Recent Developments and Emerging Trends: Antitrust, Accountable Care Organizations, and Prompt Pay Litigation

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1 Recent Developments and Emerging Trends: Antitrust, Accountable Care Organizations, and Prompt Pay Litigation William M. Katz, Jr. and William L. Banowsky

2 Hospital Mergers More frequent since enactment of Affordable Care Act : 274 transactions affecting 439 hospitals 22% increase over previous four-year span 2

3 Hospital Mergers Recent Decisions Federal Trade Commission v. Phoebe Putney Health System, Inc. (U.S. Supreme Court Feb. 19, 2013) At issue: State Action (Parker) Doctrine 3

4 Hospital Mergers Recent Decisions FTC v. Phoebe Putney (con t): Whether the Georgia Legislature, through the powers it vested in hospital authorities, clearly articulated and affirmatively expressed a state policy to displace competition in the market for health services. Supreme Court answered no: [W]hile the Law does allow the Authority to acquire hospitals, it does not clearly articulate and affirmatively express a state policy empowering the Authority to make acquisitions of existing hospitals that will substantially lessen competition. 4

5 Hospital Mergers Recent FTC Actions FTC v. St. Luke s Health System, No. 1:13-CV (D. Idaho, filed March 12, 2013) District Court already denied competitor s request for preliminary injunction Parties refused to delay closing transaction until FTC completed investigation 5

6 Hospital Mergers Recent FTC Actions In re Reading Health System and Surgical Institute of Reading (FTC, filed Nov. 16, 2012) FTC challenge to acquisition of local, physician-owned hospital One important factor: new physician-owned hospitals are limited under Affordable Care Act, so competition cannot be replaced In re Alan B. Miller & Universal Health Services, Inc. (FTC, filed Oct. 5, 2012) FTC required divestiture of facilities for merger to proceed 6

7 Hospital Mergers Recent FTC Actions In re Renown Health (FTC, filed Aug. 3, 2012) FTC required temporary lifting of covenants not to compete in dominant hospital system s contracts with cardiologists from recently-acquired cardiology group FTC v. OSF Healthcare System, 852 F. Supp. 2d 1069 (N.D. Ill. Apr. 5, 2012) District court granted preliminary injunction enjoining closing of transaction where FTC had not completed its administrative proceeding against merging hospitals Compare with pending action against St. Luke s 7

8 Hospital Mergers Local Importance Announced merger December 2012; Parties hope to close by end of this year 8

9 Hospital Mergers Local Importance Baylor-Scott & White Combined entity will have $7.7B in assets, 42 hospitals, and employ over 34,000 employees, including over 4,000 physicians Currently no geographic overlap Scott & White also operates a successful health plan and is part of a Medicare ACO 9

10 Accountable Care Organizations Update FTC-DOJ Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations Participating in the Medicare Shared Savings Program, 76 Fed. Reg (Oct. 28, 2011) Announced agencies policy for scrutinizing ACOs Will generally apply rule of reason Also announced a safety zone; agencies will not bring enforcement action against ACO meeting safety zone absent extraordinary circumstances 10

11 Accountable Care Organizations Update Medicare ACOs under Shared Savings Program: Third performance period just began; on Jan. 10, 2013, CMS announced 106 new ACOs, including 6 in Texas More than 500 ACOs had applied Previous two performance periods: First performance period: 27 ACOs, including 6 in Texas Second performance period: 87 ACOs, including 2 in Texas CMS s Pioneer ACO Model: 32 participants; 2 in Texas 11

12 Accountable Care Organizations Update Commercial Payer ACOs: Expected to increase dramatically in 2013 Carry-over experience from Medicare ACOs Many in Texas, including 2 recent ACOs in North Texas: Texas Health Resources Aetna : 21,000 enrollees Texas Health Resources BCBS of Texas: 50,000 enrollees 12

13 Accountable Care Organizations Update Estimated that between 26 and 31 million individuals are affected by ACO model in some way: 2.4 million Medicare patients receiving treatment from Medicare ACO 15 million non-medicare patients receiving treatment from a practice that is part of a Medicare ACO Between 8 and 14 million commercially insured patients receiving treatment from a commercial payer ACO Best suited to large, multi-specialty practice groups 13

14 Provider-Insurer Vertical Integration Ongoing merger/litigation between Highmark (BCBS licensee in Western PA) and West Penn Allegheny Health System (2 nd -largest hospital network in region) West Penn initially sued Highmark for anticompetitively collaborating with University of Pittsburgh Medical Center (dominant health system in region); lawsuit still pending During lawsuit, Highmark entered into affiliation with West Penn taking on virtually all of its debt; transaction valued at $1.6B; also still negotiating long-term network contract with UPMC Dominant Insurer vs. Dominant Health System 14

15 Provider-Hospital Clinical Integration FTC and DOJ have both recently blessed two forms of clinical integration FTC advisory opinion to Norman Physician Hospital Organization (Feb. 13, 2013) Outlined approach to large physician-hospital clinically integrated networks DOJ business review letter to Greater New York Hospital Association (Jan. 16, 2013) Approved a gainsharing arrangement by hospital trade association in New York 15

16 Provider-Insurer Contracting Agencies still actively policing provider contract negotiations: In re Praxedes E. Alvarez Santiago, M.D., et al. (F.T.C. Feb. 28, 2013) Action against Puerto Rico nephrologists for joint contracting and concerted refusal to deal United States v. Oklahoma State Chiropractic Ind. Physicians Ass n, No. 4:13-cv TCK (N.D. Okla., filed Jan. 10, 2013) DOJ action against chiropractors trade association for attempting to negotiate higher rates for all of its members 16

17 Most-Favored Nation clauses in payer contracts 2 types: MFN-Plus clauses Equal-to MFN clauses United States v. BlueCross BlueShield of Michigan, No. 2:10-cv (E.D. Mich., filed Oct. 18, 2010) Case currently stayed Agencies conducted Joint Workshop on MFN clauses on September 10,

18 Advanced Practice RNs FTC gave testimony before West Virginia Legislature encouraging laws permitting greater prescription authority by APRNs Seen as answer to shortage of doctors in state Increased demand for basic healthcare foreseen after many more purchase insurance Similar legal restrictions on APRN practice in Texas 18

19 Robinson-Patman Act FTC s Advisory Opinion to The Methodist Hospital System (Nov. 30, 2012) Confirmed that hospital can sell prescription drugs to paramedic service at its discounted cost during shortage 19

20 Prompt Pay Act Litigation 3 different statutes: one for HMOs, one from preferred provider plans, and one general Preferred provider plans: Texas Insurance Code ch HMOs: Texas Insurance Code ch. 843 General prompt pay act: Texas Insurance Code ch. 542 Have been on the books for many years, but being enforced more often now due to large balances of unpaid claims by large practices 20

21 Prompt Pay Act Litigation All 3 statutes are similar: if a clean claim is not adjudicated within certain period of time, plan is subject to penalties Penalties depend on how late payment is and are based on the difference between contracted charge and the billed charge, as well as a percentage interest In some instances, a portion of the penalty is paid to the Texas Health Insurance Risk Pool 21

22 Prompt Pay Act Litigation Potential Claims: Breach of managed care agreement Violation of Prompt Pay Act Potential Damages: Damages could include unpaid amount, penalties under Prompt Pay Act, court costs, and attorney s fees Damages could also include any specific penalties included in the provider s managed care agreement 22

23 Questions? Bill Katz (214) Bill Banowsky (214)