In their Statements of Antitrust Enforcement Policy in Health Care (“Policy Statements”), the U.S. Department of Justice and Federal Trade Commission (collectively, “Agencies”) offer useful guidance for various arrangements that take place in the health care industry. The Policy Statements provide “safety zones” that “describe conduct that the Agencies will not challenge under the antitrust laws, absent extraordinary circumstances.”

Often, providers are solicited (by either competing providers or payers) to participate in written surveys related to the price or cost of health care services, such as surveys on reimbursement levels, salaries and wages of personnel, or expenditures for equipment or supplies. Participating in such surveys can raise antitrust concerns. However, Statement 6 of the Policy Statements provides guidance on participating in those surveys and sets out a safety zone for such participation.

In order to operate within the safety zone set out in Statement 6, the following three conditions need to be satisfied:

  1. The survey must be managed by a third party (e.g., a purchaser, a government agency, a health care consultant, an academic institution, or a trade association).
  2. Any information provided by survey participants must be based on data that is more than three months old.
  3. The data must be (a) generated from at least five different providers, none of whom may represent more than 25 percent of any given statistic, and (b) sufficiently aggregated such that recipients of the information cannot identify the prices charged or compensation paid by any individual provider.

Conduct that does not fit squarely within the safety zone set out in Statement 6 is not necessarily illegal but would need to be evaluated to determine whether the conduct “has an anticompetitive effect that outweighs any procompetitive justification for the exchange.” Any exchanges that result in an agreement among competing health care providers to fix prices or costs would likely be deemed “per se illegal” by the Agencies.