FTC Staff Comment To the New York State Department of Health Regarding the Potential Competitive Impact of COPA Applications Filed by Adirondack Health Institute PPS, Advocate Community Partners PPS, and Staten Island PPS

UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Competition
Bureau of Economics
April 22, 2015
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Center for Health Care Policy and Resource Development
Office of Primary Care and Health Systems Management
New York State Department of Health
Corning Tower - Room 1815
Empire State Plaza
Albany, New York 12237
Re: Certificate of Public Advantage Applications Filed Pursuant to New York
Public Health Law, 10 NYCRR, Subpart 83-1
Dear Sir or Madam:
The staffs of the Federal Trade Commission’s (“FTC” or “Commission”) Office
of Policy Planning, Bureau of Competition, and Bureau of Economics1 respectfully
submit this public comment regarding the potential competitive impact of the Certificate
of 	Public 	Advantage 	(“COPA”) 	applications 	submitted 	by 	three 	newly 	formed
performing provider systems (“PPSs”) under the Delivery System Reform Incentive
Program 	(“DSRIP”) 	– 	Adirondack 	Health 	Institute 	Performing 	Provider 	System,2
Advocate 	Community 	Partners 	Performing 	Provider 	System,3 and 	Staten 	Island
Performing Provider System.4 For each of the three DSRIP PPSs, a COPA purportedly
would provide federal antitrust immunity for certain collaborative activities among
participating health care providers, including joint price negotiations.
FTC staff fully recognizes that collaborations among health care providers often
are procompetitive. We write to express strong concerns that the COPA regulations, as
well as the underlying authorizing legislation, are based on inaccurate premises about the
antitrust laws and the value of competition among health care providers.
A COPA is unnecessary for these three DSRIP PPSs to engage in procompetitive
collaborative activities. The antitrust laws are not a barrier to the formation of efficient
health care collaborations that benefit health care consumers, as explained in extensive
guidance issued by the federal antitrust agencies. Indeed, very few health care provider
mergers, joint ventures, or other types of collaborations are challenged by the federal
antitrust 	agencies. 	Because 	procompetitive 	health 	care 	collaborations 	already 	are
permissible under the antitrust laws, the main effect of the COPA regulations is to
immunize conduct that would not generate efficiencies and therefore would not pass
muster under the antitrust laws. Therefore, COPAs are likely to lead to increased health
care costs and decreased access to health care services for New York consumers.

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I. 	Interest and Experience of the Federal Trade Commission
Congress has charged the FTC with enforcing the Federal Trade Commission Act,
which prohibits unfair methods of competition and unfair or deceptive acts or practices in
or affecting commerce.5 Competition is at the core of America's economy,6 and vigorous
competition among sellers in an open marketplace gives consumers the benefits of lower
prices, higher quality goods and services, greater access to goods and services, and
innovation.7 Pursuant to its statutory mandate, the FTC seeks to identify business
practices, 	laws, 	and 	regulations 	that 	may 	impede 	competition 	without 	providing
countervailing benefits to consumers.
Because of the importance of health care competition to the economy and
consumer welfare, anticompetitive conduct in health care markets has long been a key
focus of FTC law enforcement,8 research,9 and advocacy.10 Of particular relevance, the
Commission and its staff have long advocated against federal and state legislative
proposals that seek to create antitrust exemptions for collective negotiations by health
care providers, as such exemptions are likely to harm consumers.11
II. 	The New York DSRIP Program and COPA Regulations
The 	DSRIP 	program, 	announced 	in 	April 	2014, 	is 	intended 	to 	promote
community-level collaborations among New York health care providers in an effort to
achieve 	system 	reform, 	quality improvements, 	and 	cost 	reductions.12 The 	DSRIP
program ties New York’s Medicaid funding to performance benchmarks, and our
understanding is that New York health care providers are required to participate in the
DSRIP program to receive Medicaid funding. It is also our understanding that the DSRIP
PPS networks are comprised of substantial portions of competing health care providers
within their respective geographic regions.
