Pennsylvania Attorney General Challenge to Physician Group Consolidation: Lessons for the Future

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1 NOVEMBER 2011 EXECUTIVE SUMMARY ANTITRUST PRACTICE GROUP Pennsylvania Attorney General Challenge to Physician Group Consolidation: Lessons for the Future Kristiana A. Garcia, Esquire Toby G. Singer, Esquire Jones Day Washington DC Historically, physician practice mergers have not drawn much scrutiny from antitrust enforcers, in part because such transactions are often not reportable under the Hart- Scott-Rodino Act and in part because historically the marketplace for physician services was often relatively unconcentrated (certain specialties and rural areas aside). Recent state enforcement and recent comments and action by Federal Trade Commission (FTC) enforcers indicate both states and the FTC are keeping an eye on mergers among healthcare providers beyond just hospitals and reportable transactions. With regard to physician practice mergers, the message to watch out for the FTC has been clearly delivered. 1 Physician Deals Are Facing Increased Scrutiny While there has not been much attention to physician mergers from antitrust enforcers until lately, Pennsylvania s most recent enforcement action against Urology of Central Pennsylvania (UCPA), in combination with other recent state and federal enforcement, are reminders that: (1) enforcers are taking a greater interest in such transactions; (2) state and federal agencies may investigate and take action years after a merger occurs (although the FTC did not take part in the UCPA action); and (3) such investigations 1 See Christi Braun, Monica Noether, and Saralisa Brau (FTC), AHLA, Physician Practice Mergers: The Key Antitrust Issues (June 2011) and Christi Braun and John Wiegand (FTC), AHLA, Physicians and Physician Organizations and Hospital and Health Systems Law Institutes, Practice Mergers: Watch of for the FTC (Feb. 2011).

2 may be prompted by post-merger complaints about conduct and usually result in difficult and lengthy inquiries without readily obtainable structural relief. Earlier this year, Providence Health Services (Providence) abandoned its proposed (and non-reportable) acquisitions of two cardiology clinics in Spokane Washington Heart Clinics Northwest and Spokane Cardiology. The announcement that Providence was abandoning the deals came approximately seven months after Providence had announced it intended to make the acquisitions of the two clinics, which employed approximately twenty-four and fifteen cardiologists respectively. The acquisition would have resulted in the two remaining independent cardiology practices in Spokane being owned by Providence one of only two hospital systems in the Spokane area. 2 Both the FTC and the Washington state attorney general (AG) investigated Providence s proposed acquisition of both cardiology practices and expressed concern. Providence abandoned the dual transactions in February of this year, and shortly thereafter FTC Bureau of Competition Director Richard Feinstein issued a statement that acknowledged more physician transactions were being contemplated by providers usually as part of arrangements aimed at achieving cost containment or higher-quality care but emphasized the FTC would aggressively enforce the antitrust laws to ensure that consolidation among health care providers will not increase health care costs in local communities across the United States. Feinstein s warning makes clear that the FTC is closely watching all types of transaction activity among providers, including consolidation of physician groups whether through same specialty or multi-specialty mergers, through employment arrangements with hospitals, or through other affiliations. The length of the Providence investigation and the ultimate abandonment of the attempt to complete both transactions underline how burdensome such investigations can be and how difficult it is to come up with structural relief that may remediate competitive concerns. Interestingly, neither Heart Clinics Northwest nor Spokane Cardiology are to remain independent. Providence actually 2 Spokane s other hospital system, Community Health Systems (CHS), acquired Rockwood Clinic nearly two years earlier in Rockwood was a large multi-specialty clinic in Washington (and included a cardiology practice). CHS subsequently purchased Inland Cardiology Associates (a practice of approximately eleven cardiologists). Neither transaction was challenged by the FTC. 2

