Healthcare Providers and Insurers: FTC Approach to Provider Mergers and Acquisitions

By: Alexis J. Gilman, Joseph M. Miller, and Angel Prado, Crowell & Moring LLP

This article explains how antitrust enforcers, primarily the Federal Trade Commission (FTC), analyze healthcare provider mergers, including hospital, outpatient, and physician-group mergers.

AFTER FEDERAL AND STATE ANTITRUST ENFORCERS LOST seven straight hospital-merger challenges in the 1990s, which put their hospital-enforcement approach in doubt, the FTC conducted a series of hospital merger retrospective studies that analyzed the competitive effects of several mergers. As a result of one of those studies, the FTC successfully challenged in its administrative court the consummated merger of Evanston Northwestern Healthcare and Highland Park Hospital. Since then, the FTC has won every fully litigated challenge to block or unwind a hospital and other healthcare provider merger, including several recent cases at the circuit court level. Additionally, in several non-litigated enforcement actions, the FTC has required remedies to approve the merger.

Legal Framework for Healthcare Provider Merger Analysis

Relevant Statutes

As with other mergers, Section 7 of the Clayton Act is the applicable antitrust statute for analyzing healthcare provider mergers.1Section 7 prohibits mergers and acquisitions “in any line of commerce . . . in any section of the country,” where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” Although the U.S. Department of Justice (DOJ) and FTC both enforce Section 7, the FTC is responsible for the vast majority of merger investigations and enforcement actions involving healthcare providers. State attorneys general often join the FTC in its investigations and litigation. Moreover, while the FTC and DOJ typically seek to block transactions prior to consummation, Section 7 permits the agencies to challenge—and unwind—transactions post-consummation. Indeed, the FTC has successfully challenged several consummated healthcare provider mergers.

Section 7A of the Clayton Act, known as the Hart-Scott-Rodino (HSR) Act, requires merging parties, including healthcare providers, to notify the antitrust agencies and observe a 30-day waiting period prior to closing the merger if certain filing thresholds are satisfied.2An HSR filing gives the agencies a chance to review a merger before it is consummated, to avoid having to unscramble the eggs if the merger is ultimately deemed unlawful. Many healthcare provider mergers—either due to their relatively small size or the structure of the transaction—do not trigger an HSR-filing requirement. Importantly, however, the antitrust agencies can still investigate—and challenge—a transaction that does not require an HSR filing.

Be aware that competing providers, insurers that contract with the merged providers, and state attorneys general often learn of transactions and alert the FTC to them. So even if a transaction is not reportable under the HSR Act, the FTC may still hear about and investigate the transaction if it raises competitive concerns, which might be more disruptive post-closing. Therefore, you should carefully consider whether to contact the FTC to inform the agency of a transaction, even if it is not reportable under the HSR Act, to avoid the FTC opening an investigation after the merger has closed.

Enforcement Actions

Over the last decade, several healthcare provider merger cases have been litigated to a decision. The FTC also has allowed several healthcare provider mergers to close, subject to consent orders that typically require a divestiture or other relief. The overview below explains the framework employed by the FTC and adopted by the courts deciding these cases. Counsel should be aware of these provider merger cases and enforcement actions.

Horizontal Merger Guidelines

The DOJ and FTC 2010 Horizontal Merger Guidelines (Merger Guidelines)3 are an important source for understanding the antitrust analysis of mergers and acquisitions. The agencies use the Merger Guidelines to analyze whether a merger may result in anticompetitive effects and, consequently, whether the agencies should take enforcement action. In particular, the Merger Guidelines explain how the agencies define relevant product and geographic markets, assess market shares and concentration, analyze evidence of a merger’s competitive effects, and how they evaluate defenses and other mitigating factors. Although the Merger Guidelines are not binding on courts, several courts have cited to them as persuasive authority in healthcare provider merger cases.

