Mark Lutes Quoted in Article, "FTC/DOJ Final ACO Policy Provokes Concern by Eliminating Mandatory Antitrust Review"

When CMS issued sweeping revisions in its final rule on the Medicare Shared Savings Program (MSSP) Oct. 20, the Department of Justice and Federal Trade Commission also revised their joint antitrust enforcement policy — thus eliminating mandatory antitrust review of certain Medicare accountable care organizations (ACOs). This has spawned worry among employers and payers that providers could wield anticompetitive market power by joining forces on ACOs, part of the reform law's efforts to build innovative health care delivery systems. Providers respond that such consolidation helps to form integrated systems.

Some health care lawyers tell HRW that FTC/DOJ's final ACO antitrust statement actually levels the playing field and facilitates more timely participation in MSSP.

"It looks like a less steep curve," says Lutes.  "But there still has to be a careful evaluation of where to apply provider systems' management attention and scarce capital resources — everything from, 'Is my return on investment for MSSP particularly likely to outstrip my ROI [i.e., return on investment] for acquiring a physician group' [to] 'Is my ROI likely to be greater if I do this [Medicare ACOs] versus concentrating on certain DRGs in a bundling proposal'"