Becker's ASC Review

26 TRANSACTIONS DOJ axes 3 antitrust healthcare policies, 'vigorous' enforcement ahead By Laura Dyrda T he Justice Department paved the way to more closely scrutinize healthcare mergers, acquisitions and collaborations by withdrawing three antitrust policy statements. ASC owners and operators watch antitrust rules closely, as many markets have consolidated over the years. e antitrust rules govern joint ventures, mergers and group purchasing, according to a JDSupra report penned by John Carroll, David Garcia and Bevin Newman of Sheppard Mullin Richter & Hampton. e three withdrawn policy statements are: 1. Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Arena 2. Statements of Antitrust Enforcement Policy in Health Care 3. Statements of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program e policy statements were issued between 1993 and 2011, and the Justice Department now finds them "overly permissive" on subjects including information sharing. e DOJ's Feb. 3 statement reads: "Recent enforcement actions and competition advocacy in healthcare provide guidance to the public, and a case-by-case enforcement approach will allow the Division to better evaluate mergers and conduct in healthcare markets that may harm competition." e Biden administration has directed the Federal Trade Commission to be tough on anticompetitive behavior, and this move will mean more scrutiny on healthcare deals and collaborations. "e withdrawal of the Healthcare Statements also means that activities that previously may have presented low antitrust risk, such as those within the antitrust enforcement safety zones, may now be in the Agencies' crosshairs," according to the JDSupra report. "e Agencies have steadily expanded their enforcement activity and have adopted ever broader positions concerning their enforcement authority under the current leadership, so the healthcare industry should expect this announcement to portend increasingly vigorous federal antitrust enforcement in the healthcare space." n New York bill calls for oversight on private practice transactions By Patsy Newitt A bill introduced in the 2024 New York State Executive Budget would require regulatory review for certain physician practice and management service organization transactions. According to a Feb. 8 article in JDSupra by law firm Holland & Knight, the bill is spurred by an increase in physician practices managed by investor-backed entities that could have a negative impact on healthcare costs and access. The bill targets private practice acquisitions and MSO- and private equity-backed transactions. If passed, the state Department of Health would have the authority to review and approve MSO mergers, acquisitions, affiliations and investments involving physician practices. MSOs would need to submit a written notice and application for consent to the department at least 30 days before the expected closing date. If the department does not act on the application within the 30-day period, the transaction would be deemed approved. Applicants would also be required to disclose any plans to eliminate services in plan networks, identify the revenue generated at each practice and provide a description of the purpose of the transaction. Additionally, like many certificate-of-need policies, the bill allows for public comment. If passed, the law is "bound to have a significant impact on healthcare transactions in New York," according to the article. "Physicians and management services organizations, whether or not private equity-backed, that have long enjoyed entering into business relationships without regulatory scrutiny will be obligated to undergo a detailed review process." The bill is expected to face "formidable opposition," the article added. n

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