Practices: Antitrust (Healthcare)

Health care professionals and their business organizations face major challenges in properly structuring and operating provider contracting arrangements. Independent Practice Associations (IPAs), Joint Operating agreements (JOAs), Physician/Hospital Organizations (PHOs), Preferred Provider Organizations (PPOs) and many other business combinations are essential for competing effectively in today’s healthcare market. However, any joint healthcare service venture must be created carefully to avoid violating antitrust and other regulatory guidelines.

Practical Advice

Hospitals, physicians, ambulatory care providers, and a wide range of other healthcare providers trust Ungaretti & Harris to make sure that existing arrangements and new transactions comply with all aspects of antitrust law and related fraud and abuse enforcement and regulation. That includes counseling provider organizations and insurers regarding proposed megers and joint ventures as well as government investigations of alleged price-fixing and anticompetitive practices. No matter your focus in the healthcare arena, you’ll get practical advice on how to create managed care organizations, provider networks and other “virtual mergers” that give you the cost efficiencies you want and the regulatory compliance you need.

Physician Arrangements

One of our most important roles is working with hospitals and physicians in provider arrangements to negotiate new cost structures and service contracts with insurance carriers. We give our clients complete assistance in structuring arrangements to comply with the U.S. Department of Justice and the Federal Trade Commission’s Statements of Antitrust Enforcement Policy in the Health Care Area as well as the U.S. Department of Justice and Federal Trade Commission Antitrust Guidelines for Collaborations Among Competitors. With our help you can preserve competitive balance while achieving cost efficiencies and staying within the boundaries of the law.

Business Combinations

Due in large part to antitrust compliance concerns, healthcare merger, acquisition and divestiture transactions can take eight months to a year for completion, particularly in the sale of not-for-profit institutions to for-profit ones. Hospitals in Illinois, Indiana and elsewhere in the Midwest rely on our excellent working relationships with the regulatory authorities in those states to understand the process by which to secure approval from the Attorney General, Health Facilities Planning Board, and similar regulatory authorities. Your hospital or medical center will be properly positioned to avoid investigation or litigation of antitrust claims over delivery of health care services. Should a routine investigation arise, our lawyers work well with DOJ and FTC lawyers who may from time to time investigate select healthcare transactions.

Provider Participation Agreements

If you are the administrator or serve on the board of directors of a hospital, nursing facility, IPA or other medical group, negotiating provider participation agreements with HMOs, employers and insurance companies can be a major antitrust worry. Our lawyers draft, review and negotiate numerous contracts in this area, including exclusive arrangements with specialty groups, medical director agreements and physician employment agreements. Even if these involve complex capitation and other risk-sharing arrangements, you can be assured that your organization is well-positioned to avoid DOJ, FTC or state antitrust scrutiny.

Ongoing Operations

If you are concerned about whether various aspects of your day-to-day operations pose antitrust risk, ask us to assess your operations. You’ll get advice on the proper structuring of group purchasing arrangements, counsel on exclusive dealing and tying or bundling arrangements, guidance on pricing issues, and answers to questions about division of markets and perceived monopolies. Healthcare compliance officers often seek our help with antitrust educational programs to ensure that administrators understand their legal obligations, and create document and record retention guidelines that properly respond to enforcement inquiries.

Proper Balance

Balancing competitive realities with regulatory requirements is the concern of every party in provider contracting arrangements. Hospitals, physicians, insurers, and other key players in healthcare service delivery rely on Ungaretti & Harris to maintain that proper balance. You’ll get sound, practical advice on avoiding antitrust and anticompetitive problems, and responding effectively to inquiries and investigations about new combinations and existing operations.