Health systems unlikely to skirt FTC's COPA information demands
Skip to main content
MDHC_Logotype_white
Subscribe
  • My Account
  • Login
  • Subscribe
  • News
    • This Week's News
    • COVID-19
    • Providers
    • Insurance
    • Government
    • Finance
    • Technology
    • Safety & Quality
    • People
    • Regional News
    • Digital Edition
    • KPMG says deal activity will stay high in '21: 10 takeaways
      2 in 5 Americans live where COVID-19 strains hospital ICUs
      Biden's early approach to virus: Underpromise, overdeliver
      merrill goozner
      Biden's COVID-19 plan 
a test of American resolve
    • KPMG says deal activity will stay high in '21: 10 takeaways
      2 in 5 Americans live where COVID-19 strains hospital ICUs
      Biden's early approach to virus: Underpromise, overdeliver
      A phone screen showing the question, "Mary we hope this information was helpful and we'd like to keep guiding you. Are you interested in knowing when it's your turn to receive the vaccine?"
      Chatbots, texting campaigns help manage influx of COVID vax questions
    • Health suffers as rural hospitals close
      Medicare ACO participants fell in 2021
      Louisiana gets reports vaccine providers are discriminating
      'We know this is real': New clinics aid virus 'long-haulers'
    • Last-minute COVID costs cut into UnitedHealthcare's $396 million operating income
      CMS approves rule forcing insurers to ease prior authorization
      COVID-19 still a big uncertainty for insurers in 2021
      Health insurers' outlook boosted after Dems' Georgia win
    • It's a secret: California keeps key virus data from public
      lacewell_linda_supertinendent_dept_of_financial_services_8.47.jpg
      New York state investigates drug price spikes during pandemic
      Health experts blame rapid expansion for vaccine shortages
      HHS freezes rule targeting community health centers' drug discounts
    • KPMG says deal activity will stay high in '21: 10 takeaways
      By the Numbers: 20 largest healthcare investment banks in 2020
      Providers await new HHS coronavirus grant reporting deadline
      Operation Warp Speed Dr. Moncef Slaoui, Pfizer Group President Angela Hwang, Moderna CEO Stephane Bancel, CVS Health Executive Vice President Karen Lynch and McKesson CEO Brian Tyler participate in a panel discussion on the COVID-19 vaccine.
      Hospitals, drug companies strive to stand out virtually at JPM
    • Dr. Karen DeSalvo
      Next Up Podcast: What to expect with telehealth and healthcare technology in the next 4 years
      Next Up Podcast: What to expect with telehealth and healthcare technology in the next 4 years - Transcript
      A man in a room with servers.
      Momentum grows to outsource hospital tech functions in 2021
      5 things to know about Google's $2.1B Fitbit acquisition
    • Avocado
      Avocado a day keeps the doctor away
      50% of Americans make resolutions. Fewer than 27% keep them over time.
      Data Points: Sticking with your resolutions
      An older man wearing a mask receiving a vaccine.
      Want more diversity in clinical trials? Start with the researchers
      U.K. chief scientist says new virus variant may be more deadly
    • Cerner names Erceg as new CFO
      Elizabeth Richter will serve as acting CMS administrator
      Providence names new chief financial officer
      Wisconsin's top health official departing for federal job
    • Midwest
    • Northeast
    • South
    • West
  • Insights
    • ACA 10 Years After
    • Best Practices
    • InDepth Special Reports
    • Innovations
    • The Affordable Care Act after 10 years
    • New care model helps primary-care practices treat obesity
      doctor with patient
      COVID-19 treatment protocol developed in the field helps patients recover
      Rachel Wyatt
      Project to curb pressure injuries in hospitals shows promise
