Health Care under the Antitrust Guidelines
![handle is hein.journals/ucinlr64 and id is 83 raw text is: HEALTH CARE UNDER THE ANTITRUST GUIDELINES
Murray S. Monroe*
William J. Seitz**
I. INTRODUCTION
Since the fall of 1993, there have been numerous court decisions,
rulings from the federal and state enforcement agencies, and most par-
ticularly two Statements of Enforcement Policy' (Guideline(s)) issued
jointly by the Department of Justice (DOJ) and the Federal Trade
Commission (FTC) that have dealt with health care is-
sues-particularly mergers, joint ventures, and multiprovider net-
works.2 These developments warrant a review of the current status of
certain antitrust issues as they apply to the health care industry.
The 1994 Guidelines consist of nine separate statements-one in-
volving mergers, three regarding joint ventures, three regarding the
compilation and dissemination of price and cost data, one on joint
purchases, and one as to multiprovider networks.' In addition, the fed-
eral enforcement agencies have responded to numerous inquiries about
issues raised by the Guidelines.'
For the most part, the advice is conservative.' Although the state-
* Member of the Ohio Bar and practicing attorney, Taft, Stettinius & Hollister, Cincin-
nati, Ohio. B.E. and B.S., Yale University, 1946, 1947; LL.B., University of Pennsylvania,
1950.
** Member of the Ohio Bar and practicing attorney, Taft, Stettinius & Hollister, Cincin-
nati, Ohio. B.A., University of Cincinnati, 1975; J.D., University of Cincinnati, 1978.
The authors wish to acknowledge the valuable assistance of their partner, G. Jack Donson,
and associate, Howard M. Ullman, in the preparation of this Article.
The research as to this Article, for the most part, did not go beyond May 1, 1995.
1. See 1993 Department of Justice and FTC Antitrust Enforcement Policy Statements in
the Health Care Area and 1994 Department of Justice and Federal Trade Commission State-
ments of Enforcement Policy and Analytical Principles Relating to Health Care and Antitrust,
4 Trade Reg. Rep. (CCH) (Trade Cas.) 1 13,150-52 (1993-94) [hereinafter Guidelines].
2. The pre-1994 status of most of these issues is discussed in Murray S. Monroe, Health
Care: Current Antitrust Issues, 20 N. Ky. L. REV. 365 (1993).
3. The 1993 Guidelines consisted of six separate statements. It did not contain Nos. 3, 5,
and 9 of the 1994 Guidelines, which deal with Hospital Joint Ventures Involving Services,
Providers' Collective Provision of Fee-Related Information to Purchasers, and Multiprovider
Networks, respectively. See supra note 1.
4. By early 1995, the agencies responded to 26 inquiries about issues raised by the Guide-
lines. They raised no objection as to 24: 16 on provider networks, seven on information ex-
change, and one on mergers. They disapproved two, one involving a hypothetical provider net-
work. See DOJ/FTC Review Process Seems to Provide Efficiency, Ease to Health
Professionals, 68 Antitrust & Trade Reg. Rep. (BNA) No. 1697, at 88 (Jan. 26, 1995).
5. See Observers Find New DOJ/FTC Guides Offer Clearer Roadmap for Providers, 67
Antitrust & Trade Reg. Rep. (BNA) No. 1672, at 390 (Oct. 6, 1994); 68 Antitrust & Trade](ViewImageLocal?handle=hein.journals/ucinlr64&div=10&collection=&method=preview&ext=.png&size=3)
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Health Care under the Antitrust Guidelines
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