According to the “Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program” (“Policy Statement”), issued by the Federal Trade Commission and the U.S. Department of Justice, accountable care organizations (“ACOs”) that participate in the Medicare Shared Savings Program (“MSSP”) are deemed to be clinically integrated. This important designation allows those ACOs to operate in commercial markets and jointly negotiate ACO services on behalf of all ACO participants as long as the ACOs utilize (1) the same governance and leadership structure and (2) the same clinical and administrative processes that they use while participating in the MSSP.

Nevertheless, and as with any other network, ACOs with a significant market presence can still utilize their size in ways that can raise anticompetitive concerns. As a means to prevent large ACOs from engaging in activities that could create anticompetitive concerns, the Policy Statement suggests that a large ACO avoid the following conduct:

  1. preventing or discouraging private payers from directly or indirectly incentivizing patients to choose certain providers (including providers that do not participate in the ACO) through the use of anti-steering, anti-tiering, guaranteed inclusion, or “most favored nation” provisions;
  2. tying the sale of ACO services to services provided outside of the ACO;
  3. exclusively contracting with ACO participants, thereby preventing or discouraging them from contracting with private payers outside of the ACO; and
  4. restricting a private payer’s ability to make available to its health plan enrollees cost, quality, efficiency, and performance information that might assist the enrollees in selecting providers if that information is similar to the cost, quality, efficiency, and performance measures used in the MSSP.

In addition, all ACOs should be mindful of the potential for the improper sharing of confidential information that could be used to facilitate inappropriate activities outside of an ACO.