Antitrust and Unfair Competition Law

Competition: Fall 2015, Vol 24, No. 2


By Kenneth W. Field and Douglas E. Litvack

Health care providers, from the most acclaimed academic medical centers to independent primary care practitioners, have continued their blistering pace of consolidation and mergers in an effort to meet the demands of health care reform. It is through these mergers and affiliations that providers hope to generate the significant efficiencies required to survive as the world moves toward value and risk based reimbursement. But the provider mergers that stand to generate the largest efficiencies—those that involve proximately located providers who can optimize their delivery platforms—often raise the greatest antitrust concern because existing antitrust models suggest they may eliminate important localized competition.

As a result, the Federal Trade Commission ("FTC") has made health care merger antitrust enforcement a priority. In the past several years, the FTC has investigated hundreds of provider mergers and in each case it has applied largely the same analytic framework. And that framework, described in more detail below, has been validated by several federal district courts in the FTC’s recent successfully litigated challenges to hospital and other provider mergers. As the healthcare industry evolves, however, it is natural to ask if the FTC’s approach to analyzing provider mergers must change along with it.

Health plans and government payors are in the process of changing the manner in which providers are paid for services. The goal is to transition provider compensation to forms of value-based pay, which reward providers for the quality of the care delivered, not just the volume of care. While providers generally believe this fundamental shift away from fee-for service reimbursement will render the FTC’s analytic framework irrelevant, the FTC is unlikely to change its ways. In fact, for the reasons explained below, the FTC’s existing analytic tools are likely to continue to drive health care merger enforcement policy even as payment reforms takes hold. There is at least one type of transaction, however, where those very tools may actually help providers obtain antitrust clearance for their prospective mergers.


The FTC and Department of Justice ("DOJ") (collectively, "Agencies") have overlapping jurisdiction to review transactions under the antitrust laws.2 In the healthcare industry, the FTC typically reviews provider transactions and the DOJ reviews insurance transactions. Nevertheless, the Agencies review transactions using the same analytical guidelines—the Horizontal Merger Guidelines.3 These guidelines specifically set forth the factors the Agencies consider when investigating a transaction.

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During a merger investigation, the Agencies focus on whether the transaction may substantially lessen competition, either by giving the combined entity market power to profitably increase its reimbursement rates or reducing the incentives to provide high quality care. To answer this question, the Agencies apply the Horizontal Merger Guidelines to the underlying transaction, which instruct them to:

  • Define relevant product and geographic markets to analyze the transaction’s competitive impact;
  • Assess the market concentration for each relevant market;
  • Review the likely competitive effects for each relevant market; and
  • Determine whether mitigating factors, such as entry or efficiencies, would offset concerns about competitive harm.4

Typically, the majority of the Agencies’ time and energy is spent understanding whether the transaction likely will produce competitive harm—e.g., higher prices or lower quality services. In most transactions, this inquiry goes well beyond looking at market shares. Indeed, agency staff gather and review a variety of evidence, including documents, data, and testimony, from the parties and other industry participants.5 If this evidence suggests that a transaction eliminates important head-to-head competition between the two merging parties or an important barrier to coordination among the remaining firms, then the reviewing Agency may conclude that it violates the antitrust laws.6

In healthcare provider transactions, the FTC’s competitive effects inquiry has focused on whether the transaction gives the combined entity the ability to obtain higher reimbursement rates during negotiations with managed care organizations (i.e., health plans).7 To analyze the competitive impact of these provider transactions, the FTC has adopted the "Two-Stage Competition Model."8 In its first stage, providers compete to be selected as in-network providers by health plans through bilateral negotiations with the plans.9 The key terms that a provider and health plan negotiate are the reimbursement rates that the health plan will pay the provider when the health plan’s members obtain care from the provider.10 A health plan’s bargaining leverage over providers is a function of the number of alternative providers available among whom the health plan could form a substitute provider network for its members.11 A transaction that significantly reduces the number of meaningful alternatives a health plan can turn to thereby increasing the merged entity’s ability and leverage to negotiate higher reimbursement rates after the transaction.12

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In the second stage, providers seek to attract patients enrolled in the plans by offering better services, amenities, convenience and quality of care than other in-network providers.13 Because patients are largely insensitive to price (and face similar out-of-pocket payment for all in-network providers), the second stage of competition focuses primarily on non-price dimensions.14 Most recently, the Ninth Circuit in St. Alphonsus Medical Center—Nampa, Inc. v. St. Luke’s Health System confirmed the model’s legitimacy, stating that the "two-stage model is the accepted model."15