Analytical Framework for Healthcare Provider Mergers

Framework for Healthcare Provider Competition

The FTC assesses provider competition and mergers under a framework called “two-stage competition.” In stage one of this framework, healthcare providers compete to be included in insurers’ health plan “provider networks.” This competition largely focuses on price competition in that a provider negotiates with an insurer for inclusion in the insurers’ provider network(s), and a key aspect of that negotiation is the reimbursement rates (i.e., prices) that the insurer will pay to the provider. In this framework, the relative bargaining leverage of the provider and the insurer largely determines the outcome of that price negotiation. The more leverage a provider has, the more likely that it can negotiate for higher rates; conversely, the more leverage the insurer has, the more likely that it can resist rate increases. The FTC is concerned about provider mergers that substantially lessen competition because that may provide the merged firm with enhanced bargaining leverage and enable it to extract higher prices. On the other hand, if merged providers’ bargaining leverage with insurers would not substantially change after the transaction because, for example, there would be adequate alternatives to which the insurer could turn, then the transaction is unlikely to raise competitive concerns.

In stage two, healthcare providers that are included in an insurer’s provider network (i.e., in-network providers) compete for patients. The FTC views this competition as largely occurring on non-price dimensions, such as quality of care and amenities, because insured patients generally pay the same out-of-pocket costs regardless of which in-network provider they use, so competition for patients largely occurs on non-price dimensions. The FTC is concerned about the potential for a transaction to reduce the merged providers’ incentive to maintain or improve quality of care.

Antitrust Analysis of Healthcare Provider Mergers

Court decisions and the FTC’s filed complaints in provider mergers show that the analysis generally follows the Merger Guidelines approach and structure. Specifically, the FTC alleges and courts analyze:

• The relevant product and geographic markets
• The combined firm’s market share and market concentration
• Other evidence of the competitive effects of the merger
• The defenses raised by the merging parties, including entry, efficiencies, and the failing-firm defense

In investigations, the FTC also considers any immunities and safe harbors that may apply.

Healthcare providers integrate through a variety of structures, including mergers, acquisitions, affiliations, and membership substitution agreements. Whatever the terminology, the antitrust enforcers are likely to analyze the transaction as a merger if the effect of the transaction is equivalent to a merger. Therefore, antitrust enforcers analyze joint ventures and other collaborations that meet four criteria—essentially, the collaboration involves significant, long-term integration that eliminates all competition between the parties in a relevant market under the Merger Guidelines.4 Beyond these broad criteria, there is no clear and definitive agency guidance on when a collaboration effectively constitutes, and is analyzed as, a merger.

To the extent a joint venture, loose affiliation, or other collaboration does not constitute a merger, however, courts and antitrust enforcers instead will analyze the collaboration under Section 1 of the Sherman Act, which makes unreasonable restraints of trade unlawful.

Finally, the agencies analyze the formation of accountable care organizations (ACOs) under guidance specific to ACOs and distinct from the Merger Guidelines.5

The following sections discuss the FTC’s antitrust analysis in mergers involving hospitals, outpatient providers, and physician groups. The analysis is very similar across these types of provider mergers, but any material differences are discussed below. Several courts, including the U.S. Courts of Appeals for the Third, Sixth, Seventh, and Ninth Circuits, have ruled in favor of the FTC in its recent cases challenging provider mergers—specifically hospital and physician-group mergers—and in doing so these courts largely adopted the FTC’s analytical approach. Therefore, when counseling clients involved in a healthcare provider merger, you should be familiar with these cases and assume that the FTC—and courts—will take this approach in transactions that come before them, unless convinced otherwise.

Defining the Relevant Product Market

Hospital Mergers

The product market in hospital cases is typically inpatient general acute care (GAC) hospital services sold to commercial health plans. For antitrust purposes, product markets are defined around products and services that are substitutable for one another. Individual hospital services are not substitutes for another (e.g., neurosurgery cannot be substituted for cardiac surgery), so each inpatient hospital service could be its own separate product market for antitrust purposes. But since hospital mergers generally involve dozens, if not hundreds, of overlapping inpatient hospital services, it is often not practical to separately analyze (or litigate) so many markets. Therefore, the FTC alleges—and courts have accepted—the inpatient GAC hospital services cluster market. A cluster market is a product market consisting of multiple, non-substitutable products or services, which are included in a single product market for analytical and administrative convenience when the competitive conditions—such as the number of competitors and entry conditions—are similar for the products or services included in the cluster market.

