On March 31, 2011, the Federal Trade Commission (FTC) and Department of Justice (DOJ) (collectively, the “Agencies”) released for public comment a joint Policy Statement regarding how the agencies will enforce the antitrust laws regarding Accountable Care Organizations (ACOs). The Policy Statement accompanies the release on the same day by the Centers for Medicare and Medicaid Services (CMS) of its proposed regulations to cover ACOs participating in the Medicare Shared Savings Program. The FTC’s press release regarding the Policy Statement is available at: http://www.ftc.gov/opa/2011/03/aco.shtm. Comments are due by May 31, 2011.

The joint Policy Statement covers five areas: (1) the ACOs to which it will apply; (2) when the FTC and DOJ will apply particular antitrust analyses to those ACOs; (3) an antitrust safety zone for certain ACOs; (4) a mandatory antitrust review process for certain other ACOs; and (5) how the agencies will review proposed ACOs that fall outside the safety zone but below the mandatory review threshold.

The joint Policy Statement applies to ACOs formed after March 23, 2011, and defines ACOs as collaborations among otherwise independent providers or provider groups that seek to participate in the Affordable Care Act’s Shared Savings Program.

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