Antitrust Enforcement in the Health Care Sector to remain a key focus in the Biden Administration

The Biden Administration’s announcement was issued in parallel with a Federal Trade Commission (FTC) press release highlighting recent actions spearheaded by the FTC, Department of Justice Antitrust Division (DOJ), and Department of Health and Human Services (HHS) to “promote competition to lower health care costs for families and taxpayers and improve quality and availability of health care for patients.”

Agencies to focus on competitive concerns related to private equity and “roll-ups” in the health care industry

Among the initiatives outlined by the White House is a cross-agency effort among the FTC, DOJ and HHS to scrutinize “anticompetitive acquisitions and anticompetitive practices” in the health care sector. This initiative includes several new efforts. For example, in response to the Administration’s stated concern that corporations are “maximizing their profits at the expense of patients’ health and safety . . . [and] increasing costs for patients and taxpayers alike,” the agencies plan to issue a joint Request for Information (RFI) to seek input regarding how “private equity and other corporations’ increasing power and control of our health care is affecting Americans.” The RFI is intended to help the agencies “identify areas for future regulation and enforcement prioritization.”  As part of this initiative, HHS will appoint a chief competition officer and DOJ and FTC will both name counsels for health care.  The agencies have also pledged to continue to work together on case referrals, reciprocal training programs, data-sharing, and the development of additional health care competition policy initiatives.1 

Closely connected to that effort is a new initiative by the Biden Administration to target so-called “roll-ups” in the health care space, involving a series of smaller purchases of individual physician practices and other health care businesses, none of which on their own meets the HSR merger filing thresholds, but that the agencies consider potentially harmful to competition when considered together.2  The White House’s statement noted that the FTC, DOJ and HHS would share data to help the antitrust agencies identify transactions that may be anticompetitive but that fall outside the thresholds for merger review.

Notably, in September 2023, the FTC filed a lawsuit alleging that a private equity company’s purchase of a series of anesthesia practices constitutes an anticompetitive roll-up that violated the antitrust laws.  In addition, the agencies’ just published Merger Guidelines state that the Agencies may consider as part of their merger review “series of acquisitions as part of an industry trend [] or evaluate the overall pattern or strategy of serial acquisitions by the acquiring firm.” 

White House and FTC highlight other recent efforts to promote competition in the health care sector

The Biden Administration’s announcement and the FTC’s press release describe additional recent initiatives taken by the antitrust agencies to address anticompetitive activity in health care markets.  These include, but are not limited to:

• DOJ’s enforcement of Section 8 of the Clayton Act, including challenges to interlocking directorates involving boards of health care companies.
• The FTC’s Orange Book Policy Statement and subsequent issuance of warning letters to pharmaceutical companies challenging the listing of more than 100 patents in the FDA’s catalog of Approved Drug Products with Therapeutic Equivalence Evaluations (“Orange Book”), which the agency alleges have resulted in the delay of lower-cost generic drug competition and thus violate Section 5 of the FTC Act.
• A number of conduct (including criminal enforcement) and merger challenges by the agencies in the health care space.
• Efforts by DOJ and FTC to strengthen labor market competition for health care workers, including the FTC’s proposed rule that would ban employers from imposing noncompete agreements on workers and DOJ’s statements of interest, amicus briefs, and federal agency comments regarding labor competition issues. 

Looking ahead

These health care competition initiatives underscore the Biden Administration’s commitment to rigorous antitrust enforcement in health care markets.  Both antitrust agencies, and particularly the FTC, have taken a number of enforcement actions in the health care industry in 2023.  The agencies’ scrutiny of the health care industry is likely to only increase in 2024.

In this heightened enforcement climate, companies operating in any part of the health care industry should ensure that they implement and adhere to rigorous antitrust compliance programs. In addition, companies considering deals in the health care industry – particularly those involving private equity – should be mindful of the more expansive theories of harm in the agencies’ Merger Guidelines when evaluating antitrust risk, including ensuring that any risk assessment considers not just the specific transaction at hand but also any broader acquisition strategy or pattern of multiple acquisitions.