Tag Archives: Antitrust
In Appalachia, Two Hospital Giants Seek State-Sanctioned Monopoly
http://khn.org/news/in-appalachia-two-hospital-giants-seek-state-sanctioned-monopoly/
Looking out a fourth-floor window of his hospital system’s headquarters, Alan Levine can see the Appalachian Mountains that have defined this hardscrabble region for generations.
What gets the CEO’s attention, though, is neither the steep hills in the distance nor one of his Mountain States Health Alliance hospitals across the parking lot. Rather, it’s a nearby shopping center where his main rival — Wellmont Health System, which owns seven area hospitals — runs an urgent care and outpatient cancer center. Mountain States offers the same services just up the road.
“Money is being wasted,” Levine said, noting that duplication of medical services is common throughout northeastern Tennessee and southwestern Virginia where Mountain States and Wellmont have been in a health care “arms race” for years, each trying to outduel the other for the doctors and services that will bring in business.
The companies now want to merge, which would create a monopoly on hospital care in a 13-county region that studieshave placed among the nation’s least healthy places. The merger’s savings would pay for a range of public health services that they can’t afford now, the companies project. And they are trying to pull it off without Washington regulators’ approval, breaking with hospitals’ usual path to consolidation.
In a typical case, a plan that eliminates so much competition in a market would almost certainly provoke a court battle with the Federal Trade Commission, which enforces antitrust laws and challenges anti-competitive behavior in the health industry.
To avert such a fight, the hospitals are using an obscure legal maneuver available in Tennessee and Virginia and some other states.
Generally known as a Certificate of Public Agreement (COPA), the process works like this: If regulators in Virginia and Tennessee agree that the merger is in the public interest, Wellmont and Mountain States would operate as one company under a state-supervised agreement governing key parts of their operations, including setting prices. The states’ approval would prevent the FTC from challenging the merger under federal antitrust law.
Their decisions could come as soon as this month.
In exchange for approval, Mountain States and Wellmont promise to use money saved from the merger to offer mental health and addiction treatment services and attack public health concerns, such as obesity and smoking — areas previously neglected by the systems that don’t increase hospital admissions and bring in big revenue, hospital officials said
“The question that needs to be asked is whether tight state oversight of a monopoly is better than failed competition,” said Robert Berenson, a health policy expert at the Urban Institute.
Little-Used And Rarely Challenged Mechanism
The federal antitrust exemption made possible under a COPA dates to a Supreme Court ruling in the 1940s used only about a dozen times to allow hospital mergers. One was an hour away from here, in Asheville, N.C.
There’s little scholarly research on COPAs’ results.
Last summer, the FTC dropped its challenge to a merger of two West Virginia hospitals after the state adopted a COPA law and permitted the deal.
In recent years, hospital mergers and acquisitions have created behemoth health systems that have used their status to demand high payments from insurers and patients. Studies by health economists have repeatedly found that consolidation means higher prices.
But the same calculus may not apply here and in other regions where a preponderance of patients are poor or uninsured, officials from both Mountain States and Wellmont say.
While President Donald Trump and Republicans in Congress stress the value of free-market principles in health care, both hospitals argue that in their part of Appalachia the market has led to unnecessary spending, driven up health costs and forced them to focus on services that produce the highest profits rather than meet the community’s most pressing health needs. In this deeply conservative region where death rates from cancer and heart disease are among the nation’s highest, the hospitals say only a state-sanctioned monopoly can help them control rising prices and improve their population’s health.
Without their proposed merger, Levine said, both hospital systems would likely have to sell to an out-of-market chain. That would likely eliminate local control of the facilities and could lead to massive layoffs and the closure of hospitals and services, he said. Together, the two hospital systems employ about 17,000 people.
The FTC, which is urging the states to reject the hospitals’ plan, contends the hospitals could form an alliance or take other steps short of a merger to accomplish the benefits they say one will bring. The agency says the hospitals’ market probably would be no worse off if one chain merged with a company outside the area.
Feds Wary Of Promises
The hospitals are making big promises to sell their deal. They say no hospitals would close for at least five years, although some could be converted to specialized health facilities to treat problems such as mental health or drug addiction. After the merger, all qualified doctors would have staff privileges at all hospitals to treat patients. No insurer would pay lower rates than others. The new hospital system would spend at least $160 million over 10 years to improve public health, expand medical research and support graduate medical education for work in rural areas.
The FTC maintains the hospitals’ pledges are unreliable and dismissed them as having “significant shortcomings, gaps and ambiguities” in an analysis filed with state regulators in January.