DSRIP PPS networks may apply for a COPA, which purports to provide antitrust
immunity to approved health care collaboratives.13 The COPA regulations implement
Article 29-F of New York’s Public Health Law, as amended in 2011.14 According to the
regulations, 	the 	New 	York 	Department 	of 	Health 	is 	required 	to 	review 	COPA
applications in consultation with the New York Attorney General’s office (“NYAG”).
This review must consider several factors, including a detailed competitive analysis of
the market and the potential benefits and anticompetitive effects of the proposed
collaborative arrangement.15 Consistent with the authorizing legislation, the COPA
regulations state that the NYAG may seek relief under state antitrust law if the challenged
conduct is inconsistent with or beyond the scope of the COPA, or if the NYAG
determines that the anticompetitive effects of the conduct or collaborative arrangement
outweigh the benefits.16

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III. 	Concerns Regarding Potential Anticompetitive Effects of New York’s
COPA Approach
Putting aside the issue of the sufficiency of the state’s oversight of the COPA
process,17 FTC staff is concerned that combining the DSRIP program with the COPA
regulations 	will 	encourage 	health 	care 	providers 	to 	share 	competitively 	sensitive
information and engage in joint negotiations with payers in ways that will not yield
efficiencies or benefit consumers. Furthermore, although the DSRIP program applies
only to Medicaid patients, the potential anticompetitive effects of information sharing and
joint payment negotiations under a COPA may extend to commercial and Medicare
patients as well.18 For example, it is possible that participating PPS providers would need
to share information about all of their patient populations – including commercial,
Medicare, and Medicaid patients – in order to properly implement the value-based
payment models contemplated under the DSRIP program.19
A. 	COPA Is Unnecessary Because the Antitrust Laws Already
Permit Efficient Health Care Collaborations
The COPA regulations are based on two fundamentally flawed premises: that
efficient, 	procompetitive 	collaborations 	among 	otherwise 	independent 	health 	care
providers are prohibited under the antitrust laws, and that COPA regulations are
necessary to encourage such collaborations. Indeed, when the New York state legislature
passed the underlying legislation that authorizes the COPA regulation, it emphasized the
need for greater integration and coordination of health services to achieve the reform
goals of the Patient Protection and Affordable Care Act (“ACA”).20 The legislature went
on to state that federal and state antitrust laws may prohibit or discourage collaboration or
consolidation among health care providers that could be beneficial to New York
residents.21 FTC staff disagrees with the legislature’s improper characterization of the
antitrust laws.
The antitrust laws already recognize, and, indeed, have long stood for the
proposition that competitor collaborations can be procompetitive. As explained in
numerous sources of guidance issued by the federal antitrust agencies,22 this position
extends to collaborations among competing health care providers. FTC officials have
recently emphasized that “[t]he FTC supports the key aims of health care reform, and . . .
recognize[s] that collaborative and innovative arrangements among providers can reduce
costs, improve quality, and benefit consumers. But these goals are best achieved when
there is healthy competition in provider markets fostering the sort of dynamic, high-
quality, and innovative health care that practitioners seek and patients deserve.”23 The
federal antitrust agencies have challenged very few of the thousands of health care
provider mergers, joint ventures, and other types of collaborations that have occurred in
recent years, and have “brought those challenges only after rigorous analysis of market
conditions showed that the acquisition was likely to substantially lessen competition.”24
Moreover, the goals of antitrust are consistent with the goals of the ACA. Despite
what some health care industry participants have claimed, the antitrust laws do not

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prohibit 	the 	kinds 	of 	collaboration 	necessary 	to 	achieve 	the 	health 	care 	reforms
contemplated by the ACA.25 Specifically, antitrust is not a barrier to New York health
care providers who seek to form procompetitive collaborative arrangements that are
likely to reduce costs and benefit health care consumers through increased efficiency and
improved coordination of care.
