In a quiet yet shocking announcement on February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) withdrew three major antitrust policy statements that have served for years as mainstays of health care antitrust enforcement guidance.
Specifically, DOJ withdrew the following statements: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (September 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (August 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in Medicare Shared Savings Program (October 20, 2011).
Without elaboration as to the basis for the agency’s decision, DOJ proclaimed that the withdrawal of these policy statements would best promote competition and transparency, noting that the health care landscape has changed since the issuance of this guidance. In addition, DOJ stated that certain of the policy statements are “overly permissive on certain subjects such as information sharing and no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues in today’s environment.”
There is no indication yet that DOJ is working on updated guidance. While the Federal Trade Commission has not formally withdrawn its support for these policy statements, it will only be a matter of time before that occurs.