Levine said the plan is the best deal for the community given the factors that handicap the hospitals. Those include declining populations and Medicare reimbursement rates that are lower here than other parts of the country because of lower average wages. Another concern is the cost of caring for uninsured people — neither Virginia nor Tennessee expanded Medicaid under the health law, which would have lowered uninsured rates.
“Competition is and should be the first choice, but in an area where competition becomes irrational and there are limited choices, there has to be a Plan B. If not this, then what?” he said.
Blue Cross and Blue Shield of Tennessee, the state’s largest health insurer, is not opposing the hospitals’ combination, a spokesman said. But its counterpart in Virginia, Anthem, hasn’t been persuaded.
“Anthem does not believe that there are any commitments that will protect Southwest Virginia and Northeast Tennessee health care consumers from the negative impact of a state-sanctioned monopoly,” the company said in a statement.
Wanted: Better Job Prospects
The proposed COPA has strong support among large employers in the region, including Eastman, a Kingsport, Tenn., chemical company with $9 billion in annual revenue that employs more than 7,000 people locally. “We get local governance, input and control … and that’s a lot better situation for us,” said David Golden, a senior vice president at Eastman.
Still, walking around Johnson City — the region’s largest city with almost 67,000 people — it’s easy to feel an unease among small employers and residents about a merger. Many worry about possible job cuts.
“Eliminating duplication of services means eliminating people,” said Dick Nelson, 60, who runs a coffee and art shop downtown and has lived here for 27 years. “I don’t care how much health care costs because my insurance will pay it,” he said.
In Kingsport, where Wellmont and Mountain States each has a hospital, Thorp is leery about a merger, too. “It’s an economic move, not an enhancement of medical care,” said Thorp, who runs a newsstand downtown. “We pride ourselves here for having good education and health care. They say there won’t be any services or jobs cut, but if that’s the case then what’s the point of the merger?”
Levine said no place better supports the case for a hospital merger than Wise County in southwestern Virginia, a scenic area with about 40,000 people whose three hospitals all operate below half their capacity. Mountain States and Wellmont each own a hospital in Norton, the county seat with 4,000 residents. Despite few patients, the hospitals still bear hard-to-cut costs for buildings, equipment and adequate staffing levels, Levine said.
On a recent weekday morning, Lonesome Pine Hospital, a Wellmont facility in Big Stone Gap, Va., looked nearly deserted. No volunteers or staffers were visible inside its main entrance and fewer than a fifth of its 70 acute-care beds were being used.
A five-minute drive away, Mountain States’ Norton Community Hospital’s 129 beds are about a quarter filled. Its maternity unit delivers fewer than five babies a week. The hospital offers hyperbaric oxygen therapy — a treatment that pays well under Medicare’s reimbursement rates — to help diabetics heal their wounds. But it has no endocrinologists to help diabetics manage their disease to avoid such complications. Despite a high rate of heart disease in the community, there’s no cardiologist on staff.
Whether a state-sanctioned merger will resolve the incongruities — here or in other poor regions — depends on how firmly regulators hold the hospitals to their pre-merger commitments. If the merger plan gets rejected, Mountain States and Wellmont will resume arch-competitive business practices that do not always put community interests first, said Bart Hove, Wellmont’s CEO.
“It’s about competing for the dollar in any way you can and extracting a dollar from your competition,” Hove said. “You do what you can to drive patients to your hospital.”
The unexpected political power of dentists
As the cost of dental care rises beyond the reach of millions of Americans, the dental lobby is coming under increasing scrutiny. Critics say the ADA has worked to scuttle competition that could improve access to dental care in underserved areas and make routine checkups and fillings more affordable.
The Federal Trade Commission has battled dentists in state after state over anti-competitive conduct. In 2007, the FTC successfully settled a complaint over a South Carolina dental board requirement that dentists examine children in school clinics before hygienists can clean their teeth, adding greatly to the cost. In 2015, the FTC won a Supreme Court ruling against the North Carolina dental board, which tried to block teeth-whitening businesses from operating in malls.
This year, the FTC publicly commented on a growing campaign to improve access to dental care by creating a category of mid-level practitioners, or “dental therapists,” to provide some routine services. In a letter to the Ohio lawmakers considering such a measure, FTC officials said therapists “could benefit consumers by increasing choice, competition, and access to care, especially for the underserved.”
More than a dozen states are considering similar proposals, despite fierce resistance from the ADA and its state affiliates. During the Maine debate, so many dentists flooded the statehouse in Augusta that besieged lawmakers taped up signs declaring their offices a “Dental Free Zone.”
The dentists had a unique way to get around the blockade: the regular checkup. While the bill was pending, some lawmakers found themselves getting an earful when they stretched out and opened wide for an oral exam.
