Advocacy Filings

When government bodies and other organizations consider cases or policy decisions that affect consumers or competition, the FTC may offer insight and expertise to decision makers by filing an advocacy letter. To find a specific filing, use the filters on this page.

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FTC Staff Comment to the Kentucky House of Representatives Regarding House Bill 77, Which Would Recognize and Regulate Denturists

Matter Number:

V160008

FTC staff submitted a comment, in response to a request from Kentucky State Representative Tom Burch, on the competitive implications of proposed legislation that would license and regulate denturists within Kentucky. The comment recommended that the legislature consider the potential benefits of enhanced competition among oral health care professionals, such as improved access to care, more cost-effective treatment, and the development of more effective care delivery models that may offer greater choice to health care consumers. The comment encouraged the legislature to “maintain only those scope of practice limitations necessary to ensure patient health and safety.”

FTC Staff Comment to the Alaska State Legislature Regarding Telehealth Provisions In Senate Bill 74, Which Would Allow Licensed Alaska Physicians Located Out-of-State To Provide Telehealth Services

Matter Number:

V160009

FTC staff submitted a comment, as public testimony, regarding proposed legislation that would allow licensed Alaska physicians located out-of-state to provide telehealth services in the same manner as in-state physicians. The comment noted that eliminating the in-state requirement appeared to be a procompetitive improvement in the law. The change likely would expand the supply of telehealth providers, promote competition, and increase access to safe and cost-effective care. It could also reduce transportation costs for Alaska patients and providers.

FTC Staff Comment to the West Virginia House of Delegates Regarding SB 597 and the Competitive Implications of Provisions Regarding "Cooperative Agreements" Between -- and Possible Exemptions From the Federal Antitrust Laws For -- Health Care Providers

Matter Number:

V160007

FTC staff submitted a comment, in response to a request from West Virginia State Delegate Mike Pushkin, on the competitive impact of provisions in proposed legislation that would provide for “cooperative agreements” between health care providers, and provisions purporting to confer “exemptions” from federal antitrust laws on certain health care providers. According to the comment, the bill incorrectly assumed that the antitrust laws prohibit efficient health care mergers, acquisitions, and collaborations. Given that federal and state antitrust laws already permit cooperative agreements that are likely to benefit consumers, the purported antitrust exemption would have no procompetitive application. FTC staff expressed concern “that this legislation is likely to foster mergers and conduct that are anticompetitive, inconsistent with federal antitrust law and policy, and liable to cause serious harm to West Virginia health care consumers.”

FTC and USDOJ Joint Comment to the Massachusetts House of Representatives Regarding House Bill 1973 to Allow Non-Surgical Treatment of Glaucoma by Optometrists

Matter Number:

V160006

The FTC and DOJ Antitrust Division jointly submitted a statement, in response to a request by Massachusetts State Representative Bradley H. Jones, encouraging the Massachusetts legislature to consider expanding the services that optometrists can provide to glaucoma patients, subject to certain training and referral requirements, consistent with practice in other states. The statement described the potential benefits to patients of enhanced competition among glaucoma care providers, including greater access to timely and cost-competitive care, noting that unnecessarily broad scope of practice restrictions “can impose significant competitive costs on health care consumers and other payors.” The statement recommended that the legislature restrict optometrists’ ability to treat glaucoma only to the extent necessary to ensure patient health and safety.

FTC Staff Comment to the Senate of West Virginia Concerning the Competitive Impact of WV Senate Bill 516 on the Regulation of Certain Advanced Practice Registered Nurses (APRNs)

Matter Number:

V160005

FTC staff submitted a comment, in response to a request from West Virginia State Senator Kent Leonhardt, on the competitive impact of a legislative proposal to modify the supervision requirements imposed on West Virginia APRNs. The bill would permit some APRNs, under limited conditions, to write prescriptions without a formal agreement with a particular supervising physician. The bill would also place the regulation of certain APRNs under the authority of the West Virginia Board of Medicine or Board of Osteopathy. Although the comment noted potential patient benefits if APRNs were able to engage in some independent prescribing, the comment emphasized that undue regulatory restrictions on APRN practice, including mandatory physician oversight, can impose significant competitive costs on patients and third-party payors, and may frustrate the development of innovative and effective models of team-based health care. The comment also noted that because the bill “would assign regulatory authority over APRN prescribing to the Boards of Medicine and Osteopathy, it raises concerns about potential biases and conflicts of interest.” The comment urged the legislature to consider whether these proposed requirements are necessary to assure patient safety, noting that removing unnecessary and burdensome requirements may benefit West Virginia consumers by increasing competition among health care providers.

