QUESTION:
Did the Department of Justice – Antitrust Division (“DOJ”) recently withdraw its support for several safe harbors from enforcement actions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY NICHOLAS CALABRESE:
Yes. On February 3, 2023, the DOJ Antitrust Division withdrew from what it called “three outdated antitrust policy statements related to enforcement in healthcare markets.”  The three policy statements are “Department of Justice and FTC Antitrust Enforcement Policy Statement in the Health Care Area” issued in 1993; “Statements of Antitrust Enforcement Policy in Health Care” from 1996; and “Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” issued in 2011.

The policy statements addressed issues such as antitrust safety zones for:  hospital mergers; hospital joint ventures that encompass expensive medical equipment; and joint purchasing arrangements between health care providers, among other things.

Although new guidance may be coming at some point, for now, the Antitrust Division stated “[r]ecent 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.”