The FTC includes in the GAC hospital services market only inpatient services that both merging parties offer; it excludes services that only one of the merging parties offers. Moreover, despite more hospital care moving to an outpatient setting and hospitals often bargaining with insurers over both inpatient and outpatient services in the same negotiation, the FTC’s inpatient GAC services market definition excludes outpatient services because patients (and their physicians) do not substitute outpatient services for inpatient services in response to price increases.

In addition to the inpatient GAC product market, the FTC may also allege a separate inpatient market for individual hospitals’ services where the competitive conditions for a service differ meaningfully from the overall inpatient GAC market. You might see this where there are fewer competitors offering that individual service and the merging parties’ market share in that service is meaningfully higher than in the inpatient GAC market. Therefore, you should assess whether there are any overlapping inpatient services where the parties’ combined market share, and where market concentration, is significantly higher.

Outpatient Mergers

In outpatient services, the FTC has defined the relevant product market as a cluster of one or more outpatient service lines—that is, services that do not require an overnight hospital stay or that require less than a 24-hour stay. The FTC has alleged an array of relevant product markets in outpatient mergers, such as outpatient surgical services, outpatient orthopedic surgical services, and outpatient ear, nose, and throat surgical services.6 Notably, the FTC has included outpatient services in the same product market regardless of the type of facility (i.e., freestanding ambulatory surgery center, hospital, or specialty hospital) that provides the service.

Physician-Group Mergers

The FTC has defined product markets in physician-group mergers as a cluster of one or more specialty physician service lines. The FTC defines markets around specific physician specialty areas based on several factors, including, for example:

• Specific training in a specialty
• The setting in which the service is provided (e.g., hospital-only versus outpatient)
• Patient preference to seek certain medical services from specialists (e.g., obstetrics/gynecology (OB/GYN) services)

In recent enforcement actions, the FTC has alleged, and courts have found, relevant product markets consisting of adult primary care physician (PCP) services, OB/GYN services, pediatric services, adult cardiology services, orthopedic physician services, and general surgery physician services.

Defining the Relevant Geographic Market

Geographic market definition is often one of the most difficult and contested issues in a provider-merger investigation and litigation. The FTC typically defines the geographic market in provider mergers as a relatively narrow local market. For example, in recent enforcement actions, the FTC has defined geographic markets as narrowly as a county or portions of two counties, and as broadly as multi-county areas around merging hospitals. The agency considers a range of qualitative and quantitative evidence from the merging parties and third parties to define the geographic market, but it pays special attention to the views of, and evidence from, insurers because they are deemed to be the direct purchasers of healthcare provider services. The analysis and relevant evidence in geographic market definition are essentially the same in hospital, outpatient, and physician mergers.

In terms of qualitative evidence, the FTC evaluates testimony and documents from the merging providers and area insurers, rival hospitals, and employers about several factors in defining the geographic market. Among other things, the FTC reviews available evidence about how the merging parties define their service areas and calculate market shares in the ordinary course of business; which providers compete meaningfully with the merging parties; and where (to which providers) most local residents go for healthcare services, taking into account any geographic or topographical barriers (e.g., state lines, rivers) that affect where patients go.

In terms of quantitative evidence, the FTC may calculate diversion ratios and conduct a hypothetical monopolist test. Diversion ratios calculate the percentage of patients who would turn to each other alternative provider if the patients’ first-choice provider was unavailable. If diversion ratios show that a meaningful percentage of the merging parties’ patients would switch to a particular provider, that provider is more likely to be in the geographic market.

In full-phase investigations and matters heading for litigation, the FTC will likely employ the hypothetical monopolist test, especially after the U.S. Court of Appeals for the Seventh Circuit7 and the U.S. Court of Appeals for the Third Circuit8 both affirmed that the test was an appropriate way to define geographic markets in hospital-merger cases. The test asks whether a hypothetical monopolist of providers (e.g., all hospitals) in a candidate geographic market could profitably impose a small but significant and non-transitory increase in price (SSNIP), which is usually defined as a 5%–10% price increase, on insurers. If so—because insurers could not offer patients a viable network with only providers outside the candidate market—that area constitutes a relevant geographic market. If not—because insurers could turn to providers outside the candidate market to form a viable provider network—then the candidate geographic market is deemed too narrow and it is broadened until the test is satisfied.

