In the past five years since the adoption of the Affordable Care Act (ACA), the health care industry has experienced an unprecedented wave of consolidation and collaboration. While much of the attention has focused on hospital mergers, including those that have been successfully challenged by the Federal Trade Commission (Phoebe Putney, ProMedica, and St. Luke's), the ACA also has driven other types of collaboration by competing health care providers, including hospitals, outpatient facilities and physicians. In particular, as part of the Medicare Shared Savings Program, the ACA encourages providers to form accountable care organizations (ACOs) that take responsibility for managing the health of a given population in return for the ability to share in savings achieved with Medicare. Further, the costs of complying with certain ACA requirements, such as adopting electronic medical records, have driven physicians and smaller hospitals to form joint ventures or other affiliations with larger institutions.

While these collaborations offer potential “procompetitive” benefits, such as lower rates and premiums for health plans, employers and patients, they also can raise antitrust concerns that combinations of competing providers will result in higher prices and/or reduced quality of care. This article provides guidance on how parties to such transactions can minimize these antitrust risks while still capturing the benefits of collaboration.

General Antitrust Principles Applicable to Collaborations Among Competitors