B. 	Antitrust Exemptions That Immunize Otherwise
Anticompetitive Conduct Pose a Substantial Risk of Consumer
Harm and Are Disfavored
Because antitrust law permits procompetitive collaborations among health care
providers, 	no 	special 	“exemption” 	or 	“immunity” 	from 	existing 	antitrust 	laws 	is
necessary to ensure that such procompetitive collaborations occur. The U.S. Supreme
Court recently reiterated its long-standing position that “the antitrust laws’ values of free
enterprise and economic competition” make such special exemptions or immunities
“disfavored.”26 There is no reason to treat the health care industry differently with regard
to application of the antitrust laws. Indeed, in the health care industry, just like in other
industries, 	consumers 	benefit 	from 	vigorous 	competition 	and 	are 	harmed 	by
anticompetitive conduct.27
Health care providers have repeatedly sought antitrust immunity for various forms
of joint conduct, including agreements on the prices they will accept from payers,
asserting that immunity for joint bargaining is necessary to “level the playing field” so
that providers can create and exercise countervailing market power.28 In a 2004 report on
health care competition, the federal antitrust agencies jointly responded to and countered
this argument, explaining that antitrust exemptions “are likely to harm consumers by
increasing costs without improving quality of care.”29 In its 2007 report, the bipartisan
Antitrust Modernization Commission succinctly stated a widely recognized proposition:
“[t]ypically, 	antitrust 	exemptions 	create 	economic 	benefits 	that 	flow 	to 	small,
concentrated interest groups, while the costs of the exemption are widely dispersed,
usually passed on to a large population of consumers through higher prices, reduced
output, lower quality and reduced innovation.”30 In other words, antitrust exemptions
threaten broad consumer harm while benefitting only certain market participants.
FTC officials further have noted that state legislation aimed at exempting health
care providers engaging in collaborative activities from antitrust scrutiny may “encourage
providers to negotiate collectively with health plans in order to extract higher rates, in
effect allowing providers to fix their prices. By permitting conduct that would ordinarily
violate antitrust laws, the bills would lead to higher prices and lower-quality care –
undercutting the very objectives they aim to achieve.”31 While FTC officials have
acknowledged that “[c]ollaboration designed to promote beneficial integrated care can
benefit consumers,” they also have warned that “collaboration that eliminates or reduces
price competition or allows providers to gain increased bargaining leverage with payers
raises significant antitrust concerns. Antitrust concerns can arise if integration involves a
substantial portion of the competing providers of any particular service or specialty[.]”32
All three of the DSRIP PPS networks that have applied for COPAs appear to involve

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substantial portions of competing health care providers in their respective geographic
regions,33 thereby increasing the potential for anticompetitive harm. Furthermore, their
applications specifically reference the antitrust risks they may face unless they receive
COPA status34 and appear to contemplate collective contract negotiations with payers.35
Given that efficient collaborations among health care providers likely to benefit
consumers are already consistent with the antitrust laws, FTC staff is concerned that New
York’s COPA regulations will encourage precisely the types of agreements among
competitors that likely would not pass muster under the antitrust laws – conduct that
would reduce competition, raise prices, and provide few or no benefits to consumers. Any
effort to shield such harmful conduct from antitrust enforcement, including attempts to
confer state action immunity, is likely to harm New York health care consumers.
IV. 	Conclusion
In summary, FTC staff not only believes that New York’s COPA regulations are
unnecessary to promote the goals of health care reform, but also is concerned that the
COPA scheme is likely to foster anticompetitive conduct to the detriment of New York
health care consumers.
Given the limited duration of the public comment period for COPA applications,
FTC staff has not conducted an independent antitrust analysis of the three specific DSRIP
PPSs that have applied for COPAs. As part of the COPA review process, we urge the
Department of Health to carefully consider each PPS’s potential impact on competition,
including the likelihood that any procompetitive benefits of collaboration among the
DSRIP 	PPS 	participants 	would 	be 	outweighed 	by 	the 	anticompetitive 	effects 	of
immunizing potentially unlawful conduct.
The 	FTC 	will 	continue 	to 	investigate 	and 	challenge 	transactions 	that 	are
anticompetitive. In addition, we will continue to challenge defenses based on asserted
state action immunity where the state fails to provide adequate active supervision.