Because the FTC does not necessarily perform a formal econometric calculation of the hypothetical monopolist test during investigations, FTC staff generally seeks qualitative evidence that mimics the test. Specifically, FTC staff assesses whether commercial insurers could offer a marketable health plan to area employers and individuals in the candidate market if the insurer’s health plans excluded all of the providers in a candidate geographic market. If so, that suggests that insurers could offer a viable network with providers outside the candidate market and, thus, the area does not satisfy the hypothetical monopolist test and the candidate market should be broadened. If insurers could not market a viable network without the providers in the candidate market, or if insurers would pay higher prices to offer a network that included the providers in the candidate market, this suggests that the area satisfies the hypothetical monopolist test and constitutes a relevant geographic market.

Market Shares and Concentration

Under case law and the Merger Guidelines, transactions that result in a high combined market share for the merged firm, result in a concentrated market, and leave few remaining competitors raise the most significant antitrust risk. To assess these factors, the FTC typically looks at the combined share of the merging providers and calculates market concentration levels using the Herfindahl-Hirshman Index (HHI).

In United States v. Philadelphia National Bank, the Supreme Court set a rebuttable presumption of illegality when a merger yields a combined market share of 30% or more, which the FTC cites in litigated cases.9 The FTC’s recent provider-merger challenges, however, have involved mergers where the parties’ combined share is well above that level. In Reading Health Systems, for example, the merger would have resulted in the merged firm having between a 48% and 71.5% share across various service lines. Note that if a merger results in a combined share above 30%, the chances of an in-depth investigation or an enforcement action may increase but shares above 30% do not necessarily mean that the agency will bring an enforcement action.

As such, calculating market shares is one tool you should use to assess the potential for FTC scrutiny in a provider merger. As a starting point, you should identify how the merging parties calculate market shares in the ordinary course of business. You should also try to determine whether the FTC could plausibly identify any narrower markets (e.g., an individual service line or a narrow geographic area) that would result in high shares.

Markets shares are calculated in different ways depending on the type of provider merger:

• In hospital mergers, the FTC typically calculates market shares using patient admissions (or discharges) and sometimes patient days.
• In outpatient-provider mergers, the FTC has calculated market shares using the number of procedures performed.
• In physician-group mergers, the FTC typically calculates market shares using physician headcount, but it has also calculated them using patient visits or volumes.

Another tool to assess the risk of FTC scrutiny is to calculate pre- and post-merger market concentration levels. Under the Merger Guidelines, transactions that increase the HHI by more than 200 points and result in a post-merger HHI of more than 2,500 are presumed to enhance market power and, thus, are likely to result in close FTC scrutiny. Transactions that do not result in a highly concentrated market, or that increase market concentration only slightly, are less likely to receive close scrutiny.

Competitive Effects

The ultimate antitrust question in any merger is what effect, if any, it will have on competition. In a provider merger, the primary question is whether the transaction is likely to result in higher prices or a diminished incentive to maintain or improve quality of care. In particular, the FTC will evaluate whether the combination is likely to give the merged providers enhanced bargaining leverage in negotiations with insurers. If so, that may enable the merged providers to negotiate higher reimbursement rates, either because insurers could not market a viable network without the merged firm or because they would pay a higher price to keep the merged provider in-network. The FTC also evaluates whether competition between the merging providers has spurred each to improve quality, offer new services, and otherwise improve patient care, which would be lost as a result of merger.

