Advocate-Aurora Merger Latest in Healthcare Consolidation Trend

http://www.healthleadersmedia.com/leadership/advocate-aurora-merger-latest-healthcare-consolidation-trend?spMailingID=12500545&spUserID=MTY3ODg4NTg1MzQ4S0&spJobID=1300449776&spReportId=MTMwMDQ0OTc3NgS2#

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Deal likely to steer clear of FTC pitfall that foiled Advocate’s prior merger plans.

Advocate Health Care and Aurora Health Care announced plans Monday for a merger that would create the 10th-largest not-for-profit health system in the country.

The proposed deal would serve as a “50-50 merger” between Chicago-based Advocate and Milwaukee-based Aurora, with no job layoffs expected, the companies said. Should the deal receive regulatory approval, the merged system, which would go by the name Advocate Aurora Health, is projected to have a total operating revenue of about $11 billion and employ 70,000 people across hundreds of facilities in Illinois and Wisconsin, including 27 hospitals.

The announced merger continues a trend among health systems to merge, buy, or sell. Since the Tenet-Vanguard merger in 2013, a $4.3 billion acquisition, large-scale mergers between health systems have become routine to keep pace with an increasingly competitive and consolidated industry.

As health systems and hospitals adjust to the push for value-based care, alternative payments and accountable care organizations, systems with less experience and knowledge have to factor in how they will achieve those goals.

The attraction of corporate consolidation

David Chou, Chief Information and Digital Officer for Children’s Mercy Kansas City, says healthcare organizations are pursuing mega-merger deals in order to maintain relevance. A company used to need $6 billion to compete, a number that has since ballooned to $10 billion, he says.

Companies have pushed toward consolidation also to achieve scale, which can enable cost-reduction and improve financial viability. Chou says healthcare companies ultimately aim to mirror the “classic Kaiser model,” referencing industry giant Kaiser Permanente of Oakland, California. In 2016, Kaiser Permanente’s total operating revenue was $64.6 billion.

Sarah Wilson, a senior analyst with Decision Resources Group, says a specific amount, such as Chou’s $10 billion figure, isn’t always a prerequisite to staying relevant, but she agreed that large-scale mergers have become increasingly common in the healthcare sector. She attributes this to the increasing cost of healthcare delivery despite the push to drive down costs.

Distance makes the heart grow fonder

Ken Field, JD, MBA, who worked for the FTC from 2006 through 2012 and now co-chairs Jones Day’s global healthcare practice, says Advocate’s proposed merger with Aurora is likely to sidestep the controversy that spoiled Advocate’s prior plan to merge with NorthShore University HealthSystem.

Given their respective geographic footprints, Advocate and Aurora appear to be complements to one another, not substitutes, Field says. While Aurora, located 93 miles north of Chicago, does serve some patients in northern Illinois, its primary clientele base hails from Wisconsin.

By contrast, Advocate’s failed NorthShore merger entailed two systems serving some of the same Chicagoland areas. Advocate defended its merger plans successfully at trial, but the decision was overruled on appeal. The prolonged and expensive legal fight ended last March.

The FTC’s acting chair, Maureen K. Ohlhausen, cited the foiled Advocate-NorthShore merger as among her team’s 2017 victories in the fight to protect competition in healthcare markets—a series of victories that mark a shift in the case law affecting the business of healthcare.

“Last year we successfully blocked two major hospital mergers, winning victories in cases involving healthcare systems in the suburbs of Chicago and the Harrisburg area of Pennsylvania,” Ohlhausen said during a speech last month at the American Bar Association’s fall forum, according to her remarks as prepared for delivery. “Together, these two cases moved an important area of the law into a much more settled place and will likely serve both the agency and the public for many years to come. We have already started building on that very sound foundation.”

Field says these two cases affirmed the FTC’s analytical framework for hospital competition as the appropriate interpretation of the law. So now there’s precedent to support the FTC’s model, which could soon prove decisive in a similar case in South Dakota, where the FTC and state attorney general are challenging Sanford Health’s planned acquisition of Mid Dakota Clinic.

Even with the new direction-setting in Washington under President Trump, the FTC’s approach to protecting competition in healthcare is expected to stay the course.

“The only indication so far is that they’re going to continue applying the same model and with the same vigor that we experienced in the last administration,” Field says.

The FTC declined to comment on Advocate’s planned Aurora merger, noting that the commission does not confirm the existence of any investigation.

Dust settling after the announcement

Wilson, the analyst, says effective mega-mergers rely on a significant amount of backend work prior to the announcement. After the plan is unveiled, companies must follow due diligence in meetings with federal and state regulatory authorities to secure approval.

“I think there’s that process of speaking with regulators, going through all of the paperwork and preparing for the actual merger to ensure you have alignment,” Wilson says. “Once you get down to the closing of the deal, [companies] make sure to have their mission, vision and values lined up. It’s a lot of work getting everything ready, speaking with employees and working through best practices.”