According to healthcare experts, the United States healthcare system is in need of reform.16 Despite having the highest healthcare costs of any country in the world, the United States has a lower quality of care than other advanced countries.17 It is widely believed that this fact is a by-product of the unique manner in which healthcare providers are paid for their services in the United States.18 Today, providers are predominantly compensated on a fee for service ("FFS") basis, meaning a provider is paid whenever it provides a service to a patient.19 Under FFS payment, the amount of payment a provider receives for treating a patient increases as it performs more services. Importantly, a provider receives no financial reward for keeping a patient healthy. As such, the FFS payment model incentivizes volume of care rather than quality.20 This perverse incentive structure may explain why Americans pay the highest healthcare costs, but experience only average outcomes.21

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Recognizing the flaws of FFS payment, healthcare stakeholders have started a sea change in the healthcare payment system. Ignited by the Patient Protection and Affordable Care Act of 201022, the industry participants (e.g., hospitals, physicians, and insurers) are transitioning from FFS compensation to forms of value-based compensation and "risk sharing."23 In risk sharing arrangements, providers and payers each have incentives to keep patients healthy and limit total health care costs.24 Risk and value based models expose the providers to potential loss or windfall, depending on care outcomes.25

There are three broad types of risk-based payments. The first type is gain-sharing payments. Here, the providers are paid on a fee-for-service basis, but receive a bonus payment if the expected cost of care is greater than the actual cost of care.26 While the providers do not forfeit payments (i.e., take on risk) if the actual treatment costs exceed the expected treatment cost, they do receive a bonus payment for providing higher-quality care below its expected cost.27 This payment model is thought of as a stepping stone for providers to take on downside risk.28 For example, NYU Langone Medical Center in New York City recently transitioned an experimental gain-sharing program into a broader integrated care arrangement with Cigna by compensating more services with gain-sharing arrangements.29

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Another type of risk-based payment is the partial-risk payment model. Under this payment scheme, the provider puts a portion of its compensation at "risk," while receiving the majority of its payment on a FFS basis. For example, providers enrolled in the Medicare Shared Savings Program ("MSSP") accept risk-based payments for Medicare-eligible care, but rely on FFS for other services.30 This model has proven popular. As of 2015, over four hundred voluntarily enrolled provider groups, known as Accountable Care Organizations ("ACOs"), are engaged in the MSSP.31 Partial-risk arrangements can be seen as an incremental step, allowing providers to build toward full-risk arrangements.

The third, and final, type of risk-based payment is the two-sided risk, or full risk, model. In this structure, providers assume the full risk for treating their patient population and thus receive no FFS-based payment.32 Instead, the provider receives a fixed amount of payment for treating its defined patient population, with payment penalties if it does not meet or exceed pre-determined quality benchmarks. In 2009, Blue Cross Blue Shield of Massachusetts launched a full risk-based payment contract—the Massachusetts Alternative Quality Contract ("AQC")—with eight providers.33 The AQC pays participating providers a fixed amount for patient care delivered during a defined period, and awards bonuses when groups meet performance targets.34 Providers enrolled in the AQC are at risk (i.e., will lose money) if healthcare costs exceed the target.35 Of the three models, full-risk agreements are considered the most effective means to drive value-based compensation and generate better patient outcomes.

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The healthcare industry’s transition to risk-based payment is motivated by this desire to incentivize higher quality, lower-cost care. But, at this stage, it is too early to determine whether risk-based payment systems will accomplish that goal.36 Nevertheless, healthcare stakeholders are committed to moving away from FFS and toward risk-based compensation schemes. Because of the continued drive toward risk-based payments, the healthcare industry can expect that the risk-based model will be the prevalent form of compensation in the near future.37 Under the risk-based model, the key terms that providers will negotiate with health plans are the target healthcare spending level and the quality benchmark targets. Indeed, these key terms will replace the prior focus on the reimbursements.


The Agencies’ antitrust review of transactions is an arduous task, requiring a fact-specific inquiry that must predict a transaction’s future competitive impact.38 Because industries tend to evolve over time, the Agencies cannot—and do not—get wedded to a particular analytical model to assess a transaction’s competitive implications. Instead, they tend to remain flexible and open to new approaches as changing markets may make their prior approach obsolete. Indeed, the FTC in its recent investigation into the Office Depot-Office Max merger, noted that "yesterday’s market dynamics may be very different from the market dynamics of today" and therefore it "must take into account the evolving nature of markets" when analyzing a transaction’s likely competitive impact.39 There, the FTC found that "[a]lthough sixteen years ago the Commission blocked a proposed merger between Staples, Inc. and Office Depot, the nation’s two largest OSS, our current investigation has show that the market for the sale of consumable office supplies has changed significantly in the intervening years."40 As the FTC now reviews a revived Staples-Office Depot merger, their analysis may change yet again.

