Applying antitrust law to nonprofit healthcare entities: arguments for a greater attention to detail

This Article begins with an antitrust primer, then analyzes the appropriate application of antitrust principles to nonprofit healthcare providers. In light of the inherent charitable character of nonprofit healthcare providers, the author contends that the government and the courts should accord some deference to nonprofit hospitals when they are seeking approval of mergers. To date, this has not generally been the case, although a few recent court decisions have rested their approval of mergers, in part, upon the nonprofit character of the merging entities. The author, in particular, believes the paradigmatic local nonprofit hospital with a community board is less likely than a for-profit hospital to abuse any market power that it may obtain through a merger; consequently, any such merger should not be analyzed solely under the traditional presumptions of antitrust jurisprudence. Rather, the premerger analysis should involve meaningful consideration of the hospital's charitable character.     

Toward a definitive antitrust standard for nonprofit hospital mergers

Despite decades of federal and state regulatory efforts to encourage more efficient utilization of hospital resources, recent federal antitrust enforcement actions assert that nonprofit hospital mergers are detrimental to consumers. This policy, however, is derived from misguided attempts to apply the economic assumptions of for-profit industries to the nonprofit hospital sector and to extend statutes enacted to restrain national economic concentration to local nonprofit enterprises. This paper concludes that a rational antitrust enforcement policy that recognizes the unique characteristics of hospital markets can be described within the confines of existing antitrust statutes.     

Why don't courts treat hospitals like tanks for liquefied gases? Some reflections on health care antitrust enforcement

In this article, I use the Federal Trade Commission and the Department of Justice 2004 report Improving Health Care: A Dose of Competition as an occasion to comment on two specific issues that have arisen in health care antitrust: the recent string of losses by the enforcement agencies in hospital merger cases and an antitrust exemption for physicians to bargain collectively with health insurers. One of the more salient facts about health care antitrust enforcement is the notable recent lack of success of the enforcement agencies in hospital merger cases. This may be due to judges and juries holding views of hospital markets as being different from markets for other goods and services. My conclusion is that hospitals are an industry with unique attributes, but nothing about the specifics of the health care industry suggests that the unregulated use of market power in this industry is socially beneficial. As a consequence, the antitrust laws should be enforced here as in any other industry. Countervailing power is an issue that has come to the fore in health care antitrust. Physicians have explicitly asked for legislative exemption from the antitrust laws in order to bargain collectively with insurance companies, as a means of counteracting insurers' monopsony power. It is not clear that health insurers possess significant monopsony power. Even if they do, bestowing monopoly power on physicians will not necessarily improve matters. Active antitrust enforcement in insurance markets is the correct response, not blanket exemptions for providers.     

Applying antitrust concepts to the acute care hospital industry: defining the relevant market for hospital services

In considering the possible antitrust implications of a merger of two or more competing hospitals, the courts have generally found that hospitals provide a cluster of services which have significant peculiar characteristics that allow them to be considered a single product market. Spurred by changes in their environments, hospitals during the last decade have become markedly less homogeneous in their range of products and geographic markets. As a result, the impact of hospital mergers in the future may need to be assessed in multiple, more narrowly defined relevant markets, for which several possible definitional bases are suggested in this paper. The increased precision associated with such multidimensional antitrust analysis should permit a more effective consideration of the trade-offs between increases in hospitals' market power and advances in their relative operating efficiency and/or quality of services.     

Governance and community benefit: are nonprofit hospitals good candidates for Sarbanes-Oxley type reforms?

Recent investigations into the activities of nonprofit hospitals have pointed to weak or lax governance on the part of some of these organizations. As a result of these events, various federal and state initiatives are now either under way or under discussion to strengthen the governance of hospitals and other nonprofit corporations through mandatory board structures and practices. However, despite policy makers' growing interest in these types of governance reforms, there is in fact little empirical evidence to support their contribution to the effectiveness of hospital boards. The purpose of this article is to report the results of a study examining the relationship between the structure and practices of nonprofit hospital boards relative to the hospital's provision of community benefits. Our results point to modest relationships between these sets of variables, suggesting considerable limitations to what federal and state policy makers can accomplish through legislative initiatives to improve the governance of nonprofit hospitals.     

THE COMPETITIVE EFFECTS OF A CABLE TELEVISION OPERATOR'S REFUSAL TO CARRY DSL ADVERTISING

Many cable television operators routinely refuse to run localDSL advertising on their cable systems. Given that such conductreduces the advertising profits of cable companies, a plausiblepurpose for such discriminatory refusals to deal is to limittheir cable customers' information about competitive alternativesto their cable modem services. By banning local DSL advertisementsplaced on cable television, a cable television operator foreclosesequally efficient rivals (DSL providers) in the broadband Internetaccess market from the most efficient form of advertising abroadband product (television advertising), as I prove here,and thereby impairs rivals' efficiency. To the extent that DSLproviders cannot compete as effectively as they would in theabsence of the ban, the ban allows cable television operatorsto raise the price of cable modem service and thereby reduceconsumer welfare. Using a traditional antitrust analysis, Ipresent evidence that local television advertising can be aseparate product market (when it comes to marketing DSL), andthat cable television providers have market power in that advertisingmarket. I also present evidence that local television advertisingon cable networks is the most efficient form of advertisingfor DSL providers. The potential anticompetitive effect of cable'sban on DSL advertising is to relegate DSL advertising to lessefficient marketing channels, thereby allowing cable operatorsto charge higher prices for cable modem service. Such conductthus raises obvious antitrust issues.     

管制行业反垄断执法权配置分析——以管制度为视角

管制行业在不同程度上存在着反垄断执法问题,其执法权配置有多种模式可供选择,但从管制度的角度看,这一执法权配置应是从行业管制机构向反垄断专门执法机关逐步移转的过程,这也是大多数国家或地区立法与实践的发展趋向,因此,我国相关立法也应作相应完善.     

Failed hospital mergers

The spate of hospital mergers in recent years has yielded both substantial increases in market power and many divestitures. These seemingly contradictory results stem from the pressures imposed by stakeholders of merging hospitals and the inability of those stakeholders to exert control over nonprofit institutions prior to the effectuation of a merger. This Article examines several recent mergers, analyses their failures, and recommends that the judiciary and state attorneys general look carefully at merging nonprofits so as to fill the void left by the lack of market control mechanisms.     

Price competition in hospital markets: the significance of managed care

Anticompetitive conduct in the healthcare industry is often hard to detect, and has been ignored by some courts that appear to lack an understanding of managed care and its significance in maintaining price competition. These courts have adopted an approach that is far too historical and mechanistic, and is characterized by outdated factors analyzed in isolation from each other. In order to preserve effective price competition, the courts should embrace a realistic analysis that accurately reflects the workings of health services markets. This article describes the many facets of market power and anticompetitive conduct, and how they affect healthcare prices. The author then tums to an analysis of two recent hospital antitrust decisions, and critiques them for their failure to properly analyze the dynamics of local hospital markets.     

Anticompetitive Employment

Scholars, antitrust agencies, and policy makers have historically paid little attention to anticompetitive practices in labor markets. This was largely due a misconception that antitrust law is meant to govern conventional markets in which goods and services trade, rather than govern labor markets. Antitrust law may also offer a poor remedy to redress employers who enter no-poaching agreements or otherwise impair competition. The primary tension involves antitrust's purpose, which is to promote “consumer welfare.” To identify whether conduct eroded consumer welfare, courts tend to scrutinize whether prices increased. But here, lessening wages can enable firms to sell goods at cheaper prices, benefiting consumers. Another issue is that the typical restraint affects only a smattering of workers instead of lessening wages throughout the greater market. This article uses empirical analyses to show that antitrust should promote labor's welfare as it does consumer welfare, and it argues that enforcement must condemn labor cartels as per se illegal. The research demonstrates that labor cartels are more pernicious than restraints in product markets, as employers can lessen wages with less effort than in product markets. Antitrust should even proscribe no-poaching agreements formed for a legitimate purpose (e.g., to protect trade secrets) because employers could have achieved the same goals using less coercive means; the noncompete agreement, at least, provides labor with a semblance of notice and bargaining power without drawing antitrust scrutiny. The prohibition of labor cartels would thus promote competition and consumer welfare, especially in minimum wage labor markets.     

Community benefit activities of private, nonprofit hospitals

The definition of hospital community benefits has been intensely debated for many years. Recently, consensus has developed about one group of activities being central to community benefits because of its focus on care for the poor and on needed community services for which any payments received are low relative to costs. Disagreements continue, however, about the treatment of bad debt expense and Medicare shortfalls. A recent revision of the Internal Revenue Service's Form 990 Schedule H, which is required of all nonprofit hospitals, highlights the agreed-on set of activities but does not dismiss the disputed items. Our study is the first to apply definitions used in the new IRS form to assess how conclusions about the adequacy of nonprofit hospital community benefits could be affected if bad debt expenses and Medicare shortfalls are included or excluded. Specifically, we examine 2005 financial data for California and Florida hospitals. Overall, we find that conclusions about community benefit adequacy are very different depending on which definition of community benefits is used. We provide thoughts on new directions for the current policy debate about the treatment of bad debts and Medicare shortfalls in light of these findings.     

