Submission Number: 00040
Received: 5/31/2011 10:55:28 AM
Commenter: Harold Miller
Organization: Center for Healthcare Quality and Payment Reform
Agency: Federal Trade Commission
Initiative: Proposed Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program; FTC Matter No: V100017
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The Proposed Statement includes four major elements that are very positive and should remain key parts of any final version of the Statement:
•It expands the number of situations in which collaborations of independent providers will be evaluated under the rule of reason, rather than treated as per se violations of antitrust law;
•It defines a safe harbor in which such collaborations will be exempted from antitrust investigations or actions, which will help encourage small-scale collaborations among providers that can improve the quality and reduce the costs of care;
•It explicitly discourages several important types of anticompetitive conduct by provider organizations; and
•It provides for an expedited review of provider collaborations whose size causes concerns about anticompetitive effects.
On the other hand, there are also several aspects of the Proposed Statement that are very problematic and need to be significantly revised before it is finalized:
•Its criteria for granting rule of reason treatment are too narrowly defined;
•It only attempts to address the anticompetitive effects of new collaborations of independent providers, ignoring and potentially encouraging or strengthening other types of providers which could cause equal or greater problems for competition in specific healthcare markets;
•It uses a new statistical test (PSA share) to define “market power” that will likely have significant numbers of false positives, as well as imposing significant administrative burdens on providers; and
•It relies on measures based on Medicare patients to assess the competitive impacts of providers in the commercial market.
Each of these concerns is explained in more detail in the attached letter, along with suggested remedies.