FTC Staff Comment to the West Virginia House of Delegates Regarding SB 597 and the Competitive Implications of Provisions Regarding "Cooperative Agreements" Between -- and Possible Exemptions From the Federal Antitrust Laws For -- Health Care Providers

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Office of Policy Planning
Bureau of Economics
Bureau of Competition
March 9, 2016
The Hon. Mike Pushkin
West Virginia House of Delegates
Room 150R, Building 1
State Capitol Complex
Charleston, WV 25305
Re: West Virginia Senate Bill 597
Dear Delegate Pushkin:
The staffs of the Federal Trade Commission’s Office of Policy Planning, Bureau
of Competition, and Bureau of Economics (“FTC staff” or “staff”)1 appreciate the
opportunity to respond to your invitation to comment on West Virginia Senate Bill 597
(“S. 597” or the “Bill”),2 particularly the provisions relating to the federal antitrust laws.
The Bill includes numerous provisions regarding the goals and organization of
health care regulation in West Virginia, and this comment does not address most of these
provisions. FTC staff recognize the state’s important interest in the health and well-being
of its citizens, and we do not seek to suggest to West Virginia a preferred balance of
health, safety, and other policy priorities. Neither do we express opinions on the
organization of regulatory agencies by which the legislature might try to achieve such a
balance.
FTC staff write to express strong concerns about the competitive implications of
two sets of provisions in the Bill: provisions regarding certain “cooperative agreements”3
between health care providers; and provisions purporting to confer “exemptions” from
federal antitrust laws on health care providers.4
The drafters of those provisions appear to share our interest in the competitive
effects of such cooperative agreements, and also appear to acknowledge the relevance of
policy statements and antitrust guidance issued by the FTC (or jointly by the FTC and the
U.S. Department of Justice, collectively, “the Antitrust Agencies” or the “Agencies”).
The Agencies and their staffs have been clear and consistent in recognizing that many
collaborations among health care providers can be efficient and beneficial. We are
concerned, however, that the relevant provisions of the Bill reflect mistaken beliefs about
the antitrust laws and the value of competition among health care providers. If enacted,
these provisions will very likely benefit only certain providers, and will do so by harming
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

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health care competition and health care consumers in West Virginia. These provisions
may also tend to decrease the quality of health care services in West Virginia. Our main
concerns are as follows:
• 	First, the antitrust laws permit health care collaborations that benefit
consumers. As the federal Antitrust Agencies have explained, many
competitor collaborations – including health care provider collaborations
and mergers –are efficient and procompetitive, and are therefore lawful.
• 	Second, because the antitrust laws already permit procompetitive health
care collaborations, the Bill’s main effect would be to foster precisely
those mergers and collective negotiations that would not generate
efficiencies and therefore would not pass muster under the antitrust laws.
Therefore, the collaborative agreements contemplated by the Bill would
likely increase health care costs, diminish incentives to improve quality,
and decrease access to health care services for West Virginia consumers.
I. 	Interest and Experience of the Federal Trade Commission
Congress has charged the Federal Trade Commission (“FTC” or “Commission”)
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 The FTC
also enforces Section 7 of the Clayton Act, which prohibits transactions that may
substantially lessen competition or tend to create a monopoly.6 Competition is at the core
of America’s economy,7 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.8 Pursuant to its statutory mandate, the FTC
seeks to identify business practices and governmental laws and regulations that may
impede competition without also 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,9 research,10 and advocacy.11 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.12
II. 	Senate Bill 597
As noted above, the Bill includes a variety of provisions regarding the goals and
organization of health care regulation in West Virginia. This comment focuses on a
limited number of those provisions. FTC staff are concerned about the potential
competitive implications of the Bill’s “cooperative agreements” and its provisions
purporting to confer “exemptions” from federal antitrust laws.
With respect to exemptions, the Bill asserts that,

