FTC Encourages Health Care Collaboration in Response to COVID-19 Pandemic

April 1, 2020 

By John Marren and Tom Babbo.

Here is the latest information from the FTC. 

In an unprecedented move, the nation’s antitrust enforcement agencies, the Federal Trade Commission and U.S. Department of Justice released guidance last week that encourages hospitals, health systems, and medical groups to collaborate with each other as they respond to the COVID-19 pandemic.

The notifications, available here https://www.ftc.gov/news-events/press-releases/2020/03/ftc-doj-announce-expedited-antitrust-procedure , here https://www.justice.gov/atr/joint-antitrust-statement-regarding-covid-19, and here  https://www.ftc.gov/system/files/documents/public_statements/1569593/statement_on_coronavirus_ftc-doj_3-24-20.pdf make four very important points:

1. Otherwise competing doctors, hospitals, and other health care professionals and facilities continue to have the ability to lawfully create joint ventures with each other in ways that create “cognizable efficiencies” – i.e., efforts that drive better quality, more efficient, less costly care to patients in communities afflicted by COVID-19. 
2. These joint ventures can include collective activities that don’t involve sharing price and other competitively sensitive information or even efforts to achieve clinical integration as health systems strive to coordinate and rationalize care.
3. Responding to the COVID-19 pandemic will likely require such procompetitive collaborations among health care providers.
4. The FTC and DOJ commit to expedite their review process for such collaborations, including an extremely rapid, 7-day response for an FTC advisory opinion or DOJ Business Review Letter.     

In the coming days, weeks, and months, hospitals, doctors, health systems, and other health care providers will need to work together to keep our communities safe and healthy.  For our part, the health care practice at HMBR remains willing and able to assist you in joining together in ways that are lawful, clinically effective, and market ready.