On April 18, 2024, the Federal Trade Commission (FTC), U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) collectively launched a new publicly accessible web portal to which members of the public can make reports of what they believe to be competition – harming anticompetitive practices in the health care sector. See press release at Federal Agencies Launch Portal for Public Reporting of Anticompetitive Practices in the Health Care Sector | Federal Trade Commission (ftc.gov). The new web portal is available at Antitrust Division | Help us ensure access to fair and competitive healthcare markets for you and your family. | United States Department of Justice.

What You Need to Know:

• The Federal Trade Commission, U.S. Department of Justice and Department of Health & Human Services have launched a new website, found at www.healthycompetition.gov.
• The purpose of the website is simple on the surface — to formalize a portal for the agencies to receive information from all sources that intersect with the health care space concerning beliefs that health care practices that might harm competition are occurring.
• Anyone can make a report via the website, which means that everyone involved in health care is potentially exposed to claims of anticompetitive conduct — health systems, hospitals, physicians and other providers, suppliers of products, insurers, etc.
• If you operate in the health care space, you need to be aware that reports like this may be made and that antitrust regulators may follow up.

The portal offers on its opening page the simple invitation of “If you would like to submit a health care competition complaint, please use the button below.” Then, there is (1) the admonition not to use the portal for any other purpose (such as failure to pay or cover claims or “general unhappiness about the healthcare system” among other things); (2) a direction to take other complaints about (Medicare, Medicaid or other HHS program) fraud, waste, and abuse matters to a different set of locations; (3) a link that leads to “more about the False Claims Act;” and (4) a way to “report allegations of information blocking” with another link.

The “Submit A Complaint” link then appears, which takes the reporting member of the public to a text box in which to type a complaint that will go to the DOJ and FTC. This link advises that “implicit or explicit threats” will be reported “to the appropriate authorities” and to include only one’s contact information and no other sensitive personal information.

Most interesting, just below the Submit A Claim button, the portal lists “Federal Laws Ensuring Healthy Competition” – with brief explanations and embedded links to the Sherman, Clayton, Federal Trade Commission and Robinson-Patman Acts, and an expandable list of “Examples of Conduct That Can Harm Competition in Healthcare” covering everything from consolidation and “Roll-Ups,” health care worker wage issues, collusion and price fixing, “preventing transparency,” contract language that restricts competition, anticompetitive uses of health care data, and unnecessary provider recertification or accreditation requirements.

Clearly, this is not just a consumer public reporting portal – it is a reporting portal for any member of the public, including the health care industry participants– any person, or an entity within an entity (a whistleblower, too?), who can get online, complete a form, report a belief of anticompetitive activity, and click “send.” Is John Q. Public expected to be able to identify things like anti-tiering and anti-steering clauses, “all-or-nothing clauses,” or “commercial price parity clauses” for example (the actual list is longer)? Or whether there has been a “cross-market merger” involving hospital systems on opposite sides of a state, or a less-than-controlling acquisition, or a supply chain merger that might “lower incentives to compete” or “deter rivals or potential rivals from investing?”

After those and other examples, and before the “Submit A Complaint” button appears a second time, is the “We Want to Hear From You” button, which advises that “[I]nformation from you could be our first alert to a “possible violation of the antitrust laws” – a hyperlink to “Antitrust Division | The Antitrust Laws (justice.gov)” (a much more dense DOJ-originated exegesis on the antitrust laws). To close, there is another admonition about what not to submit via this portal.

Where is this headed? Given the scope and scale of examples, will this become a location via which the full kitchen sink of perceived harms comes swarming through, from the public, competitors, employees, insureds, insurers, whistleblowers, doctors, nurses, patients…..all in the health care industry itself? The agencies have not limited from whom they want to hear – they will absorb it all.

Health care concerns, be concerned. What level of information causes the FTC or DOJ to initiate an investigation? 

Only time will tell, but, be prepared.