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Actions of the authority shall be exempt from antitrust action under state
and federal antitrust laws. Any actions of hospitals and health care
providers under the authority’s jurisdiction, when made in compliance
with orders, directives, rules, approvals or regulations issued or
promulgated by the authority, shall likewise be exempt. Health care
providers shall be subject to the antitrust guidelines of the federal trade
commission and the department of justice.13
Thus, the Bill apparently seeks to confer an exemption from the antitrust laws on
“any” actions by hospitals and other health care providers that fall under the jurisdiction
of the newly constituted West Virginia Health Care Authority (the “Authority”) and
comply with the Authority’s regulations or administrative decisions.
Proposed Section 16-29B-28 contemplates “cooperative agreements” – including,
but not limited to, mergers and acquisitions – among health care providers, as long as one
of the providers is “a teaching hospital which is a member of an academic medical
center.”14 The other party or parties to the cooperative agreement need be only “one or
more other hospitals, or other health care providers.”15 These cooperative agreements
presumably would vary widely depending on the parties, and might broadly contemplate
“the sharing, allocation, consolidation by merger or other combination of assets, or
referral of patients, personnel, instructional programs, support services, and facilities or
medical, diagnostic, or laboratory facilities or procedures or other services traditionally
offered by hospitals or other health care providers.”16
According to the Bill, such agreements are supposed to be desirable “if the likely
benefits of such agreements outweigh any disadvantages attributable to a reduction in
competition.”17 In particular,
[T]he goal of any cooperative agreement would be to:
(A) Improve access to care;
(B) Advance health status;
(C) Target regional health issues;
(D) Promote technological advancement;
(E) Ensure accountability of the cost of care;
(F) Enhance academic engagement in regional health;
(G) Preserve and improve medical education opportunities;
(H) Strengthen the workforce for health-related careers; and
(I) Improve health entity collaboration and regional integration, where
appropriate.18
In addition, the Bill stipulates various ways in which such cooperative
agreements and antitrust exemptions should comply with competition guidance
and policy statements issued by the Antitrust Agencies. For example,

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[i]f the cooperative agreement involves a combination of hospitals
through merger, consolidation or acquisition, the qualified hospital
must have been awarded a certificate of need for the project by the
authority . . . . [and] [i]n reviewing a certificate of need application
the authority shall give deference to the policy statements of the
Federal Trade Commission.19
Moreover, as noted above, the provision that purports to confer an exemption
from the antitrust laws on health care providers stipulates that those providers
“shall be subject to the antitrust guidelines of the federal trade commission and
the department of justice.”20
III. 	The Bill Is Unnecessary Because the Antitrust Laws Already Permit
Efficient Health Care Collaborations
The Bill assumes that antitrust laws prohibit efficient health care mergers,
acquisitions, and collaborations to the detriment of health care and consumers in West
Virginia. That assumption is simply and categorically wrong.
FTC staff recognize that cooperation among competing health care providers
often can benefit competition and health care consumers. The stated ends of the Bill’s
“cooperative agreements” are not objectionable and may often be the welcome results of
robust provider competition. We nonetheless have two basic concerns about the
“cooperative agreement” provisions. First, to the extent that federal and state antitrust
laws already apply to such cooperative agreements, and to the extent that West Virginia
certificate of need laws already apply to entry or expansion by health care providers, the
need for new regulatory oversight of such cooperative agreements is unclear. It is,
potentially, an undue additional regulatory barrier to procompetitive agreements. Second,
to the extent that the Bill purports to confer antitrust immunity on such cooperative
agreements, as well as other entities and conduct subject to the jurisdiction of the
Authority, the combined effect of the cooperative agreement provisions and the
exemption provisions seems, if anything, both unnecessary and likely harmful.
The antitrust laws already recognize, and have long stood for the proposition, that
competitor collaborations can be procompetitive. As explained in numerous sources of
guidance issued by the Antitrust Agencies,21 this position extends to collaborations – or
“cooperative agreements” – among competing health care providers. For example,
statements issued jointly by the Agencies recognize that, “[n]ew arrangements and
variations on existing arrangements involving joint activity by health care providers
continue to emerge to meet consumers’, purchasers’, and payors’ desire for more efficient
delivery of high quality health care services.”22 More recently, FTC officials have
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

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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
With respect to mergers in particular, the Horizontal Merger Guidelines issued
jointly by the Antitrust Agencies recognize that merger-generated efficiencies “may
result in lower prices, improved quality, enhanced service, or new products.”24 Those
efficiencies are assessed in merger investigations and weighed against the potential
anticompetitive harm stemming from a merger or acquisition. For those reasons, and
because many mergers do not threaten competition, the 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.”25 These outcomes confirm that the antitrust laws
already balance likely benefits and competitive harms, as suggested by S. 597, and
therefore already accomplish many of the Bill’s objectives.
Moreover, the goals of antitrust law are consistent with the policy goals of
fostering the integration of health care via collaboration among health care providers
through, for example, the formation of Accountable Care Organizations.26 Despite what
some health care industry participants have claimed, the antitrust laws do not prohibit the
kinds of collaboration necessary to achieve the health care reforms contemplated by the
Affordable Care Act and other policy initiatives.27 Specifically, antitrust is not a barrier
to West Virginia health care providers that 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.
IV. 	Conferring Market Power on Otherwise Competing Health Care Providers
Poses a Substantial Risk of Consumer Harm
FTC staff understand that West Virginia may take particular interest in its
academic medical centers. Still, given that antitrust law allows efficient collaborations
among health care providers, FTC staff are deeply concerned that the Bill would mainly
serve to encourage mergers and conduct that likely would not pass muster under the
antitrust laws because they would reduce competition, raise prices, diminish incentives to
improve quality, and provide relatively small or no benefits to consumers.
Even though the “cooperative agreements” contemplated by the Bill are supposed
to include a teaching hospital, they also would include “one or more other hospitals, or
other health care providers,” independent of any teaching mission those other providers
might or might not share.28 Hence, any competitive harm inflicted by such agreements
might originate from the loss of competition between two or more other hospitals, or
other health care providers, and the effects might spread well beyond a teaching hospital.
Any effort to shield such harmful conduct from antitrust enforcement – including