The risk of duplication of duties remains at a company with two CEOs, which is an interesting obstacle to face. Chou said he will be interested to see who “calls the shots” after the merger is formalized.

Citing her experience in handling health system mergers and acquisitions, Wilson says “50-50 mergers” are not uncommon. The move to keep two CEOs could be successful since the companies do not compete in the same market, she says.

Another challenge includes how to combine each company’s assets and decide on how to implement practices which provide the best care to patients. Chou advised both companies to focus on fostering a cohesive environment for employees and providing the best care for patients, rather than fixating on the politics of the merger.

Wilson echoed Chou’s sentiments, saying the post-announcement process should be deliberative and ensure employees understand the merger and its effects on the company culture.

 

CVS Health to acquire Aetna for $69B: 5 things to know

https://www.beckershospitalreview.com/payer-issues/cvs-health-to-acquire-aetna-for-69b-5-things-to-know.html

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CVS Health inked a definitive merger agreement to acquire all outstanding shares of Aetna for roughly $69 billion in cash and stock.

Here are five things to know.

1. The deal, unanimously approved by the boards of directors of each firm Dec. 3, is one of the largest transactions this year. It values Aetna at about $207 per share, higher than previous estimates of $200 to $205 per share. When including the assumption of Aetna’s debt, the transaction totals $77 billion.

2. Upon closing, Aetna’s Chairman and CEO Mark Bertolini will join CVS Health’s board of directors, along with two other Aetna leaders. Aetna will operate as a standalone business unit under the CVS Health umbrella, and the insurer’s management team will helm the subsidiary.

3. The companies said the deal will provide localized, community-based care across CVS Health’s 9,700-plus pharmacies and 1,100 clinics. Sources familiar with the deal told Reuters CVS Health plans to significantly extend health services at its pharmacies under the merger.

4. The transaction is slated to close in the second half of 2018. It is subject to regulatory approvals.

5. Rita Numerof, PhD, president of Numerof & Associates, said in an emailed statement to Becker’s Hospital Review, “Having the combined market clout puts Aetna more in a position akin to UnitedHealthcare in its ability to leverage an integrated PBM in negotiating prices and establishing preferred tiers with manufacturers.” She added, “With CVS’s large and growing clinical services footprint, Aetna can steer patients to CVS pharmacies and clinics — in many cases avoiding the costs of higher ER or other outpatient services. The merger can make expanded CVS services in-network and others out-of-network, putting additional pressure on conventional health systems to lower the costs of their outpatient services.”

The central questions behind the CVS-Aetna deal

https://www.axios.com/questions-behind-cvs-aetna-deal-2502001650.html

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CVS Health’s proposed $66 billion buyout of Aetna, scooped by the Wall Street Journal, would create a sprawling health care empire with roughly $240 billion of annual revenue. Only Walmart would be larger, in terms of annual revenue among U.S. companies.

Looking ahead: Health insurance, prescription drug coverage, quick clinic visits and behind-the-scenes negotiating on drug prices would all be under one umbrella. But a slew of questions surround any potential deal, and the companies aren’t commenting on “rumors or speculation.”

The proposed transaction highlights the desire within the health care industry to consolidate more. Acquiring Aetna would give CVS even more patient data, as well as more leverage to get lower drug prices from pharmaceutical companies. But it’s not a slam dunk the deal would reach the finish line.

The biggest potential obstacles:

  • Antitrust: CVS and Aetna don’t have a lot of overlapping businesses, making it appear the deal would have better odds of passing antitrust muster than Aetna’s failed deal for Humana. The companies do, however, have sizable footprints in Medicare Part D prescription drug plans. They have 7.6 million combined Part D members, according to the latest federal data, which equates to about 17% of Medicare’s Part D enrollment.
  • Savings: The companies would presumably tout savings (i.e., money saved from layoffs and consolidating vendor contracts). But would the combined CVS-Aetna undoubtedly lead to lower health insurance premiums and better deals for drugs at the pharmacy counter? This is arguably the most central question.
  • Other relationships: CVS just signed a deal with Anthem, a major insurance competitor to Aetna, to run some of the operations of Anthem’s new pharmacy benefit manager. The Aetna buyout would complicate CVS’ new Anthem agreement.
  • The Trump wild card: Trump made it clear in his latest executive order that his administration will “focus on promoting competition in health care markets and limiting excessive consolidation.” The CVS-Aetna deal is a direct challenge to that order.
  • What’s old is new again: Health insurers used to own pharmacy benefit managers but sold them off several years ago. Now they are integrating back together. Will they eventually splinter off again if Wall Street demands it?

Sutter Health destroyed 192 boxes of evidence in antitrust case, judge says

https://www.healthcaredive.com/news/sutter-health-destroyed-192-boxes-of-evidence-in-antitrust-case-judge-says/511300/

Dive Brief:

  • A California superior court judge ruled that Sutter Health intentionally destroyed 192 boxes of documents that were involved in a lawsuit involving employers and labor unions that alleged the health system abused its market power and charged inflated prices, reported California Healthline.
  • The United Food and Commercial Workers and its Employers Benefit Trust initially filed the case in 2014 alleging that Sutter Health required health plans to include all Sutter hospitals in networks.
  • San Francisco County Superior Court Judge Curtis E.A. Karnow said that Sutter knew the evidence “was relevant to antitrust issues” and the company was “grossly reckless.” A Sutter spokeswoman told California Healthline that the incident was a “mistake made as part of a routine destruction of old paper records.”

