Significant Changes in Finalized AntiTrust Guidance for ACOs

The Federal Trade Commission and Department of Justice recently issued a finalized policy statement on how the agencies will enforce U.S. antitrust laws regarding new Accountable Care Organizations (ACOs), which offer healthcare services jointly to reduce costs and improve quality of patient care.

The statement is meant to help providers form procompetitive ACOs that benefit both Medicare beneficiaries and those with private health insurance while simultaneously protecting consumers from higher prices and inferior care quality.

The finalized form contains a couple key changes:


It expands coverage to apply to all provider collaborations that are eligible, and either intend or have already been approved, to participate in the Medicare Shared Savings Program, instead of only applying to collaborations formed after March 23, 2010 (when the Affordable Care Act was enacted).

It shifts from mandatory to voluntary review for collaborations wishing to enter the Shared Savings Program, eliminating the need for the policy statement to contain provisions relating to mandatory antitrust review.

In keeping with a proposal contained in a draft of the policy statement issued in March 2011, the agencies won’t challenge as illegal a Shared Savings Program ACO that jointly negotiates with private insurers to serve patients in commercial markets if the ACO satisfies certain conditions.


It must, for example, comply with CMS’ eligibility criteria and use the same governance and leadership structures and clinical and administrative processes to serve patients in both Medicare and commercial markets; if criteria is met, then the FTC and DOJ will apply a “rule of reason” analysis in examining a potential antitrust violation.

Additionally, the policy statement provides examples of conduct that, under certain circumstances, may raise competitive concerns.

The FTC approved the final policy statement unanimously; it can be viewed here.

Written by Alyssa Gerace