Driven by Federal Health Care Reform and a desire to remain independent of hospitals and health care systems, physician groups are actively exploring different collaborative and alignment options, including the formation of independent practice associations (IPAs) and participation in accountable care organizations (ACOs). Various physician groups which otherwise compete are also discussing the possibility of merging or other integration strategies. These discussions are important and necessary in a health care environment that requires greater access to capital and a coordinated and accountable approach to health care in order to meet payor demands for quality and the implementation of new payment methodologies. However, physician practices need to be mindful that such discussions can raise antitrust concerns.
The Federal Antitrust statutes govern competition between competitors, including the formation and operation of joint ventures and other collaborative arrangements. In particular, Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." There are two methods of analysis under Section 1 of the Sherman Act. The so-called "Per Se Rule" provides that certain conduct, including agreements by competitors to fix prices and allocate markets, is deemed so egregious and lacking in redeeming value that it is per se or inherently illegal. Conduct not subject to the Per Se Rule is reviewed under the so-called "Rule of Reason", which provides that the conduct is subject to a fact-intensive analysis that takes into account the reason for the restraint and its effects on competition, both procompetitive and anti-competitive, resulting in a balancing of the pro-competitive benefits of the arrangement against its anti-competitive results. Further, Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize and conspiracies to monopolize.
Originally Published in Birmingham Medical News - August 12, 2013.
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