Dive Insight:

The recent ruling doesn’t put Sutter Health in a great light. The nonprofit system of 24 hospitals based in Sacramento reportedly destroyed documents related to the case —  and its actions miffed the judge in the case.

Of course, this issue goes beyond destroying records, Sutter Health and California. The case involves a growing health system that allegedly increased prices to employers and employees while gaining a larger market foothold.

Mergers and acquisitions continue to become a common way for health systems to reduce costs, resolve inefficiencies and gain a larger market share. However, having one system own a large part of the healthcare market also inflates healthcare prices. Brent Fulton, assistant adjunct professor at Petris Center in the School of Public Health, University of California, Berkeley, recently wrote in a Health Affairs article “reviews of studies of hospital markets have found that concentrated markets are associated with higher hospital prices, with price increases often exceeding 20% when mergers occur in such markets.”

Sutter Health holds more than 45% of the healthcare market share in six Northern California counties. That gives the system leverage over employers. If employers don’t come to an agreement with Sutter Health, employees have limited options in those counties. Sutter Health charges about 25% higher than other California hospitals, according to the University of Southern California.

Those costs are higher if that care is considered out-of-network. Last year, Sutter Health allegedly asked employers to waive their rights to sue and to agree to arbitration following a court ruling that employers and health plans can seek class-action status in a lawsuit pertaining overcharges against Sutter Health. Those who didn’t agree were threatened to lose access to discounted in-network prices and pay higher out-of-network costs.

The court filing states the parties should not expect further orders in the case until after mid-December. Industry experts are awaiting the results as the trend of M&A continues and stakeholders question who the activity is benefiting: the companies or the patient?

 

A nation of McHospitals?

https://www.politico.com/agenda/story/2017/11/08/hospital-chains-dominate-health-care-000574

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For years, the nation’s hospital chains worked to get bigger, bigger, bigger. In the 1980s and 1990s, for-profit companies like HCA and Tenet emerged as juggernauts, snapping up local hospitals and opening clinics in one town after another. Their ambitious not-for-profit cousins, the big academic medical centers like Harvard-affiliated Partners Healthcare, scooped up smaller rivals in response. Just four years ago, the Tennessee-based Community Health Systems spent $7.6 billion to buy a competitor and become the nation’s largest for-profit hospital company, with more than 200 hospitals in 29 states.

Today, in any town or city, in any region of the country, you’ll almost certainly see the same scenario: Only a handful of hospitals, sometimes owned and operated by a company thousands of miles away.

As the pace and scale of consolidation picked up, the outcome long appeared inevitable: an American future in which a handful of hospital chains dominate American health care, with brands like Tenet and Catholic Health Initiatives and the Mayo Clinic competing for patients the way Panera and Chipotle and the Olive Garden compete for diners.

But something happened on the way to becoming a nation of McHospitals. That ambitious growth, driven by dreams of dominating a transformed health care landscape and recently fueled by Obamacare revenues, hit a wall.

In the past year, two of the nation’s three largest for-profit hospital systems, Tenet and Community Health Systems, began selling off dozens of their hospitals while entertaining bids to break up their entire companies. Prominent not-for-profit chains like Partners Healthcare are reporting nine-digit losses. Even Mayo Clinic is pulling back from some rural locations in the Midwest.

In part, the shift is just a typical business cycle working its way through the health care industry. “There are these testosterone-driven waves of deal making” in health care, said Jeff Goldsmith, a hospital consultant. “And then there are waves of post-coital regret that follow.”

But in part, the change is driven by policy decisions being made in Washington — how health care is paid for, and who has access to it. And as that shift unfolds, it’s raising questions that will shape American health care for a generation: What will the future of hospital ownership look like? What should it look like?

Even at the height of merger mania, no one could quite agree on whether the McHospital trend was a good thing or not. Some people — mostly in the hospital industry — argued that consolidation was long overdue, and that large companies’ deeper pockets and economies of scale would keep costs down and improve the quality of care for patients. Obamacare gave hospitals financial incentives to manage entire populations, rather than just get paid patient-by-patient — an effort that required building big data sets and buying up other services too, like physician practices.

But others were concerned about the growing concentration of ownership of the nation’s hospitals by a shrinking number of companies. It put local hospitals’ decades-long relationship with their communities at risk, as important local institutions started reporting to shareholders or distant nonprofit boards. These worriers foresaw a future in which just a handful of chains competed to carve out the most lucrative segments of health care, like cardiac procedures and orthopedic surgery, and offered substandard care for everyone else. And despite the chains’ promises, years of reports have shown that when hospitals combine, their prices tend to go up.

