DOJ Repeals Healthcare Policy Statements Containing Longstanding Guidance on Information Sharing
On February 3, the Department of Justice (DOJ) formally withdrew three antitrust policy statements related to enforcement in the healthcare industry. These policy statements—from 1993, 1996, and 2011—addressed topics such as hospital mergers, joint ventures, joint purchasing arrangements, physician networks and accountable care organizations. The policy statements also established certain “antitrust safety zones” for conduct the DOJ and Federal Trade Commission (FTC) would not challenge under the antitrust laws, including safety zones related to joint ventures and the exchange of information between competitors.
In withdrawing these policy statements, the DOJ stated the “healthcare landscape has changed significantly” and as a result “the statements are overly permissive on certain subjects, such as information sharing, and no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues in today’s environment.” Although the policy statements were jointly issued by both the DOJ and FTC, the FTC has not indicated whether it intends to follow the DOJ in withdrawing all three statements.
The most widely relied-upon safety zones established by these policy statements were those related to information sharing. In particular, the policy statements established a safety zone for the exchange of information managed by third parties involving information from five or more firms that was historic (at least three months old) and aggregated. In addressing the repeal of this safety zone, the DOJ referred to the healthcare sector as a “transformed industry,” and noted that the now-repealed guidelines “understate the antitrust risks of competitors sharing competitively-sensitive information.” The DOJ did not replace the withdrawn policy statements with new guidance, and the DOJ’s early comments suggest it has no intention to do so in the near future.
The DOJ’s withdrawal of these policy statements may have implications far beyond the healthcare industry. For years, businesses in other industries have consulted these statements for guidance on issues related to joint ventures, information exchanges, and other types of competitor collaborations. Thus, regardless of industry, businesses that have relied on these statements in the past should take a fresh look at their practices going forward.
Stinson’s antitrust practitioners have significant experience advising clients on issues related to healthcare competition, information exchanges and competitor collaborations. They are well positioned to help clients identify and address antitrust risk in this time of increased government enforcement.
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