Hospitals, health insurers and physicians have very different preferences for addressing anticompetitive issues, and the approach selected could determine whether they participate in the rollout of accountable care organizations—a key component of the healthcare reform law—according to advocates for the different sectors.
Different sectors, different needs on move toward ACOs
Many hospitals would prefer specific guidelines from the Federal Trade Commission and the Justice Department's antitrust division to help them avoid prosecution as they start to form ACOs, said Melinda Hatton, senior vice president and general counsel for the American Hospital Association, during a Washington round table on the topic. Additionally, hospitals hope federal officials specify “safe harbors” or detailed types of healthcare provider integration arrangements that would avoid antitrust scrutiny.
“A clear statement of policy” clarifying antitrust areas, Hatton said, “is needed to guide the formation of ACOs.”
But physicians and other healthcare providers may move toward ACOs quicker if they are able to discuss plans for their own specific initiative with federal antitrust and trade officials, according to Christi Braun, an antitrust attorney who has represented many healthcare providers. Such face-to-face discussions will allow clinicians to advance their own ACO plans without having to hire costly attorneys to interpret complex regulations and agency guidance, which could slow the formation of ACOs and lead some clinicians to abandon such efforts.
“There really is a concern out there that you need help so that you can know you are not going be prosecuted” under antitrust laws down the road, Braun said.
A third approach for clearing ACOs of antitrust concerns—and one favored by insurers—would have federal regulators provide a pre-screening for all ACOs similar to merger reviews, according to Joe Miller, general counsel for America's Health Insurance Plans.
“That way, they have done their antitrust review and can get on with their lives,” Miller said.
Although each healthcare group adviser had concerns with the approaches advocated by the others, federal antitrust officials may ultimately use a mix of these approaches, according to Christine Varney, assistant attorney general for the antitrust division of the Justice Department. Although Varney remained vague about the specific approach antitrust officials plan to take for ACOs, she indicated support for regulators providing advice to clinicians and hospitals on ways to avoid antitrust scrutiny and describing the types of safe-harbor provider alliances that would not raise anti-competitiveness flags.
“We should be receptive to new forms of provider arrangements that do not necessarily include financial risk-sharing,” Varney said.
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