Respectfully submitted,
Marina Lao, Director
Office of Policy Planning
Deborah L. Feinstein, Director
Bureau of Competition
Francine Lafontaine, Director
Bureau of Economics

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1 This letter expresses the views of the FTC’s Office of Policy Planning, Bureau of
Competition, and Bureau of Economics. The letter does not necessarily represent the
views of the Commission or of any individual Commissioner. The Commission has,
however, voted to authorize staff to submit these comments.
2 See Adirondack Health Institute DSRIP PPS Organizational Application (Dec. 22,
2014), http://health.ny.gov/health_care/medicaid/redesign/dsrip/pps_applications/
docs/adirondack_health_institute/adirondack_org_application.pdf (Reference COPA-
AHIPPS, DSRIP PPS ID: 23).
3 See Advocate Community Partners DSRIP PPS Organizational Application (Dec. 22,
2014), http://health.ny.gov/health_care/medicaid/redesign/dsrip/pps_applications/
docs/advocate_community_partners_awmedical/advocate_community_partners_org_app.
pdf (Reference COPA-ACPPPS, PPS ID: 25).
4 See Staten Island DSRIP PPS Organizational Application (Dec. 22, 2014),
http://health.ny.gov/health_care/medicaid/redesign/dsrip/pps_applications/docs/richmond
_med_ctr_staten_island_hospital/richmond_staten_island_hosp_org_app.pdf (Reference
COPA-SIPPS, PPS ID: 43).
5 Federal Trade Commission Act, 15 U.S.C. § 45.
6 Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national
economic policy long has been faith in the value of competition.”).
7 See Nat’l Soc. of Prof. Eng’rs v. United States, 435 U.S. 679, 695 (1978) (The antitrust
laws reflect “a legislative judgment that ultimately competition will produce not only
lower prices, but also better goods and services. . . . The assumption that competition is
the best method of allocating resources in a free market recognizes that all elements of a
bargain – quality, service, safety, and durability – and not just the immediate cost, are
favorably affected by the free opportunity to select among alternative offers.”).
8 See generally FED. TRADE C OMM’N, OVERVIEW OF FTC ANTITRUST ACTIONS IN HEALTH
C ARE S ERVICES AND P RODUCTS (Mar. 2013), https://www.ftc.gov/sites/default/
files/attachments/competition-policy-guidance/hcupdate.pdf. See also Competition in the
Health Care Marketplace, FED. TRADE C OMM ’N, https://www.ftc.gov/tips-advice/
competition-guidance/industry-guidance/health-care (“Cases”).
9 See, e.g., FED. TRADE C OMM’N & U.S. DEP ’ T OF J USTICE, IMPROVING HEALTH C ARE: A
DOSE OF C OMPETITION (2004), https://www.ftc.gov/sites/default/files/documents/
reports/improving-health-care-dose-competition-report-federal-trade-commission-and-
department-justice/040723healthcarerpt.pdf [hereinafter FTC & DOJ, IMPROVING
HEALTH C ARE]. The report was based on, among other things, 27 days of formal
hearings on competitive issues in health care, an FTC sponsored workshop, independent
research, and the Agencies’ enforcement experience. See also FTC-DOJ workshop series,
Examining Health Care Competition, Mar. 20-21, 2014 and Feb. 24-25, 2015,
https://www.ftc.gov/news-events/events-calendar/2015/02/examining-health-care-
competition.
10 FTC and staff advocacy may comprise letters or comments addressing specific policy
issues, Commission or staff testimony before legislative or regulatory bodies, amicus

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briefs, or reports.
11 See, e.g., FTC Staff Comment to Sen. John J. Bonacic, N.Y. State Senate, Concerning
N.Y. Senate Bill S.3186-A, Intended to Permit Collective Negotiations by Health Care
Providers (Oct. 2011), https://www.ftc.gov/sites/default/files/documents/
advocacy_documents/ftc-staff-comment-honorable-john-j.bonacic-concerning-new-york-
s.b.3186-allow-health-care-providers-negotiate-collectively-health-
plans/111024nyhealthcare.pdf; FTC Staff Comment to Sen. Catherine Osten and Rep.
