FTC, DOJ Open ACO Antitrust Guidelines to Public Comment

Depending on an ACO's range of PSA shares, CMS may mandate, or an ACO may choose to seek, an expedited antitrust review. An ACO will submit its request for an expedited 90-day review to both the FTC and DOJ, and the agencies will determine which of the two will review the request. In addition, the FTC and DOJ will establish a Joint ACO Working Group to discuss issues arising out of ACO reviews.

The two agencies have opened a public comment period on the proposed policy statement through May 31 on issues including:

• Whether the proposed policy statement should be changed in any respect;
• Whether other data sources exist that ACO applicants could use to determine relevant PSA shares for: 1) physician services rarely used by Medicare beneficiaries (e.g., pediatrics, obstetrics); and 2) inpatient hospital services located in states where all-payer hospital discharge data are unavailable; and
• Whether providing the documents and information for an expedited antitrust review will present an undue burden on ACO applicants.

Comments can be submitted electronically here.  The proposed policy statement can be found here.