On February 3, 2023, the US Department of Justice’s (DOJ) Antitrust Division announced the withdrawal of three policy statements related to antitrust enforcement in healthcare. Although the withdrawn statements focus on healthcare, DOJ’s decision to withdraw these statements will have broad impacts across industries.
The three policy statements, issued in 1993, 1996, and 2011, relate to competitor collaboration and information sharing, and established “safety zones” of activities shielded from antitrust scrutiny. The 1996 Statements of Antitrust Enforcement in Health Care (1996 Statements) were revised and expanded upon the 1993 Statements. Though ostensibly related to healthcare, the guidance has been relied upon by all industries and understood to cover all manner of competitively sensitive information. Two of the safety zones most often relied on by companies relate to competitor exchanges of price and cost information, and competitor joint purchasing arrangements.
The safety zone on information exchanges (Statement 6 of the 1996 Statements) stated that, in general, the agencies would not challenge an exchange of price or cost information (e.g., employee compensation) if the following three conditions were met:
- The exchange is managed by a third party (e.g., a trade association or consultant).
- The information is more than three months old.
- The exchange has five or more participants contributing data, and no individual participant’s data represents more than 25% of any statistic; and no individual participant’s data can be identified.
Companies have relied on this safety zone in conducting surveys and benchmarking related to pricing, supply costs, and salaries. These surveys have served as critical compliance tools. Organizations exempt from federal income tax often use surveys to demonstrate fair market value compensation to safeguard against claims of private inurement and private benefit. Similarly, healthcare companies routinely use benchmarking studies to demonstrate fair market value compensation for compliance with fraud and abuse laws.
Group Purchasing Organizations
The safety zone on joint purchasing arrangements (Statement 7 of the 1996 Statements) stated that, in general, the agencies would not challenge joint purchasing arrangements (e.g., group purchasing organizations (GPOs)) if the following two conditions were met:
- The purchases account for less than 35% of the total sales of the purchased product or service.
- The cost of the products or services purchased jointly accounts for less than 20% of the participants’ revenues.
DOJ cited changes in the healthcare landscape as the rationale for withdrawing these policy statements, specifically indicating that the statements were “overly permissive” on information sharing. In a speech the day before DOJ’s announcement, Principal Deputy Assistant Attorney General (DAAG) Doha Mekki stated that the safety zone factors “do not consider the realities of a transformed industry” and “understate the antitrust risks of competitors sharing competitively sensitive information.” DAAG Mekki explained that:
- Information exchanges managed by third parties can have the same anticompetitive effects—and the use of a third party enhances anticompetitive effects.
- New algorithms and AI learning increase the competitive value of historical information (more than three months old) for certain products and services.
- Five or more participants do not guarantee that such an information exchange will not harm competition, especially when the participants exchanging the information collectively have a large share in the relevant market.
Thus, according to DAAG Mekki, “maintaining the safety zones would be like developing specifications for audio cassette tapes and applying them to digital streaming.” DOJ is concerned that technological advances may allow companies and third-party entities greater capabilities to reverse engineer certain kinds of information in ways that facilitate coordination (e.g., using AI learning or complex algorithms to predict individual participants’ future behavior based on historical data, or disaggregate or unblind an individual participant’s data).
Statements 8 and 9 of the 1996 Statements addressed physician network joint ventures and multiprovider networks, commonly known as independent practice associations (IPAs) and clinically integrated networks (CINs). These statements set forth widely adopted concepts of substantial financial risk sharing and clinical integration programs that, where sufficient, served as a basis for competing providers to jointly contract with payors under the more favorable rule of reason standard of review. The 2011 Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program (2011 ACO Statement) provided that accountable care organizations (ACOs) participating in the Medicare Shared Savings Program (MSSP) would be afforded rule of reason treatment if, in the commercial market, the ACO used the same governance and leadership structure and clinical and administrative processes as for MSSP participation. This was a significant benefit to hybrid ACOs/CINs, as it eliminated the risk of commercial activities being treated as a per se unlawful price-fixing or market allocation agreements among competitors. As a result, many health systems and physician groups relied on the 2011 ACO Statement. This assurance no longer exists.
WHAT THIS MEANS
The policy statements and the safety zones never had the force of law, but their withdrawal leads to greater uncertainty for companies involved in information exchanges and other competitor collaborations. Companies routinely rely on third-party studies of historical data from several market participants to evaluate how to price their products and services and ensure they are setting competitive prices, paying competitive prices for inputs and supplies, and offering competitive compensation and benefits to their employees. The withdrawal of the statements removes clear guidance on how to do this lawfully. Companies would be wise to review their existing information exchanges, with an emphasis on ensuring that participation in information exchanges does not facilitate coordination because the information being exchanged can be disaggregated or unblinded to identify specific participants’ data. The agencies are increasingly focused on competition issues related to employee compensation and hiring (see the Federal Trade Commission’s (FTC) proposed rule banning noncompete agreements, discussed here).
Despite DOJ’s action, companies can still exchange information—even with competitors. DOJ, however, is seeking to insert uncertainty around what kinds of exchanges are always reasonable. Our view is that going forward companies should follow the FTC’s 2014 advice shared in a blog post that advised: “let reason be your guide.” That blog cited the FTC and DOJ’s 2000 Antitrust Guidelines for Collaborations Among Competitors—which have not been withdrawn—which explained that reasonableness “depends on the nature of information” shared:
- The sharing of information on price, output, costs, or strategic plans is more likely to raise competitive concerns than the sharing of less sensitive information.
- The sharing of information on current and future plans is more likely to raise competitive concerns than the sharing of historical information.
- The sharing of individual company data is more likely to raise concern than the sharing of aggregated data that does identify individual companies.
In our view, the path forward is to use the withdrawn “safety zones” as a starting point for assessing whether the information-sharing protocols are reasonable in light of potential government concerns. Companies, therefore, with the assistance of antitrust counsel, should take time to reassess their information-sharing protocols to consider the reasonableness of those protocols considering the nature of the information shared and the business purpose of that arrangement. Heightened focus should be given to the use of information shared or received and how it might impact pricing or compensation decisions.