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| 1 minute read

DOJ Withdraws "Permissive" Antitrust Policy Statements, Aiming to Increase Healthcare Competition

On February 3, 2023, the Justice Department's Antitrust Division withdrew three "overly permissive" guidance documents related to competition enforcement in the health care sector: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (Sept. 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (Aug. 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (Oct. 20, 2011). These statements have been interpreted broadly to provide a safe harbor for information sharing between healthcare companies, but such exchanges will now face heightened scrutiny from American antitrust agencies. The Antitrust Division stated that this withdrawal will promote "competition and transparency" in healthcare markets, particularly noting that the policy statements' stance on information sharing is outdated. The agency points to recent enforcement actions to provide public guidance going forward, noting that a case-by-case approach will lead the Division's evaluation of mergers and conduct in healthcare markets. With no replacement for these policies, healthcare companies will be faced with greater uncertainty and antitrust risk in a period of heightened antitrust enforcement. What’s next? Definitely an area to watch.


antitrust and competition, health care & life sciences