To assess the likely competitive effects of a provider merger, the FTC uses a variety of qualitative and quantitative evidence from the merging parties, insurers, competing providers, employers, and any other relevant third parties. Such evidence includes:

• Documents from the merging parties assessing who their closest competitors are and efforts to compete against their merger partner, such as documents that discuss responding to the other merger partner in terms of prices, adding new services or equipment, recruiting physicians, opposing the other’s efforts to obtain certificate of need (CON) approvals, and comparative marketing and advertising materials, especially as they relate to quality and services offered.
  • Many states require CON approval, which assesses demand or need in a given area, prior to the construction or expansion of a healthcare facility (or acquisition of certain equipment).
• Documents and testimony regarding the merging providers’ negotiations with insurers over reimbursement rates and inclusion in insurers’ networks, including any efforts by either of the merging parties to have insurers exclude the other merger partner from the insurers’ networks, or to offer lower reimbursement rates if insurers exclude the merger partner from their networks.
• Documents and testimony about whether insurers have ever offered a health plan that excluded both of the merging parties, or whether insurers believe they could do so after the merger.
  • If insurers have not and could not do so, this suggests that the merged providers could have increased bargaining leverage to demand higher prices.
  • If insurers have offered or could offer a marketable network without the merging providers, this significantly reduces antitrust risks.
• Documents and testimony about the value that employers and their employees place on having the merged firm in their insurer’s provider networks and whether employees would be willing to use other providers if the merged providers were not in-network.
• Data, particularly detailed state and insurers’ hospital discharge and other data, which the FTC may use to calculate and refine diversion ratios and market shares; calculate a willingness-to-pay model, which measures the value that consumers place on having particular hospitals in their insurer’s networks; and conduct a merger simulation, which models the likely effects of the merger on prices.

As counsel for the merging parties, you should speak with executives of your client and review documents that address the topics above. Understanding whether the merging providers are two close competitors with few or no attractive alternatives for insurers and patients to turn to will illuminate whether the transaction is likely to raise competitive concerns. Additionally, because commercial insurers—as the direct customers of providers and viewed as proxies for employers and patients—are generally the key witnesses in provider-merger investigations and litigations, you should seek to understand how insurers would view the transaction and the history of provider-insurer negotiations in that geographic area. Moreover, your provider client should speak with its commercial insurance partners about the transaction before it is announced—or at least before the FTC contacts the insurer—to explain the benefits of the transaction and assess whether they have any concerns about the merger. Finally, for transactions raising meaningful risk of antitrust scrutiny, you should consider hiring an economic consultant specializing in healthcare to analyze the discharge data and other aspects of the transaction.

Defenses

The most direct way for a merger to clear antitrust review is to convince the agency that the merger does not harm competition, either because the parties are not in the same geographic market, there are a sufficient number of other significant competitors that will remain in the market, or the merging providers do not otherwise compete meaningfully.

Additionally, merging parties can raise a variety of defenses and mitigating factors to overcome potential FTC concern, including:

• Entry or expansion
• Efficiencies
• Failing-or flailing-firm (weakened-competitor) defenses
• State action immunity
• A safe harbor

Although these defenses can convince the FTC to close investigations, the first three defenses have not succeeded in recently litigated cases. Therefore, your best opportunity to secure merger clearance is to convince staff early on in an investigation that there is no likelihood of competitive harm or that one of your defenses outweighs any potential harm.

Entry

To establish the entry defense under the Merger Guidelines, entry must be timely, likely, and sufficient to offset the competitive harm. The FTC has generally found that healthcare provider entry is unlikely to be timely and sufficient because of regulatory and licensing requirements, as well as the time and cost necessary to build or expand facilities, recruit physicians, and develop sufficient patient volumes to replicate the lost competition. Moreover, if the merger occurs in a state with a CON law, that is likely to make an entry defense particularly challenging, given the length of time and/or difficulty to get CON approval. If you do pursue this defense, the best evidence to present is likely to be any examples of recent entry or already-announced imminent entry in the market at issue. Examples of recent entry can show that entry is feasible despite potential barriers, although counsel should consider whether that might make additional future entry less likely. Examples of already-announced imminent entry can help show that any post-merger increase in concentration will be offset by forthcoming entry, if such entry will be of sufficient scale.

