Promoting Competition in Healthcare Enforcement and Policy: Framing an Active Competition Agenda

20 Pages Posted: 1 Apr 2019 Last revised: 11 Oct 2019

See all articles by Thomas L. Greaney

Thomas L. Greaney

UC Hastings College of the Law

Barak D. Richman

Duke University, School of Law

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Date Written: March 8, 2019

Abstract

The policy community, albeit belatedly, now fully recognizes the economic dangers of highly concentrated healthcare markets. The Federal Trade Commission (FTC) and states continue to closely scrutinize hospital mergers. Recent successes by the U.S. Department of Justice (DOJ) in challenging mergers of health insurers are additional indications of invigorated enforcement in the healthcare payment sector. In addition, the FTC, DOJ, and State Attorneys General (AGs) have appropriately dedicated substantial resources to healthcare antitrust enforcement and have achieved significant victories in litigation.

Traditional merger review, however, will be inadequate to compensate for the policy failures of the past. In large part because failed antitrust interventions, overwhelmed enforcers, or mistaken beliefs that market dynamics or negotiated settlements will preserve market competition, both provider and insurer markets across the country are highly concentrated, and dominant providers currently enjoy enormous pricing power. To create the market dynamics that consumers desire, policymakers will need to pursue proactive approaches in healthcare markets that confront extant market power and aim to limit its damage. It will also require exploring innovative paths to stimulate lost or impeded competition. Over the past several years, the FTC has enhanced its advisory and advocacy efforts on healthcare competition issues in numerous forums, and its leadership will need to continue exploring its influence outside its traditional purview.

Keywords: antitrust, healthcare competition, hospitals, physicians

Suggested Citation

Greaney, Thomas L. and Richman, Barak D., Promoting Competition in Healthcare Enforcement and Policy: Framing an Active Competition Agenda (March 8, 2019). American Antitrust Institute: Series on Competition in the Delivery and Payment of Healthcare Services, UC Hastings Research Paper No. 352, Available at SSRN: https://ssrn.com/abstract=3349391 or http://dx.doi.org/10.2139/ssrn.3349391

Thomas L. Greaney (Contact Author)

UC Hastings College of the Law ( email )

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Barak D. Richman

Duke University, School of Law ( email )

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919-613-7231 (Fax)

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