      Yale New Haven's COVID-19 nurse-staffing model has long-term benefits
    • Michellene Davis
      Healthcare leadership lacks the racial diversity needed to reduce health disparities
      Dr. James Hildreth
      How medical education can help fight racism
      Modern Healthcare InDepth: Breaking the bias that impedes better healthcare
      Videos: Healthcare industry executives describe their encounters with racism
      Quotes from rebadged employees
      Outsourcing IT, revenue cycle takes toll on internal culture
    • A phone screen showing the question, "Mary we hope this information was helpful and we'd like to keep guiding you. Are you interested in knowing when it's your turn to receive the vaccine?"
      Chatbots, texting campaigns help manage influx of COVID vax questions
      A woman with a wearable sensor talking to her provider.
      Wearable sensors help diagnose heart rhythm problems in West Virginia
      self service station
      COVID-19 pushes patient expectations toward self-service
      Targeting high-risk cancer patients with genetics
  • Transformation
    • Patients
    • Operations
    • Care Delivery
    • Payment
    • Highmark Health inks six-year cloud, tech deal with Google
      Study: 1 in 5 patients report discrimination when getting healthcare
      HHS proposes changing HIPAA privacy rules
      Android health records app launches at 230 health systems
    • California hospitals prepare ethical protocol to prioritize lifesaving care
      Amazon, JPMorgan Chase, Berkshire Hathaway disband Haven
      Digital pathways poised to reshape healthcare continuum in 2021
      Healthcare was the hardest hit by supply shortages across all U.S. industries
    • A phone screen showing the question, "Mary we hope this information was helpful and we'd like to keep guiding you. Are you interested in knowing when it's your turn to receive the vaccine?"
      Chatbots, texting campaigns help manage influx of COVID vax questions
      A woman with a wearable sensor talking to her provider.
      Wearable sensors help diagnose heart rhythm problems in West Virginia
      New care model helps primary-care practices treat obesity
      How hospitals are building on COVID-19 telehealth momentum
    • Regional insurers bet big on virtual-first plans
      MedPAC votes to boost hospital payments, freeze or cut other providers
      Most Next Gen ACOs achieved bonuses in 2019
      Congress recalibrates Medicare Physician Fee Schedule after lobbying
  • Data/Lists
    • Rankings/Lists
    • Interactive Databases
    • Data Points
    • Health Systems Financials
      Executive Compensation
      Physician Compensation
  • Op-Ed
    • Bold Moves
    • Breaking Bias
    • Commentaries
    • Letters
    • Vital Signs Blog
    • From the Editor
    • Wellstar CEO calls adapting for the pandemic her bold move
      Howard P. Kern
      Recognizing the value of telehealth in its infancy
      Dr. Stephen Markovich
      A bold move helped take him from family doctor to OhioHealth CEO
      Dr. Bruce Siegel
      Why taking a hospital not-for-profit was Dr. Bruce Siegel’s boldest move
    • Barry Ostrowsky
      Ending racism is a journey taken together; the starting point must be now
      Laura Lee Hall and Gary Puckrein
      Increased flu vaccination has never been more important for communities of color
      John Daniels Jr.
      Health equity: Making the journey from buzzword to reality
      Mark C. Clement and David Cook
      We all need to 'do something' to fight inequities and get healthcare right, for every patient, every time
    •  Alan B. Miller
      Looking ahead with optimism as we continue to transform healthcare
      Dr. Bruce Siegel
      By protecting the healthcare safety net, Biden can put us on the path to a stronger country
      Healing healthcare: some ideas for triage by the new Congress, administration