3 completed its purchase of the smaller Spokane Cardiology in August, and Idaho-based Kootenai Health recently announced its intention to acquire Heart Clinics Northwest. And not just federal enforcement has been on the rise. In June of this year, Atrius Health Inc. (Atrius) settled with the Massachusetts AG to resolve concerns regarding Atrius affiliation with Fallon Clinic Inc., (Fallon), a large multi-specialty medical group based in Worcester, MA. Atrius is an independent nonprofit alliance of six large, multispecialty, multi-site medical groups across Massachusetts. Under the agreement with the AG, Atrius and Fallon must provide to the AG information about future contract terms for Fallon at least thirty days in advance of executing new contracts with certain large health insurance companies. The information to be provided includes not just the proposed terms of the new agreements but also analysis and comparison of the terms and accompanying revenue detail and projections. Atrius and Fallon must provide such information in advance of executing certain payor contracts for the shorter of ten years or two contracting cycles, creating ongoing monitoring by the state for an extended period of time. The assurance agreement does not require that the AG approve the contracts but provides for notice sufficient so that the AG may take enforcement action if warranted. The above examples of recent federal and state enforcement indicate the types of increased scrutiny being applied to transactions among physicians and other providers and highlight the types of outcomes that can result when concerns regarding such transactions are not easily remedied by divestiture or other structural fixes. Pennsylvania s most recent enforcement concerning the consolidation of urology practices in Harrisburg that occurred over five years ago highlights similar issues. Pennsylvania s Recent Enforcement: Urology of Central Pennsylvania On August 30, 2011, the Pennsylvania AG s Office filed a complaint and entered a consent decree against UCPA. 3 UCPA is a urology group in the Harrisburg area formed when (the only) five independent urology practices merged in Commonwealth of Pa. v. Urology of Central Pa., Inc., No. 3:02-at (M.D. Pa 2011). 3

4 The complaint highlights the effects that physician practice consolidation can have not only on competition for reimbursement from payors but also on competition for referrals, particularly where referrals might be affected because a provider is integrated at some level. This was true here; UCPA had established its own specialized cancer treatment centers. The decree also provides some insight into the geographic area that may be considered an antitrust market while offering virtually no insight into the data that might be used to inform the determination of the alleged market in this particular case. Consolidated providers will also find the complaint a reminder to exercise caution when undertaking any post-merger action that could conceivably be perceived as an increase in price or reduction in output. Finally, the settlement underscores the trouble in coming up with relief when a transaction has already been consummated and affords an example of the types of conduct remedies that may appease state enforcers, who are more likely than federal enforcers to be comfortable with such non-structural fixes. The restrictions in this particular decree are not particularly onerous and all of the restrictions regulate UCPA s conduct though only for four years. The decree requires, among other things, that the group is to negotiate in good faith with health plans, tell patients about their cancer treatment options before sending them to their own radiation center, and pay $100,000 into a state prescription drug fund. Despite the seeming lack of overtly burdensome restrictions, however, UCPA was forced to bear the significant cost and burden of an antitrust investigation for an extended period of time. UCPA Background, Alleged Markets, and Competitive Effects UCPA was formed in November 2005 when the five independent urology practices in the Harrisburg, PA, area merged into a single practice. None of the individual practices was particularly large at the time (the practices ranged from one to six physicians), and, like many physician group deals, the transactions were not reportable to federal antitrust authorities under the Hart-Scott-Rodino Act. The resulting practice combined thirteen of the twenty-two urologists in a twenty-mile radius of Harrisburg an area in which the complaint alleges the creation of UCPA resulted in UCPA s control of 84% of the market. The complaint also alleges that market concentration, as measured by the 4

