The AHA today urged the Federal Trade Commission and Department of Justice not to finalize the draft guidelines describing how the agencies review mergers and acquisitions to determine compliance with federal antitrust laws.
Among other comments, AHA said:
- The draft guidelines ignore serious flaws in contemporary enforcement practice against hospital mergers
- The draft places far too much weight on cases from the 1960s and 1970s, largely ignoring modern cases and economic scholarship that contradict their more aggressive proposed changes;
- The agencies propose a structural presumption that is arbitrarily low and potentially fatal to beneficial transactions; and
- The draft guidelines largely eschew the many benefits of horizontal and vertical integration in the health care industry.
“The Agencies should rethink this sharp departure from existing practice,” AHA said. “They should focus on opportunities for incremental improvement rather than re-inventing the wheel.”
The agencies in July released the draft guidelines outlining 13 principles they may use when determining whether a merger is unlawfully anticompetitive, and clarifying the frameworks and tools they may use when analyzing a merger with respect to each guideline.
The agencies will accept comments on the draft guidelines until Sept. 18.