Peter Tercyak, Conn. Gen. Assembly, Concerning H.B. 6431, Intended to Exempt Health
Care Collaboratives from the Antitrust Laws (June 2013), https://www.ftc.gov/
sites/default/files/documents/advocacy_documents/ftc-staff-comment-connecticut-
general-assembly-labor-and-employees-committee-regarding-connecticut/
130605conncoopcomment.pdf; FTC Staff Comment to Sens. Coleman and Kissel and
Reps. Fox and Hetherington, Conn. Gen. Assembly, Concerning Connecticut H.B.
6343, Intended to Exempt Members of Certified Cooperative Arrangements from the
Antitrust Laws (June 2011), https://www.ftc.gov/sites/default/files/documents/
advocacy_documents/ftc-staff-comment-senatorscoleman-andkissel-and-
representativesfox-and-hetherington-concerning.b.6343intended-toexempt-members-
certified-cooperative-arrangements-antitrust-laws/110608chc.pdf; FTC Staff Comment to
the Hon. Elliott Naishtat Concerning Tex. S.B. 8 to Exempt Certified Health Care
Collaboratives from the Antitrust Laws (May 2011), https://www.ftc.gov/sites/
default/files/documents/advocacy_documents/ftc-staff-comment-hon.elliot-naishtat-
concerning-texas-s.b.8-exempt-certified-health-care-collaboratives-antitrust-
laws/1105texashealthcare.pdf; FTC Staff Comment to Rep. Tom Emmer of the Minn.
House of Reps. Concerning Minn. H.F. No. 120 and Senate Bill S.F. No. 203 on Health
Care Cooperatives (Mar. 2009), https://www.ftc.gov/sites/default/files/documents/
advocacy_documents/ftc-staff-comment-representative-tom-emmer-minnesota-house-
representatives-concerning-minnesota-ok-h.f.no.120-and-senate-bill-s.f.no.203-health-
care-cooperatives/v090003.pdf; FTC Staff Comment to the Hon. William J. Seitz
Concerning Ohio Executive Order 2007-23S to Establish Collective Bargaining for Home
Health Care Workers (Feb. 2008), https://www.ftc.gov/sites/default/files/documents/
advocacy_documents/ftc-staff-comment-hon.william-j.seitz-concerning-ohio-executive-
order-2007-23s-establish-collective-bargaining-home-health-care/v080001homecare.pdf;
FTC Staff Comment before the P.R. House of Reps. Concerning S.B. 2190 to Permit
Collective Bargaining by Health Care Providers (Jan. 2008), https://www.ftc.gov/
sites/default/files/documents/advocacy_documents/ftc-staff-comment-puerto-rico-house-
representatives-concerning-s.b.2190-permit-collective-bargaining-health-care-
providers/v080003puerto.pdf. All advocacies are available at https://www.ftc.gov/
policy/advocacy/advocacy-filings.
12 For more information about the DSRIP program, see DSRIP Overview,
https://www.health.ny.gov/health_care/medicaid/redesign/dsrip/overview.htm.
13 See DSRIP FAQs, https://www.health.ny.gov/health_care/medicaid/redesign/docs/
dsrip_faq.pdf, at 16 (“Q: Will PPS networks be protected from laws on anti-competitive
behavior? A: Yes, in instances where a DSRIP PPS can show that a potential
collaboration between providers will benefit the community, there will be an opportunity

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for the state to provide protections for a PPS. This protection will come in the form of a
Certificate of Public Advantage (COPA), which will be granted if it appears that the
benefits of a collaboration between PPS partners will outweigh any disadvantages
attributable to their anticompetitive effects and will be subject to active state supervision.
COPA regulations are explicated in Article 29-F of New York’s Public Health Law.”).