As the healthcare industry moves away from FFS to risk-based payment, the FTC likely will reassess its approach to analyzing healthcare provider transactions. Healthcare stakeholders therefore may wonder whether transactions that would previously be challenged by the FTC may now receive clearance. That question hinges on whether risk-based contracting materially changes the FTC’s prior approach to analyzing healthcare provider transactions—i.e., the Two-Stage Competition Model.

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The presence of gain-sharing or partial risk-based contracts is unlikely to alter the FTC’s approach to evaluating healthcare provider transactions. Providers engaged in these contracts with health plans continue to receive FFS compensation. Accordingly, these providers negotiate the reimbursement rates that the health plan will pay the provider when the health plan’s members obtain care from the provider.41 But, according to the FTC, a health plan’s bargaining leverage over providers will remain a function of the number of alternative providers available to form its member provider network.42 A provider combination that significantly reduces the number of meaningful alternatives a health plan can turn to will thereby allow the merged-entity to raise its reimbursement rates.43 These higher reimbursement rates will be passed on to consumers in the form of higher premiums, co-pays, and deductibles. Put simply, a provider combination that leaves few viable alternatives will continue to raise significant antitrust problems in the eyes of the FTC and other enforcement agencies.

In addition, any argument that a transaction which facilitates the engagement of these types of contracts with health plans likely will not tip the scales in favor of clearance. To do so, the Horizontal Merger Guidelines require transaction-specific, cognizable consumer benefits "of a character and magnitude such that the merger is not likely to be anticompetitive."44 But the FTC appears to believe that the consumer benefits from gain-sharing or partial risk-based contracts are questionable. In St. Luke’s, for example, the FTC appeared to take the position that only full risk contracts would remove the perverse FFS incentives to provide costly, wasteful services that are unsupported as the best treatment course.45 And the defendants there did not appear to dispute this position.46 For these reasons, the FTC unlikely will credit the facilitation of these contracts as a potential transaction-related benefit.

Unlike gain-sharing and partial risk contracts, full risk based contracts have no fee-for-service component. Because of this material difference, the existence of full risk-based contracts may stand a chance to alter the FTC’s approach to analyzing healthcare provider transactions. But a careful examination of risk-based contracts reveals that it likely does little to change the negotiating dynamic between the providers and health plans outlined in Stage One of the Two-Stage Competition Model. And it is that negotiating dynamic—not the payment mechanism—which drives the FTC’s model for analyzing provider transactions. That is, in full risk-based contracts, just like FFS contracts, providers and health plans negotiate the basis for which the provider is paid for services. Indeed, the FTC’s economic expert in St. Luke’s testified that the bargaining dynamics apply equally in negotiating for fee for service contracts and full risk contracts.47 For example, a provider and health plan negotiate the fixed amount to pay the provider for treating its patient population. So, a transaction that significantly increases providers’ bargaining leverage vis-via health plans will allow the provider to obtain a higher fixed payment amount, thereby increasing consumers’ healthcare costs.

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Although the analysis likely will remain unchanged, transactions that enable providers to engage in risk-based contracts, by for example giving a provider the requisite scale to assume risk, may create cognizable consumer benefits to offset some degree of antitrust concerns. As the FTC appeared to recognize in St. Luke’s, full risk-based contracts do benefit consumers by incentivizing lower-cost, higher-quality care.48 The key question here is whether the benefits of risk-based contracting are transaction-specific, meaning the benefit would not be achieved without the transaction. In St. Luke’s, the FTC (and the court) found that a merger between a health system and multi-specialty physician group was not necessary for the physicians to engage in full risk-based contracts with health plans.49 Instead, the FTC argued, and the court agreed, that the scale needed to assume risk could be achieved through a loose affiliation between the physicians and health system.50 It is, however, an open issue whether other provider combinations (e.g., hospital-hospital or hospital-ambulatory surgery center) could achieve these benefits through loose affiliations. This open issue may be parties best chance to use risk-based contracting to help gain antitrust clearance of a provider transaction.


Given that the FTC believes the bargaining dynamic between providers and health plans remains materially unchanged, it seems unlikely that risk-based contracting will alter the FTC’s approach to analyzing provider transactions. Indeed, providers considering mergers with competitors will need to continue to exercise caution, even if FFS payments disappears. But, for those transactions that may enable full risk-based contracts that could not otherwise be done, there may be a chance that it helps those provider combinations obtain antitrust clearance.

