Amanda Meyer

Associate Editor 

Loyola University Chicago School of Law, JD 2025

Overview:

The Federal Trade Commission, Department of Justice Antitrust Division and the Department of Health and Human Services are working together to gather information on healthcare transactions, including various nonreportable deals and anticompetitive practices that harm patient’s health, safety, quality of care and affordability. 

The Federal Trade Commission is a bipartisan government regulatory agency whose main purpose is to “protect the public from deceptive and anticompetitive business practices through advocacy, education and law enforcement.”

The Department of Justice is a government agency whose mission is to uphold the rule of law, keep the United States safe and to protect civil rights. The DOJ Antitrust Division is a division of the DOJ that was created “to promote competition in the U.S. economy through enforcement of, improvements to, and education about antitrust laws and principles.”

The Department of Health and Human Services is a regulatory agency whose purpose is “to enhance the health and well-being of all Americans, by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services.”

These agencies have issued a Request for Information (RFI) on March 5, in response to increasing evidence of private equity firms and other large companies buying out healthcare facilities, and engaging in anti-consumer practices such as reducing staffing and minimizing the quality of care for patients in order to maximize profit. The RFI asks for public comments on deals conducted by health systems, private payers, and private equity funds. The RFI also requests information on transactions that would not be reported to the Justice Department of the FTC for antitrust review under the Hart-Scott-Rodino-Antitrust Improvements Act

Hartt-Scott-Rodino-Antitrust Improvements Act 

The Hartt-Scott-Rodino Antitrust Improvements Act of 1976 amended the Clayton Act, and requires companies to file premerger notifications with the Federal Trade Commission and the Antitrust Division of the Department of Justice. The Act applies only to larger mergers and transactions, and has two tests. The threshold value of these tests is adjusted annually by the FTC. 

• Size of transaction test: Generally, the test is met if the value of the equity of assets to be acquire exceeds the value set by the FTC and DOJ. For 2024, the minimum threshold for this test is $119.5 million.
• Size of person test: This additional test only applies if the transaction is valued between $119.5 million and $478 million for the 2024 year. The test is generally met is the worldwide total assets or annual net sales of one party are at least $239 million and the other parties are at least $23.9 million for the 2024 year. 

If these tests are met, then both parties to the transaction are required to submit HSR filings, disclosing basic information about the transaction and their businesses, such as their subsidiaries, revenues and potential competitive overlaps between each party’s businesses.

Healthcare systems and antitrust

Since March 5, there have already been 155 comments from hospitals, healthcare workers, and other healthcare providers throughout the country detailing their experiences with corporate greed and the changing healthcare system. One commenter who works in the health insurance industry wrote on the consolidation of health insurance, “Healthcare panel participation is dwindling. Most Americans rely on health insurance, without which they cannot afford healthcare. Corporate greed has led to punitive practices for healthcare providers, reducing the number of them participating on healthcare insurance panels and making healthcare less accessible to the public.”

Another commenter, the CEO of Frances Mahon Deaconess Hospital in Glasgow, Montana, discusses how CVS Caremark, Aetna and CVS Accountable Care have created an amalgamation that works to the disadvantage of rural towns and their citizens. The conglomerate has forced patients to join their system, only for the patients to receive their medication in an untimely, restricted manner. CVS also engages in a practice called white bagging, which is an arrangement between insurance payers and selected pharmacies to ship a patient’s medications directly to the site of care. This practice has the potential to undermine hospital’s patient safety protections and harm patient care. Many states are passing legislation to limit white bagging as a result of its growing concern. 

Practicing Physicians of America also commented that “Monopolizing the physician continuous medical education market (approx. $1T annually) has contributed to rising prices and monopolization of health care markets for years under the name of unproven “quality” initiatives.” They have also stated that here have been multiple antitrust lawsuits on this matter since Dec 2018, with one yet to be decided in the Seventh Federal District Court. 

Conclusion:

The healthcare industry is one of the largest industries in the United States, with the healthcare market expected to each $665.37 billion dollars by 2028. Due to the size and pervasiveness of the industry, corporate greed has the capacity to affect nearly every United States citizen. The regulations, public comments and continuing education on this matter are imperative to control corporations who see dollar signs instead of human beings.