      Dr. Sachin H. Jain
      Medicare for All? The better route to universal coverage would be Medicare Advantage for All
    • Letters: Eliminating bias in healthcare needs to be ‘deliberate and organic’
      Letters: Maybe dropping out of ACOs is a good thing for patients
      Letters: White House and Congress share blame for lack of national COVID strategy
      Letters: VA making strides to improve state veterans home inspections
    • Sponsored Content Provided By Optum
      How blockchain could ease frustration with the payment process
      Sponsored Content Provided By Optum
      Three steps to better data-sharing for payer and provider CIOs
      Sponsored Content Provided By Optum
      Reduce total cost of care: 6 reasons why providers and payers should tackle the challenge together
      Sponsored Content Provided By Optum
      Why CIOs went from back-office operators to mission-critical innovators
  • Awards
    • Award Programs
    • Nominate
    • Previous Award Programs
    • Other Award Programs
    • Best Places to Work in Healthcare Logo for Navigation
      Nominations Open - Best Places to Work in Healthcare
      Nominations Open - Health Care Hall of Fame
      Nominations Open - 50 Most Influential Clinical Executives
    • 100 Most Influential People
    • 50 Most Influential Clinical Executives
    • Best Places to Work in Healthcare
    • Health Care Hall of Fame
    • Healthcare Marketing Impact Awards
    • Top 25 Emerging Leaders
    • Top 25 Innovators
    • Top 25 Minority Leaders
    • Top 25 Women Leaders
    • Excellence in Nursing Awards
    • Design Awards
    • Top 25 COOs in Healthcare
    • 100 Top Hospitals
    • ACHE Awards
  • Events
    • Conferences
    • Galas
    • Webinars
    • COVID-19 Event Tracker
    • Leadership Symposium
    • Healthcare Transformation Summit
    • Women Leaders in Healthcare Conference
    • Workplace of the Future Conference
    • Strategic Marketing Conference
    • Social Determinants of Health Symposium
    • Best Places to Work Awards Gala
    • Health Care Hall of Fame Gala
    • Top 25 Minority Leaders Gala (2022)
    • Top 25 Women Leaders Gala
  • Listen
    • Podcast - Next Up
    • Podcast - Beyond the Byline
    • Sponsored Podcast - Healthcare Insider
    • Video Series - The Check Up
    • Sponsored Video Series - One on One
    • Dr. Karen DeSalvo
      Next Up Podcast: What to expect with telehealth and healthcare technology in the next 4 years
      Carter Dredge
      Next Up Podcast: Ready, set, innovate! Innovation and disruption in healthcare
      Next Up Podcast: COVID-19, social determinants highlight health inequities — what next?
      Next Up Podcast: Saving Rural Health
    • Beyond the Byline: Regulators aim to boost value push with fraud and abuse law updates
      An older man wearing a mask receiving a vaccine.
      Beyond the Byline: Verifying information on the chaotic COVID-19 vaccine rollout
      doctor burnout
      Beyond the Byline: How healthcare supply chain struggles contribute to employee burnout
      Beyond the Byline: Covering race and diversity in the healthcare industry
    • Leading intention promote diversity and inclusion
      Introducing Healthcare Insider Podcast
    • The Check Up: Chip Kahn
      The Check Up: Chip Kahn of the Federation of American Hospitals
      The Check Up: Trenda Ray
      The Check Up: Trenda Ray of the University of Arkansas for Medical Sciences
      The Check Up: Dr. Kenneth Davis
      The Check Up: Dr. Kenneth Davis of Mount Sinai Health System
      The Check Up: Dr. Thomas McGinn
      The Check Up: Dr. Thomas McGinn of CommonSpirit Health
    • Video: Ivana Naeymi Rad of Intelligent Medical Objects
  • MORE +
    • Advertise
    • Media Kit
    • Newsletters
    • Jobs
    • People on the Move
    • Reprints & Licensing
MENU
Breadcrumb
  1. Home
  2. Providers
October 24, 2019 04:31 PM