“I’m certainly a captive audience when I am in the dental chair,” said Brian Langley (R), a Maine state senator who also got calls from four other dentists in his district and ended up siding with them.
Former lobsterman Michael Hanson, 54, says the American dental system is broken. (Linda Davidson/The Washington Post)The bill establishing a new provider type ultimately passed, but “it was brutal, very brutal,” recalled David Burns, a Republican state senator who retired after supporting the measure. Afterward, Burns said, he got a call from his dentist, who vowed never to treat him again, saying, “This relationship is over.”
Most of the 200,000 dentists in America work solo, in offices that are essentially small businesses. They are known for projecting a remarkably unified voice on issues relating to their livelihood. The ADA says 64 percent of dentists belong to the association. By comparison, only 25 percent of physicians belong to the American Medical Association.
Market power matters
It’s the clash of titans.
In January the Massachusetts the Group Insurance Commission (GIC) — the state agency that provides health insurance to nearly a half-million public employees, retirees, and their families — voted to cap provider payments at 160% of Medicare rates. Ignoring Medicare (~1M enrollees) and Medicaid (~1.6M enrollees), the GIC is the largest insurance group in the state. According to reporting from The Boston Globe, the cap would be binding on a small number of concentrated providers, including Partners HealthCare, one of the largest hospital systems in the state.
David Anderson summed the development up perfectly.
The core of the fight is a big payer (the state employee plan) wants to use its market power to get a better rate from a set of powerfully concentrated providers who have used their market power to get very high rates historically.
Anderson also pointed to a relevant, recent study that illustrates how a specific payer’s and provider’s market power jointly affect prices. In Health Affairs, Eric Roberts, Michael Chernew, and J. Michael McWilliams studied the phenomenon directly, which has rarely been done. Most prior work aggregate market power or prices across providers or payers in markets.
Their source of price data was FAIR Health, which includes claims data from about 60 insurers across all states and D.C. In a county-level analysis, the authors crunched 2014 data for just ten of those insurers that offered PPO and POS plans and that did not have solely capitated contracts. These ten insurers represent 15% of commercial market enrollment. They then looked at prices paid by these insurers to providers in independent office settings for evaluation and management CPT codes 99213, 99214, and 99215. These span moderate length visits to longer visits for more complex patients and collectively represent 21% of FAIR Health captured claims.
They computed insurer market share based on within-county enrollment. They computed a provider group’s market share as the county proportion of provider taxpayer identification numbers (TIN) associated with that group’s National Provider Identifier (NPI) — basically the size of group in terms of number of physicians.
Some of the findings are illustrated in the charts below and are largely consistent with expectations. For all three CPT codes, insurers with greater market shares tend to pay lower prices. That’s shown just below. The biggest price drop occurs when moving from <5% to 5-15% market share. Greater market share than that is associated with still lower prices, but not by as much. For example, insurers with <5% market share pay an average of $86 for CPT code 99213; insurers with 5-15% market share pay 18% less and insurers with ≥15% just a few percent less than that. It’s roughly the same story for other CPT codes.
Pharmaceutical Product Hopping: A Proposed Framework For Antitrust Analysis
Skyrocketing drug prices are in the news. Overnight price increases have riveted the attention of the public, media, and politicians of all stripes. But one reason for high prices has flown under the radar. When drug companies reformulate their product, switching from one version of a drug to another, the price doesn’t dramatically increase. Instead, it stays at a high level for longer than it otherwise would have without the switch. Although more difficult to discern than a price spike, this practice, when undertaken to prevent generic market entry, can result in the unjustified continuation of monopoly pricing, burdening patients, the government, and the health care system as a whole.
Not all reformulations pose competitive concerns. Empirical studies have shown that more than 80 percent can be explained by improvements that are not temporally connected to impending generic entry. But a dangerous subset of such reformulations is undertaken for one, and only one, reason: to delay generic entry. In such cases, reformulation is called “product hopping.”
When generics enter the market, the price can fall dramatically overnight, by as much as 85 percent. For that reason, brand firms have every incentive to delay this moment of reckoning as long as possible. Sure enough, making trivial changes to their drugs has that effect. Every state has a substitution law that requires or allows pharmacists to offer a generic drug when the patient presents a prescription for a brand drug. But such substitution is thwarted if the drug is not the same—in particular, if it is not bioequivalent (able to be absorbed into the body at the same rate) and therapeutically equivalent (having the same active ingredient, form, dosage, strength, and safety and efficacy profile). A minor change to a drug’s formulation can prevent the pharmacist from substituting the generic.