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attempts to confer state action immunity – is likely to harm West Virginia’s health care
consumers, including patients as well as both public and private third-party payors.
In its 2007 report, the Congressionally established, bipartisan Antitrust
Modernization Commission29 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.
Yet, health care providers repeatedly have sought antitrust immunity for various
forms of joint conduct, including agreements on the prices they will accept from payors,
asserting that immunity for joint bargaining is necessary to “level the playing field” so
that providers can create and exercise countervailing market power.31 In a 2004 report on
health care competition, the Antitrust Agencies jointly responded to and countered this
argument:
Some physicians have lobbied heavily for an antitrust exemption to allow
independent physicians to bargain collectively. They argue that payors
have market power, and that collective bargaining will enable physicians
to exercise countervailing market power. The Agencies have consistently
opposed these exemptions, because they are likely to harm consumers by
increasing costs without improving quality of care. The Congressional
Budget Office estimated that proposed federal legislation to exempt
physicians from antitrust scrutiny would increase expenditures on private
health insurance by 2.6 percent and increase direct federal spending on
health care programs such as Medicaid by $11.3 billion.32
The Bill under consideration in West Virginia seeks to immunize, and thereby
potentially promote, precisely this form of anticompetitive collaboration between
health care providers.
V. 	Antitrust Exemptions That Immunize Otherwise Anticompetitive Conduct
Pose a Substantial Risk of Consumer Harm and Are Disfavored
The U.S. Supreme Court recently reiterated its long-standing position that, “given
the antitrust laws’ values of free enterprise and economic competition, ‘state-action
immunity is disfavored.’”33 As the Court recognized, this general principle applies with
equal force in the health care industry, where consumers benefit from vigorous
competition, and where anticompetitive conduct can cause significant harm.34 As
discussed above, antitrust law permits many forms of procompetitive collaborations
among health care providers. Antitrust law also serves the important function of
protecting health care consumers from pernicious forms of joint conduct, which is why
antitrust immunity for otherwise anticompetitive provider collaborations is likely to harm
consumers.

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VI. 	Conclusion
Competitor collaborations, mergers, and acquisitions, can be procompetitive,
benefitting patients and payors alike. Interest in such “cooperative agreements” among
health care providers is understandable and, indeed, important. As we have explained,
however, both in this comment and in numerous and detailed guidance documents, the
antitrust laws already permit efficient and pro-consumer collaborations among competing
health care providers, and already permit efficient and pro-consumer mergers. The Bill’s
apparent attempt to confer antitrust immunity is, therefore, unnecessary for legitimate
collaborations and, if effective, would encourage groups of private health care providers
to engage in blatantly anticompetitive conduct.
In summary, FTC staff are concerned that this legislation is likely to foster
mergers and conduct that are anticompetitive, inconsistent with federal antitrust law and
policy, and liable to cause serious harm to West Virginia health care consumers.
We appreciate your consideration of these issues.
Respectfully submitted,
Marina Lao, Director
Office of Policy Planning
Ginger Jin, Director
Bureau of Economics
Markus H. Meier, Acting Deputy Director
Bureau of Competition
Attachments
1 This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Competition, and Bureau of Economics. The letter does not necessarily represent the views of the Federal
Trade Commission (Commission) or of any individual Commissioner. The Commission has, however,
voted to authorize staff to submit these comments.
2 Letter from the Hon. Mike Pushkin, West Virginia House of Delegates, to Marina Lao, Director, Fed.
Trade Comm’n Office of Pol’y Planning (March 9, 2016). Specifically, we write regarding provisions of