FTC Staff Comment to Georgia State Senator Valencia Seay Concerning Georgia House Bill 684

Matter Number:

V160004

FTC staff submitted a comment, in response to a request from Georgia State Senator Valencia Seay, regarding proposed legislation that would broaden the types of settings under which Georgia dental hygienists are allowed to provide preventive care without direct on-site supervision by a dentist, thereby aligning Georgia’s supervision requirements with those in most other states. Direct supervision requirements may leave dental hygienists unable to provide care in locations where dentists are scarce or unavailable. The comment said that fewer restrictions on dental hygienists likely would enhance competition in the provision of preventive dental care services and thereby benefit Georgia consumers, particularly underserved populations with limited access to preventive care.

Joint Statement of the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice on Certificate-of-Need Laws and South Carolina House Bill 3250

Matter Number:

V160003

The FTC and DOJ Antitrust Division jointly submitted a statement, in response to a request by South Carolina Governor Nikki Haley, regarding the competitive implications of CON laws and a legislative proposal that ultimately would repeal South Carolina’s CON laws. The statement explained that the agencies historically have urged states to consider repeal or reform of their CON laws because they can prevent the efficient functioning of health care markets, and thus can harm consumers. As the statement described, CON laws create barriers to expansion, limit consumer choice, and stifle innovation. They can also deny consumers the benefit of an effective remedy for antitrust violations and can facilitate anticompetitive agreements. In addition, incumbent providers seeking to thwart or delay entry by new competitors may use CON laws to that end. Arguments favoring CON laws have not been supported by the evidence, the statement noted.

FTC Staff Reply Comment Before the State of New York Public Service Commission in the Reforming the Energy Vision Proceeding, Concerning the NY PSC Staff White Paper on Ratemaking and Utility Business Models

Matter Number:

V140012

Docket Number:

14-M-0101

FTC staff submitted a comment in the New York State Public Service Commission’s (NY PSC’s) Reforming the Energy Vision (REV) proceeding regarding that agency’s “Staff White Paper on Ratemaking and Utility Business Models.” The comment suggests that the White Paper, which describes the REV’s objectives only in terms of lower prices or lower power bills, should also focus on improvements to electric system efficiency and on increases in the value that customers derive from customized electricity services. The comment encourages the NY PSC to consider concerns about potential cross-subsidization by distribution utilities and unfair competition in services that independent firms provide to DER investors, owners, and organizers. It also suggests adjustments to some of the distribution utilities’ financial incentives in order to improve customer benefits and avoid harm to competition and efficiency.

FTC Staff Comment to South Carolina Representative Jenny A. Horne regarding House Bill 3508 and 3078 on Advanced Practice Registered Nurse Regulations

Matter Number:

V160000

FTC staff submitted a comment, in response to a request from South Carolina State Representative Jenny A. Horne, on the competitive impact of legislative proposals to modify the supervision requirements imposed on South Carolina APRNs. One bill would impose additional supervision requirements, while another would remove some supervision requirements. The comment stated that undue regulatory restrictions on APRN practice can impose significant competitive costs on patients and third-party payors, and may frustrate the development of innovative and effective models of team-based health care. FTC staff urged the legislature to avoid restrictions on APRN practice that are not narrowly tailored to address well-founded patient safety concerns and to consider the potential benefits of enhanced competition by APRNs, including lower costs, additional innovation, and improved access to health care.

FTC Staff Comment Submitted to the Food and Drug Administration, In Response to FDA's Request For Comments on Its Guidance for Industry on the “Nonproprietary Naming of Biological Products; Draft Guidance for Industry; Availability”

Matter Number:

P131208

Docket Number:

FDA-2013-D-1543 [80 Fed. Reg. 52296 (Aug. 28, 2015)]

FTC staff submitted a comment to the FDA, in response to the FDA’s request for comment on its draft guidance addressing nonproprietary names for biological products. The comment expressed concern that the FDA draft guidance might hinder competition, and recommended that the agency consider alternatives. In particular, the comment suggested that the FDA’s proposal to add a new, random suffix to the nonproprietary name of each biological product might cause physicians to believe mistakenly that the products necessarily have clinically meaningful differences, potentially resulting in reduced price competition in biologic drug markets, as well as unnecessary costs and conflicts with efforts toward global naming harmonization. The comment suggested alternatives that would have less impact on competition but could still achieve the FDA’s goals of improving pharmacovigilance, minimizing inadvertent substitution of biological products that the FDA has not determined to be interchangeable, and improving the reporting of adverse events involving biologics.

