Whether healthcare providers, including hospitals, get special antitrust treatment under federal law will be the key antitrust issue in 1994.
On one side are the provider trade groups, which have argued that antitrust laws and enforcement policies have and will bar collaborative arrangements among providers. They've also argued that they need legal clearance to collectively negotiate with payers under a reformed national healthcare system.
On the other side are the Federal Trade Commission, the Justice Department and state attorneys general offices. The agencies say they haven't unduly blocked collaborative ventures, and they say giving competitors the green light to collectively negotiate their fees would drive up costs and hurt consumers.
The outcome may hinge on how loud the provider groups yell, given the fact that little evidence exists to support the argument that antitrust laws and enforcement policies have chilled collaboration and given the mistrust that some policymakers have in giving any group of competitors the power to fix prices.
In fact, provid- ers' push for antitrust relief may become unhinged by their own infighting. The American Medical Association already has criticized the new healthcare antitrust guidelines issued by the FTC and Justice Department, arguing that the guidelines give hospitals too much power while not extending the same privileges to physicians. And the American Hospital Association's outside antitrust counsel has criticized the AMA's position, saying it would be a questionable move to give competing physicians an antitrust exemption to collectively negotiate payments.
Regardless of the trade groups' rhetoric, the effects of the new antitrust guidelines should become clear in 1994. The guidelines outline six so-called "safety zones" of provider activities that won't be challenged under most conditions (Sept. 20, p. 3). The AHA has said that it will study the impact of the guidelines and won't push for an antitrust exemption for hospitals if the guidelines are working.
Also felt in 1994 should be the impact of the number of state "hospital cooperation acts" that have taken effect across the country. The laws, now passed in at least 10 states, give hospitals an exemption from state antitrust laws for collaborative deals that meet a number of specific goals, such as lowering costs or improving quality.
Finally, two pending antitrust investigations should be resolved in 1994. The FTC is investigating the proposed merger of the only two hospitals in Pueblo, Colo., and the Justice Department is investigating the proposed merger of the only two hospitals in Manchester, N.H. Neither agency has challenged a merger in a two-hospital town (Dec. 6, p. 44). The results of the probes will reveal how far the hospital industry can push the agencies before they bite back.