FTC Policy Director Issues Statement Commending Maine’s Repeal of Certificate of Public Advantage Law

The Federal Trade Commission has learned that the state of Maine recently enacted legislation repealing the state’s Hospital and Health Care Provider Cooperation Act, which allowed for certain hospital and health care provider agreements that may otherwise violate antitrust laws through the issuance of a Certificate of Public Advantage (COPA). According to public record, the bill was sponsored by Rep. Anne Perry, on behalf of Maine’s Department of Health and Human Services, because experience showed COPAs did not accomplish the intended goals of improving quality and containing costs of health care services.

Maine Governor Janet Mills signed the bill on April 24, 2023.

In response to this news, the FTC Office of Policy Planning Director Elizabeth Wilkins issued this statement:

“We are heartened to learn that Maine has repealed its Certificate of Public Advantage law, and that the FTC’s COPA policy paper was influential in this outcome. FTC staff has spent significant time and effort studying the effects of COPAs in healthcare markets. We have found that COPAs can be difficult for states to implement and monitor over time, and are often unsuccessful in mitigating merger-related price and quality harms. We welcome the opportunity to work collaboratively with any state legislatures, health departments, or stakeholders who may be considering enacting or repealing COPA laws. Ultimately, we all want what is best for patients and healthcare workers, and the FTC recommends that states minimize the harms that can result from provider consolidation and avoid the use of COPAs that attempt to shield healthcare providers from antitrust liability.”

The Maine Department of Health and Human Services offered testimony in support of repeal, citing FTC Policy Perspectives on Certificates of Public Advantage and related studies regarding the negative impact of COPAs previously approved in Maine. In his testimony, William Montejo, Director of the Division of Licensing and Certification for the Maine Department of Health and Human Services, stated: “Because of the low utilization [of COPAs in Maine], and the growing concerns about the ineffectiveness and potential negative effects of COPAs, the Department believes that this provision should be repealed.”