Antitrust – The Health Care Blog

The Rashomon of Health Care: Why the Government is Promoting and Hindering ACOs at the Same Time

Apr 27, 2011• 5

By DAVID DRANOVE

As I have previously blogged, a centerpiece of the Affordable Care Act (ACA) is the promotion of Accountable Care Organizations (ACOs). The Center for Medicare and Medicaid Services is banking on the financial incentives of ACOs (through “shared savings”), combined with over 60 pay for performance quality metrics, to promote efficient, high quality medical care. Providers are certainly taking notice. Hospitals are acquiring physician practices in numbers not seen since the 1990s and many physicians are thinking of starting their own ACOs. For the federal government to so aggressively promote the reorganization of health care delivery is unprecedented. (I am willing to debate those of you who remember the HMO Act of 1973.)

It must have quite a shock to CMS when the Federal Trade Commission announced its antitrust guidelines for ACOs. (These can be found here, especially pp. 21896-21899). I won’t dwell on the details but suffice it to say that the proposed test is likely to have a high false positive rate (challenging many ACOs that are not anticompetitive). And while the FTC lacks the resources to investigate every new ACO, the new rules certainly pose an obstacle to integration. So why is the FTC standing in the way of CMS? The answer may be found in one the masterworks of the great film director Akira Kurosawa.

In the movie Rashomon, four men witness different moments of what might or might not have been a heinous crime. Testifying at trial just three days later, the men attempt to describe the entire terrible episode from their own limited perspectives. The healthcare event whose details are in dispute occurred not three days ago, or even three years ago. And it wasn’t just one event, it was the entire decade of the 1990s. I believe that support or opposition to ACOs depends critically on how one views that lost decade.

Those who adamantly support ACOs – that includes most of my health services research colleagues, especially those still working in Washington to implement the ACA – view the 1990s as a lost opportunity. During the 1990s, hospitals merged with each other and with their medical staffs to create integrated delivery systems. IDSs were the forerunners of ACOs. They were supposed to coordinate care, accept shared financial risk, and give us greater efficiency and quality. Leading health policy analysts at the time could not wax more enthusiastic about how IDSs would change the system. And health providers were eager to jump on the bandwagon; IDS were hailed as “a new wave becoming a tidal wave.” (There were a few naysayers, including this blogger and my friends on the faculty at the Wharton school.) Unfortunately, the IDS wave crashed. Few IDSs saved money or raised quality; many lost their shirts.Continue reading…

Accountable Care Organizations and Antitrust

Apr 4, 2011• 7

By TIM GREANEY

There’s a new PSA test in health care. Hopefully it will prove more reliable than that other one.

In conjunction with the unveiling of the long-awaited ACO regulation by HHS, the FTC and Department of Justice issued a Joint Policy Statement setting forth their standards for conducting an expedited (90-day) antitrust review of applicants for ACO certification. The agencies explained that they will evaluate applicants’ market power based on the ACO’s share of services in each participant’s Primary Service Area (PSA) defined as the “lowest number of contiguous postal zip codes” from which the hospital or physician draws at least 75 percent of its patients for its services. The Statement summarized the antitrust implications of ACOs formed by hospitals or physician groups with large market shares in their markets:

ACOs with high PSA shares may pose a higher risk of being anticompetitive and also may reduce quality, innovation, and choice for both Medicare and commercial patients. High PSA shares may reduce the ability of competing ACOs to form, and could allow an ACO to raise prices charged to commercial health plans above competitive levels.

The antitrust enforcers were properly concerned with the risk that ACOs could become a vehicle for increasing or entrenching provider market power. Studies by academics, health policy experts and state governments have documented the impact of provider concentration on insurance premiums. Moreover, a post-reform merger wave may have increased the number of hospital and specialty physician markets and many areas are already served by dominant local providers. Inasmuch as the success of the ACO concept depends on its ability to spur delivery system change, the predictable intransigence of monopolistic providers presents an important issue. In this regard, it is heartening that the extended (and apparently controversial) regulation drafting process produced a result that promises to constrain the growth and exercise of market power.Continue reading…

ACOs and the Looming Antitrust Crisis

Oct 14, 2010• 2

By DAVID DRANOVE

The Federal Trade Commission recently held a day-long workshop focusing on Accountable Care Organizations. ACOs will vertically integrate hospitals and doctors and, in the process, achieve what previous incarnations of vertical integration could not. Let’s forget about whether ACOs will actually fulfill the dream of efficient healthcare delivery and focus on the FTC angle – will the creation of ACOs require the creation of provider market power and should he FTC therefore look the other way?

Many health economists have documented the perils of provider market power. Some of my own research has been instrumental in turning the tide against providers, whose monopolizing tendencies used to get a free pass from the courts. But as policy makers move ACOs to the fore, providers are hoping to sweep antitrust under the rug.

The latest salvo comes from the AHA, which last week released a study challenging two recent studies of hospital market power and then strains to connect their findings to ACOs. The AHA report goes a bit overboard in its criticism of these studies. One study consists of little more than anecdotes and should not be criticized for being anything else. The other study is more complex and the criticism is equally complex, mostly along the lines of “if you had measured things slightly differently, your results would have been slightly different.” The AHA report would have readers believe that these two studies represent the entire body of knowledge about hospital mergers. Having summarily dismissed them, the argument against FTC enforcement would seem complete.