Providers’ growing market power has “been the leading reason for the [rise] in health care spending” for decades, Bob Berenson, a former Carter and Clinton administration official said in 2015. (“And in conventional political circles,” he added, “it’s still being overlooked.”)

But the changes underway are starting to transform the nature of the hospital itself — and could open the door to a landscape even more different than we imagine.

Radical shifts

The direction of the American hospital has shifted radically over time. Initially, hospitals were charity wards where the poor went to die. But as cities grew, and health care became more expensive and capital-intensive, hospitals became destinations for wealthier patients: Top hospitals were the ones that could afford the latest medical technologies and perform the most complex surgeries. The creation of Medicare in 1967 fueled new revenue and attracted more competitors, leading to the birth of major chains.

Today, about two-thirds of the nation’s 5,000 hospitals are parts of chains, up from about half of hospitals just 15 years ago, and the share of for-profit hospitals has steadily climbed — more than one in five hospitals are now owned by investors, rather than run as a not-for-profit or by the government. Established hospitals are grappling with how to balance institutional advantages like high-end facilities and expensive technologies with the need to stay nimble and adapt to health care’s changes. It’s a hard balance to strike, and after a few boom years, the industry is experiencing its worst financial performance since the great recession.

It’s always been expensive to own and operate a hospital. Preparing for possible emergencies requires round-the-clock staffing and immense sunk costs. Most major hospitals also try to offer dozens of different business lines, from cardiac surgery to behavioral health care — but that’s only gotten harder as niche competitors chip away at the most lucrative high-end services. It also got pricier thanks to the latest merger mania, as hospital chains collectively took on billions of dollars in debt to buy up their competitors and acquire other services, like physician offices.

An industry that had already consolidated in the 1980s and 1990s — seeking new efficiencies and to get bigger when negotiating with insurance companies — received new incentives under Obamacare, as millions of newly insured patients entered the market and hospital chains raced to capture the new customers. But the Affordable Care Act also accelerated changes to health care payments in ways that made hospitals seem a little outmoded.

Medicare, other federal programs and insurance companies are increasingly shifting away from fee-for-service reimbursement — in which doctors and hospitals are rewarded for the number of procedures they perform — toward “alternative payment models” with more incentives for follow-up care and improved long-term outcomes. That’s encouraged hospitals to make new investments, like buying up nursing homes and hiring more workers to deliver home-based and long-term care. Some hospital leaders are actively talking about trying not to fill their beds, which would’ve sounded like heresy in the industry just a decade ago.

Charlie Martin, a legendary health care investor who founded two hospital companies, said the old model is doomed as new technologies allow care to be delivered outside of the hospital — leaving behind large, costly facilities that are better suited to 1990 than 2020.

“Half the business that’s in there is going to go away,” Martin said. “This is going to be a beatdown like we’ve never seen before.”

Martin said he’s now investing in services like post-acute care and home health, which are more agile and positioned to take advantage of the changes in payment. In this emerging world, a low-cost aide who can keep an elderly patient out of the hospital may end up being more profitable for Martin than paying a team of doctors when that patient breaks a hip and needs days of hospital care.

“The hospitals of today are too expensive to be health care facilities” in the long run, Martin said. “I can’t carry the carcass around.” (He added that consolidation’s benefits are overrated. “There are other ways to get scale now, like purchasing groups” that allow hospitals to get bulk discounts despite not having a common owner, Martin argued. “A lot of the advantages that came through the multihospital systems are now available for anybody.”)

Too big to fail?

So, are big hospitals — and big hospital chains — destined to go the way of Sears, an institution decimated by smaller and nimbler competitors? Not necessarily. There’s still a viable path — and often a need — for big hospitals themselves, typically the largest employers in their cities and towns. While fee-for-service payment is slowly getting phased down, it isn’t going away overnight, if ever. A decade after policymakers began pushing hospitals to adopt alternative payment models, those models still represent less than 30 percent of payments to the average health care provider. Fee-for-service remains the most common way of getting paid.

And local hospitals have an advantage that many businesses don’t: They’re often so important to their towns and cities that lawmakers and other local leaders don’t want to let them fail, even if their margins suffer. And in markets where there isn’t much competition, hospitals continue to charge huge rates that have very little connection to quality of care. Yale researcher Zack Cooper and colleagues have found that hospitals with effective monopolies have prices more than 15 percent higher than hospitals in markets with four or more competitors.

What that all means: The hospitals that Martin and others see as lumbering dinosaurs don’t all need to evolve to virtual campuses just yet. No one’s forcing them to. The old model of going to a hospital for surgery and other intensive services will persist for years or decades, barring major technological leaps ahead, and it may stay lucrative for the most prominent, dominant facilities. There’s no easy, obvious disruptor that wants to start building hospitals and compete for these services, at least for these now.

