ACO Alerts: Antitrust & Exempt-Status Implications

The impact of ACO agreements on the cost of healthcare is another concern for the FTC and DOJ. Regier says they will be watching to see if ACOs “tie up, in an anticompetitive way, contracts with private insurance carriers that affect market access, and if these exclusive dealings impact the cost of care for consumers.”

The agencies wrote, “Under certain conditions, ACOs could reduce competition and harm consumers through higher prices or lower quality care. … For ACOs that may have market power, the policy statement identifies additional conduct that, depending on the circumstances, may prevent private insurers from obtaining lower prices and better quality services for their enrollees.”

In addition to this guidance, the proposed guidelines include two other significant changes:

1. Coverage was expanded to “all provider collaborations that are eligible and intend, or have been approved, to participate in the Medicare shared savings program. The policy statement no longer applies only to collaborations formed after March 23, 2010.”
2. The antitrust review was changed from mandatory to an expedited, 90-day voluntary review.

The shift to a voluntary antitrust review, in particular, is a time- and money-saver for healthcare organizations, says Regier. “I’ve been through these reviews and it can cost hundreds of thousands in administrative costs to complete even if there aren’t any anticompetitive implications, and it’s a long process. So this is great news,” he says.

In addition to the agencies’ joint policy statement, the IRS also revised the ACO participant tax-exempt guidelines.