Assessing Risk from Healthcare Provider Mergers: Why, When, and How

Since 2007, the Federal Trade Commission has been extremely active and successful in challenging mergers between providers under the antitrust laws. Some believe that this increased activity flies in the face of the Affordable Care Act, which, in several ways, encourages more provider integration and coordination in the delivery of healthcare. Given this increased FTC enforcement activity, it is important that providers, their counsel, health plans, and others in the healthcare sector understand the reasons for this activity, how these transactions are analyzed under the antitrust laws, including when they likely will be investigated and challenged, and the relationship between the antitrust laws and the Affordable Care Act.

This seminar, presented by Jeff Miles of Ober Kaler, provides an overview of these and other important questions and issues relating to the application of the antitrust laws to merger between healthcare providers. After a brief discussion of the history and background of provider-merger antitrust challenges, Mr. Miles explains the current enforcement environment, the need for early legal advice, and, relying primarily on recent decisions and the federal government’s Merger Guidelines, how the agencies investigate and determine whether to challenge particular provider mergers. A key part of the presentation are discussions of the variables the agencies and courts consider in determining whether a provider merger raises potential competitive concern, the circumstances in which a challenge is likely, the various defenses the merging providers might raise, and how those defenses have fared at the FTC and in court. Mr. Miles concludes the seminar with predictions about whether this flurry of activity likely will continue in the future and its effect on the efficient delivery of healthcare.

Learning Objectives:

I.      Understand the current enforcement environment and the risks that provider mergers can create

II.     Describe the antitrust counsel’s important early role in merger discussions

III.    Provide practical advice in responding to a government investigation

IV.    Identify how the agencies and courts analyze the competitive effects of provider mergers

V.     Offer sufficient information so parties can generally assess the antitrust risk from particular provider mergers

VI.    Summarize the relationship between the antitrust laws and the Affordable Care Act