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

(119 Ratings)

Produced on: June 16, 2015

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 94 minutes
Difficulty Intermediate

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

 

Faculty

John Miles

Baker Donelson

Experience

Jeff Miles, Counsel in the Washington office, is a nationally recognized authority on antitrust law, particularly antitrust issues affecting the health care sector. Formerly chair of the Antitrust and Competition Group at Ober Kaler, he has practiced antitrust law for over 35 years, representing primarily hospitals, health care systems, hospital networks, physician practices, and physician contracting networks. His work focuses on provider mergers, joint ventures, contracting networks, and other affiliations, as well as on provider and health-plan exclusionary conduct. His practice consists primarily of antitrust counseling and representation of parties in investigations by the Antitrust Division, Federal Trade Commission, and state attorneys general.

 

Prior to private practice, Jeff was a trial attorney with the Antitrust Division of the U.S. Department of Justice, where most of is work related to health care antitrust enforcement. While there, he received a special commendation award from the Attorney General of the United States for serving as lead counsel in the government’s first successful hospital-merger challenge. Prior to his service with the Antitrust Division, he was the assistant attorney in charge of the Virginia Attorney general’s Antitrust Unit. He holds undergraduate and graduate degrees in economics from Virginia Tech and a law degree from the Washington & Lee University School of Law, where he graduated with high honors and was associate editor of the Washington & Lee Law Review.

 

Jeff’s work includes the successful representation of a four-hospital merger in the northeast in a Federal Trade Commission investigation; a hospital contracting network in investigations by the Antitrust Division and a state attorney general; the defendant health system in Little Rock Cardiology Clinic v. Baptist Health, 591 F.3d 591 (8th Cir. 2009); a defendant professional association in Neotonus, Inc. v. American Med. Ass’n, 554 F. Supp. 2d 1368 (N.D. Ga. 1997), aff’d, 270 Fed. App’x 813 (11th Cir. 2008); an IPA executive in Maine Health Alliance, 136 F.T.C. 616 (2003); a large physician practice in Read v. Med. X-Ray Ctr., 110 F.3d 543 (1997), and hospitals in White v. Rockingham Radiologists, 820 F.2d 98 (4th Cir. 1987), Friedman v. Del. County Mem’l Hosp., 672 F. Supp. 171 (E.D. Pa. 1987), aff’d, 849 F.2d 600 (3d Cir. 1988) (table), and Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68 (3d Cir. 1983). He has represented a number of physician contracting networks and merging hospitals in FTC, Antitrust Division, and state attorney general investigations resulting in consent decrees, and he obtained the first two FTC staff advisory opinions approving clinically integrated physician networks.

 

Jeff wrote and annually updates the six-volume Health Care & Antitrust treatise published by Thomson Reuters/Westlaw and has written or co-written number of other books, book chapters, law review articles, and shorter articles and papers dealing with almost every type of antitrust issue. He frequently lectures and presents papers on antitrust subjects to various bar and health care organizations, and he is an adjunct professor of law at the Washington & Lee University School of Law, where he teaches the antitrust law course.

 

Professional Memberships

  • American Bar Association
    • Section of Antitrust Law
    • Health Care Committee
    • Section of Health Law
  • American Economic Association
  • American Health Lawyers Association
    • Fellow, 2012
    • Board of Directors, Former Member
    • Antitrust Practice Group, Former Chair and Vice Chair
    • Mentoring Program 
    • Public Interest Contributor
  • District of Columbia Bar Association
    • Antitrust Law Section
  • Virginia State Bar
    • Co-founder, Past Chair, and Past Board of Governors Member, Antitrust Law Section 

    Honoraries

    • Listed in Chambers USA, America's Leading Business Lawyers – Healthcare (DC), 2010, 2013-2015; Healthcare: Regulatory and Litigation (Nationwide), 2011-2015
    • Listed in Washington, DC Super Lawyers, 2013-2015
    • Listed in The Legal 500, 2012
    • Listed since 2006 in The Best Lawyers in America, Antitrust Law and Litigation-Antitrust Categories (Woodward/White, Inc.)
    • Listed in Expert Guides to the Leading Lawyers – Best of the Best USA, 2007, 2011 and 2013-2014 
    • Listed in Corporate Counsel/Top Lawyers
    • Listed in Guide to Leading Healthcare Lawyers
    • Selected by Nightingale's Healthcare News as an Outstanding U.S. Healthcare Antitrust Attorney, 2005 and 2006
    • AV Rated, Martindale-Hubbell

    Publications & Presentations 

    • Presenter, "Anatomy of a Provider Merger Challenge," Physicians and Hospitals Law Institute, American Health Lawyers Association, 2015
    • Author, “Antitrust,” The Fundamentals of Health Law, American Health Lawyers Association, 2014
    • Presenter, “Antitrust Year in Review,” Annual Meeting, American Health Lawyers Association, 2014
    • Presenter, “Antitrust Primer,” Antitrust in Health Care Seminar, American Bar Association and American Health Lawyers Association, 2014

Reviews

FB
Frederick B.

Interesting

MW
Mark W.

Excellent program. Excellent presenter.

DF
Deon F.

Excellent

MS
Melissa S.

This was very interesting because I just worked on an antitrust case.

TS
Terence S.

Mr. Miles just gave the best CLE presentation I can recall ever seeing. Not a moment wasted. Pleasant manner, too.

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