Yesterday, APTA attended the Federal Trade Commission's (FTC) workshop on the Proposed Statement of Antitrust Enforcement Policy, which addresses how the federal agencies will enforce antitrust laws when competing health care providers create new Accountable Care Organizations (ACOs). The workshop featured 2 panel discussions with a variety of industry stakeholders, including private legal counsel for several health care providers and insurers, academics, health policy and economic experts, and representatives of the FTC and the Department of Justice (DOJ).
Panelists raised questions and concerns regarding the January 1, 2012, formation date of ACOs; the types of organizations that will be covered; whether patient choice will be limited due to the number of small practices that join ACOs; and if the mandatory 90-day review period is sufficient to make an appropriate determination as to whether the ACO is pro or anti-competitive. Panelists felt strongly that the administrative burden of calculating primary service area data and proving compliance should fall on the agencies and not the providers, and that the FTC and DOJ should take a law enforcement approach rather than a regulatory approach to oversight. Additionally, the experts addressed the Centers for Medicare and Medicaid Services' eligibility criteria for the Shared Savings Program, asked how possible cost-shifting from Medicare to commercial markets would be monitored, and explored issues of exclusivity—in particular, if hospitals could participate in more than 1 ACO. Other topics included the antitrust "safety zones" for ACOs that meet certain criteria, the rural exception to the safety zone provision, and how ACOs can reduce unnecessary health care services.
The comment period for the FTC and DOJ joint proposed policy statement ends May 31. APTA members are encouraged to submit their input to the association on this proposal and the other ACO proposed rules by May 15 to be included in APTA's comments to the federal agencies. Members should e-mail their input to ACOcomments@apta.org.