FTC to Explore Antitrust Waivers for ACOs

Some federal antitrust laws could be waived if they hinder the creation of effective accountable care organizations, senior federal officials told healthcare leaders on Tuesday.

"From an antitrust perspective, we want to explore whether we can develop safe harbors so doctors, hospitals, and other medical professionals know when they can collaborate and when they cannot," Federal Trade Commission Chairman Jon Leibowitz said, in opening remarks at Tuesday's FTC/Centers for Medicare & Medicaid Service Workshop on ACOs.

"We are also considering whether we can put in place an expedited review process for those ACOs that fall outside of the safe harbors," he said.

Health and Human Services Inspector General Daniel R. Levinson told the workshop that fraud and abuse rules enforced by his office should not stand in the way of improving quality and reducing costs through ACOs.

"As the Medicare and Medicaid programs incorporate and test new payment and delivery models, there is a need for fresh thinking about program integrity and the types of risks faced by our programs and beneficiaries," Levinson said. 

He noted that the Affordable Care Act gives HHS Secretary Kathleen Sebelius the authority to waive fraud and abuse laws "as necessary" and that "we and our HHS colleagues are looking closely at how the secretary might exercise this authority most effectively."

CMS Administrator Don Berwick, MD, told the group that flexibility was needed because ACOs represent a fundamental shift in the way healthcare is delivered. "The ACO is not the status quo repackaged. It is a new and better way to organize care and it involves changes for almost every stakeholder. Further, there is no one-size-fits-all model. I suspect there will be many different (models) needed to match the enormous diversity of settings and communities and histories in this textured nation," he said.

Leibowitz conceded that the healthcare sector holds a level of distrust towards the federal government in general, and the FTC in particular. "Too often, I believe, the healthcare community sees our antitrust enforcement actions as impeding improved care. If there is any stereotype I would like to disabuse you of today—that's the one," he said.