Shook Of Counsel Steve Vieux, Associate Peter O'Neill and alumna Bria Davis have authored an article for Law360 on antitrust enforcement in health care mergers. Many health care providers have faced a reduction in income due to fewer outpatient and elective procedures as a result of COVID-19 mitigation efforts, and some have considered consolidating with health care systems for added support and security, the authors explain, noting, "A significant number of independent physicians said they were considering partnering with another entity or selling their practice, with 68% of those interested citing financial strain as the primary reason."
"An antitrust analysis of all mergers will take into account potential efficiencies and improvements in health care quality," the attorneys state. "With the emphasis on coordinated care as a way to improve quality and blunt rising costs, enforcers are likely to consider such claimed efficiencies with a healthy dose of skepticism." Vieux, O'Neill and Davis examine how health care systems and providers can work to ensure their consolidation can successfully comply with antitrust regulations.
"As health care providers adapt to the unique financial stresses imposed on them by COVID-19, they should consider trends in antitrust enforcement in their sector and seek out counsel with specific experience in health-care-related antitrust issues and claims. Any mergers or acquisitions should be driven by the cost- and quality-related efficiencies that can be substantiated," the authors conclude. "Further, any potentially anti-competitive transaction precipitated by claims of financial distress should be substantiated with evidence of an imminent market exit and good faith efforts to seek a less anti-competitive solution. Providers should also be aware of current and pending legislative initiatives requiring advance notification of combinations in the state(s) in which they operate, as such initiatives are likely to increase in the future."