The Federal Trade Commission would take over enforcement and clearance responsibilities for most healthcare matters from the U.S. Department of Justice under a proposed agreement released last week.
The proposal, released with supporting documents on the FTC's Web site, confirmed speculation that the antitrust restructuring between the agencies would include primary enforcement for all civil healthcare matters except insurance and healthcare products and services, if enacted. In January, the Justice Department announced plans to eliminate its 17-attorney healthcare task force by Feb. 28 (Jan. 14, p. 14).
At the time, Justice Department officials said the move was not related to a broader restructuring of antitrust responsibilities at the two agencies. A Justice Department spokeswoman would not tell Modern Healthcare last week whether the task force had been eliminated.
Washington healthcare lawyer William Kopit, of Epstein, Becker & Green, expressed concern that if implemented, the agreement between the two federal agencies would encourage those with healthcare antitrust issues not to worry about investigations. "It signals less enforcement," he said.
Under the plan, the FTC and Justice Department would divide responsibility for 15 industries based on antitrust enforcement and substantial investigation cases they've handled from 1997 to the present. Justice would oversee telecommunications because it handled 57 cases in that time, while the FTC handled none, for example.
But the caseload for healthcare in that period is almost evenly divided. Since 1997, Justice has handled 60 healthcare enforcement and investigation cases. The FTC has handled 52 such cases.
If the transition were to take place without additional resources, the FTC could be overburdened with healthcare cases, Kopit said. "That means a 50% reduction in resources devoted to healthcare," he said.
The FTC would consider staffing issues only after the plan is put into place, FTC spokeswoman Cathy MacFarlane said. "We're not putting the cart before the horse," she said.
The agencies have not set an implementation date, and the release of these documents does not bring action any closer, MacFarlane said. They still face hurdles to implement the proposed changes, including persuading Sen. Ernest Hollings (D-S.C.) to support it.
The FTC and Justice Department abruptly scuttled an official joint announcement of the antitrust restructuring in January shortly after Hollings expressed concerns about the changes (Jan. 21, p. 10). While Congress does not have to approve the restructuring, Hollings is chairman of the Senate Commerce Committee, which has authority over the FTC, and a member of the Senate Appropriations committee, which has oversight of the Justice Department.
In a recent Commerce subcommittee hearing, Hollings told Attorney General John Ashcroft, "I can't find anybody in the Congress who says that's a good idea. So I would ask that the distinguished attorney review that very closely for us."
Hollings has yet to meet with the agency commissioners, a spokesman for Hollings said.