All Gas No Brakes – The FTC, DOJ, and HHS Unveil Online Reporting Portal as Latest Effort to Combat Unfair and Anticompetitive Health Care Practices

On April 18, 2024, the Federal Trade Commission (“FTC”), Justice Department (“DOJ”), and the U.S. Department of Health and Human Services (“HHS”) launched an online reporting portal, HealthyCompetition.gov, for the public to report potentially unfair and anticompetitive health care practices. The online reporting portal provides examples of unfair and anticompetitive health care practices under existing antitrust laws including:

1. “consolidation, joint ventures, and ‘roll-ups’ ”;
2. “[a]greements among competitors to limit or fix the terms of employment for employees”;
3. “collusion or price fixing” among competitors;
4. “[a]ctions to limit transparency” about “healthcare options and costs”;
5. “healthcare contract language and other practices which restrict competition”;
6. “anticompetitive uses of healthcare data,” such as “acquisitions and control of large amounts of data by a few companies” which “prevent other companies from entering the market and reduce future innovation”; and
7. “unnecessary healthcare provider recertification or accreditation requirements” which may “raise the costs of practicing medicine” and “reduce the number of healthcare practitioners.”

Under this joint initiative between FTC, DOJ, and HHS, complaints will first undergo a preliminary review by staff at the FTC and DOJ’s Antitrust Division. If a complaint raises sufficient concern under existing antitrust laws or is related to HHS authorities, it will then be selected for further investigation by the appropriate agency which may result in a formal investigation. Notably, the privacy and confidentiality policies which govern information submitted through the online reporting portal, including any personal information members of the public choose to provide, can be found at: DOJ Privacy Policy, DOJ Antitrust Division Confidentiality Policy Regarding Complainants, and FTC Privacy Policy.

The unveiling of HealthyCompetition.gov marks the latest effort by federal enforcers to combat unfair and anticompetitive health care practices through regulatory and legal actions. Indeed, the FTC, DOJ, and HHS previously issued a Request for Information (RFI) requesting public comment on deals conducted by health systems, private payers, private equity funds and other alternative asset managers involving health care providers, facilities or ancillary products or services. This joint initiative was based on another similar RFI issued by the FTC and HHS on how pharmaceutical middleman groups may be contributing to drug shortages.

The creation of an online reporting portal is also particularly relevant given the recent Federal Trade Commission v. U.S. Anesthesia Partners, Inc. lawsuit pending in the Southern District of Texas where the FTC challenged a private equity firm’s scheme to suppress competition in anesthesiology practices across Texas. Specifically, the FTC alleged  U.S. Anesthesia Partners, Inc. (“USAP”), the dominant provider of anesthesia services in Texas, and private equity firm Welsh, Carson, Anderson & Stowe engaged in a three-part strategy to consolidate and monopolize the anesthesiology market in Texas by: (1) executing a roll-up scheme, systematically buying up nearly every large anesthesia practice in Texas to create a single dominant provider with the power to demand higher prices; (2) driving up anesthesia prices through price-setting agreements with remaining independent practices; and (3) sidelining a significant USAP competitor by striking a deal to keep it out of USAP’s territory. Consequently, HealthyCompetition.gov allows the public to report such unfair and anticompetitive health care practices sooner and more efficiently—effectively maximizing the ability of the FTC, DOJ, and HHS to enforce existing antitrust laws and prevent anticompetitive acquisitions and practices which can chill fair competition, drive-up health care costs, degrade working conditions, and limit innovation.

Given the continued focus of the FTC, DOJ, and HHS on increasing antitrust enforcement, companies in the health care and pharmaceutical industries should work closely with antitrust and health care regulatory counsel to ensure their business interests and strategies are adequately protected and in compliance with the evolving antitrust legal and regulatory landscape.