Here are five things to know about the antitrust treatment of ACOs from Ms. Feinstein’s presentation.
1. ACOs can present antitrust concerns if they eliminate or reduce price competition or allow providers to gain increased bargaining leverage with payers.
2. Antitrust issues involving ACOs can arise if the integration involved in forming the organization involves a substantial portion of the competing providers of any service or specialty.
3. An ACO that does not obstruct the functioning of a competitive market will be deemed lawful and in compliance with antitrust laws. For example, if there are meaningful alternatives for patients and payers when considering network options it is likely antitrust issues will not arise.
4. Meaningful alternatives are provided to consumers when there are competing providers available that are not affiliated with the ACO, or where healthcare providers participating in the ACO are non-exclusive and able to contract directly with payers or participate in other ACOs.
5. There are four design features of ACOs that raise red flags for the antitrust agencies: (1) preventing payers from steering patients to certain providers; (2) tying sales of the ACO’s services to the private payer’s purchase of other services from providers outside the ACO; (3) requiring healthcare providers to enter into exclusive agreements with the ACO that prevent them from contracting with outside payers; and (4) restricting a payer’s ability information on cost, quality, efficiency and performance available to enrollees.
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