Health Headlines – April 22, 2024

Federal Agencies Launch Public Portal Seeking Reports on Anticompetitive Practices in the Healthcare Sector—On April 18, 2024, the Federal Trade Commission (FTC), the Department of Justice (DOJ), and HHS (collectively, the Agencies) launched an online portal that is accessible to the public to report healthcare practices that may harm competition. The online portal, HealthyCompetition.gov, allows the public to report potentially unfair and anticompetitive health care practices to the FTC and the DOJ’s Antitrust Division.
Complaints will undergo preliminary review by staff at the FTC and DOJ Antitrust Division. If a complaint raises sufficient concern under the antitrust laws or is related to HHS authorities, it will be selected for further investigation by the appropriate agency. This action may lead to the opening of a formal investigation.
On their portal, the Agencies identified several examples of conduct that can harm competition in healthcare, which the public is encouraged to report. We list many of these below.

• Examples of Anticompetitive Consolidation, Joint Ventures, and “Roll-Ups” of Healthcare Providers or Companies:

• A private equity company buys a series of nursing homes or medical practices in the same area. It also uses its influence to enter into agreements with other providers that fix prices.
• A health insurance company buys several medical practices that compete with each other. It also prohibits its medical practices from contracting with rival health insurance companies.
• Examples of Anticompetitive Practices Limiting Choice and Fair Wages for Healthcare Employees
• A hospital prohibits an employee from working for another hospital or physician practice for a specific period of time or in a particular geographical area after employment ends.
• An employer requires an employee to sign an agreement saying they will not compete with the employer after leaving the job.
• Examples of Collusion or Price Fixing Among Competitors:
• Competing healthcare companies, such as providers or pharmaceutical companies, collectively set prices or negotiate reimbursement rates at certain prices or levels.
• Competing healthcare companies agree to stop providing anticipated discounts or rebates.
• Examples of Healthcare Contract Language and Other Practices That Restrict Competition:
• Anti-tiering and anti-steering clauses:
• A hospital system requires an insurer to put all its physicians, hospitals, and healthcare facilities in the most favorable tier of providers.
• A hospital system requires an insurer to put all its physicians, hospitals, and healthcare facilities at the lowest cost-sharing rate, so patients do not go to other providers.
• Exclusive contracting:
• A dominant healthcare provider prevents an insurer from contracting with other competing providers.
• A dominant health insurer prevents a healthcare provider from contracting with other competing insurers.
• All-or-nothing clauses:
• An insurer wants to contract with a single hospital. However, the hospital system requires the insurer to contract with all its facilities at high rates.
• Commercial price parity clauses:
• A hospital system guarantees that an insurer will receive better or equal terms as those provided to any other insurer.
• An insurer requires a provider to certify that the agreed-upon negotiated reimbursement rates are the best rates available.
• An insurer requires a provider to share negotiated reimbursement rates paid by other insurers.

The privacy and confidentiality policies that govern information submitted through the portal, including any personal information members of the public choose to provide, can be found at: DOJ Privacy Policy, DOJ Antitrust Division Confidentiality Policy Regarding Complainants, and FTC Privacy Policy.
This is the latest initiative advanced by the Agencies to solicit input from the public regarding the role of private equity in the healthcare sector. As King & Spalding has noted in prior Health Headlines articles and client alerts, the Biden Administration has placed an increased focus on private equity’s role in the healthcare sector, including scrutiny of private equity acquisitions of healthcare providers.
The FTC’s press release regarding the portal can be found here, and the portal is accessible here.
Reporter, Ariana Fuller, Los Angeles, +1 213 443 4342, afuller@kslaw.com.

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