Department of Justice and Federal Trade Commission Continue Focus on Health Care Industry With New Initiatives

• Citation: Vol. 2 No. 5
• Publication year: 2024

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Carsten Reichel, Amanda Wait, Vic Domen, Rachel Ludwig, and Andy Eklund ^*

In this article, the authors explain that the Biden administration's most recent escalation of its efforts to aggressively enforce antitrust laws in the health care industry has the potential to lead to investigation, civil litigation, or even criminal prosecution.

Two recent announcements from antitrust enforcers at the Department of Justice (DOJ) and Federal Trade Commission (FTC) underscore the agencies' unwavering focus on the health care industry within the Biden administration.

Both announcements pledge resources to a broad array of industry-specific concerns and hold the potential to work in tandem to enhance the government's abilities to both detect, and then act on, possible antitrust violations involving health care, thereby increasing enforcement risks for the industry.

A New Task Force

The DOJ's Antitrust Division recently announced the creation of its new Task Force on Health Care Monopolies and Collusion (HCMC), ¹ which the Division's top official, Assistant Attorney General Jonathan Kanter, touted as "upping [DOJ's] game" with respect to the Biden administration's ongoing efforts to enforce antitrust laws in the health care industry. ²

According to the DOJ, the HCMC will adopt a "whole of Division" approach, bringing together the Division's "civil and criminal prosecutors, economists, health care industry experts, technologists, data scientists, and investigators" to address a number of DOJ's concerns in the industry. Principal among these is the

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"platformization of health care," which Kanter said has created multisided intermediaries between health care providers and patients. Kanter also cited the DOJ's concerns about the "rich ecosystem of data" and increasing use of algorithmic decision-making impacting care and billing.

In addition to a "whole of Division" approach, Kanter pledged that the HCMC would advance the Biden administration's "whole of government" approach to competition and work across all federal agencies, both to advocate for policies consistent with the DOJ's competition enforcement priorities and to bring to bear all available federal "competition tools" in its efforts.

A New Tip Line

The announcement of the HCMC's creation came the week after the Antitrust Division, FTC, and the US Department of Health and Human Services (HHS) announced the launch of a new online portal ³ for the public to report possible...