A recent New York Times article highlighted new developments regarding the Federal Trade Commission’s (FTC) continued focus on hospital mergers. Although the FTC’s enforcement has been well-documented over the past few years, and in particular since passage of the Affordable Care Act, the article had a number of interesting insights. For one, according to many, the FTC’s litigation of several hospital mergers has had a chilling effect on provider combinations and may be subverting one of the core purposes of the Affordable Care Act. In response, Deborah Feinstein, who heads the FTC’s Bureau of Competition, told the Times in an interview that “I don’t think there’s a contradiction between the goals of health care reform and the goals of antitrust.”
Also noteworthy were quotes from a number of hospital officials regarding the FTC’s skepticism of provider consolidation. For example, Jeffrey C. Kuhn, the general counsel of ProMedica, is quoted as saying: “The government has lots of resources and lots of lawyers. Their attitude was adversarial. Our trustees and top executives had to fly to Washington to be deposed. We were eager to tell our story, but it quickly turned into an inquisition. We turned over millions of pages of documents, at great expense.” Others expressed similar views of the FTC process, reminding practitioners that achieving FTC clearance requires much more than explaining the transaction’s rationale, and that the FTC is well-equipped to challenge hospital mergers. The New York Times article is available here.