Joint Statement of the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice to the Virginia Certificate of Public Need Work Group

Matter Number:

V150011

The FTC and DOJ Antitrust Division jointly submitted a statement, in response to a request by Virginia State Delegate Kathy Byron, suggesting that Virginia consider whether its COPN program best serves the needs of its citizens. The statement explained that the agencies historically have urged states to consider repeal or reform of their CON laws because they can prevent the efficient functioning of health care markets, and thus can harm consumers. As the statement described, CON laws create barriers to expansion, limit consumer choice, and stifle innovation. They can also deny consumers the benefit of an effective remedy for antitrust violations and can facilitate anticompetitive agreements. In addition, incumbent providers seeking to thwart or delay entry by new competitors may use CON laws to that end. Arguments favoring CON laws have not been supported by the evidence, the statement noted.

FTC Staff Comment Before the Pennsylvania House of Representatives Regarding Proposed Legislation to Regulate Pre-Need Cemetery and Funeral Merchandise Sales

Matter Number:

V150014

FTC staff submitted a comment, in response to a request from Pennsylvania State Representative Robert W. Godshall, on legislative proposals that would further regulate the pre-need sale of cemetery and funeral merchandise and services in Pennsylvania. “The bills, if enacted, appear to impose additional restrictions and requirements on cemeteries that engage in the pre-need sale of cemetery goods,” the comment states. “These provisions could lessen competition, resulting in potentially higher prices and fewer options for consumers, without countervailing benefits to consumers.” The staff comment addresses three main issues: (1) prohibitions on the pre-need delivery and installation of cemetery merchandise, (2) requirements for merchandise trust funds and refunds when a consumer breaches a pre-need contract, and (3) compliance with the FTC’s Funeral Rule requirements for the sale of merchandise by sellers not covered by the Rule versus specifying state-specific requirements governing such sellers and sales.

FTC Staff Comment to the Tennessee Department of Health Regarding the Implementation of Laws Relative to Cooperative Agreements and the Granting of Certificates of Public Advantage

Matter Number:

V150013

Docket Number:

Proposed Chapter 1200-38-01 of the Hospital Cooperation Act of 1993

FTC staff submitted comments to the Virginia and Tennessee health departments, in response to calls for public comments, as part of those agencies’ respective processes to promulgate proposed rules regarding hospital cooperation agreements in their states. FTC staff offered assistance to each of the two health departments during their reviews of any cooperation agreement applications, to help ensure that any decisions regarding the potential benefits and disadvantages of a proposal are based on a rigorous competition analysis. The comments also reiterated the FTC’s longstanding position that legislation purporting to grant antitrust immunity is unnecessary to encourage procompetitive collaborations among health care providers because such arrangements already would pass muster under the antitrust laws; therefore the new schemes for cooperation agreements would be likely to harm Virginia and Tennessee health care consumers.

FTC Staff Comment to the Virginia Department of Health Regarding Virginia's Rules and Regulations Governing Cooperative Agreements

Matter Number:

V150012

Docket Number:

12 Virginia Administrative Code 5, Chapter 221

FTC staff submitted comments to the Virginia and Tennessee health departments, in response to calls for public comments, as part of those agencies’ respective processes to promulgate proposed rules regarding hospital cooperation agreements in their states. FTC staff offered assistance to each of the two health departments during their reviews of any cooperation agreement applications, to help ensure that any decisions regarding the potential benefits and disadvantages of a proposal are based on a rigorous competition analysis. The comments also reiterated the FTC’s longstanding position that legislation purporting to grant antitrust immunity is unnecessary to encourage procompetitive collaborations among health care providers because such arrangements already would pass muster under the antitrust laws; therefore the new schemes for cooperation agreements would be likely to harm Virginia and Tennessee health care consumers.

FTC Staff Reply Comment Before the State of New York Public Service Commission in the Reforming the Energy Vision Proceeding, Responding To Third-Party Comments on the NY PSC Benefit-Cost Analysis

Matter Number:

V140012

Docket Number:

Case 14-M-0101

The FTC staff submitted a reply comment to the New York State Public Service Commission (NY PSC) regarding that agency’s Reforming the Energy Vision (REV) proceeding. The FTC staff comment recommended that the principles set forth in the NY PSC Staff White Paper on Benefit-Cost Analysis (Staff BCA) recognize how customers can benefit from a greater ability to match the electric services they receive to their preferences among such services. The comment also noted that the principles need to take into account a broader spectrum of benefit and cost criteria, such as service quality, customization of services to match customer preferences, and the effects of increased competition on price. It also suggested that the Staff BCA include sensitivity analysis to allow electricity distributors and the NY PSC to respond appropriately if future technological, economic, and environmental conditions differ from conditions that the Staff BCA currently anticipates.

