EI Principal David A. Argue Coauthors Article Entitled, “Antitrust Markets and ACOs” in the ACI Antitrust Chronicle.

The Affordable Care Act signed into law in March 2010 has promised that the concept of accountable care organizations (“ACOs”) will transform how medical care is provided and paid for in the United States. As befits their role as enforcers of the antitrust laws, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) have raised concerns that certain ACOs may reduce competition and harm consumers through higher prices and lower quality of care. To address that issue, the antitrust Agencies propose a “shares” screen in their recently published Policy Statement to identify and evaluate those ACOs that may be problematic. The Policy Statement uses the concepts of “Common Service” and “Primary Service Area” for determining shares, but it avows that these are not necessarily the same as antitrust product and geographic markets. Notwithstanding the Policy Statement’s disavowals, it seems likely that the Agencies could begin to adopt Common Services and PSAs as antitrust markets more frequently in their full-fledged competition analyses as they become accustomed to reviewing submitted materials that present shares of Common Services in PSAs. Consequently, it makes sense to consider these concepts and the related calculations more carefully.  Read Full Article