March 27, 2023

Volume XIII, Number 86

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March 24, 2023

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DOJ Withdraws Long-Standing Health Care Antitrust Enforcement Policy Statements

In a quiet yet shocking announcement on February 3, 2023, the Antitrust Division of the U.S. Department of Justice (DOJ) withdrew three major antitrust policy statements that have served for years as mainstays of health care antitrust enforcement guidance.

Specifically, DOJ withdrew the following statements: Department of Justice and FTC Antitrust Enforcement Policy Statements in the Health Care Area (September 15, 1993); Statements of Antitrust Enforcement Policy in Health Care (August 1, 1996); and Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in Medicare Shared Savings Program (October 20, 2011).

Without elaboration as to the basis for the agency’s decision, DOJ proclaimed that the withdrawal of these policy statements would best promote competition and transparency, noting that the health care landscape has changed since the issuance of this guidance. In addition, DOJ stated that certain of the policy statements are “overly permissive on certain subjects such as information sharing and no longer serve their intended purposes of providing encompassing guidance to the public on relevant healthcare competition issues in today’s environment.”

There is no indication yet that DOJ is working on updated guidance. While the Federal Trade Commission has not formally withdrawn its support for these policy statements, it will only be a matter of time before that occurs.

©2023 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XIII, Number 37
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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of...

202-861-4182