So then the question is: Who’s going to own them? Many experts think the near future, at least, will belong to regional health systems. They’re able to take advantage of local monopolies that allow them to raise prices, while not being burdened by the debt and expenses that can go along with aggressive acquisitions of national chains. And from North Carolina to California, many of these local chains continue to thrive and edge out national competitors with better financial performance. Indiana University Health System last month announced it’s expanding into Fort Wayne, the state’s second-largest city, even as Community Health Systems – a national chain that operates a hospital network in the city – has seen local profits fall and anger rise, as doctors and employers claim the chain has neglected its facilities and should sell hospitals that have become dirty and dingy. (Community’s president told doctors in 2016 that the chain would pull out of Fort Wayne, Bloomberg reported, although the company rejected a subsequent buyout offer and now says it’s committed to staying.)

What’s good for these regional chains may not be good for patients or the insurance system that pays for their care, though, as lower levels of competition mean higher prices. Martin Gaynor, an economist at Carnegie Mellon and former FTC official who studies consolidation, points to UPMC’s decision this month to spend $2 billion to build three new specialty hospitals in the Pittsburgh area, further cementing its control of the local market — even if experts question whether large, specialty facilities are needed at all. “Don’t forget that residents of Western Pennsylvania are the ones who will mostly pay for this,” Gaynor tweeted after the announcement.

“There’s a near-stranglehold on these markets by dominant health systems,” said Gaynor, noting that many regions get carved up between two or three major chains. “Some means need to be developed to free that up.”

It’s not clear how that would happen or who wants to do it. The Trump administration has gestured toward unlocking those markets, with a few lines in a recent executive orderpromising to limit “excessive consolidation.” The Federal Trade Commission under the Obama administration also jumped in to aggressively block hospital mergers, too. But taking on the hospital industry has been viewed as a political nonstarter for years. And hospitals don’t have much reason to loosen their own monopolies, at least in the short run.

There’s an intriguing possibility that some consultants are wrestling with: What if a company like Walmart or Apple decides to go for the health care market — and really go for it, as executives from each company have hinted in the past — and set up outpatient centers in their stores around the country. Hospitals would suddenly face new pressures from a well-capitalized competitor that already gets a lot of foot traffic, like Walmart, or has been ruthlessly committed to growth, like Apple. Patients frustrated with the traditional medical system might start opting for these retail alternatives, disrupting the entire chain of how Americans get care.

A dramatic move like that would shake up how health care is delivered. It would also flip the paradigm. Rather than hospitals desperately trying to expand and establish themselves as a national brand, an existing national brand — not a health care brand, but a big consumer brand — could suddenly have a health care presence in many major markets.

But a move like that remains some distance off. Walmart’s effort to quickly scale up small retail health clinics has stalled. Apple has publicly flirted with investing in a health care facility for so long, it raises the question of why the company hasn’t.

And that points to the most likely outcome for hospitals in the next 30 years. Boring as it may be, many of them aren’t going anywhere. No one else is competing for the expensive, high-end services that only hospitals can offer. They’re still too big to fail — just so long as they don’t get any bigger.

 

CVS considers acquiring Aetna

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CVS has reportedly put in an offer to buy Aetna.

CVS Health has proposed buying Aetna for $200 per share, the Wall Street Journal reports. That would value the transaction at more than $66 billion.

Why it matters: This would be a gigantic buyout offer, one of the biggest of the year, if it goes through. CVS and Aetna, which already have a pharmacy contract together, would create a behemoth health care company with roughly $240 billion in annual revenue and substantial bargaining power over hospitals, drug makers and employers. The deal also would displace UnitedHealth Group as the largest health insurer and pharmacy benefits manager.

AMA: Nearly 70% of payer markets ‘highly concentrated’

http://www.healthcaredive.com/news/ama-nearly-70-of-payer-markets-highly-concentrated/507916/

Dive Brief:

  • A new American Medical Association (AMA) report found that one health insurer has at least a 50% market share in 43% of metropolitan areas. Nearly 90% of markets have at least one insurer with a 30% or greater market share.
  • Anthem, a major Blues payer and one of the largest insurers in the country, had the largest geographic footprint. The payer had the highest market share in 82 metropolitan areas.
  • The report found that 69% of markets are “highly-concentrated.”

Dive Insight:

The AMA study looked at where payer consolidation “may cause anti-competitive harm to consumers and providers of care.”

The authors said market concentration is a “useful indicator of competition and market power” and is an area the U.S. Department of Justice and Federal Trade Commission analyze when evaluating proposed mergers.

The annual report found a further consolidation of markets. The percentage of markets with one dominant insurer increased by 8% over the past two years.

Consolidation of insurers can affect premiums and reimbursements. A recent Health Affairs report found mergers involving hospitals, providers and payers resulted in insurers achieving more bargaining power to reduce provider prices in highly concentrated markets. That report said hospital admission prices were 5% lower in highly consolidated provider and insurer markets compared to those that are not as dense.

The AMA report warned along a similar theme. “We find that the majority of U.S. commercial health insurance markets are highly concentrated. These markets are ripe for the exercise of health insurer market power, which harms consumers and providers of care,” according to the report.