Product hopping raises nuanced issues arising at the intersection of patent law, antitrust law, the federal Hatch-Waxman Act, and state drug product substitution laws. It is even more complex given the uniquely complicated pharmaceutical market, in which the buyer (patient, insurance company) is different from the decision maker (doctor).
Courts applying US antitrust law have struggled to create a robust and defensible legal framework for separating anticompetitive product hops from competitively benign, legitimate product development. In this post, we propose a framework that would help courts defer to legitimate reformulations while targeting anticompetitive switches.
Healthcare’s Consolidation Landscape
Market and regulatory factors have unleashed a wave of merger, acquisition, and partnership activity that is changing the delivery of healthcare services.
Consolidation in the healthcare-provider sector has accelerated in recent years, reshaping the relationships between health systems, hospitals, and independent physicians across the country.
In the Buckeye State, healthcare consolidation activity has been a transformational force at OhioHealth, says Michael Louge, CPA, who serves as executive vice president and chief operating officer at the 11-hospital health system based in Columbus.
“When you look at OhioHealth, and you go back two or three decades, it was a much different organization. The reason it is different today is because of philosophy and the way we approach regional partnerships—how we have worked with physicians and hospitals in the region. Our whole organization’s evolution has been through successful partnerships and consolidations with regional players.”
Over the past year, statistics have been gathered on the pace of healthcare-provider consolidation.
In a recent HealthLeaders Media survey, 159 healthcare executives—mainly from health systems, hospitals, and physician practices—were asked about their merger, acquisition, and partnership (MAP) deals.
Eighty-seven percent of the respondents said their organizations were expected to both explore potential deals and complete deals that were underway in the next 12–18 months. Only 13% of the respondents said their organizations were not planning MAP deals in that same time period.
From the passage of the Patient Protection and Affordable Care Act (PPACA) in 2010 through the end of last year, merger and acquisition transactions involving acute-care hospitals increased 55% from 66 announced deals to 102, according to Skokie, Illinois–based Kaufman Hall. Last year, the operating revenue of acquired organizations was more than $22 billion, according to the consultancy.
Kit Kamholz, managing director at Kaufman Hall, says two sets of drivers are propelling consolidation activity among health systems and hospitals.
“There are transactions that are driven by financial rationale. This is driven by a level of distress at the smaller organization, either from a historical-financial standpoint, an access-to-capital standpoint, or they are experiencing some significant clinical deficiencies. … The second bucket is in the category of strategic rationale. These are organizations that tend to be relatively strong financially, that are considered to be strong community-based providers in their marketplaces; but they are looking at the landscape of the evolving healthcare environment and saying, ‘Do we have the skills and capabilities to be successful in this new era of value-based care?’ ”
Healthcare consolidation activity is impacting the country’s physician practices and physician-employment trends.
Anthem loses Cigna takeover appeal
http://www.healthcaredive.com/news/anthem-cigna-merger-over/441551/
Dive Brief:
- The U.S. Court of Appeals on Friday upheld a decision to block the $54 billion merger between insurance giants Anthem and Cigna.
- A federal judge ruled in February that the combined company would result in reduced competition in the national health insurance market, agreeing with the U.S. Department of Justice, which brought the antitrust case last July. Anthem filed an appeal to reverse the decision later that month.
- In a 2-1 decision, the court ruled Anthem had failed to “show the kind of extraordinary efficiencies necessary to offset the conceded anticompetitive effect of the merger.”
Dive Insight:
Unless Anthem takes it to the Supreme Court, this is the end of the deal after several months of contentious debates and infighting among the two health insurance giants.
The healthcare industry has been closely watching the case. The American Medical Association was quick to issue a statement applauding the decision from the Court of Appeals. “The appellate court sent a clear message to the health insurance industry: a merger that smothers competition and choice, raises premiums and reduces quality and innovation is inherently harmful to patients and physicians,” said AMA President Andrew W. Gurman.
Cigna has been wanting to end the merger plans for months. After the merger was first blocked, Cigna filed a lawsuit against Anthem seeking at least $14 billion in damages, which is a lot more than the $1.85 billion contractual breakup fee. It also asked for a statement that Cigna had lawfully terminated the deal.
Anthem was granted a temporary restraining order against Cigna shortly thereafter. The infighting certainly did not help support Anthem-Cigna’s argument that it would effectively implement the claimed efficiencies that would benefit consumers.
Earlier this week, Anthem filed a motion with the Delaware Court of Chancery for a preliminary injunction that would block Cigna from terminating the deal on April 30, which is the contractual deadline.
