Justice Department’s New Task Force on Health Care Monopolies and Collusion

DOJ recently formed the Antitrust Division’s (the “Division”) Task Force on Health Care Monopolies and Collusion (“HCMC”), signaling anticompetitive activity in health care markets as an enforcement priority.

The HCMC task force, announced on May 9, 2024, will be composed of an interdisciplinary team that includes civil and criminal prosecutors, economists, health care industry experts, technologists, data scientists, investigators and policy advisors from across the Division’s Civil, Criminal, Litigation and Policy Programs, and the Expert Analysis Group. DOJ has indicated that the HCMC task force will address the following non-exhaustive types of “widespread competition concerns shared by patients, health care professionals, businesses and entrepreneurs”:

• Issues regarding payer-provider consolidation,
• Serial acquisitions,
• Labor and quality of care,
• Medical billing,
• Health care IT services, and
• Access to and misuse of health care data

Of particular note, Jonathan Kanter, Assistant Attorney General for Antitrust, highlighted the need for the Antitrust Division to adjust its enforcement in light of the changing health care market. Specifically, Kanter referred to the “platformization” of health care, whereby health care consumers experience health care delivered by “multi-sided giants, intermediaries that have a coordinated stack of businesses that flow together, including payers, including providers, including PBMs [pharmacy benefit managers], claims processing, banks”— in other words, vertically integrated health care businesses —who are “accumulating assets at an alarming rate” and becoming “gatekeepers of our health care system”.

The unveiling of the HCMC task force follows a number of recent initiatives demonstrating the government’s focus on antitrust enforcement in health care:

• Since 2022, the Federal Trade Commission (“FTC”), the agency which shares authority to enforce antitrust laws with DOJ, has been conducting an antitrust inquiry into pharmacy benefit managers’ (“PBM”) impact on access and affordability of prescription drugs. In 2022, the FTC issued compulsory orders for information and records to the six largest PBMs and, in 2023, to two group purchasing organizations that negotiate drug rebates on behalf of other PBMs.
  
  
• On February 3, 2023, the Antitrust Division withdrew three antitrust enforcement policy statements related to enforcement in health care markets which had created antitrust “safety zones” for mergers, joint ventures, group purchasing, and information sharing among industry participants.
  
  
• On March 5, 2024, the White House announced a new Strike Force on Unfair and Illegal Pricing co-chaired by the DOJ and the FTC to root out and stop illegal corporate behavior that hikes prices in key sectors including prescription drugs and health care.
  
  
• On March 5, 2024, DOJ, the FTC, and the Department of Health and Human Services (“HHS”) jointly launched a cross-government public inquiry into private-equity and other corporations’ increasing ownership and control over health care. Specifically, the Request for Information (“RFI”) requested public comment on deals conducted by health systems, private payers, private equity funds and other alternative asset managers that involve health care providers, facilities or ancillary products or services. The RFI also requested information on transactions that would not be reported to the Justice Department or FTC for antitrust review under the Hart-Scott-Rodino Antitrust Improvements Act. The deadline for public comment was extended to June 5, 2024.
  
  
• On April 18, 2024, DOJ, the FTC, and HHS launched an online portal, HealthyCompetition.gov, to allow the public to report potentially unfair and anticompetitive health care practices to the FTC and the Justice Department’s Antitrust Division. 

Collectively, the creation of the HCMC task force, in addition to these recent efforts, continue to demonstrate the federal government’s ongoing enforcement efforts against health care businesses. As such, health care providers should evaluate the competitive effects of any business decision, including mergers and acquisitions and anticompetitive agreements.

For more information regarding the HCMC task force and navigating and strategizing antitrust inquiries, investigations and enforcement, please contact your Quarles attorney or:

• Kirti Reddy, Co-Chair, Government Enforcement Defense & Investigations: (414) 277-5260 / kirti.reddy@quarles.com
• Theresa DeAngelis: (202) 372-9522 / theresa.deangelis@quarles.com