FTC Staff Comment Before the Food and Drug Administration Regarding the Current Use of Human Drug and Biological Products Labeled As Homeopathic, and the FDA's Regulatory Framework For Such Products

Matter Number:

P114505

Docket Number:

80 Fed. Reg. 16327 (Mar. 27, 2015)

FTC staff has recommended that the U.S. Food and Drug Administration (FDA) reconsider the framework it uses to regulate homeopathic medications because it may appear to conflict with the FTC’s advertising substantiation doctrine in ways that could harm consumers and cause confusion for advertisers. The comment discusses the mistaken belief by some advertisers that homeopathic products that are in compliance with the FDA policy guide do not have to comply with FTC advertising substantiation requirements. The comment also raises the concern that the FDA’s current framework may lead some companies to skirt more stringent regulations for OTC drug products or dietary supplements simply by labeling them as homeopathic or combining homeopathic ingredients with dietary supplements or other non-homeopathic ingredients.

FTC Staff Comment, and Concurring Comment of Commissioner Wright, Regarding North Carolina House Bill 200, Which Would Exempt Diagnostic Centers, Ambulatory Surgical Facilities and Psychiatric Hospitals From Certificate of Need Regulation

Matter Number:

V150009

FTC staff submitted a comment, in response to a request by North Carolina State Representative Marilyn W. Avila, regarding the possible competitive effects of a legislative proposal to exempt diagnostic centers, ambulatory surgical facilities and psychiatric hospitals in North Carolina from CON laws. The staff comment expressed support for the bill. As the comment explained, CON laws can restrict entry and expansion, limit consumer choice, and stifle innovation. Additionally, the CON process can be exploited by firms to thwart or delay entry by new competitors and can obstruct efforts to restore competition that has been lost to an anticompetitive merger.

FTC Staff Comment Regarding Amendments to the Minnesota Government Data Practices Act Regarding Health Care Contract Data, Which Would Classify Health Plan Provider Contracts As Public Data

Matter Number:

V150008

Docket Number:

N/A

FTC staff submitted a comment, in response to a request by Minnesota state legislators Joe Hoppe and Melissa Hortman, regarding the possible competitive effects of a recently enacted amendments to the Minnesota Government Data Practices Act that would treat the State’s health plan contract terms as presumptively government records that the public can ask to see by making a freedom of information request. According to the staff comment, disclosing the negotiated terms of health plan contracts may offer little benefit to health care consumers but could pose a substantial risk of reducing competition in health care markets. For example, the amendments may lead to the disclosure of competitively sensitive price and cost information that could enable health care providers to see what terms health plans are offering their competitors and to use that information against the plans during negotiations. Such disclosure of price and cost information could also enable competing health care providers to agree in advance on terms that they each will offer to health plans, instead of trying to outbid each other by offering better terms to win the contract. These concerns are heightened in Minnesota’s health care markets, which already see reduced competition because there are fewer competing providers.

FTC Staff Comment to New York State Senator Ranzenhofer and New York State Assemblyman Abinanti Concerning SB 2647 and AB 2888 Authorizing Certain Agreements for the Creation and Operation of a Health Care Delivery System Network

Matter Number:

V150005

FTC staff submitted a comment to New York Senator Michael H. Ranzenhofer and New York Assemblyman Thomas Abinanti regarding the possible effects of a legislative proposal that would authorize Erie County Medical Center Corporation and Westchester County Health Care Corporation to collaborate with other public and private health care providers and payers. The proposed legislation would provide them and their collaborating entities with broad immunity from liability under federal and state antitrust laws – even though this purported immunity would cover the kinds of information sharing and joint contract negotiation that are likely to result in reduced competition and higher prices for consumers. “Because procompetitive or competitively benign health care collaborations already are permissible under the antitrust laws, the main effect of this legislation is to immunize conduct that would not generate efficiencies that are greater than consumer harms, and therefore would not pass muster under the antitrust laws,” the staff comment stated.

FTC Staff Comment Regarding Oregon Senate Bill 231A, Which Includes Language Intended To Provide Federal Antitrust Immunity To Conversations, Information Exchanges, and Agreements Among Participants (Including Competitors) In Oregon's Health Care Markets

Matter Number:

V150007

FTC staff submitted a comment, in response to a request by Oregon State Senator Chip Shields, expressing concern that a broad antitrust exemption proposed in Oregon Senate Bill 231A for health care collaborations was unnecessary because antitrust law already permits such efforts that benefit consumers. While staff commended the underlying goal of the bill – to study and improve the delivery of primary care services to Oregon health care consumers, and to promote new collaborations among Oregon health care providers, payers, and other industry participants – the letter maintained that the broad purported antitrust exemption was based on misunderstandings about application of the antitrust laws to such endeavors. “FTC staff respectfully suggests that the proposed Bill is likely to lead to increased health care costs and decreased access to health care services for Oregon consumers.”

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