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the Committee Substitute for Senate Bill 597 by Senators Ferns and Plymale, Originating in the Senate
Committee on Health and Human Resources; reported on February 16, 2016 [hereinafter S. 597].
3 Id. at § 16-29B-28.
4 Id. at § 16-29B-26.
5 Federal Trade Commission Act, 15 U.S.C. § 45.
6 Clayton Act, 15 U.S.C. § 18.
7 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.”).
8 See Nat’l Soc. of Prof. Engineers 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.”).
9 See generally Fed. Trade Comm’n, An Overview of FTC Antitrust Actions In Health Care Services and
Products (Mar. 2013), https://www.ftc.gov/system/files/attachments/competition-policy-
guidance/hcupdaterev.pdf; see also Fed. Trade Comm’n, Competition in the Health Care Marketplace:
Formal Commission Actions, https://www.ftc.gov/tips-advice/competition-guidance/industry-
guidance/health-care.
10 See, e.g., FED. T RADE COMM ’N & U.S. D EP’T OF J USTICE (“DOJ”), IMPROVING H EALTH C ARE : A D OSE
OF C OMPETITION (2004), http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf [hereinafter FTC
& DOJ, I MPROVING H EALTH 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.
11 FTC and staff advocacy may comprise letters or comments addressing specific policy issues,
Commission or staff testimony before legislative or regulatory bodies, amicus briefs, or reports. See, e.g.,
FTC Staff Letter to the Honorable Theresa W. Conroy, Connecticut House of Representatives, Concerning
the Likely Competitive Impact of Connecticut House Bill 6391 on Advance Practice Registered Nurses
(“APRNs”) (Mar. 2013), https://www.ftc.gov/reports/improving-health-care-dose-competition-report-
federal-trade-commission-department-justice (competitive impact of statutorily required “collaborative
practice agreements” for nurse practitioners); FTC and DOJ Written Testimony Before the Illinois Task
Force on Health Planning Reform Concerning Illinois Certificate of Need Laws (Sept. 2008),
http://www.ftc.gov/os/2008/09/V080018illconlaws.pdf; Brief of the Fed. Trade Comm’n as Amicus Curiae,
St. Joseph Abbey, et al. v. Castille, 712 F.3d 215 (5th Cir. 2013) (No. 11-30756) (refuting argument that
the policies of FTC funeral rule support restrictions of sort challenged by petitioner); FTC & DOJ,
I MPROVING H EALTH C ARE , supra note 10.
12 See, e.g., FTC Staff Comment Regarding Oregon Senate Bill 231A, Which Includes Language Intended
To Provide Federal Antitrust Immunity To Conversations, Information Exchanges, and Agreements Among
Participants (Including Competitors) In Oregon's Health Care Markets (May 2015),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-regarding-oregon-
senate-bill-231a-which-includes-language-intended-provide-federal/150519oregonstaffletter.pdf; FTC Staff
Comment Before the Connecticut General Assembly Labor and Employees Committee Regarding
Connecticut House Bill 6431 Concerning Joint Negotiations by Competing Physicians in Cooperative
Health Care Arrangements (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 the Hon. Elliott Naishtat Concerning Texas S.B. 8 to Exempt Certified Health Care
Collaboratives From the Antitrust Laws (May 2011),
http://www.ftc.gov/os/2011/05/1105texashealthcare.pdf; FTC Staff Comment to Rep. Tom Emmer of the
Minnesota House of Representatives Concerning Minnesota H.F. No. 120 and Senate Bill S.F. No. 203 on

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Health Care Cooperatives (Mar. 2009), http://www.ftc.gov/opp/advocacy/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),
http://www.ftc.gov/os/2008/02/V080001homecare.pdf; FTC Staff Comment Before the Puerto Rico House
of Representatives Concerning S.B. 2190 to Permit Collective Bargaining by Health Care Providers (Jan.
2008); http://www.ftc.gov/os/2008/02/v080003puerto.pdf (all advocacies
http://www.ftc.gov/opp/advocacy_date.shtm). See also Prepared Statement of the Fed. Trade Comm’n
Before the H. Comm. on the Judiciary, Subcomm. on Intellectual Property, Competition, and the Internet
Concerning H.R. 1946, the “Preserving Our Hometown Independent Pharmacies Act of 2011,” Mar. 29,
2012, http://www.ftc.gov/os/testimony/120329pharmacytestimony.pdf.
13 S. 597 at § 16-29B-26. With regard to “antitrust guidelines,” see infra note 19.
14 Id. at § 16-29B-28(a)(2).
15 Id.
16 Id.
17 Id. at §16-29B-28(c).
18 Id. at §16-29B-28(d)(2).
19 Id. at §16-29B-28(d)(4)(A). FTC staff are unclear about the drafter’s intent in this provision. On the one
hand, the Bill contemplates that anticompetitive agreements might be somehow desirable, and it purports to
confer an exemption from the antitrust laws on such cooperative agreements and the parties to them, among
others. On the other hand, the Bill suggests that such agreements should be reviewed “with deference to the
[antitrust] policy statements of the Federal Trade Commission” and that health care providers “shall be
subject to the antitrust guidelines of the federal trade commission and the department of justice.”
20 Id. at §16-29B-28(d)(4)(C).
21 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 joint statements specifically addressing the application of the
antitrust laws to the health care industry, including physician network joint ventures and other provider
collaborations. FED. T RADE COMM ’N & U.S. D EP’T OF J USTICE , ANTITRUST G UIDELINES FOR
COLLABORATIONS AMONG COMPETITORS (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 COMM ’N, STATEMENTS OF
ANTITRUST E NFORCEMENT P OLICY I N 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.

