The healthcare industry and federal antitrust enforcement agencies continued their political dance last week with the issuance of new healthcare antitrust guidelines.
Most legal experts said the guidelines don't break any new legal ground (See related story, p. 34). But some of them said the problem the guidelines are supposed to fix doesn't exist anyway.
The contradictory nature of the ongoing healthcare antitrust debate was apparent at the government's Sept. 27 press conference in Washington called to unveil the new guidelines.
"A lot of pro-competitive transactions were not being done because of the fear of antitrust enforcement," said Anne Bingaman, assistant attorney general in the Justice Department's antitrust division, at the briefing.
But a month earlier, a report by the General Accounting Office, Congress' investigative arm, concluded that the federal government rarely stops healthcare transactions.
The report found that in only 15 instances since 1981 did a challenge or threat of action from the Federal Trade Commission or Justice Department stop a proposed hospital merger or acquisition. That represents less than 4% of the mergers or acquisitions of which the government was made aware (Sept. 12, p. 6).
The healthcare industry, led by the American Hospital Association, has been lobbying for antitrust relief, arguing that antitrust laws and enforcement policies have thwarted beneficial collaborative arrangements among hospitals, and between hospitals and other providers.
The effort paid off last fall when the FTC and Justice Department released their first-ever set of healthcare antitrust enforcement guidelines. The guidelines established six so-called "safety zones" for provider business ventures that won't be subject to antitrust scrutiny in most cases (Sept. 20, 1993, p. 3).
The guidelines released last week expand and refine the initial set of guidelines, creating essentially two new safety zones but stopping short of immunizing integrated delivery systems of multiple types of providers.
The AHA and others had sought a safety zone for what the government called "multiprovider networks," but the agencies said they needed more experience in evaluating the competitive effects of integrated systems before they could draft a safety zone.
Instead of a network safety zone, the agencies released a detailed description of how they intend to analyze integrated delivery systems for possible violations of federal antitrust laws.
The effort drew modest praise from the AHA, which noted the lack of a network safety zone in a statement following the release of the new guidelines. The AHA called the new guidelines "real progress" and "another good step."
The American Medical Association was less thrilled, calling the new guidelines a "small step forward" and stating that they don't go far enough to level the playing field between physicians and other segments of the industry, including hospitals.
The new guidelines' highlights include:
The expansion of the hospital equipment joint venture safety zone to cover existing technology and equipment as well as new technology and equipment.
The expansion of the collective non-fee-related data safety zone to include all providers, not just physicians.
The expansion of the price and salary survey safety zone to all providers, not just hospitals.
The addition of a new safety zone for non-exclusive physician networks in which the participating physicians represent fewer than 30% of the relevant physicians in a market.
A new safety zone for the collective provision by competing providers of price or fee data to purchasers. To be insulated from price-fixing allegations, such data must be at least 3 months old, must include data from at least five providers, and must be collected and aggregated in such a way that it conceals provider-specific data.