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Analysis

FTC, DOJ Issue New Antitrust Procedure and Guidance in Response to COVID-19

By Melanie Blackman  
   March 30, 2020

With this new procedure in place, response time to partnerships and procompetitive collaboration among health systems and hospitals and outside businesses are expedited amid COVID-19 needs.

The Antitrust Division of the U.S. Department of Justice (DOJ) and the Bureau of Competition of the Federal Trade Commission (FTC) released a joint antitrust statement to expedite the response time for approving procompetitive collaboration for COVID-19–related requests.

The new expedited procedure is "solely" for COVID-19–related requests from healthcare organizations and businesses wanting to partner to address public health and safety and will ensure a faster statement review and response time of no more than seven calendar days. This enables faster partnerships between healthcare facilities to ensure communities possess the proper resources and services. These partnerships may also include aligning with outside businesses for production and distribution of COVID-19–related supplies. In the past, the statement response time could take up to several months.

According to FTC Chairman Joe Simons in a press release, "Under these extraordinary circumstances, we understand that businesses collaborating on public health initiatives may need an expedited response from U.S. antitrust authorities. We are committed to doing everything we can to help with these efforts, while continuing to aggressively enforce the antitrust laws."

In addition, in their joint statement, the FTC and the DOJ cite collaborative activities "that would likely be consistent with the antitrust laws" if immediate action is needed from procompetitive collaborations between healthcare systems and businesses to address the pandemic.

These instances wouldn't need to wait for a statement from the FTC and DOJ.

The following partnerships follow guidelines consistent with antitrust laws:

  • Collaboration on research and development
  • Sharing general technical know-how without entrusting sensitive information
  • Providers' suggested practice parameters to assist in clinical decision-making
  • Joint purchasing agreements among healthcare providers when done to increase efficiency of procurement and to reduce transaction costs
  • Private lobbying addressed to the use of federal emergency authority to discuss strategies around COVID-19

The FTC and DOJ also warn that any criminal violations of the antitrust laws will end in prosecution, and the agencies stand ready to pursue any civil violations of the antitrust laws.

“We are committed to doing everything we can to help with these efforts, while continuing to aggressively enforce the antitrust laws.”

Melanie Blackman is the strategy editor at HealthLeaders, a Simplify Compliance brand.

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