Health systems unlikely to prevail if they challenge FTC's COPA demands

Tara Bannow
  • Tweet
  • Share
  • Share
  • Email
  • More
    Print

    Health systems on the receiving end of the Federal Trade Commission's demands for information on certificates of public advantage this week aren't going to have much luck if they attempt to contest the orders, legal experts say.

    Federal regulators are requesting a considerable amount of information from two health systems and five health insurers to inform its study into COPAs' effects on price, quality, access and healthcare innovation. One of those systems, Ballad Health, seemed to indicate it might challenge the demand, citing the state immunity afforded under its COPA, a maneuver that allows states to approve mergers that may otherwise have been blocked in federal antitrust action.

    Section 6(b) of the Federal Trade Commission Act, which the FTC cited in its information demands, gives the agency broad investigative authority to demand information from companies for research purposes.

    "Courts have upheld a broad ability for the FTC to demand this kind of information," said Erin Fuse Brown, associate professor in Georgia State University's College of Law.

    That section is separate from the FTC's enforcement authority, which it uses to challenge deals it determines are anticompetitive. The state action immunity afforded to health systems under COPAs helps them dodge the FTC's enforcement authority, but does not apply to its investigative authority, Fuse Brown said.

    It's no secret the FTC is no fan of COPAs. The agency publicly opposed both Ballad's COPA and that of Cabell Huntington Hospital in Huntington, W.Va., which also received a demand letter.

    "Even if the FTC might not have the authority to block the transactions which they're investigating, they still have the authority to investigate the effects of those transactions," said Jonathan Grossman, an antitrust attorney with Cozen O'Conner.

    In a statement, Johnson City, Tenn.-based Ballad said it was reviewing the FTC's request "within the context of the actions of two legislatures and two governors of two different parties that passed legislation specifically asserting state action immunity." A spokeswoman declined to say how Ballad plans to respond, as did a spokeswoman for Cabell Huntington.

    The health insurers aren't likely to contest the demand letters, Grossman said. If anything, they're glad the FTC is investigating the issue, he said.

    "In the big picture, the FTC is potentially looking out for buyers," Grossman said. "In this case, the insurers are the buyers. It's the health systems that, if the FTC concludes that COPAs are bad for consumers, it would be the hospitals that would stand to lose."

    Aetna, Anthem, Blue Cross and Blue Shield of Tennessee, Cigna Corp. and UnitedHealthcare received the letters.

    "We are definitely going to comply with the request," Alison Sexter, a spokeswoman for Blue Cross and Blue Shield of Tennessee, wrote in an email. Hers was the only company that responded to a request for comment.

    The scope of the information the FTC is demanding is extensive, dating as far back as Jan. 1, 2011. From providers, it wants records related to all inpatient admissions from Jan. 1, 2011, to the present, separated by payer and including total charges and amounts paid, among other details.

    The agency also wants providers to send pricing changes dating back to Jan. 1, 2011, as well as quality of care and population health initiatives. Other information sought are health plan contracts and salary information since Jan. 1, 2011, and lists of healthcare facilities open, closed or expanded since Jan. 1, 2011.

    From insurers, the FTC is demanding a long list of patient records in the COPA coverage areas dating back to Jan. 1, 2011, including billed charges, diagnosis codes and insurance coverage

    An FTC spokesperson wrote in an email that some of the demands date back to 2011 to capture information for the time before the mergers were announced in 2014 and the COPAs were implemented in 2018, to allow the FTC to compare pre-merger and pre-COPA environments with the COPA environment.

    The deadline to send the information is Jan. 21, 2020. The FTC's letters say noncompliance penalties may be imposed. If a company opposes the demand, a court would ultimately determine whether it has to provide the information.

    Bill Horton, a partner with Jones Walker and co-chair of its healthcare industry team, said he thinks data going that far back would introduce a certain amount of noise from other changes, like implementing Affordable Care Act requirements. He wondered whether the burdensome requests are in part an effort to make an example of these providers.

    "The timing does make it look like a little bit of a slap at the deal rather than a spontaneously occurring research interest," he said.

    But Fuse Brown said that the FTC would need to go back that far in time in order to draw conclusions about the COPAs' effects.

    "We need it going back quite a ways and going forward quite a ways to draw any conclusions about COPAs," she said, "and see whether they affect price, quality and access and how a market functions before and after a COPA."

    The health systems may try to negotiate narrower information requirements with the FTC, and the agency said in a statement it "fully expects to work collaboratively with special order recipients to minimize their burdens consistent with the commission's need to obtain information for this study."

    The FTC indicated it planned to study COPAs at a June workshop where some panelists aired concerns about the Ballad merger. Richard Cowart, an attorney representing Ballad, said at the event that a federal government study on the subject "is bordering on irresponsible, frankly."

