Given the importance of population health management, providers (whether as part of a value-based arrangement or otherwise) share clinical information to help develop best practices and quality initiatives. Current guidance from the federal antitrust enforcement agencies provides that absent “extraordinary circumstances,” the agencies will not challenge the sharing of medical data to help develop best practices and quality initiatives. In short, the exchange of medical information that may provide for the development of higher quality health care generally will not raise concern.
More specifically, in 1996, the Department of Justice and Federal Trade Commission published a joint policy on enforcement of antitrust laws in the health care setting (the “Policy Statements”). In relevant part, the Policy Statements provide:
The Policy Statement continues, stating:
It is important to recognize the Agencies’ use of the word “suggested” (emphasis added) as the Policy Statement continues to explain that such sharing of information does not exempt group boycotts or other similar activities. Thus, while the Agencies recognize that providers may safely share medical data to assess quality and practice parameters, it may be a best practice to then allow each provider to assess how and whether to implement the information gathered into its own clinical setting. In this way, innovation continues to be encouraged, while providers gain access to useful clinical information.
For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: