ACCOUNTABLE CARE ORGANIZATIONS: HOW ANTITRUST LAW IMPACTS THE EVOLVING LANDSCAPE OF HEALTH CARE

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1 ACCOUNTABLE CARE ORGANIZATIONS: HOW ANTITRUST LAW IMPACTS THE EVOLVING LANDSCAPE OF HEALTH CARE ELIZABETH L. ROWE* Health-care costs are threatening to destroy the economy in the United States. More money is spent on health care in the United States than in any other country, yet several countries have a much higher quality of care. Accountable care organizations (ACOs), organizations that take responsibility for all health-care needs of patients and reap the benefits of keeping costs down if they provide a high enough standard of care at the same time, have been suggested as a way to both cut health-care spending and raise the quality of care. Because these organizations can have anticompetitive effects, however, they potentially run afoul of antitrust laws. To date, most doctors are afraid to join ACOs for fear of antitrust liability. This Note argues that ACOs will indeed provide a higher quality of care at a lower cost. The efficiencies created by having several different physicians working together to care for a patient and sharing information in doing so cannot be matched by the system of fragmented care in place today. As a result of these positive benefits and the fact that health-care services markets do not operate in the same way as traditional markets, this Note asserts that room should be made in antitrust law for the establishment of ACOs. ACOs must be evaluated retrospectively to see if their anticompetitive effects outweigh the benefits they provide and, accordingly, this Note argues ACOs should be presumptively legal at this point. Additionally, this Note argues a more general exception should be established in statute for ACOs because of the different ways in which health-care markets function. Finally, this Note asserts that ACOs that run afoul of antitrust laws should be fined rather than immediately dismantled to give doctors confidence that the organizations have staying power. These provisions are essential if ACOs are to form and achieve the considerable benefits they offer. * J.D. 2012, University of Illinois College of Law; B.A. 2007, Political Science & Anthropology, Emory University. I would like to thank the University of Illinois Law Review members, editors, and staff for their hard work. I am particularly grateful to my husband and parents for their constant encouragement and confidence in me. 1855

2 1856 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol I. INTRODUCTION Shortly after Wall Street collapsed in 2008, rapidly sending the United States into economic downturn, President Obama warned that [b]y a wide margin, the biggest threat to our nation s balance sheet is the skyrocketing cost of health care. 1 The United States spends more on health care than any other country in the world, yet the higher spending is not associated with any increase in the quality of care. 2 Additionally, the regions within the United States with the highest health-care expenditures have, on average, lower quality of care and worse outcomes than regions with lower health-care costs. 3 As a result of these and similar statistics, a number of health policy professionals suggest the idea of moving toward an accountable care organization (ACO) health-care model in which a group of health-care providers would assume responsibility for administering all of the necessary health care to a defined group of patients, as well as responsibility for keeping costs down and improving the quality of care in exchange for the providers splitting the shared savings with the third-party payer. 4 Until either Congress or the Federal Trade Commission (FTC) and Department of Justice (DOJ) are clear on their antitrust policies regarding joint activities of health-care providers, however, hospitals and providers alike are unlikely to move into ACOs in adequate numbers out of fear of antitrust lawsuits. 5 There should be greater exception for ACOs to set prices and clinically integrate than is currently allowed under federal regulations. Part II of this Note discusses the concept of an alternative care organization, including the history and current state of antitrust law as it relates to health-care organizations. Part III analyzes the antitrust approach to ACOs that federal agencies are currently considering, as well as the opinions of health-care professionals and policy analysts as to how the government should approach antitrust protection and regulation of ACOs. Finally, Part IV proposes a solution to carve out enough antitrust protection for ACOs to encourage their development while still maintaining enough limits to continue protecting the market from traditional antitrust concerns. This Part further suggests ways in which antitrust law should adjust its approach to health-care professionals. 1. Atul Gawande, The Cost Conundrum: What a Texas Town Can Teach Us About Health Care, NEW YORKER, June 1, 2009, at See Timothy Stoltzfus Jost et al., The Role of Competition in Health Care: A Western European Perspective, 31 J. HEALTH POL. POL Y & L. 687, 689 (2006). 3. William B. Weeks et al., Higher Health Care Quality and Bigger Savings Found at Large Multispecialty Medical Groups, 29 HEALTH AFF. 991, 991 (2010). 4. Mark McClellan et al., A National Strategy to Put Accountable Care into Practice, 29 HEALTH AFF (2010). 5. See, e.g., Peyton M. Sturges, Attorneys Say Clinical Integration Model Safest Way to Move Toward ACO Formation, 19 HEALTH L. REP. (BNA) 825, at 2 (2010).

3 No. 5] ACCOUNTABLE CARE ORGANIZATIONS 1857 II. BACKGROUND An ACO, at its most basic level, is a network or multiple networks of providers that work together to be held accountable for improving the quality of care for a defined group of individuals while controlling the rate of health-care spending at a sustainable level. 6 ACOs are a proposed way to align the interests of third-party payers (usually insurance companies), providers, and patients to reduce inefficiencies present in current health-care systems that stem from poor coordination and faulty transitions between doctors in administering long-term care to patients. 7 Currently, the majority of the health-care delivery system consists of physicians in small, single specialty practices that do not have the financial or organizational capacity to coordinate approaches for dealing with complex cases, share patient information through information technology systems, or generally provide care efficiently. 8 As an administrator for the Center for Medicare and Medicaid Services noted, the current experience is one of disorganized care. It is care in fragments. [Patients] have to tell [their]... story again over and over to everyone [they] meet. No one seems to talk to each other. Your record is forgotten or it s unavailable. 9 A 2003 study found that the appropriate level of care was received by patients in the United States a mere fifty-five percent of the time. 10 Most health policy experts attribute the poor quality of health care to the fragmentation resulting from the lack of coordination among providers McClellan et al., supra note 4, at ; Robert Wood Johnson Foundation, Health Policy Brief: Accountable Care Organizations, HEALTH AFF., July 27, 2010, at 1 [hereinafter Health Policy Brief]. 7. Elliott S. Fisher et al., Creating Accountable Care Organizations: The Extended Hospital Medical Staff, 26 HEALTH AFF. w44, w45 (2007); see, e.g., AM. HOSP. ASS N COMM. ON RESEARCH, ACCOUNTABLE CARE ORGANIZATIONS: AHA RESEARCH SYNTHESIS REPORT 5 (2010) [hereinafter AHA RESEARCH SYNTHESIS REPORT], (discussing how payment approach is closely related to the level of financial risk assumed by providers, a key difference from the typical health maintenance organization (HMO) structure); AM. HOSP. ASS N COMM., TRENDWATCH: CLINICAL INTEGRATION THE KEY TO REAL REFORM 5 (Feb. 10, 2010), (discussing how ACOs will align incentives). 8. Gail R. Wilensky et al., Gain Sharing: A Good Concept Getting a Bad Name?, 26 HEALTH AFF. w58, w59 (2007). 9. Workshop Regarding Accountable Care Organizations, and Implications Regarding Antitrust, Physician Self-Referral, Anti-Kickback, and Civil Monetary Penalty Laws, Morning Transcript 3 (Oct. 5, 2010) [hereinafter Workshop Morning Transcript ], downloads/ aco-workshopamsessiontranscript.pdf. 10. Lawrence P. Casalino, The Federal Trade Commission, Clinical Integration, and the Organization of Physician Practice, 31 J. HEALTH POL. POL Y & L. 569, 580 (2006). 11. Taylor Burke & Sara Rosenbaum, Accountable Care Organizations: Implications for Antitrust Policy, 19 HEALTH L. REP. (BNA) 358, at 1 (2010) (noting that the fractured and fragmented state of American health care stands in the way of improvement).

4 1858 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol The concept of an ACO has been espoused by a number of health policy experts, but the name was coined by Dr. Elliott Fisher 12 and his colleagues in 2006 based on their research showing that virtually all physicians are either directly or indirectly affiliated with a local acute care hospital, whether through their own inpatient work or through the care patterns of the patients they serve Fisher refers to these multispecialty groups as extended hospital medical staff. 13 Given the high degree of concentration of Medicare beneficiary care at certain hospitals and extended hospital medical staff that Fisher found throughout the country, Fisher proposed that those hospitals and medical staff be used as loc[i] of accountability for the Medicare population in particular regions. 14 Hospitals are better suited than small, single-specialty groups to invest in the technology and health information systems necessary to coordinate the care of providers and measure the quality of care provided. 15 ACOs would transform the health insurance landscape from that of simply paying health-care claims to that of providing integrated health care. 16 For example, in a traditional fee-for-service model like the kind that dominated the market into the 1980s, health providers charged the patient or the insurance company for every itemized service that the patient received. 17 The problem with traditional fee-for-service arrangements was that the incentive for the doctor was to provide as many procedures, tests, and other services as possible because the insurance company reimbursed the patient for every itemized transaction. 18 The era of the managed care system was the proposed solution to cut the costs inherent in a traditional fee-for-service system. 19 Under a managed care system, the health-care provider does not charge for every single service rendered to the patient, but instead a patient is entitled to receive certain services from the provider that are covered by a premium. 20 The problem with managed care is that the incentive is to provide as limited a number of services as possible to keep the costs under the capitated 12. Dr. Elliott Fisher is a Professor of Medicine and Community and Family Medicine at Dartmouth Medical School. See Elliott S. Fisher, M.D., M.P.H., GEISEL SCH. OF MED. AT DARTMOUTH, (last visited July 29, 2012). He also serves as co-chair of the National Quality Forum Committee which is developing national standards for measuring the efficiency of health care in the United States. Elliott Fisher, MD, MPH, DARTMOUTH COLL. INST. FOR SEC., TECH., & SOC Y, fisher.html (last updated May 10, 2010). 13. Fisher et al., supra note 7, at w45; AHA RESEARCH SYNTHESIS REPORT, supra note 7, at Fisher et al., supra note 7, at w Id. at w See Burke & Rosenbaum, supra note 11, at See James E. Dalen, Health Care in America: The Good, the Bad, and the Ugly, 160 ARCHIVES INTERNAL MED. 2573, 2573 (2000). 18. See id. 19. See id. 20. See Jacob S. Hacker & Theodore R. Marmor, How Not to Think About Managed Care, 32 U. MICH. J.L. REFORM 661, (1999).

5 No. 5] ACCOUNTABLE CARE ORGANIZATIONS 1859 amount paid to the provider. 21 Furthermore, although managed care organizations were supposed to be the solution to control costs, and initially succeeded in doing so, 22 the backlash over their methods for controlling costs led to a wave of state legislation that diminished their capacity to achieve such goals. 23 ACOs are similar to managed care organizations but place emphasis on the provider, rather than the insurer, as the locus of keeping costs down, emphasizing coordination of care between providers and holding the provider accountable for the quality of the care given. 24 The incentive to provide a high quality of care while controlling costs would be provided through some mechanism of financial rewards to providers (i.e., the locus of accountability). 25 There are three main projected advantages to using a hospital and its extended medical staff as a locus of accountability: (1) greater ability to measure provider performance; (2) greater ability to establish accountability for local decisions regarding capital investments, provider recruitment, and practice location; and (3) greater ability to improve the quality of care while simultaneously lowering the costs of administering health care. 26 ACOs would accomplish these goals partly through legal agreements between hospitals, primary care providers, specialists, and other providers to promote efficiency. 27 Hospitals and providers would need to facilitate coordination of care and share analysis of data on costs and outcomes and would be incentivized to do so. 28 The incentives would be through payment models that could take a variety of forms, all of which, in general, would link payments to quality improvements. 29 For example, [s]pending for the population of patients in a particular ACO could be compared to targets based on past experience for the same patients, or to spending for similar patients in the community who were not assigned to the ACO, 21. See Dalen, supra note 17, at (discussing the methods of keeping costs down by reducing services, reducing hospital stays, and reducing payments to physicians). 22. See id. at 2573 ( Managed care did, at least initially, dampen the escalating health care costs. ). 23. See BARRY R. FURROW ET AL., HEALTH LAW: CASES MATERIALS AND PROBLEMS (6th ed. 2008); David A. Hyman, Regulating Managed Care: What s Wrong with a Patient Bill of Rights, 73 S. CAL. L. REV. 221, 222 (2000) (describing the patient s bill of rights backlash to managed care organizations). 24. See Kelly Devers & Robert Berenson, Robert Wood Johnson Foundation, Can Accountable Care Organizations Improve the Value of Health Care by Solving the Cost and Quality of Care?: Timely Analysis of Immediate Health Policy Issues, Oct. 2009, at 3; McClellan et al., supra note 4, at (discussing how ACOs are a critical step in the right direction). 25. Burke & Rosenbaum, supra note 11, at Fisher et al., supra note 7, at w52 53; see also Denis Cortese & Robert Smoldt, Taking Steps Toward Integration, 26 HEALTH AFF. w68, w69 (2007) (noting that multiphysician practice groups are more likely to adopt evidence-based care processes and to use information technology (IT) to coordinate care effectively ). 27. AHA RESEARCH SYNTHESIS REPORT, supra note 7, at Id. 29. McClellan et al., supra note 4, at 983.

6 1860 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol and if the ACO saved money, it would receive part of the savings. 30 Furthermore, providers within the ACO could be held to a minimum quality standard that they must meet to continue participating in the ACO. 31 Another proposed incentivized approach is three-tiered; the ACO would achieve a higher level of risk and reward with each tier for which it becomes qualified. 32 In the first tier, providers assume no financial risk and receive shared savings for managing costs and hitting quality benchmarks, while keeping costs under control. 33 In the second tier, providers receive shared savings for managing costs and achieving quality benchmarks but are liable for costs that exceed the target. 34 Finally, in the third tier, providers assume the greatest risk and are paid in full or partial capitation. 35 While there are a variety of methods health-care experts propose by which ACOs would achieve these goals, the focus of this Note is on antitrust challenges that ACOs may face rather than an analysis of the actual implementation or organization of ACOs. Thus, this Note will only discuss those aspects as they relate to antitrust law. 36 As health-care spending in the United States continues to increase, and the lack of improvement in the quality of health care to show for it remains, 37 the concept of ACOs, as an alternative to the managed care organizations and small physician practices that now dominate the health-care market, has increasingly caught the attention of health policy analysts. 38 In fact, as part of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), 39 the Secretary of Health and Human Services has been granted authority to implement pilot ACO projects for 30. Health Policy Brief, supra note 6, at Id. 32. STEPHEN M. SHORTELL ET AL., BERKELEY CTR. ON HEALTH, ECON. & FAMILY SEC., IMPLEMENTING ACCOUNTABLE CARE ORGANIZATIONS 3 (2010), chefs/implementing_acos_may_2010.pdf. 33. Id. 34. Id. 35. Id. at 3 4; AHA Research Synthesis Report, supra note 7, at 11. Capitation is a system of payment whereby the provider is paid a fixed fee to provide services to the health-care beneficiary for a fixed period of time. FURROW ET AL., supra note 23, at 676. Capitation contracts reverse the typical incentive arrangements in provider arrangements. Rather than being paid for the number and type of services provided, the providers are paid based upon the number of members enrolled in their practice regardless of the nature or intensity of service utilization. SHORTELL ET AL., supra note 32, at 15. Under a partial capitation system, some services are prepaid through capitation but some remain feefor-service, which can be a way of controlling risk while allowing for flexibility. Id. 36. For a more in depth analysis of how ACOs plan to achieve the goals of improving quality of health care and reducing costs, see McClellan, supra note 4, at (discussing barriers to the implementation of ACOs); Health Policy Brief, supra note 6, at 3 (discussing various payment models for ACOs); see generally Stephen M. Shortell et al., How the Center for Medicare and Medicaid Innovation Should Test Accountable Care Organizations, 29 HEALTH AFF (2010); Devers & Berenson, supra note 24, at See Jost et al., supra note 2, at See Burke & Rosenbaum, supra note 11, at Patient Protection and Affordable Care Act, Pub. L. No , 3022, 124 Stat. 119, 395 (2010) (to be codified as amended in scattered sections of 42 U.S.C.).

7 No. 5] ACCOUNTABLE CARE ORGANIZATIONS 1861 Medicare beneficiaries. 40 In the final reform bill of the Affordable Care Act, the Congressional Budget Office projected a $5-billion savings in Medicare expenditures in the ten years after enactment of the bill. 41 Another study indicates that ACOs could account for as much as $15 billion a year in Medicare savings, bringing that ten-year estimate to $150 billion. 42 Even if these pilot programs prove to be successful, however, there is much speculation about the viability of ACOs outside of the Medicare market as a way to curb rising health-care costs in the private sector. 43 One of the main challenges to implementing ACOs is the barrier of antitrust law, as ACOs require a great deal of coordination between networks of providers and, often, between competitors, which can raise antitrust red flags. 44 ACOs could be particularly susceptible to allegations of horizontal price fixing (the setting of prices among competitors of the same level, contrary to the workings of the free market and among competitors on the same level ), 45 improper exclusive dealing ( [a]n agreement requiring a buyer to purchase all needed goods or services from one seller ), 46 and improper collusive activity. 47 ACOs will likely have to exclude certain providers in the area from participation in the ACO, and the excluded providers could potentially bring antitrust challenges. 48 Additionally, ACOs will have to share its pricing information with competitors, which raises concerns about price fixing. 49 Finally, the probability of ACOs setting off antitrust red flags will likely increase as the market power of the particular ACO increases. 50 For this last reason, health policy analysts are generally more optimistic about the viability of ACOs in large cities where there is a bigger health-care market than the viability of ACOs in rural areas where successful ACOs are more likely to dominate the market. 51 As antitrust law presently stands, there is some guidance from the DOJ and the FTC about how ACOs should be 40. Id.; McClellan et al., supra note 4, at CONGRESSIONAL BUDGET OFFICE, BUDGET OPINIONS: VOL. 1, HEALTH CARE 75 (2008), available at McClellan et al., supra note 4, at Weeks et al., supra note 3, at See Sturges, supra note 5, at 1 2; Workshop Morning Transcript, supra note 9, at 56 (discussing how it is important to speak of antitrust regulation of ACOs in terms of Medicare and the private market, as most plan to operate in both markets). 44. See Sturges, supra note 5, at 1 2; C. Frederick Geilfuss & Renate M. Gray, Accountable Care Organizations: Promise of Better Outcomes at Restrained Costs; Can They Meet Their Challenges, 16 HEALTH INS. REP. (BNA) 23, at 23 (2010). 45. BLACK S LAW DICTIONARY 1309 (9th ed. 2009). 46. Id. at Geilfuss & Gray, supra note Id. 49. Id. 50. Id. ( [Antitrust] issues are more acute to the extent that the ACO holds market power, as in smaller markets, or where the ACO ties up most of the providers of a particular type in a given market. ). 51. See id.

8 1862 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol structured to avoid liability. This guidance largely comes from FTC decisions creating antitrust exceptions for clinically integrated multiprovider networks meeting certain criteria. 52 This Part of this Note provides an overview of antitrust law s approach to health-care organizations and then goes on to discuss how the antitrust laws affect the organizational structure of provider practices and efforts to enter joint ventures. A. The Current Status of Antitrust Law As It Relates to Health Care When it comes to antitrust law, health-care providers are mostly concerned about running afoul of Section 1 of the Sherman Act, which states that [e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. 53 A few prohibited market transactions are considered to interfere with free competition to the extent that the actions are per se illegal. 54 Prohibited actions that are not deemed per se unlawful are analyzed instead under a rule of reason analysis, under which the conduct must have some broader good that outweighs the anticompetitive effect. 55 The Supreme Court has come down hard on efforts by physicians to integrate their services in ways similar to those in which ACOs would have to integrate, and while the agencies have tried to give back some of what the Court took away, their guidance has left much to be desired for providers wishing to integrate Arizona v. Maricopa County Medical Society In 1982, the Supreme Court broadly held in Arizona v. Maricopa County Medical Society that efforts by nonintegrated medical care associations to set insurance fees were per se illegal as a violation of Section 1 of the Sherman Act. 57 The case involved an antitrust challenge by the State of Arizona to the Maricopa Foundation for Medical Care, of which about seventy percent of the doctors in Maricopa County were members. The foundation established a schedule of maximum fees that the participating doctors agreed to accept as payment in full for the services performed for patients in the plan. 58 The Court noted that the situation of 52. Robert Belfort, Provider Participation in ACOs May Hinge on HHS Regulations, 18 HEALTH CARE POL Y REP. (BNA) 790, at 3 (2010) U.S.C. 1 (2006). 54. Taylor Burke & Sara Rosenbaum, Aligning Health Care Market Incentives in an Information Age: The Role of Antitrust Law, 5 J. HEALTH & BIOMEDICAL L. 151, 165 (2009). 55. Id. 56. See id. at 161 ( [A] tremendous amount of uncertainty still exists regarding the antitrust assessment of clinically integrated physician joint ventures. ) U.S. 332, (1982). 58. Id. at 339.