The AMA said major mergers like Anthem-Cigna and Aetna-Humana are reasons why the organization conducts the annual report. Neither merger ultimately happened, but they would have further consolidated the payer market.

The AMA warned about further consolidation. “Our findings should prompt federal and state antitrust authorities to vigorously examine the competitive effects of proposed mergers between health insurers. Given the uncertainty in predicting the competitive effects of consolidation, some mergers that are allowed cause competitive harm,” according to the report.

Anthem’s growing market share comes as the payer is creating policies that attempt to bring down health costs by pushing services away from hospital inpatient settings. Anthem announced this year that it won’t reimburse for emergency department visits deemed unnecessary and will no longer pay for MRIs and CT scans at hospitals in 13 states unless the tests are an emergency.

Given Anthem’s footprint, the payer’s new policies may mean other payers competing in the same markets will follow suit.

What Is the Role of Antitrust in a Free-Market Economy?

https://promarket.org/role-antitrust-free-market-economy/

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Opening remarks by Luigi Zingales to the Stigler Center conference: “Is There a Concentration Problem in America?”

What is the role of antitrust in a free-market economy? Historically, economists have been divided on this point. Even Milton Friedman himself admits to having changed his views, turning from a “great supporter of antitrust laws” to “the conclusion that antitrust laws do far more harm than good.”  Any economic analysis of the costs and benefits of antitrust enforcement, however, must start from the empirical evidence on the existence of a concentration problem and its potential effects.

Overall, in the last twenty years these questions have received relatively little attention, and the presumption that concentration was not an issue prevailed. Not so in the past year. Starting with a report from the Council of Economic Advisers and an article in The Economist, concerns about an increase in concentration began to surface in the public debate.   

Yet, we know that all concentration measures have great shortcomings. Thus, these measures alone cannot be used to infer that there is a concentration problem in America. The more important question is whether this possible increase in concentration has translated into an increase in firms’ market power and whether this increase in market power has caused major welfare distortion.   

To try and answer these questions, we decided to bring together world experts on these topics in a conference organized by the Stigler Center. In preparation for this conference, the Stigler Center’s blog ProMarket, has gathered the opinions of many of these world experts. We collect them here for convenience of the conference participants. We hope they can help as stimuli for an ample and lively debate during the conference.

Antitrust in the Labor Market: Protectionist, or Pro-Competitive?

https://promarket.org/antitrust-labor-market-protectionist-pro-competitive/

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Redirecting antitrust enforcement to confront monopsony power would be a substantial departure from the way it has been conducted in recent decades, but just because a policy has been in place for a long time does not mean it is a success, and recent evidence implies a significant policy change is necessary and justified.

The very first sentence of the United States submission to the OECD’s “Global Forum on Competition” in 2015 reads “The U.S. Federal Trade Commission and the Antitrust Division of the Department of Justice do not consider employment or other non-competition factors in their antitrust analysis.”

Employment isn’t a “competition factor?” A growing body of evidence, drawn from both micro and macro sources, implies that the labor market has been slack since the Great Recession thanks to an aggregate demand shortfall. The employment-to-population ratio, labor force participation, job-to-job and geographic mobility, and the job ladder as a whole have all stagnated for almost a decade, and even before 2008 these indicators had barely made up ground since the recession of the early 2000s. Wages have been stagnant, and thus the labor share of national income has been in decline.

Over an even longer period, worker compensation has failed to keep pace with productivity gains per capita. The broadening literature on the rise of earnings inequality between firms, controlling for worker characteristics, implies that workers do not receive sufficient job offers to equalize the earnings they receive across firms. All of these phenomena are explained by rising monopsony power in the labor market.

The recent paper by De Loecker and Eeckhout makes this point explicit: the ability of employers to extract rents in the labor market causes a reduction in the market demand for labor, and this in turn motivates all of the manifestations of a slack labor market just described, as well as the rising markups that are the central finding of that paper. Profits have risen, reflecting rising market power in both labor and product markets—a finding that is consistent with the aggregate analysis done by Barkai.

So if monopsony power constrains employment, why not consider it a factor in antitrust analysis? After all, the premise of economic analysis in antitrust is that market power threatens welfare by restricting output and raising prices. Why doesn’t market power threaten welfare by reducing demand for labor and lowering wages?

Existing antitrust policy treats maximizing consumer welfare as the ultimate end goal of antitrust policy, and that policy aim makes sense in a world of little market power, where profits are low and the economy is assumed to be on its production possibility frontier. In that world, maximizing consumer welfare is a suitable summary statistic for overall wellbeing.

Moreover, since the revolution in antitrust policy associated with Robert Bork put such an emphasis on sustaining an “economies” defense—meaning that potentially efficiency-enhancing aspects of corporate mergers and conduct must be weighed against inefficiencies arising from market power—the potential for monopsony power has been considered a plus. After all, enforcers and courts generally assumed that any gains at the expense of workers would be passed to consumers in the form of lower prices, since product markets would be competitive (and if not, the potential for entry would exert a disciplining influence). In that world, caring about employment, wages, or other labor market outcomes looks like protectionism, impeding the competitive pressure that yields the best outcomes for consumers, and favoring certain privileged “insider” workers at the expense of others.