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1. Kenneth Field is a partner at Jones Day. Before rejoining Jones Day, Ken spent more than six years at the Federal Trade Commission as Counsel to the Director of the Bureau of Competition and as a lead attorney on major Commission health care investigations and litigation matters, including leading the FTC’s successfully litigated challenge of the proposed acquisition of Rockford Health System by OSF Healthcare. Douglas Litvack is an associate at Jones Day and a former FTC staff attorney in the Mergers IV Division. He also was a member of the FTC’s trial team for its successful challenge of the St. Luke’s-Saltzer transaction and the OSF Healthcare-Rockford Health System transaction.

The authors thank Andrew Mikac, a third year student at the Ohio State University Moritz College of Law and former Jones Day summer associate, for his assistance with this article.

2. 15 U.S.C. § 18(a).

3. See U.S. Dep’t of Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines § 1 (rev. ed. August 19, 2010) ("Horizontal Merger Guidelines"), ("These Guidelines outline the principal analytical techniques, practices, and the enforcement policy of the DOJ and FTC with respect to mergers and acquisitions . . . under the federal antitrust laws.").

4. See generally Merger Guidelines, supra note 3.

5. See Id. at § 2.2.1.

6. See id at § 1.

7. See, e.g., FTC Compl. ¶¶ 21-23, St. Alphonsus Med. Ctr. v. St. Luke’s Health Sys., (D. Idaho 2012), Dkt. No. 98, Mar. 26, 2013 (No. 1:12-cv-00560); FTC Compl. ¶¶ 22-24, FTC v. OSF Healthcare Sys., 852 F. Supp. 2d 1069 (N.D. Ill. 2012), Dkt. No. 1, Nov. 18, 2011 (No. 3:11-cv-50344).

8. FTC Compl. ¶¶ 22-24, FTC v. OSF Healthcare Sys., 852 F. Supp. 2d 1069 (N.D. Ill. 2012), Dkt. No. 1, Nov. 18, 2011 (No. 3:11-cv-50344).

9. Id.

10. Id.

11. Id.

12. Id.

13. Id.

14. Id.

15. St. Alphonsus Med. Ctr. v. St. Luke’s Health Sys., 778 F.3d 775, 784 n. 10 (9th Cir. Idaho 2015); see also OSF Healthcare, 852 F. Supp. 2d at 1082, 1087 (concerning supracompetitive reimbursement rates); In re ProMedica Health Sys., Inc., No. 9346, 2012 WL 1155392 *1-10 (F.T.C. June 25, 2012) (same).

16. See Michael E. Porter & Thomas H. Lee, The Strategy That Will Fix Healthcare, Harvard Bus. R. (October 2013),; see also Centers for Medicare & Medicaid Serv., Better Care. Smarter Spending. Healthier People: Paying Providers for Value, Not Volume (Jan. 26, 2015),; see also Mark B. McLennan, Improving Health Care: The Path Forward, Testimony before the U.S. Senate Committee on Finance (June 26, 2013),

17. Karen Davis, Kirstof Stremikis, David Squires, Cathy Schoen, Mirror, Mirror On The Wall, 2014 Update: How the U.S. Health Care System Compares Internationally, The Commonwealth Fund (June 16, 2014), that "despite having the most expensive health care system, the United States ranks last overall among 11 industrialized countries on measures of health system quality, efficiency, access to care, equity, and healthy lives" based on a recent study); Nat’l. Research Council & Inst. Of Med., Rep.: U.S. Health in Int’l. Perspective: Shorter Lives, Poorer Health ix (Steven H. Woolf & Laudan Aron, eds.) (January 9, 2013) ("The United States spends much more money on health care than any other country. Yet Americans die sooner and experience more illness than residents in many other countries.").

18. The Miller Center, Cracking the Code on Health Care Costs, A Report by the State Health Care Cost Containment Commission, (Jan. 2014) ("Cracking the Code") (crediting fee-for-service payment model with being the main driver of overly-expensive care in the United States); Rep.of the Nat’l. Comm. on Physician Payment Reform (March 2013) ("Physician Payment Reform Report") (describing fee-for-service payment as the driver behind increasing health care expenditures while failing to provide substantial improvements in care).

19. Ctr. for Quality Healthcare Reform, The Payment Reform Glossary 22 (2015).

20. Jeffrey B. Millburn & Mary Maurer, Strategies for Value-Based Physician Compensation 2 (2013).

21. See Cracking the Code and Physician Payment Reform Rep., supra note 18.

22. Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010).