9 No. 5] ACCOUNTABLE CARE ORGANIZATIONS 1863 the medical associations was not analogous to partnerships or other joint arrangements in which persons who would otherwise be competitors pool their capital and share the risks of loss as well as the opportunities for profit. 59 Rather, the fee arrangements between the associations were among independent competing entrepreneurs and, thus, fit squarely into the horizontal price-fixing mold. 60 The Court took a rather hard-line approach to the per se rule and left providers uneasy about entering joint ventures for fear that they would lack an acceptable amount of integration Federal Agency Response to Maricopa The Maricopa decision prompted the DOJ, together with the FTC (jointly, the agencies ), to issue Statements of Antitrust Enforcement Policy in Health Care ( Agency Statements ) 62 to expound upon what are permissible structures of health-care organizations in light of the Supreme Court s ruling. 63 The Agency Statements carved out a safety zone for joint activities by clinical provider entities that had achieved financial integration and that were unlikely to have market power, 64 indicating that arrangements falling within a safety zone will not be challenged by the agencies absent extraordinary circumstances. 65 Furthermore, the agencies emphasized that falling outside of a safety zone would not automatically render the arrangement unlawful. 66 The Agency Statements distinguished between exclusive and nonexclusive joint ventures in terms of whether they fall into safety zones. 67 A joint venture in this context is a physician-controlled venture in which the network s physician participants collectively agree on prices or pricerelated terms and jointly market their services. 68 An exclusive venture is one in which the network s physician participants are restricted in their ability to, or do not in practice, individually contract or affiliate with other network joint ventures or health plans. 69 A nonexclusive venture is one in which the physician participants in fact do, or are available to, affiliate with other networks or contract individually with health plans Id. at Id. at FURROW ET AL., supra note 23, at FED. TRADE COMM N & U.S. DEP T OF JUSTICE, STATEMENTS OF ANTITRUST ENFORCEMENT POLICY IN HEALTH CARE (1996) [hereinafter AGENCY STATEMENTS], 63. Burke & Rosenbaum, supra note 11, at Id. (emphasis added). 65. AGENCY STATEMENTS, supra note 62, at Id. at Id. at Id. at Id. at Id.

10 1864 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol The agencies will not defer to the terms of the contract or to the name of the joint venture to determine whether the joint venture is in fact nonexclusive but will instead look for indicia of non-exclusivity, such as (1) evidence that there are actually competing networks or managed care plans in the market; (2) evidence that participating physicians actually do or are willing to participate in or contract with other plans or networks; (3) evidence that participating physicians receive substantial revenue from other plans or networks; (4) the absence of evidence that participants are de-participating from other networks or plans; and (5) the absence of indication that physicians are coordinating on price or other competitive terms between networks. 71 a. Agency Treatment for Joint Ventures, Exclusive or Nonexclusive For exclusive joint ventures, the agencies will not bring an antitrust challenge ( absent extraordinary circumstances ) if the participants share substantial financial risk and if the participants constitute 20 percent or less of the physicians in the same specialty with hospital staff privileges in the relevant geographic market. 72 Substantial financial risk is another criterion with no specific definition but examples include (1) agreement to provide services at a capitated rate; 73 (2) agreement to provide certain services to a health plan for a predetermined percentage of the plan premium; (3) use of significant financial incentives to get physician participants to achieve goals; and (4) agreement to provide a complex or extended course of treatment that requires the substantial coordination of care among physicians in different specialties for a fixed, predetermined payment If the geographic market contains less than five physicians of a certain specialty, then the exclusive physician network may employ one physician of that specialty on a nonexclusive basis meaning that the physician may affiliate with other networks or contract with other health plans without causing the network to fall outside of the safety zone. 75 Similarly, for nonexclusive ventures the agencies will not challenge ventures ( absent extraordinary circumstances ) if the physician participants share substantial financial risk and constitute 30 percent or less of the physicians in the same specialty with hospital staff privileges in the relevant geographic market. 76 If the geographic market contains less 71. Id. at Id. at See supra note 35 (defining capitation ). 74. AGENCY STATEMENTS, supra note 62, at Id. at Id.

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