Efficiencies

Providers often seek to merge to achieve various efficiencies, such as improving quality of care, achieving cost savings, and engaging in risk-based contracting and population health management. Quality is often the most significant efficiency that the FTC focuses on. But convincing the FTC that efficiencies outweigh potential competitive harm is challenging. To do so, you must show that the efficiencies are merger-specific, meaning that they could not be achieved without the merger; are substantiated, meaning verifiable and not speculative; outweigh the competitive harm; and that the benefits of these efficiencies will be passed on to consumers.

While the efficiencies defense has not rescued an otherwise anticompetitive provider merger in court, merging providers have successfully convinced the FTC to close merger investigations at least in part on this basis. Therefore, there are steps you can take to increase your chances of successfully making an efficiencies defense. First, although it can be costly, you should consider whether to hire an efficiencies consultant or expert to help assess and substantiate any claimed efficiencies, at least in transactions that are likely to raise competitive concerns. Second, although it is not an element of the efficiencies defense, the merging parties’ efficiencies claims will be more credible if they document that efficiencies were a driving force for doing the transactions, as opposed to a last-minute justification for the FTC to approve the deal. Finally, efficiency claims may be more convincing when the target firm is under financial duress, quality may be compromised absent the transaction, and the parties combine their efficiencies claims with a failing- or flailing-firm defense, as described below.

Failing-Firm and Flailing-Firm (Weakened-Competitor) Defenses

The failing-firm defense applies where the target firm is at imminent risk of exiting the market due to its dire financial condition and it has made a good faith but unsuccessful effort to find an alternative acquirer that raises less competitive concern. Case law and the Merger Guidelines recognize the defense. The flailing-firm, or weakened-competitor, defense relates to firms in slightly less dire situations than failing firms and essentially posits that the financial condition of the target firm is weakened enough that its current competitive position and market share overstates its future competitive significance. The defense is also known as the General Dynamics defense, after the Supreme Court decision that recognized it.10 However, unlike the failing-firm defense, the Merger Guidelines do not explicitly recognize the weakened competitor defense, and the United States Court of Appeals for the Sixth Circuit in ProMedica Health Sys. v. FTC reiterated the high bar to establishing this defense.11

Still, the failing-firm defense has worked in certain cases. In In re CentraCare Health System, for example, the FTC accepted the defense where the target physician practice group had been unable to find an alternative purchaser for the entire practice and the FTC was concerned about disruptions to patient care and physician departures from the local area if the transaction was blocked.12The FTC approved the merger, subject to the merged firm releasing a certain number of physicians from noncompete agreements so that they could work in other medical groups in the community.

In another instance, the FTC closed its investigation of Scott & White Healthcare’s acquisition of financially troubled King’s Daughters Hospital, based on the failing-firm defense. The FTC focused on whether an alternative purchaser had been deprived of an opportunity to conduct due diligence and remained interested in acquiring King’s Daughters. If so, King’s Daughters would be sold to the alternative purchaser on specific terms. As it turned out, the alternative purchaser was not interested in acquiring the troubled hospital, and the FTC allowed Scott & White to complete its acquisition of King’s Daughters.13

To establish the failing-firm defense, you should marshal as much evidence and data as possible about the deteriorating financial and operational condition of the target firm. The defense is more likely to succeed if you can show, for example:

• Persistently and steeply declining revenues, profits, days cash on hand, admissions/procedures/patient volume, and capital expenditures
• Increasing debt, pension obligations, and other unfunded liabilities
• Operational challenges, such as closing service lines and physician departures

You should also demonstrate that the target firm conducted a thorough search for an alternative purchaser and that none exists. It can be helpful to show that a consultant or investment banker conducted or aided the search. If, however, the search was limited either in scope or duration, or potentially interested and credible buyers were otherwise dismissed (e.g., because their bid was lower), that can hinder or prevent you from establishing the defense.

