FTC to Explore Antitrust Waivers for ACOs

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.