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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.
22 U.S. D EP’T OF J USTICE & FED . T RADE COMM ’N, STATEMENTS OF ANTITRUST E NFORCEMENT P OLICY I N
H EALTH C ARE , supra note 21, at 2.
23 Edith Ramirez, Antitrust Enforcement in Health Care – Controlling Costs, Improving Quality, 371 N EW
E NG. 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/130611cprspeech.pdf.
24 FED. T RADE COMM ’N & U.S. D EP’T OF J USTICE , H ORIZONTAL M ERGER G UIDELINES, 29 (2010),
https://www.ftc.gov/tips-advice/competition-guidance.
25 Feinstein, supra note 23.
26 These widely shared policy goals are central to the Accountable Care Organizations contemplated under
the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 3022, 14 Stat. 119, 395
(“Affordable Care Act”). Ctrs. Medicare & Medicaid Servs., Fast Facts, All Shared Savings Program and
Pioneer ACOs Combined (Apr. 2015) (404 shared savings ACOs and 19 Pioneer ACOs with 7.92 million
assigned beneficiaries in 49 states plus Washington, DC and Puerto Rico). The FTC has not challenged any
of these 423 ACOs.
27 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.”).
28 S. 597 at § 16-29B-28(a)(2).
29 The Antitrust Modernization Commission was created pursuant to the Antitrust Modernization
Commission Act of 2002, Pub. L. No. 107-273, §§ 11051-60, 116 Stat. 1856.
30 ANTITRUST M ODERNIZATION COMM ’N, REPORT AND RECOMMENDATIONS 335 (2007),
http://govinfo.library.unt.edu/amc/report_recommendation/amc_final_report.pdf.
31 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 Engineers v. United States, 435 U.S. 679, 695 (1978) (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).
32 FTC & DOJ, IMPROVING H EALTH C ARE , supra note 10, at 14. For example, a recent FTC enforcement
action concerned “an agreement among eight independent nephrologists in southwestern Puerto Rico to fix
the prices and the conditions under which they would participate in “Mi Salud,” the Commonwealth of
Puerto Rico’s Medicaid program for providing healthcare services to indigent residents. In furtherance of
their conspiracy, Respondents collectively terminated their participation in the Mi Salud program in

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southwestern Puerto Rico after the program’s regional administrator . . . refused to accede to Respondents’
demands to restore a cut in reimbursements for certain patients eligible for benefits under both Medicare
and Mi Salud (“dual eligibles”). After Respondents terminated their service agreements with Humana, they
refused to treat any of Humana’s Mi Salud patients.” In the Matter of Práxedes E. Alvarez Santiago, M.D.,
Daniel Pérez Brisebois, M.D., Jorge Grillasca Palou, M.D., Rafael Garcia Nieves, M.D., Francis M.
Vázquez Roura, M.D., Angel B. Rivera Santos, M.D., Cosme D. Santos Torres, M.D., and Juan L. Vilaró
Chardón, M.D., FTC File No. 121-0098, C-4402 (Complaint), 2 (May 3, 2013),
http://ftc.gov/os/caselist/1210098/130503prnephrologistscmpt.pdf.
33 FTC v. Phoebe Putney Health System, Inc., 133 S. Ct. 1003, 1010 (2013) (quoting FTC v. Ticor Title
Ins. Co., 504 U. S. 621, 636 (1992)); see also North Carolina State Bd. of Dental Examiners v. FTC, 135 S.
Ct. 1101, 1117 (2015) (no state action immunity for dental board that sought to exclude non-dentist
competitors in teeth whitening services).
34 FTC v. 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.’” Virginia Acad. of Clinical Psychologists v. Blue Shield of
Virginia, 624 F.2d 476, 485 (4th Cir. 1980).