State Action Immunity

State governments have the power to shield mergers from federal antitrust liability under the state action doctrine. For the immunity to apply, the state must clearly articulate and affirmatively express an intent to displace competition and replace it with a state regulatory regime, and actively supervise the otherwise anticompetitive transaction.14

States typically effectuate the state action doctrine with respect to provider mergers by passing legislation stating an intent to displace healthcare provider competition and replace it with a system under which merging providers can apply for a certificate of public advantage (COPA) or cooperative agreement (CA). Under a COPA or CA regime, the state reviews an application from the merging parties, and may conduct public hearings and accept public comments on the transaction. If the benefits of the transaction—in light of any commitments that the merging parties make to cap price increases and make quality- and health-improving investments in the community—outweigh the potential disadvantage from the transaction, the state can approve the transaction and COPA/CA, subject to ongoing state supervision.

Recently, merging providers successfully used the COPA/CA process to close two mergers despite FTC opposition. The first was the merger of Cabell Huntington Hospital and St. Mary’s Medical Center in West Virginia. The second was the merger of Mountain States Health System (MSHA) and Wellmont Health System (Wellmont) in Tennessee and Virginia. Although the FTC did not explicitly acknowledge that state action immunity applied in those cases, its decision not to challenge these mergers and its closing statement in the Cabell/St. Mary’s matter suggest that it believed that the immunity did apply or at least raised significant litigation risk if it were to try to block these transactions in court.

You should note that while the COPA/CA can ultimately provide immunity from antitrust liability, seeking or even obtaining a COPA/CA does not necessarily immunize parties from an FTC investigation. Moreover, you should know that the COPA/CA process can be lengthy. MSHA and Wellmont pursued their COPA for approximately two years before the relevant state bodies approved the COPA/CA and the transaction closed. Finally, operating the merged provider under an approved COPA can be burdensome. As a condition of approval, MSHA and Wellmont agreed to abide by a substantial number of conditions, which an independent monitor will track.

Safety Zone

In 1996, the FTC and DOJ jointly published “Statements of Antitrust Enforcement Policy in Healthcare” (Health Statements). Though dated, antitrust counsel still use the Health Statements because they provide guidance on the agencies’ enforcement policies in healthcare. Of relevance to provider mergers, “Statement 1” provides a safety zone from antitrust enforcement for certain hospital mergers. Statement 1 states that hospital mergers that fall under the safety zone will not be challenged absent extraordinary circumstances. This safety zone applies to mergers of two general acute care hospitals where one of the hospitals has had an average of fewer than 100 licensed beds over the three most recent years and an average daily inpatient census of fewer than 40 patients over the three most recent years. The exemption does not apply if that hospital is less than five years old, however. You should also note that the safety zone does not apply to non-GAC hospitals, such as specialty hospitals or to other types of providers.

Mitigating Antitrust Risk in Provider Mergers

The following are potential ways to identify and minimize antitrust risks in healthcare provider mergers:

• Conduct a preliminary merger analysis that assesses the key factors that the FTC will investigate, such as product and geographic market definitions and post-merger market shares and concentration, including in narrowly defined markets. If your transaction triggers the market share or concentration presumptions, be prepared for additional scrutiny and to explain why the presumptions are incorrect.
• Review ordinary-course documents and the Item 4 documents that will be submitted with the HSR filing (or similar types of documents, if no HSR filing is required) to see how competition, competitors, the effects of the transaction, and efficiencies are viewed and discussed. Provocative language in documents submitted to the agency will likely trigger greater scrutiny, so be prepared to explain why any such material is inaccurate.
• Interview senior executives to understand how they view the market, competition, and competitors in the ordinary course of business. In particular, interview the person responsible for negotiating contracts with insurers to see what the history of those negotiations has been, how insurers’ providers networks in the area have been configured, and the anticipated reaction by insurers to the transaction.
• Substantiate the potential efficiencies stemming from the deal and why such efficiencies cannot be achieved—at all, or as quickly or to the same extent—without the transaction. If one or both of the merging parties have been unable to achieve efficiencies independently or through collaborations short of a merger, document those failed efforts. Likewise, if a merging party has achieved efficiencies from prior mergers and acquisitions document that successful track record.
• Prior to notifying the FTC about the transaction, consider having your client contact the largest insurers they contract with, and the largest employers in the area, to explain why the transaction is procompetitive.

The following are additional ways to identify and mitigate antitrust risk if a provider merger is likely to be investigated or is under agency review.

