Biden Administration Enlists Public in Effort to Identify Potential Antitrust Violations in Healthcare Sector

The Federal Trade Commission (FTC), Department of Justice (DOJ) and Department of Health and Human Services (HHS) recently announced the launch of “an easily accessible online portal for the public to report health care practices that may harm competition.” The portal provides the public an opportunity to report “potentially unfair and anticompetitive health care practices” to antitrust enforcers. DOJ Assistant Attorney General for Antitrust Jonathan Kanter described the portal as a “one-stop shop to report potential violations of our competition laws to the Justice Department and FTC.” FTC Chair Lina Khan called the project a “crucial channel for the agencies to hear from the public,” while HHS Secretary Xavier Becerra hoped that the information provided by the public will help to “root out” “monopolistic, anti-competitive practices that undermine the delivery of health care to Americans.”

The portal provides brief summaries of the relevant antitrust statutes, specifically the Sherman Act, the Clayton Act, the FTC Act, and the Robinson-Patman Act. The site also provides consumers several examples of conduct that the agencies contend can harm competition in healthcare. The examples run the gamut from traditional anticompetitive conduct, such as collusion or price fixing, to conduct that the antitrust agencies have more recently prioritized, including “limiting choice and fair wages for healthcare employees” and “preventing transparency.” Aside from broad examples of potentially anticompetitive conduct and links to the text of various antitrust statutes, the agencies provide little guidance as to the structure or substance of the complaints it asks the public to submit.

The process for reviewing these public complaints is at once familiar and unorthodox. As ever, the federal antitrust enforcement agencies – the DOJ and FTC – will conduct a preliminary analysis. Then, if “a complaint raises sufficient concern under the antitrust laws or is related to HHS authorities, it will be selected for further investigation by the appropriate authority,” which “may lead to the opening of a formal investigation.” While the HHS’s introduction into the competition space is new and its enforcement role is unclear, this collaboration is just the latest example of the “whole of government approach” to antitrust enforcement taken by the Biden administration. Indeed, these same agencies recently announced a joint inquiry into the impact of private equity acquisitions on the healthcare market. Notably, that inquiry also requested public assistance in identifying potential antitrust concerns, especially arising out of transactions that would not require notice be provided to the antitrust authorities under the Hart-Scott-Rodino Act.

The increased scrutiny by antitrust enforcement agencies in recent years has been well documented, and enforcers have been particularly open about their focus on zealous enforcement of the antitrust laws in the healthcare sector. Accordingly, market participants in the healthcare sector must ensure not only that their conduct complies with antitrust laws, but also that their conduct appears to comply with the antitrust laws in the public eye. Bradley will continue monitoring agency enforcement initiatives impacting the healthcare industry.