FTC Commissioner Gives Speech on Clinical Integration

From the American Health Lawyers Association; to join, go to www.healthlawyers.org:

On April 27, 2009, Federal Trade Commissioner (FTC) Commissioner Pamela Jones Harbour gave a speech on clinical integration at an annual meeting of the American Hospital Association (AHA). The speech, entitled "Clinical Integration: The Changing Policy Climate and What it Means for Care Coordination," provides the Commissioner's views on the FTC's policy on clinical integration and how that policy might be affected by the Obama Administration's healthcare reform plans. The Commissioner emphasized that the FTC's continuing approach to clinical integration will be a "flexible, case-by-case approach," and that the FTC staff is always willing to work with providers to resolve any antitrust concerns surrounding clinical integration plans.

In her speech before the AHA, the Commissioner commented on a number of themes relevant to clinical integration that were part of the Obama/Biden campaign health plan. First, the Commissioner said it is clear that the Obama Administration regards competition as an important element of the American healthcare system. For example, President Obama has suggested that any government-sponsored insurance plan should compete with private health insurers. Additionally, the Obama Administration has emphasized better coordination of care at all levels of the healthcare system, which the Administration notes can be partially accomplished through improved health information technology (HIT) measures and by linking physician compensation to the value of care provided. The goal is a quality-based, pay-for-performance model combined with changes in reimbursement methodology for doctors and their patients. The Commissioner noted that HIT could serve as a "hub for effective coordination-of-care efforts" and is "completely consistent with procompetitive clinical integration," but she emphasized that the FTC's and the Obama Administration's real focus should be quality of coordination and improved efficiency.

The Commissioner next explained that the FTC would not be issuing bright-line rules on clinical integration, but rather would continue to employ a flexible, case-by-case approach when analyzing clinical integration programs. Reacting to past criticism that the federal antitrust agencies have not been providing sufficient guidance to healthcare providers, the Commissioner said that the criticism was in effect a request for clinical integration safe harbors. She pointed to the thirty-seven-page advisory opinion recently issued by the Commission to TriState Health Partners as evidence that antitrust analysis of clinical integration programs is a highly fact-specific endeavor, and she emphasized that bright-line rules would stifle innovation in the development of such programs. The Commissioner also called for more empirical studies analyzing the clinical integration's overall effectiveness.

At the conclusion of her remarks, the Commissioner noted that the FTC had offered more guidance on clinical integration than on any other area within its competition jurisdiction. She emphasized that the doors were always open to speak to the FTC staff about any clinical integration plans, and that ultimately innovation and creative thinking would be what would most benefit the healthcare industry.