23. See Sylvia Matthews Burwell, Progress Toward s Achieving Better Care, Smarter Spending, Healthier People, 26, 2015),

24. See Matt Chock, A Review of Value-Based Compensation and its Potential Impact on Healthcare Spend, Med. Ind. Leadership Inst. (May 2013); HealthLeaders Media,Valuing Physician Compensation,; Melanie Evans & Bob Herman, Where Healthcare is Now on March to Value-Based Pay, Modern (Jan. 28, 2015),; Teresa Odle, Facing the Trend: Preparingfor Value-Based Compensation, (Fall 2014),

25. Payment Reform Glossary, supra note 19, at 22.

26. See Id.; see also David Seligman & Gail S. Chorney, Aligning Physician and Hospital Goals through Gainsharing, AAOS Now (August 2013),

27. Am. Med. Assoc., Shared Savings (July 20, 2015),

28. The MSSP, for example, initially required participants to move from a gain-sharing model to one that included downside risk after three years in the program. It, however, later made that shift optional due to concerns from providers. See Mark B. McClellan, S. Lawrence Kocot, Ross White, What the New Medicare Shared Savings Program Proposed Rule Means for ACOs, Brookings Inst, (Dec. 4, 2014),; see also Judy Packer-Tursman, ACO Squeeze: How Much Can They Really Save? Managed Healthcare Exec. (Aug. 5, 2014),

29. David Seligman & Gail S. Chorney, Aligning Physician and Hospital Goals through Gainsharing, AAOS Now (August 2013),; Mark Slitt, NYUPN Clinically Integrated Network, LLC & Cigna Start Accountable Care Program to Improve Health & Lower Costs, CiGNA.coM (June 27, 2013),—llc-and-cigna-start-accountable-care-program-to-improve-health-and-lower-costs.htm.

30. See Shared Savings, supra note 26.

31. Centers for Medicare & Medicaid Serv. Fast Facts—All Medicare Shared Savings Programs (April 2015),

32. See Shared Savings, supra note 26.

33. Michael E. Chernew, Robert E. Mechanic, Bruce E. Landon, Dana Gelb Safran, Private-Payer Innovation in Massachusetts: The "Alternative Quality Contract" 30, HealthAffairs (Jan. 2011),

34. Id.

35. See Chernew, et. al., Private Payer Innovation in Mass., supra note 32, at 30.

36. Since adopting a full risk-sharing compensation model, providers in the Massachusetts AQC have exhibited no reduction in quality outcomes, while reducing medical spending by ten percent. See Josh Seidman, et al., Payment Reform on the Ground, supra note 31 at 30. Similarly, in its most recent evaluation, the MSSP reported savings of over $417 million in Medicare costs with simultaneous improvements in quality of care. Centers for Medicare & Medicaid Serv., Factsheet: Medicare ACOs Continue To Succeed In Improving Care, Lowering Cost Growth (Sept. 16, 2014), More generally, earlier studies suggest that providers with compensation structures tied to quality metrics, rather than FFS, show improved quality outcomes for patients. Laura Peterson, et al., Does Pay-for-Performance Improve the Quality of Health Care?, 145 Annals of Internal Med. 265, 268 (Aug. 15, 2006).

37. Jason Millman, The Obama Administration Wants to Dramatically Change How Doctors are Paid, Wash. Post Wonk Blog (Jan. 26, 2015),

38. Merger Guidelines, supra note 3,.§ 1.

39. FTC Statement Concerning the Proposed Merger of Office Depot, Inc. and OfficeMax, Inc., FTC File No. 131-0104, (Nov. 1, 2013) at 1,

40. Id.

41. Id.

42. See supra note 6.

43. Id.

44. Merger Guidelines, supra note 3,.§ 10.

45. See Plaintiffs Amended Corrected Proposed Findings of Fact 402-05, St. Luke’s, (D. Idaho 2012), Dkt. No. 454, Dec. 30, 2013 (No. 1:12-cv-00560),

46. See generally Defs. Amended Corrected Proposed Findings of Fact, St. Luke’s, (D. Idaho 2012), Dkt. No. 454, Dec. 30, 2013 (No. 1:12-cv-00560),

47. Trial Tr. 1308:12-1309:8, St. Luke’s (D. Idaho 2012), Dkt. No. 454, Dec. 30, 2013 (No. 1:12-cv-00560).

48. St. Luke’s, 778 F.3d at 788-89 (9th Cir. 2015).

49. Id.

50. Id.

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