14 See New York Public Health Law, Article 29-F, § 2999-aa (Antitrust Provisions, State
Oversight) and § 2999-bb (Department Authority), available at
http://nys.law.streaver.net/PBH/a2564.html.
15 See 10 NYCRR, Subpart 83-1.5 (describing the review process for COPA
applications), available at http://www.health.ny.gov/regulations/recently_adopted/
docs/2014-12-17_certificate_of_public_advantage.pdf.
16 See 10 NYCRR, Subpart 83-1.2 (describing the effect and application process of
COPA), available at http://www.health.ny.gov/regulations/recently_adopted/docs/2014-
12-17_certificate_of_public_advantage.pdf.
17 States may provide antitrust immunity for certain activities when there is a clearly
articulated state policy to displace competition and there is active state supervision of the
policy or activity. See Parker v. Brown, 317 U.S. 341 (1943), FTC v. Phoebe Putney
Health Sys., Inc., 133 S. Ct. 1003 (2013), and North Carolina State Bd. Of Dental
Exam’rs v. FTC, 135 S. Ct. 1101 (2015). FTC staff takes no position at this time on
whether the COPA regulations would satisfy the active supervision prong of the state
action doctrine.
18 See, e.g., DSRIP FAQs at 10 (“The DSRIP Program is an initiative is specifically
targeted to the Medicaid and uninsured population. However, as PPS entities work to
transform their service delivery system and payment structure, the state expects that the
DSRIP program will act as a catalyst for change to other parts of a provider’s book of
business. In addition, pay for performance or value based purchasing by government and
private insurers is becoming much more widespread, supporting the transformative
changes from DSRIP.”).
19 FTC staff recognizes that, theoretically, it may be possible for health care providers
participating in a PPS network to implement an organizational structure that would
minimize the sharing of information regarding commercial and Medicare patients,
thereby mitigating potential antitrust concerns relating to joint contract negotiations,
information exchanges, or other forms of coordination among PPS participants. At this
time, FTC staff takes no position on whether these three DSRIP PPSs employ such
structures.
20 Pub. L. No. 111-148, § 3022, 14 Stat. 119, 395 (“Affordable Care Act”).
21 New York State Senate Bill 2809D (2011), § 50: Legislative Findings,
http://open.nysenate.gov/legislation/bill/S2809D-2011.
22 To assist the business community in distinguishing between lawful and potentially
harmful forms of competitor collaboration, the FTC and its sister federal antitrust agency,
the DOJ, have issued considerable guidance over the years. Key sources of guidance
include the Agencies’ general guidelines on collaborations among competitors, as well as

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joint statements specifically addressing the application of the antitrust laws to the health
care industry, including physician network joint ventures and other provider
collaborations. F ED. TRADE C OMM’N & U.S. DEP ’ T OF J USTICE, ANTITRUST GUIDELINES
FOR C OLLABORATIONS A MONG C OMPETITORS (2000), https://www.ftc.gov/sites/default/
files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-
among-competitors/ftcdojguidelines-2.pdf; U.S. D EP ’ T OF J USTICE & FED. T RADE
C OMM’N, S TATEMENTS OF ANTITRUST ENFORCEMENT P OLICY IN H EALTH C ARE (1996),
https://www.ftc.gov/sites/default/files/documents/reports/revised-federal-trade-
commission-justice-department-policy-statements-health-care-antritrust/hlth3s.pdf (see,
e.g., id. at Statement 8 regarding physician network joint ventures, Statement 7 regarding
joint purchasing arrangements among providers of health care services, and Statement 6
regarding provider participation in exchanges of price and cost information).
In addition, FTC staff has issued and made public numerous advisory opinion letters
containing detailed analyses of specific proposed health care collaborations. These letters
have helped the requesting parties avoid potentially unlawful conduct as they seek to
devise new ways of responding to the demands of the marketplace. They also have
provided further guidance to the health care industry as a whole. See, e.g., Letter from
Markus H. Meier, Fed. Trade Comm’n, to Michael E. Joseph, Esq., McAfee & Taft, Re:
Norman PHO Advisory Opinion, Feb. 13, 2013, https://www.ftc.gov/sites/default/
files/documents/advisory-opinions/norman-physician-hospital-organization/
130213normanphoadvltr_0.pdf; Letter from Markus H. Meier, Fed. Trade Comm’n, to
Christi Braun, Ober, Kaler, Grimes & Shriver, Re: TriState Health Partners, Inc.
