Federal and state antitrust enforcers are keenly focused on potential anticompetitive conduct in the healthcare space.
Federal Trade Commission Chair Lina Kahn recently noted that “the FTC is squarely focused on tackling illegal business practices that deprive Americans of access to affordable and innovative healthcare” in a speech to the American Medical Association’s national advocacy conference. According to Chair Kahn, medical professional consistently express frustration to the FTC “about how the business of healthcare today forces many [medical providers] to subordinate [their] own medical judgment to corporate decision-makers at the expense of patient health.” In response to those complaints, Chair Khan highlighted a few recent enforcement efforts, including scrutiny of group purchasing organizations, drug wholesalers, and pharmacy benefit managers; tackling unlawful consolidation in healthcare markets and roll-ups of healthcare providers. She also touted the FTC’s work protecting healthcare workers, tackling unlawful practices by pharmaceutical companies, including suits to block two major pharmaceutical mergers, and protecting patient privacy and data.
At the state level, California is proposing new legislation, A.B. 3129, that would require private equity or hedge fund owners to provide written notice to the state’s attorney general 90 days before an acquisition or transaction involving change of control of a health care facility, provider group or both. The proposed bill would authorize California’s Attorney General to grant, deny or impose conditions on such a transaction. This move comes in the wake of increased consolidation in the healthcare space in an effort to integrate care and control costs. According to California Attorney General Rob Bonta, studies “show these types of transactions in health care have, in fact resulted in higher health care costs and profits for the corporations and investors rather than lower costs for patients and healthcare consumers.