Introduction, to ‘Competition Policy in Health Care in an Era of Reform’

Abstract

Health care reform recently has been signed into law by President Obama. The signing concluded a tortuous legislative process involving false starts, recriminations, accusations of stonewalling on one side and “ramming” using “dirty tricks” on the other, threats of filibuster, and fear of electoral response. Passage of health care reform legislation is just the beginning. As with all major legislation, there will be many years of learning what the new law means in application. And the absorption process for the second-order regulatory scheme of antitrust will be even slower. I introduce here the transcript of a panel discussion, held on December 10, 2009, which I believe to be the first broad (if not comprehensive) analysis of the competition policy implications of health care reform. The pages following this introduction provide a road map for correctly analyzing many of the antitrust issues that have arisen in health care previously and are certain to arise in health care as reformed.

Understanding how to analyze these issues could not be more important. As panelist Paul London wrote in 2001, “[r]eal competition in health care would stimulate the American economy.” London noted the competition picture raised questions about insurance, providers – doctors and hospitals, technologies and information systems, and regulatory approaches.

To this end we convened a rare gathering of think-tankers, academic economists, law, business and medical school professors, and practitioners, all with deep expertise in the arenas of health law, antitrust law, and in many cases, both. Several of our participants came originally from the world of government antitrust enforcement. We gathered for an entire day, initially for several hours in a private think-tank style discussion, and later in a public panel discussion. During both sessions, topic leaders introduced a particular genus of issues on which they previously had submitted written work to the group. The topic leaders then described some possible resolutions to those issues, and the group engaged in the discussion. In the afternoon session, the transcript of which follows, we reprised some of the same discussion, but our public discussion was neatly distilled by the morning's conversation.

This is my introduction to the topic, with a transcript of the panel discussion following.

Keywords: antitrust, competition, health care reform