Advisory Opinion, Apr. 13, 2009, https://www.ftc.gov/sites/default/files/documents/
advisory-opinions/tristate-health-partners-inc./090413tristateaoletter.pdf; Letter from
Markus Meier, Fed. Trade Comm’n, to Christi Braun & John J. Miles, Ober, Kaler,
Grimes & Shriver, Re: Greater Rochester Independent Practice Association, Inc.
Advisory Opinion, Sept. 17, 2007, https://www.ftc.gov/sites/default/files/documents/
advisory-opinions/greater-rochester-independent-practice-association-inc./gripa.pdf.
23 Edith Ramirez, Antitrust Enforcement in Health Care – Controlling Costs, Improving
Quality, 371 NEW ENG. J. M ED. 2245 (2014),
http://www.nejm.org/doi/pdf/10.1056/NEJMp1408009. See also Deborah L. Feinstein,
Dir., Bureau of Competition, Remarks at the Fifth National Accountable Care
Organization Summit in Washington, DC: Antitrust Enforcement in Health Care:
Proscription, not Prescription (June 19, 2014), https://www.ftc.gov/system/files/
documents/public_statements/409481/140619_aco_speech.pdf (“We continue to hear
claims that antitrust principles are at odds with the mandates of the Affordable Care Act.
I believe these arguments misunderstand the focus and intent of federal antitrust
enforcement. . . . In the final analysis, our actions make clear the important role of
antitrust in health care policy. Ultimately, we believe that the imperatives of developing
lower cost, higher quality health care can coexist with continued enforcement of the
antitrust laws.”); Commissioner Julie Brill, Fed. Trade Comm’n, Keynote Address at the
Catalyst For Payment Reform 2013 National Summit on Provider Market Power:
Promoting Healthy Competition in Health Care Markets: Antitrust, the ACA, and ACOs
(June 11, 2013), https://www.ftc.gov/sites/default/files/documents/public_statements/
promoting-healthy-competition-health-care-markets-antitrust-aca-and-acos/

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130611cprspeech.pdf.
24 Feinstein, supra note 23.
25 See Brill, supra note 23 (“Antitrust law permits providers to engage in a wide array of
legitimate collaborative activities, including ACO [Accountable Care Organization]
arrangements, as well as many mergers and consolidations, so long as the conduct is
likely to promote consumer welfare through lower cost or improved quality.”).
26 Phoebe Putney, 133 S. Ct. at 1010 (quoting FTC v. Ticor Title Ins. Co., 504 U. S. 621,
636 (1992)). See also North Carolina State Bd. of Dental Exam’rs, 135 S. Ct. at 1117
(“The Sherman Act protects competition while also respecting federalism. It does not
authorize the States to abandon markets to the unsupervised control of active market
participants, whether trade associations or hybrid agencies. If a State wants to rely on
active market participants as regulators, it must provide active supervision if state-action
immunity under Parker is to be invoked.”).
27 Phoebe Putney, 133 S. Ct. at 1015 (state legislature’s objective of improving access to
affordable health care does not logically suggest contemplation of anticompetitive means,
and “restrictions [imposed upon hospital authorities] should be read to suggest more
modest aims.”). As the U.S. Court of Appeals for the Fourth Circuit has observed,
“[f]orewarned by the [Supreme Court’s] decision in National Society of Professional
Engineers . . . that it is not the function of a group of professionals to decide that
competition is not beneficial in their line of work, we are not inclined to condone
anticompetitive conduct upon an incantation of ‘good medical practice.’” Va. Acad. of
Clinical Psychologists v. Blue Shield of Va., 624 F.2d 476, 485 (4th Cir. 1980).
