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Healthcare antitrust enforcement remains a top priority for DOJ

The Department of Justice's Antitrust Division is still laser-focused on rooting out anticompetitive practices in the healthcare industry, according to remarks from Barry Nigro, deputy assistant attorney general, at an American Bar Association conference May 17 in Arlington, Va.

"Because competition benefits consumers in so many ways, antitrust enforcement will continue to play an outsized role in healthcare," Mr. Nigro said. "Protecting and fostering competition in this space is a responsibility that we at the Antitrust Division take very seriously, and, because of that, antitrust enforcement in healthcare will continue to be a high priority for the Division."

The DOJ has prioritized criminal antitrust enforcement, especially price fixing in the generic pharmaceutical industry. However, as criminal enforcement relates to healthcare providers, the DOJ plans to crack down on market allocation agreements and "no-poach" agreements that limit competition for employees, Mr. Nigro said.

In his remarks, Mr. Nigro celebrated some of the antitrust wins the agency had in the past year, including blocking the Anthem-Cigna merger and Aetna's proposed acquisition of Humana. Beyond payer mega-mergers, the DOJ is also "actively challenging anticompetitive conduct by healthcare providers," he said. For example, the DOJ's Antitrust Division has a trial scheduled in May 2019 to challenge an "anti-steering" restriction in Charlotte, N.C.-based Atrium Health's payer contracts. The division believes these restrictions keep payers from directing patients to lower-cost providers.  

The agency also plans to pursue damages in healthcare antitrust cases that harm taxpayers via federal spending. "We intend to exercise the authority Congress has provided and are actively considering cases in this industry to bring," Mr. Nigro said. "We hope that by doing so, healthcare providers will have even greater incentive to invest in vigorous and effective antitrust compliance."


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