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April 23, 2014

DOJ Approves Greater New York Hospital Association’s Proposed Gainsharing Program

On January 16, the Department of Justice’s Antitrust Division (“DOJ”) announced that it does not presently intend to challenge the Greater New York Hospital Association’s (“GNYHA”) proposed gainsharing program. The program was designed to provide a framework for participating hospitals to measure physician performance against certain benchmarks and award bonuses to physicians for quality and efficiency improvements. The DOJ concluded that the program neither constitutes a horizontal agreement on compensation levels nor an exchange of information that would facilitate anticompetitive coordinated limits on physician compensation.

GNYHA is a trade association with 250 hospital and continuing care facility members in New York and several nearby states. GNYHA wrote to the DOJ seeking a business review of its proposed voluntary gainsharing program for its 100 New York hospital members. Gainsharing programs incentivize physicians to consider their use of hospital resources in decision-making by rewarding them with a “share” of the “gain” that results from increased efficiency. GNYHA explained that its program is based upon Medicare’s gainsharing programs and differs primarily in that its application is broader than just Medicare products.

As such, no information provided by GNYHA to any individual hospital may be shared with any other hospital. GNYHA’s members are not required to participate in the program and the program will be implemented by participants with individually-determined variations to address their own specific needs. The participants will give GNYHA publicly-available data about their costs. This data will be: at least three months old, supplied by at least five entities, with no individual representing more than 25% on a weighted basis, and aggregated so that the hospitals who receive the combined data cannot identify prices charged by others. Using this data, GNYHA will develop a Best Practice Norm for each All Patient Refined Diagnosis Related Group (“APR-DRG”) (a code designated by Medicare for each specific treatment or procedure) as the 25th percentile of the cost among all hospitals in New York State for the particular APR-DRG. GNYHA will then measure each physician’s performance relative to this Best Practice Norm and will share this information only with the hospital employing the physician. Each hospital will then independently determine whether it will make any incentive payment and its own incentive payment cap in the event that it does make payments. The cap imposed is required to be a specific percentage of Medicare Part B fees and supported by a legal opinion. Finally, GNYHA will contract a health care consultant to conduct a fair market value analysis to ensure that the hospitals’ and physicians’ actions justify the award of incentive payments. These last two measures will ensure that the incentive payments do not cause participating hospitals to run afoul of the Stark Law or the Anti-Kickback Statute.

In determining that it has no present intention to challenge GNYHA’s program as described, the DOJ primarily focused on the lack of data sharing and the necessity to include the incentive payment cap and conduct a fair market value analysis. First, the fact that the program would not allow for or facilitate participants’ sharing of competitively-sensitive information was crucial to DOJ’s approval because otherwise the hospitals could set prices for their services or physician salaries which would violate the antitrust laws. Second, the DOJ allowed for the program provisions related to physician payment caps and fair market value analysis because they were reasonably necessary to further the procompetitive purposes of the gainsharing program. But if these provisions are used as a pretense to standardize the participating hospitals’ incentive payments to physicians, the DOJ clearly stated that the hospitals and GNYHA would be subject to prosecution.

Antitrust enforcement in the health care area continues to be vigorous. Antitrust agencies, however, understand the need for quality and efficiency improvements. Thus, innovative and well-structured initiatives and innovations will likely pass antitrust scrutiny.

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About the Author

Bruce Sokler, Antitrust, Attorney, Mintz Levin, Law firm
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Bruce is Chair of the Antitrust Section and in his over 30 years in private practice, he has developed extensive experience in both antitrust and communications regulation, including associated First Amendment and copyright law matters

In the antitrust area, Bruce’s practice includes antitrust counseling and representation in connection with federal and state governmental matters, as well as private antitrust litigation. He counsels and has represented Fortune 100 companies, not-for-profits, start-up entities, and domestic and international joint ventures. Bruce has been...

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Christi J. Braun, Antitrust Attorney, Mintz LevinFirm
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Christi focuses on litigation of antitrust and commercial matters and counseling clients on issues involving antitrust compliance, mergers and acquisitions, and joint ventures.

Capitalizing on her education and experience, Christi specializes in working with health care clients, including hospitals, doctors, provider organizations, pharmaceutical vendors, trade associations, and insurers. Her experience includes guiding clients through physician-hospital joint ventures, hospital acquisitions of physician practices, and physician practice mergers as well as helping physicians and...

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Robert Kidwell, Regulatory, Attorney, Mintz Levin, Law Firm
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Rob provides counseling on a range of regulatory issues at the federal and state level, including antitrust and unfair/deceptive trade practice issues, as well as representing clients in litigation.

Rob represents clients in complex litigation, class action and otherwise, under both state and federal competition laws, the Communications Act, and the Administrative Procedure Act. He also assists clients in avoiding litigation by guiding them through the transaction review process before the Department of Justice and the Federal Trade Commission and through various proceedings...

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Karen Lovitch, Health Law, Attorney, Mintz Levin, Law Firm
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Karen is the Practice Leader of the firm’s Health Law Practice. She counsels health care clients on regulatory, transactional, and operational issues, including Medicare coverage and reimbursement, the development and implementation of health care compliance programs, and licensure and certification matters. In addition, Karen advises clients on the legal, practical, and fraud and abuse implications of business arrangements and sales and marketing practices. Her experience includes matters related to the anti-kickback statute, the Stark law, state statutes prohibiting kickbacks...

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Farrah Short, Regulatory, Antitrust, Attorney, Mintz Levin, Law Firm
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Farrah provides counseling on a wide range of federal regulatory issues, with a focus on antitrust compliance and litigation matters. She also participates actively in the firm’s pro bono program.

Farrah specializes in guiding clients through the Hart-Scott-Rodino (HSR) premerger review process before the Federal Trade Commission and the Department of Justice, including responding to Second Requests. She also counsels clients on competition law issues under the Sherman Act, the Clayton Act, and the FTC Act and provides related advice on mergers and acquisitions,...

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About the Author

Shoshana Spieser, federal, regulatory, attorney, Mintz Levin, Law Firm
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Shoshana provides counseling* on a wide range of federal regulatory issues, with a focus on antitrust compliance and litigation. She also serves as legal counsel to the Association of Home Appliance Manufacturers. 

Prior to joining Mintz Levin, Shoshana served as a legal fellow for the Northeast Region of the Federal Trade Commission. There, she conducted investigations on market concentrations and deceptive advertising practices, drafted discovery requests, and researched and wrote memoranda.  Shoshana also previously interned for the US Attorney's Office for the...

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