We know now that we don’t live in that world, and that revelation calls for a wholesale re-think of the proper goals of antitrust policy, very much including whether the sole focus on consumer welfare makes sense when powerful corporations squeeze workers and then pocket the gains for themselves and their shareholders.

What would it actually look like to bring antitrust into the labor market?

As with any enforcement regime, antitrust often starts with the lowest-hanging fruit: out-and-out written evidence of anti-competitive practices, such as the Justice Department’s 2010 lawsuit against Silicon Valley employers for colluding not to hire one another’s programmers. This is partly why the recent increase in the use of non-compete clauses has drawn attention in antitrust circles. As a would-be vertical restraint, non-compete clauses aren’t as easy to target under antitrust as horizontal collusion, but they are there, in writing—prohibitions on competition in the labor market, to the benefit of employers. And they should be banned, or at the very least subjected to a high burden of proof requiring a substantive defense on the part of employers who impose them, plus an affirmative finding that they do not act to reduce wages or restrict job offers.

The same dynamic is at play in prohibitions on poaching in franchising agreements, which Alan Krueger and Orley Ashenfelter recently found to be prevalent in franchising contracts and which, to my knowledge, the federal competition regulators have never touched—even though they do regulate other provisions of those contracts. Franchising networks are a hybrid beast, somewhere between horizontal and vertical, but a blanket prohibition on poaching throughout a franchisor’s network certainly starts to look like a horizontal agreement not to compete.

It’s important to understand, though, that these written restraints of trade are symptoms of the broader decline in worker power, and meaningful antitrust enforcement should go after the causes. Reclassification of workers as independent contractors is a broader concern—not only anti-competitive in itself, but as a means to engage in other coercive conduct and corporate structures. Studies show that reclassifications result in immediate wage reductions and no other changes in terms of employment, suggesting that they amount to employer’s exploiting their wage-setting power by changing the legal structure of their business.

And beyond the act itself, classifying workers as independent contractors allows employers to avoid liability for minimum wage, maximum hours, workplace safety, and a host of other entitlements associated with statutory employment. The idea was that employment inherently signifies control, and with control ought to come responsibility—and by extension, if employers do not bear responsibility, then they should not be able to exercise control. What employers have realized now, as enforcement regimes in both labor and antitrust have weakened, is that they can have the control without the responsibility. For example, contracting terms often prevent workers from simultaneously working for others—an exercise of control if ever there was one, and an anti-competitive vertical restraint in the context of an independent contractor.

Employers can have that control without first establishing themselves as a monopoly—in fact, reclassification is increasingly standard operating procedure in many industries, which means that treating it as a violation of Section 2 of the Sherman Act should not require that outright monopolization must first be shown.

This is the fundamental issue behind the litigation over whether Uber’s drivers ought to be considered employees, and if not, whether the business amounts to a price-fixing conspiracy between the company and hundreds of thousands of independent businesses who drive for it. I’ve written before about the antitrust lawsuit against Uber on these grounds. The case was recently dealt a severe blow in the form of an appellate ruling that upheld the company’s mandatory arbitration clause—meaning that if the lower court decides Uber did not itself void the arbitration clause by hastening the case with a move to summary judgment, then the case will likely be thrown out of court.

That brings us to yet another way in which employers exercise monopsony power: mandatory arbitration and class action waivers for employment claims, about which the Supreme Court is set to hear a case this term. The issue there is that expansive readings of the Federal Arbitration Act have essentially said that individual rights protected by both the constitution and federal statute can be voided by bilateral waivers—as though the parties are equally situated and at liberty to reject such provisions in employment agreements and elsewhere. Of course, the whole point of monopsony is that jobs are scarce, and hence employers have leverage with which to extract concessions, be they out-and-out wage reductions or agreements not to litigate disputes. Thus, another aim of antitrust enforcement in labor markets ought to be bans on litigation waivers between parties that are not similarly situated economically as restraints of trade—and the competition authorities ought to make their views known to the Supreme Court on this issue. After all, private action is a pillar of federal antitrust policy, and so arbitration clauses are not just themselves restraints of trade, but they also inhibit enforcement against other restraints, as the fate of the Uber antitrust case shows.

Finally, there’s the elephant in the room when it comes to antitrust: merger review, the bulk of what the agencies do about enforcing the laws they’re entrusted to carry out. Claims that mergers reduce employment are not entertained as arguments against them—in fact, they are likely to be considered arguments in favor, as they show some motivation for the transaction beyond raising prices for consumers. And yet we know anecdotally that recently-consummated mergers have in fact had adverse employment impacts. A systematic study of the labor market impact of past mergers has yet to be conducted, to my knowledge—such an exercise would be a valuable component of assessing the impact and success of the current competition policy regime, including whether these job losses do actually end up benefiting consumers in the form of lower prices, as merging parties invariably claim, versus their shareholders and executives.

