Overlooked in the excitement of the March 31 release of accountable care organization rules was a document outlining what factors in an ACO would prompt federal antitrust investigations.

Some ACOs will be given a green light. The enforcement policy from the Federal Trade Commission and the Department of Justice creates a ?safety zone? that exempts from antitrust review ACOs whose providers control 30 percent or less of the market in their primary service area.

On the other hand, ACOs with 50 percent or more market share are subject to mandatory antitrust review. The red light goes on when any single ACO participant controls 50 percent of the market for any single service. However, regulators promise expedited reviews that theoretically will deliver a ruling within 90 days of the time all documentation has been filed.

For those ACOs with market shares between 30 percent and 50 percent, the caution light is blinking yellow. The enforcement policy says that avoiding the following five traps will significantly reduce the chance of a review:

1. Preventing or discouraging commercial health plans from incentivizing or steering patients to certain providers.

2. Tying sales of the ACO's services to a commercial health plan's purchase of other services from providers outside the ACO. For example, a popular cardiology group within the ACO that required a health plan to buy imaging services from a provider outside the ACO would fall under this category.

3. Contracting with other ACO providers on an exclusive basis and preventing or discouraging them from contracting with providers outside the ACO. For example, a hospital that contracted exclusively with an oncology group within the ACO, or discouraged that oncology group from obtaining privileges at the hospital across town that's not in the ACO, could trigger a review.

4. Restricting a commercial health plan from releasing data on cost, quality and efficiency to enrollees. In other words, restricting transparency.

5. Sharing sensitive pricing information used outside the ACO with other ACO participants -- in other words, collusion.

These ?traps? will undoubtedly be subject to vigorous debate during the course of public comment. In several markets, both federal and state regulators have already fired warning shots across the bows of health systems that are rapidly consolidating.

Data from Navigant Consulting show that 59 percent of the hospital industry in the United States remains only moderately consolidated or unconsolidated. That means the FTC, the Justice Department, and state regulators will be busy trying to ensure the healthcare industry remains competitive as providers of all stripes come together.

It's shaping up to be an interesting?and confusing?time, and one of tremendous change.

But now at least a few of the traffic signals seem to have been installed.

Listen to Lyda's Podcast entitled: Where the Rubber Meets the Road: Accountable Care Organizations and Antitrust Regulations
 
 

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