Mark Lutes, a Member of the Firm in the Health Care and Life Sciences practice, in the Washington, DC, office was quoted in an article titled "ACOs: Senators Ask FTC, DOJ to Share Authority To Investigate, Challenge Medicare ACOs."

According to the article, a group of eight Democratic senators on Feb. 11 asked the Department of Justice and the Federal Trade Commission to team up on antitrust guidance for accountable care organizations (ACOs) created under the Patient Protection and Affordable Care Act's Medicare Shared Savings (MSS) Program.

Lutes suggested that the senators who signed the Feb. 11 letter may view FTC's track record of enforcement in the field of clinical integration, to which FTC Commissioner J. Thomas Rosch to the White House and the Centers for Medicare & Medicaid Services referred in his letter, as "too aggressive," and may believe new health care models will benefit from shared review. Lutes told BNA on Feb. 15 that the senators are on record as promoting new and efficient models for providing health care, and the letter is consistent with their position.

Lutes told BNA that "it makes good sense" to promote dual-agency jurisdiction in this area. Historically, DOJ and FTC both have exercised jurisdiction over antitrust issues in the health care industry, and it is "beneficial for both agencies to be involved" in setting policy for ACOs, he said.

Lutes cautioned, however, that there is a need for cooperation between the agencies to make certain there is no duplication of effort or development of contradictory standards with respect to MSS ACOs, but he added that DOJ and FTC "are well-practiced in doing that." It is "not unusual" for the agencies to have disputes over which should be in charge in a particular case, he said, but they do usually work it out.

Lutes also downplayed the possibility of the agencies reaching contradictory decisions, saying that the agencies' determinations in this area will be highly fact-based, and each case will be decided on its own merits.

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