In conclusion, the view that the competition authorities expressed to the OECD in 2015 looks increasingly out of touch with the labor market and the broader macroeconomic conditions that currently exist. It is true that redirecting antitrust enforcement to confront monopsony power would be a substantial departure from the way it has been conducted in recent decades, and as such there are both court decisions and agency policies that go against it. But just because a policy has been in place for a long time does not mean it is a success, and recent evidence implies a significant policy change is necessary and justified—much as an intellectual movement in academia once shifted antitrust policy substantially, it’s time for new evidence to change it once again.

Study: Hospitals on doctor-buying spree raise legal questions

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Bigger and fewer doctor practices drive up prices for patients, employers and taxpayers, several studies confirm.

Hospitals have gone on a doctor-buying spree in recent years, in many areas acquiring so many independent practices they’ve created near-monopolies on physicians.

Research published Tuesday throws new light on the trend, showing that large doctor practices, many owned by hospitals, exceed federal guidelines for market concentration in more than a fifth of the areas studied.

But it goes further, helping answer some of health policy’s frequently asked questions: How could this happen? Where are the regulators charged with blocking mergers that have been repeatedly shown to drive up the price of health care?

The answer, in many cases, is that they’re out of the game.

Doctor deals are typically far too small to trigger official notice to federal antitrust authorities or even attract public attention, finds a paper published in the journal Health Affairs.

When it comes to most hospital-doctor mergers, antitrust cops operate blind.

“You have a local hospital system and they’re going in and buying one doctor at a time. It’s onesies and twosies,” said Christopher Ody, a Northwestern University economist and one of the study’s authors. “Occasionally they’re buying a group of five. But it’s this really small scale” that adds up to big results, he said.

The paper, drawing from insurance data in states covering about an eighth of the population, found that 22 percent of markets for primary care doctors, surgeons, cardiologists and other specialties were “highly concentrated” in 2013. That means that, under Federal Trade Commission guidelines, a lack of competitors substantially increased those doctors’ ability to raise prices without losing customers.

The research didn’t sort physician groups by ownership. But other studies show that large, predominant practices are increasingly owned by hospitals, which see control of doctors as a way to both coordinate care and ensure patient referralsand revenue.

According to one study, hospitals owned 26 percent of physician practices in 2015, nearly double the portion from 2012. They employed 38 percent of all physicians in 2015, up from 26 percent three years earlier.

In the study by Ody and colleagues, only 15 percent of the growth by the largest physician groups from 2007 to 2013 came from acquisitions of 11 doctors or more.

About half the growth of the big practices involved acquisitions of 10 or fewer doctors at a time. About a third of the growth came not from mergers but from hiring doctors out of medical school or other sources.

Federal regulations require notification to anti-monopoly authorities only for mergers worth some $80 million or more — far larger than any acquisition involving a handful of doctors.

Very few of the mergers that drove concentration over the market-power red line — or even further — in the studied areas would have surpassed that mark or a second standard that identifies “presumably anti-competitive” combinations.

But the little deals add up. In 2013, 43 percent of the physician markets examined by the researchers were highly or moderately concentrated according to federal guidelines that gauge monopoly power by market share and number of competitors.

(A market with three practices in a particular specialty, each with a third of the business, would be at the lower end of what’s considered highly concentrated. A market with one doctor group doing at least 50 percent of the business would be highly concentrated no matter how many rivals it had.)

Bigger and fewer doctor practices, fueled largely by hospital acquisitions, do drive up prices for patients, employers and taxpayers, several studies confirm.

Part of the increase results from a reimbursement quirk. Medicare and other insurers pay hospital-based doctors more than independent ones. But another part comes from the lock on business held by large practices with few rivals, Ody said.

“It’s a problem,” said Martin Gaynor, a health care economist at Carnegie Mellon University and former head of the FTC’s Bureau of Economics. “All the evidence that we have so far … indicates that these acquisitions tend to drive up prices, and there’s other evidence that seems to indicate it doesn’t do anything in terms of enhancing quality.”

The American Hospital Association, a trade association, declined to comment on the study since officials hadn’t seen it. But the AHA often argues that “hospital deals are different” and that doctor acquisitions keep patients from falling through the cracks between inpatient and outpatient care.

The FTC has moved to block or undo a few sizable doctor mergers, including an orthopedics deal in Pennsylvania and an attempt by an Idaho hospital system to buy a medical practice with dozens of doctors.

But the agency largely lacks the tools to challenge numerous smaller transactions that add up to the same result, said Ody.

An FTC spokeswoman declined to comment on the study’s findings.

Ody urged state attorneys general and insurance commissioners to look more closely at doctor combos. Sometimes state officials can question mergers overlooked by federal authorities. Or they can block anti-competitive practices, such as when hospitals seek to exclude competitor physicians from insurance networks.

Beyond that, “I hope that people notice this [research], and I hope people think creatively about what kinds of solutions might be appropriate for this,” he said. “I don’t know what they are.”