• If you have a strong basis for explaining away potential competitive concerns, consider engaging FTC staff early on. Addressing bad facts up front and providing staff with the necessary context to explain why those facts are not fatal to your transaction will often be a better approach than hoping staff disregards bad facts or does not discover them.
• Engage with FTC staff frequently, ask where they are in their analysis, and offer assistance. This engagement and assistance provides counsel with an opportunity to gain insight into staff’s thinking, addresses potential concerns they may have, and could help speed up the review.
• Do not misrepresent facts. Exaggerating and withholding information are also generally not successful strategies, both because staff is adept at verifying the accuracy of claims and finding answers and because it will diminish your credibility.
• Be respectful to FTC staff. Especially in the first 30 days of an investigation—before a recommendation has been made on whether to issue a Second Request (i.e., a giant subpoena for documents, data, and other information, which extends the HSR Act waiting period)—agency staff is the key judge and jury, and convincing them early on that your merger does not substantially lessen competition represents your best chance to have the transactions cleared without incurring the substantial time and cost involved with a full-phase investigation.

Alexis J. Gilman is a partner in Crowell & Moring’s Antitrust Group in its Washington, D.C. office. His practice focuses primarily on advising and representing clients on a broad range of civil antitrust matters, including merger reviews, government investigations, and litigation, with a particular focus on healthcare merger investigations by the FTC, DOJ, and state attorney general offices. Alexis recently joined the firm from the FTC, where he worked on several high-profile matters involving healthcare providers. From 2014 until 2017, Alexis served as the Assistant Director of the Mergers IV Division in the Bureau of Competition of the FTC, where he held leading roles and oversaw investigations and litigations in various industries, including hospitals and other healthcare providers. Joseph M. Miller is a partner in Crowell & Moring’s Washington, D.C. office, a member of the firm’s Antitrust Group and Health Care Group and serves on the Health Care Group steering committee. Joe is an antitrust attorney with over 25 years’ experience in private practice, as a general counsel and as a federal enforcer with both the FTC and Antitrust Division of the DOJ. His practice focuses on strategic transactional advice and counseling, government investigations, and merger review across industries with an emphasis on healthcare clients. Before joining Crowell in 2015, Joe was the general counsel of America’s Health Insurance Plans, the national trade association for the health insurance industry. Angel Prado is an associate in Crowell & Moring’s Los Angeles office, where he practices in the Antitrust Group. He has extensive experience involving competition investigations by the DOJ and the FTC and is well versed in the merger review process. Prior to joining the firm, Angel was an attorney with the FTC Bureau of Competition, where he enforced the federal antitrust laws by investigating proposed mergers and litigating those deemed anticompetitive.

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1. 15 U.S.C.S. § 18. 2. 15 U.S.C.S. § 18a. 3. https://www.justice.gov/sites/default/files/atr/legacy/2010/08/19/hmg-2010.pdf. 4. See FTC and DOJ, Antitrust Guidelines for Collaboration Among Competitors § 1.3, https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf. 5. See 76 Fed. Reg. 67,026 (2011). 6. See, e.g., In re H.I.G. Bayside Debt & LBO Fund II, L.P., 2014 FTC LEXIS 282 (F.T.C. Oct. 31, 2014); In re Reading Health Sys., 2012 FTC LEXIS 177 (F.T.C., Nov. 16, 2012). 7. FTC v. Advocate Health Care Network, 841 F.3d 460 (7th Cir. 2016). 8. FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327 (3d Cir. 2016). 9. 374 U.S. 321 (1963). 10. U.S. v. General Dynamics Corp., 415 U.S. 486, 503–04 (1974). 11. 749 F.3d 559, 572 (6th Cir. 2014). 12. 2016 FTC LEXIS 185 (F.T.C. Oct. 5, 2016). 13. See FTC, Statement of the Director of the Bureau of Competition, In re Scott & White Healthcare, https://www.ftc.gov/sites/default/files/documents/closing_letters/scott-white-healthcare/kings-daughters-hospital/091223scottwhitestmt.pdf. 14. seFTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216 (2013).