    Ballad has found itself at odds with community members ever since its inception through the 2018 merger of Mountain States Health Alliance and Wellmont Health System. The health system swiftly rolled out changes to consolidate high-level trauma and neonatal intensive-care services at its Johnson City hospital, and critics say the changes have prompted unsafe conditions, staff shortages, long waits and heftier bills.

    Ballad CEO Alan Levine took to Twitter after the FTC issued its demand letter to champion state's rights. But his posts stopped short of saying he planned to contest the demand.

    "We plan to help but won't bend on states (sic) rights," he said.

    Letter
    to the
    Editor

    Send us a letter

    Have an opinion about this story? Click here to submit a Letter to the Editor, and we may publish it in print.

    Recommended for You
    Health suffers as rural hospitals close
    Health suffers as rural hospitals close
    Medicare ACO participants fell in 2021
    Medicare ACO participants fell in 2021
    Sponsored Content
    Get Free Newsletters

    Sign up for free enewsletters and alerts to receive breaking news and in-depth coverage of healthcare events and trends, as they happen, right to your inbox.

    Subscribe Today

    The weekly magazine, websites, research and databases provide a powerful and all-encompassing industry presence. We help you make informed business decisions and lead your organizations to success.

    Subscribe
    Connect with Us
    • LinkedIn
    • Twitter
    • Facebook
    • RSS
    • Instagram

    Stay Connected

    Join the conversation with Modern Healthcare through our social media pages

    MDHC_Logotype_white
    Contact Us

    (877) 812-1581

    Email us

     

    Resources
    • Contact Us
    • Advertise with Us
    • Ad Choices Ad Choices
    • Sitemap
    Editorial Dept
    • Submission Guidelines
    • Code of Ethics
    • Awards
    • About Us
    Legal
    • Terms and Conditions
    • Privacy Policy
    • Privacy Request
    Modern Healthcare
    Copyright © 1996-2021. Crain Communications, Inc. All Rights Reserved.
    • News
      • This Week's News
      • COVID-19
      • Providers
      • Insurance
      • Government
      • Finance
      • Technology
      • Safety & Quality
      • People
      • Regional News
        • Midwest
        • Northeast
        • South
        • West
      • Digital Edition
    • Insights
      • ACA 10 Years After
      • Best Practices
      • InDepth Special Reports
      • Innovations
    • Transformation
      • Patients
      • Operations
      • Care Delivery
      • Payment
    • Data/Lists
      • Rankings/Lists
      • Interactive Databases
      • Data Points
    • Op-Ed
      • Bold Moves
      • Breaking Bias
      • Commentaries
      • Letters
      • Vital Signs Blog
      • From the Editor
    • Awards
      • Award Programs
        • 100 Most Influential People
        • 50 Most Influential Clinical Executives
        • Best Places to Work in Healthcare
        • Health Care Hall of Fame
        • Healthcare Marketing Impact Awards
        • Top 25 Emerging Leaders
        • Top 25 Innovators
        • Top 25 Minority Leaders
        • Top 25 Women Leaders
      • Nominate
      • Previous Award Programs
        • Excellence in Nursing Awards
        • Design Awards
        • Top 25 COOs in Healthcare
      • Other Award Programs
        • 100 Top Hospitals
        • ACHE Awards
    • Events
      • Conferences
        • Leadership Symposium
        • Healthcare Transformation Summit
        • Women Leaders in Healthcare Conference
        • Workplace of the Future Conference
        • Strategic Marketing Conference
        • Social Determinants of Health Symposium
      • Galas
        • Best Places to Work Awards Gala
        • Health Care Hall of Fame Gala
        • Top 25 Minority Leaders Gala (2022)
        • Top 25 Women Leaders Gala
      • Webinars
      • COVID-19 Event Tracker
    • Listen
      • Podcast - Next Up
      • Podcast - Beyond the Byline
      • Sponsored Podcast - Healthcare Insider
      • Video Series - The Check Up
      • Sponsored Video Series - One on One
    • MORE +
      • Advertise
      • Media Kit
      • Newsletters
      • Jobs
      • People on the Move
      • Reprints & Licensing