5 Herfindahl-Hirshmann Index (HHI), rose from to 1970 (moderately concentrated) to 7236 (well over the threshold for a highly concentrated market). The product markets alleged were specialty-based to include urology services sold to payors and radiation oncology services for prostate cancer. Such specialty-defined product markets are not surprising. However, how to calculate physician market shares even within such a relatively defined space usually proves difficult given the lack of publicly available data on physician practices and locations and lack of an accurate calculation method possible calculations include share of dollars, procedures, patients, or physicians within the specialty. For example, UCPA s share of urologists in the alleged geographic market based on the facts contained in the complaint is approximately 59% (a metric not addressed in the complaint). The complaint does not elucidate the method used to calculate the alleged share, so it is unclear from the complaint on what the above-referenced 84% market share (or the alleged 5266 increase in HHI) is based. It is similarly unclear from the complaint exactly what data were used to support Pennsylvania s geographic market allegation. The complaint did note that most of the practice s patients were Medicare patients and that urology patients tend to be older a group for whom traveling beyond Harrisburg would be particularly inconvenient. But the complaint does not specify what percentage of UCPA patients came from this particular area or what percentage of patients in the area was treated by UCPA urologists. And while the complaint alleges that health plans would not be able to successfully offer a product in the Harrisburg area without UCPA s urologists or its radiation oncologists, the complaint does not focus primarily on competition for inclusion in payor networks, as other healthcare merger cases have done. The Pennsylvania AG investigated UCPA s post-merger conduct and alleged that the group was able to get increases in reimbursement rates from health plans, but whether these increases were supracompetitive is not clear. The complaint does not allege any particular percentage increases over any particular time period nor whether such increases impacted all payors. Of note is that the merger also resulted in real mergerspecific efficiencies in the form of new treatment centers the weight of which the 5

6 complaint and decree do not really address, but rather seem to view as a consequence of the transaction merely meant to facilitate the exercise of market power. It is possible that a payor or competitor complaint regarding UCPA s post-merger conduct (whether actually anticompetitive or not) prompted the investigation. Pennsylvania s focus on actual post-merger conduct of UCPA emphasizes the risks presented by a post-merger increase in reimbursement rates or by any conduct that could be perceived as a price increase, reduction in quality, or that could otherwise prompt a complaint. In this case, it was not just an actual increase in reimbursement rates that was alleged to be an anticompetitive effect of the consolidation but also alleged reductions in quality and output specifically changes in referral patterns and services that occurred when UCPA, as a result of the combination, hired its own radiation oncologists and referred its patients in-house for radiation services instead of to area radiation oncology centers. The group opened a prostate cancer center and expanded its output of more expensive services such as robotic surgery, while performing fewer less-expensive procedures such as brachytherapy. While it appears that enabling the practice to open the cancer center was a significant part of the rationale for the transaction (and arguably a significant synergy and community benefit), the complaint treats the corresponding reduction in output as an anticompetitive effect. Unclear from the alleged facts is what the net effect on output the combined actions may have had that is, whether the addition of the radiation oncologists and the treatment they were able to provide was actually additive to what was previously available in the Harrisburg area, whether some patients previously had to travel further for treatment, or whether the opening of the cancer center actually brought new cancer treatment technologies to patients. Even absent actual post-merger price increases, physician groups or health systems undertaking any type of transaction should be cautious at the outset regarding the stated rationale for the proposed transaction and its potential effects on the incentives of the combined group. The complaint alleges UCPA has the increased ability and incentive to raise its prices (though with no specifics). The complaint does not indicate whether there were bad documents or statements that may have been evidence for this 6

7 allegation, but it is nonetheless a reminder that any documentary evidence that increased reimbursement rates are a potential effect of or reason for a transaction can create a real adverse evidentiary record regardless of whether the combined group would actually have the power to extract such increases. Consent Decree Overview All remedies provided for in the consent decree are behavioral and last for four years. As part of the consent decree, UCPA agreed to negotiate in good faith with health plans and submit any stalemates over contract negotiations (where the difference between the parties last positions is at least $500,000) to last best offer arbitration, whereby UCPA will select one arbitrator, the plan or employer will select another, those two will select a third, and the panel will select either UCPA s or the plan s last offer. The panel will have access to and must consider certain data including, but not limited to, the terms of the existing contract, the prices paid by the payor for comparable services in the area, UCPA s costs, actuarial impact of the proposed rates, and expected patient volume (as well as certain public data like the change in median income in the area). Presumably basing the panel s decision upon such information is to ensure any price increases are justified and not simply the product of the group s market power. The decree also limits UCPA s ability to contract on an exclusive basis or include most favored nation clauses in its contracts with health plans. This particular limitation may provide one more area for caution with regard to post-merger conduct of physicians or other providers. Providers should think twice and evaluate the potential consequences and perceptions of such exclusive or preferential contracting practices prior to entering into such agreements post-merger (or pre-merger for that matter). To even the playing field for local radiation oncologists allegedly unable to compete for referrals, the decree requires UCPA physicians to honor requests for referrals for services outside of UCPA, to provide a list of non-ucpa radiation oncologists and CT imaging services to patients, and to explain to its patients why it is providing the option of a referral outside of UCPA. 7

8 The decree also requires UCPA pay $100,000 to a state-run prescription drug program and another $100,000 to the AG s office for the costs of its investigation. UCPA must give ninety-days notice of any future acquisitions and must file an annual report with the AG (to whom it must give access to its books and records). However, if UCPA joins an accountable care organization (ACO), the terms of the consent decree will not apply to the ACO. The Difficulty in Unscrambling Eggs Notably but not surprisingly, the decree does not require any structural remedy. Upon the announcement of settlement, Jim Donahue, head of the Pennsylvania AG s antitrust division, specifically commented that, demerging physicians is pretty hard. It is not apparent whether Pennsylvania considered breaking up UCPA, but the focus on the practice s conduct in the immediate future is consistent with state AG remedies generally and with Pennsylvania s prior consent agreements in healthcare transactions specifically. 4 While such conduct remedies would likely be less palatable to the FTC, the FTC has also acknowledged the difficulty of demerging in consummated healthcare transactions. Conclusion Some may look at the terms of the UCPA consent decree and think that the state levied either a potentially insufficient or potentially gratuitous, but not particularly taxing, toll on a physician practice that will remain intact. The group may continue to possess exactly the same (or more) market power now as before the investigation, albeit with only very near-term restrictions on the exercise of that alleged market power. However, not reflected in the terms of the order are the costs and uncertainty associated with the 4 In addition to remedies similar to those required in the UCPA case, Pennsylvania (and other states such as Missouri) have entered into consent decrees that essentially provide for a cap on the percentage of area physicians a party may employ. Pennsylvania has done so in decrees settling concerns regarding two separate hospital mergers. For example, Pennsylvania limited the percentage of physicians merged hospital systems could acquire in Commonwealth of Pa. v. Capital Health Sys. Servs., No. 4 CV ,1995 WL , (M.D. Pa 1995) (prohibiting the merged system from employing more than 20% of certain physicians in a three county area for five years) and Commonwealth of Pa. v. Providence Health Sys., Civ. No. 4: CV , 1994 WL , (M.D. Pa. 1994) (prohibiting merged system from employing more than 40% of physicians in certain specialties in Lycoming County for ten years). 8

9 burden of responding to such a lengthy investigation (which can sometimes be disproportionate relative to value in certain small deals, such physician mergers). Therefore, the many providers that are looking to combine, whether to achieve the directives of healthcare reform, manage costs, or deliver higher-quality care, should proactively analyze the risks of even small transactions when a transaction consolidates groups of providers. As part of the standard preliminary antitrust analysis, parties should also evaluate whether and how certain conduct, from contracting to referral practices, may increase those risks. Such an analysis may provide practical (or creative) ways to address potential competitive concerns and lower antitrust risk by minimizing the types of conduct that may trigger post-consummation scrutiny and enabling providers to achieve the procompetitive objectives of such transactions without the distraction of inquiries that may require acquiring hospitals or physician groups to be subjected to protracted investigations and negotiations with enforcers. Pennsylvania Attorney General Challenge to Physician Group Consolidation: Lessons for the Future 2011 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought from a declaration of the American Bar Association 9