whether consumers facing higher out-of-pocket spending can benefit from price transparency.

In light of these and other rapid advances in healthcare delivery, the FTC has asked the public to bring it up to speed on the latest developments from the field. Next week, the agency is convening a two-day public workshop in Washington titled “Examining Health Care Competition” that will hit on some of the most hotly debated questions in 21th century healthcare:

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  • Are the professional boards that regulate healthcare stifling competition by preventing non-physician providers such as advanced-practice nurses and dental therapists from practicing to the full extent of their training in hospitals and retail clinics?
  • Do regulatory barriers prevent the adoption of technologies such as telemedicine across state lines, which could save money and extend access in remote areas?
  • Is it possible to publish healthcare prices to create market competition without also creating the risk that the providers will simply engage in price-fixing after their trade-secret prices are revealed?

“They do a number of workshops, not just in healthcare. It's a way of educating themselves and keeping up to date about things,” said Robert Leibenluft, a former FTC healthcare division director now in private practice as a partner with Hogan Lovells in Washington. “It is important to get information other than from sources who are on the receiving end of a subpoena.”

A full list of the questions the FTC will consider at the March 20-21 workshop was posted in the Federal Register. The agency has been accepting public comments since Feb. 24, and it will continue to do so until April 30.

The FTC hasn't said exactly what it will do with the information. A decade ago, the commission held a series of public hearings before the publication of its landmark 361-page report “Improving Health Care: A Dose of Competition.” That report, co-authored with the Justice Department, was intended to provide a roadmap for the industry on how market competition can improve “consumer welfare” and lower costs in healthcare.

It's possible that next week's meeting could yield a similar report that serves as an enforcement roadmap for the industry. Or the information may simply serve as general education to the staff and commissioners. Comments from about 45 people and entities have already been received, and will be posted on the FTC website soon, a spokesman said.

For example, the American Hospital Association this week submitted a brief on price transparency highlighting the difficulties in quoting prices to consumers prior to procedures:

“A gall bladder operation for one patient may be relatively simple, but for another patient, it could be fraught with unforeseen complications, making meaningful 'upfront' pricing difficult and, perhaps, confusing for patients,” AHA Senior Vice President and General Counsel Melinda Hatton wrote to the agency.

Another commenter, identified in FTC files as “Hendrickson” from Washington state, encouraged the FTC to consider the right of certified but unlicensed healthcare professionals to practice in fields such as nutritional therapy.

“Restricting practice to only registered dieticians will increase healthcare cost to the public by limiting the amount of practitioners,” Henderson wrote. “I feel the best choice is to allow freedom of choice to the American public who can themselves decide which kind of practitioner will support them best.”

The FTC has been vocal in these sorts of debates nationwide. In January, the agency supported legislation in Massachusetts (PDF) to remove physician-supervision requirements for nurse practitioners and nurse anesthetists. In January 2010, the agency urged Kentucky lawmakers (PDF) not to pass a law to impose regulations on retail clinics that wouldn't apply to urgent-care centers.

Later this year, the agency is slated to appear before the Supreme Court to defend its decision to prohibit a North Carolina dental board from enforcing rules that only licensed dentists can perform teeth whitening with peroxide solution—a decision seen as a federal intrusion into states' rights to regulate healthcare in their provinces.

Follow Joe Carlson on Twitter: @MHJCarlson


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