Federal Trade Commission drops challenge to California hospital acquisition

The significance of patient outmigration patterns, third-party payor reaction, and post-merger cost savings have been regularly argued by defense counsel and hospitals as important consideration in the antitrust evaluation of hospital mergers. The reliance placed by the Commission on these factors in its Ukiah decision is a welcome confirmation that the antitrust agencies are increasingly sensitive to these aspects of hospital mergers, reflecting a more sophisticated understanding of the health care market than was suggested by the staff's more mechanical evaluative approach. Hospitals and their counsel should therefore prepare for and document these factors if they anticipate antitrust agency scrutiny of a proposed acquisition or merger.     

Physician organizations: two years under the FTC/DOJ guidelines

The joint antitrust enforcement statement for physician networks was designed in part to dispel uncertainty in the physician community about antitrust agency law enforcement intentions. In the two years since its issuance, the antitrust agencies have generally, but not always, been consistent in applying the methodology and standards set forth in their enforcement statement. Even though agency pronouncements like the enforcement statement are not binding on private parties or the federal courts, both the statement and subsequent advisory opinions and business review letters have been exceptionally helpful, if not always encouraging, to health care providers in their antitrust planning efforts.     

Hospital mergers: the shift from federal antitrust enforcement to state regulation

The authors examine and analyze the burgeoning merger activity in the hospital arena, as well as the nonfederal attempts made to regulate that activity. They conclude that the present, ad hoc, system of state regulation is sorely wanting and that it would be preferable if stronger antitrust enforcement and judical decisions prevented competition reducing mergers. If a merger results in a true monopoly (and nonetheless passes antitrust scrutiny), its regulation should be the responsibility of the pertinent state public utility board which, unlike the courts and state attorneys general, has sufficient expertise to adequately regulate the merged entities. Otherwise, the faults of the present system, which is easily manipulated by hospitals seeking political and legal cover for their activities, are likely to be perpetuated.     

Antitrust and hospital mergers: does the nonprofit form affect competitive substance?

Following a string of government losses in cases challenging hospital mergers in federal court, the Federal Trade Commission and the Department of Justice issued their report on competition in health care seeking to set the record straight on a number of issues that underlie the judiciary's resolution of these cases. One such issue is the import of nonprofit status for applying antitrust law. This essay describes antitrust's role in addressing the consolidation in the hospital sector and the subtle influence that the social function of the nonprofit hospital has had in merger litigation. Noting that the political and social context in which these institutions operate is never far from the surface, it takes issue with the proposal to cabin merger doctrine so as to deny the significance of nonprofit status in merger analysis. Given the dynamic change in the regulatory climate and heterogeneity of local health care markets, it advises courts not to accept the FTC's preemptive standard regarding the significance of hospitals' nonprofit status and keep open the possibility of fashioning new presumptive rules tailored to more complete economic accounts of nonprofit firm behavior.     

SHOULD ANTITRUST CONSENT DECREES REGULATE POST-MERGER PRICING?

Competitors proposing to merge sometimes propose price regulationin a consent decree as a condition of receiving merger approval.Antitrust enforcement agencies in the United States have beenreluctant to use such price-regulating decrees, as they sufferfrom practical problems in implementation. It is less recognized,however, that the use of consent decrees to regulate post-mergerprices may be unlawful. Such decrees exceed the scope of antitrustlaw and blur the distinction between the legislative power toregulate prices and the executive power to enforce the antitrustlaws. Despite the willingness of merging parties to accept priceregulation in consent decrees, economic and constitutional considerationscounsel against antitrust enforcement agencies adopting thispractice.     

Doctors and hospitals: an antitrust perspective on traditional relationships

Under new pressures for cost containment, hospitals are increasingly asserting interests that conflict with those of physicians. Professor Havighurst argues that legal rules under which practitioners have challenged denials of hospital admitting privileges should be clarified in order that hospitals can more effectively carry out their new cost-containment and other responsibilities. He invokes antitrust law's "essential-facilities" doctrine to protect those abused by their competitors on a hospital staff, but he contends that, if a hospital participates in decisionmaking as an independent actor--even though it acts in concert with its physicians--, antitrust courts should lower the level of scrutiny to a point at which most challenges can be dismissed summarily. He analogizes restraints imposed by hospitals on competition between health professionals to vertical restraints of other kinds, and draws conclusions critical of doctrine traditionally applicable to the latter.     

The state action doctrine and the Local Government Antitrust Act: the restructured public hospital model

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both "municipalities" and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.     

中国市场经济法律:进展与评价

我国建立社会主义市场经济是在计划经济的基础上进行的,由此决定了市场经济法律体系的特殊性。目前中国的市场经济法律体系已初步形成,但仍存在不足：如观念尚待更新;企业受到过多的行政管制;市场经济法律体系有待完备,须及早颁行反垄断法、国有资产法、国民经济稳定增长法、计划法等;法律可操作性不够。今后,更重要的将是提高执法水平、严格执法程序、惩治司法腐败。