28 In general, the Supreme Court has flatly rejected the notion that members of the
learned professions should be free from antitrust scrutiny: “The nature of an occupation,
standing alone, does not provide sanctuary from the Sherman Act . . . nor is the public-
service aspect of professional practice controlling in determining whether § 1 includes
professions.” Goldfarb v. Va. State Bar, 421 U.S. 773, 787 (1975). See also Nat’l Soc’y
Prof’l Eng’rs, 435 U.S. at 695 (Supreme Court rejection of argument that competition
itself poses a “potential threat . . . to the public safety”); FTC v. Indiana Fed’n of
Dentists, 476 U.S. 447 (1986).
29 FTC & DOJ, IMPROVING HEALTH C ARE, supra note 9, at 14.
30 ANTITRUST M ODERNIZATION C OMM’N, R EPORT AND R ECOMMENDATIONS 335 (2007),
http://govinfo.library.unt.edu/amc/report_recommendation/amc_final_report.pdf.
31 Ramirez, supra note 23.
32 Feinstein, supra note 23. There is a growing body of empirical research showing that
increased concentration among health care providers results in higher prices without
offsetting improvements in quality. See, e.g., Martin Gaynor & Robert Town, The Impact
of Hospital Consolidation – Update (Robert Wood Johnson Found., Synthesis Project
Report, June 2012), http://www.rwjf.org/content/dam/farm/reports/issue_briefs/
2012/rwjf73261.
33 See Adirondack Health Institute PPS Organizational Application, supra note 2, at 44-

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45, 54-63 (listing 95 participating health care providers, including 9 of the 13 hospitals
and more than half of the primary care physicians in this region); Advocate Community
Partners PPS Organizational Application, supra note 3, at 20 (describing this as “one of
New York’s largest PPSs” consisting of: AW Medical Office, PC, a primary care medical
practice representing over 2,500 providers, including over 2,000 physicians, belonging to
8 IPAs and 3 Medicare ACOs; New York Community Preferred Partners, which is
formed by AW’s IPAs and ACOs, in partnership with a Federally Qualified Health
Center; North Shore Long Island Jewish Health System, a premier health system with 17
hospitals, including 5 in this PPS’s region, and a broad range of other facilities; MediSys
Health Network (the sole corporate member of Jamaica Hospital and Flushing Hospital);
St. Barnabas Hospital; Lutheran Medical Center; New York Methodist Hospital; Mt.
Sinai Hospital; and Montefiore Medical Center); and Staten Island PPS Organizational
Application, supra note 4, at 6 (stating that this PPS would include Staten Island’s only
two acute care hospitals, which have a combined share of 86 percent of all Medicaid
discharges and 90 percent of all self-pay discharges); id. at 10 (stating that in addition to
these two hospitals, the Staten Island PPS partners will include over 50 health care
providers, including skilled nursing facilities, mental health and substance abuse
providers, home care agencies, primary care practitioners, Federally Qualified Health
Centers, and community based organizations).
Many other DSRIP PPSs also include huge numbers of participating health care
providers, but they have not applied for COPA status. It is possible that the FTC could
have concerns about some of these PPSs if they engage in activities that violate the
antitrust laws.
34 See Adirondack Health Institute PPS Organizational Application, supra note 2, at 7
(describing how “negotiating with private entities increases anti-trust risk” and that
“[t]here are ongoing anti-trust concerns for the PPS.”).
35 See Adirondack Health Institute PPS Organizational Application, supra note 2, at 39
(referencing anticipated collaboration on pay-for-performance initiatives and contract
negotiations); Advocate Community Partners PPS Organizational Application, supra note
3, at 76-77 (describing the intention of the PPS participants to collectively enter into
value-based contractual arrangements with Medicaid managed care organizations); and
Staten Island PPS Organizational Application, supra note 4, at 70 and 72 (“The SI PPS
has already initiated discussion with MCOs around the transition to value based
reimbursement and will continue discussions to specifically develop reimbursement
models to support PPS providers, particular[ly] fragile safety net providers.”).