Anthem and Cigna could soon end their plan to merge. Once it’s over, it will be “harder for either Anthem or Cigna to do another deal that involves a combination of another large insurer,” Mitchell Raup, an antitrust attorney from Polsinelli, told Healthcare Dive. “They would have to convince the Department of Justice or perhaps a court that the next deal is not like this deal, that the judge’s opinion about this deal doesn’t apply to the next deal.”
Also this week, Anthem released first quarter 2017 earnings showing it beat projections with $1 billion in net income. It also said it would cautiously begin work on 2018 rates for the Affordable Care Act exchanges. Anthem and other payers, however, are still anxiously awaiting word from the President Donald Trump administration on whether it will continue the cost-sharing reduction subsidies.
Healthcare Dive requested comments from both payers. Anthem has not yet sent a statement. Cigna, through a company lawyer, said it has no comment at this time. An 8-K Cigna filed earlier today just states that it “continues to work through the litigation process in the pending Delaware Court of Chancery matter involving Cigna and Anthem, including the preliminary injunction hearing scheduled for May 8, 2017.”
Healthcare Competition Needs a Priority Check and Reset, Experts Say
Farzad Mostashari, MD, the former National Coordinator for Health IT at the Department of Health and Human Services, and Martin S. Gaynor, a professor of economics and health policy, discuss how policy helps and/or harms competition in the healthcare marketplace.
Despite the near-universal agreement that the U.S. healthcare delivery system should remain market-based, there has been surprisingly little talk amongst government policy makers and private payers about the potential for stifling competition with over-regulation.
An essay this month in JAMA calls for a re-examination of how healthcare rules, regulations, and policies help or harm competition in the healthcare marketplace.
Farzad Mostashari, MD, the former National Coordinator for Health IT at the Department of Health and Human Services, and Martin S. Gaynor, a professor of economics and health policy at Carnegie Mellon University, two authors of the essay, spoke with HealthLeaders last week. The following is a lightly edited transcript.
Antitrust Not Always Available in Competitor Disputes in the Healthcare Sector
Antitrust Not Always Available in Competitor Disputes in the Healthcare Sector
The antitrust injury and antitrust standing defenses/doctrines are alive and well in healthcare. A recent case, SCPH Legacy Corp. et al. v. Palmetto Health et al., shows that a competitor is not always the most legally appropriate plaintiff to bring an antitrust case, especially when the competitor’s alleged harm stems from increased competition. This article explains the court’s reasoning and makes some predictions for similar arguments in the future.
On February 24, 2017, Judge Joseph F. Anderson of the District of South Carolina, granted a motion to dismiss all federal antitrust claims brought by a small hospital chain against its larger competitor for lack of antitrust injury and antitrust standing. The court held that poaching a group of doctors is not the type of injury that the antitrust laws are designed to protect when the suit is brought by a competitor, and that more direct plaintiffs exist.
Providence Hospitals, which operates a small hospital system in the midlands of South Carolina, alleged that Palmetto Health was a monopoly that secretly recruited employees of Providence’s orthopedic services business—the only competitive advantage that Providence had over Palmetto. Palmetto allegedly orchestrated for 300 orthopedic physicians, executives and staff to simultaneously quit Providence and move to Palmetto in mid-2015.
Cigna ends merger with Anthem, sues for more than $14B
In a move that defies Anthem’s push to fight for their deal, Cigna has terminated its merger agreement with Anthem and filed suit against the larger insurer.
Earlier this month, a federal judge ruled against the two insurers’ planned merger, saying it would violate antitrust law by lessening competition in the national accounts market. Anthem responded by saying it intends to appeal the ruling.
But in a statement issued Tuesday, Cigna said that given the court’s decision, it “believes that the transaction cannot and will not achieve regulatory approval and that terminating the agreement is in the best interest of Cigna’s shareholders.”
Thus, Cigna filed a suit against Anthem in the Delaware Court of Chancery, seeking a declaratory judgment that Cigna has lawfully terminated the merger agreement and that Anthem is not permitted to extend the termination date.
The suit also asked the court to compel Anthem to pay Cigna the $1.85 billion termination fee outlined in the merger agreement, plus additional damages of more than $13 billion. Those damages “include the lost premium value to Cigna’s stockholders caused by Anthem’s willful breaches of the merger agreement,” according to a question-and-answer document filed with the Securities and Exchange Commission.
For its part, Anthem maintains that “under the terms of the merger agreement, Cigna does not have a right to terminate the agreement. Therefore, Cigna’s purported termination of the merger agreement is invalid,” a company spokesperson said in an emailed statement. “Anthem will continue to enforce its rights under the merger agreement and remains committed to closing the transaction.”
HENRY KOTULA 