Health Care Antitrust

HCAntitrust

Health care markets are replete with antitrust issues. From operations advice and M&A guidance to civil and criminal investigations and litigation, health care industry clients rely on Ropes & Gray to resolve the full range of antitrust challenges.

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“They really bring a good commercial sense which is a hard trait to come by. They can look at a problem and come back with a creative solution. They not only look at it from a legal perspective, but also give us something which fits the business perspective.” Antitrust Client, Chambers USA
“This team draws considerable acclaim from commentators for its expertise in handling merger clearance, cartel investigations and price-fixing cases.” Chambers USA
“The team assists clients with a range of antitrust work, including transactional, counseling, and litigation.” Chambers USA

Overview

Ropes & Gray’s antitrust attorneys have long played a central role in the health care system's evolution. We have facilitated the formation of hospital networks and organizations, assisted with the formation of physician and physician hospital organizations, and guided dozens of hospitals through the merger review process at state and federal levels.

Our attorneys have also secured favorable business review letters from federal and state agencies regarding joint ventures and affiliations, and defended nearly every type of provider in state and federal investigations. Our litigators have successfully represented our health care clients in a wide variety of antitrust litigations, and handle all types of health care antitrust matters:

Government Investigations

We regularly appear before the Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ) and have responded to numerous subpoenas over the years. This experience, combined with our efficient ability to answer information requests, ensures that government investigations do not unnecessarily burden our clients.

Joint Ventures

Ropes & Gray antitrust attorneys advise clients on the size, formation, pricing, integration, and exclusive arrangements associated with health care joint ventures. We have substantial experience with a wide variety of provider-side agreements, including affiliations, “virtual mergers,” and accountable-care organizations. Our antitrust group works closely with the firm’s health care attorneys to reduce the risk that joint ventures will run afoul of antitrust pitfalls, whether the collaborations involve group purchasing or joint contracting and clinical integration. We have also designed comprehensive clinical and financial integration programs for large physician networks, including those that employ messenger models.

Hospital Mergers

Our team of FTC and DOJ veterans has extensive experience in guiding hospital mergers to successful completion. The antitrust group combines deep substantive knowledge of the practice area with a keen understanding of the merger review process, and includes a pre-merger notification group renowned for its mastery of the Hart-Scott-Rodino Act’s complex filing requirements, which is especially relevant for hospital mergers involving non-profit institutions.

Physician Hospital Organizations

Our antitrust group provides skillful advice on the formation and operation of physician organizations, physician hospital organizations and Accountable Care Organizations, and has significant experience in representing such organizations in the context of state and federal investigations.

Counseling & Compliance

We routinely advise health care providers on antitrust issues, including those associated with managed care contracting and pricing, and physician staffing. We also devise compliance programs for large physician groups and health care systems, tailoring each program to meet the client’s specific needs.

Health Care Antitrust Litigation

We have significant experience representing hospitals and health care systems in connection with antitrust claims involving: price fixing conspiracies, most favored nation pricing, exclusionary conduct, monopolization, closed staffing models, and other physician issues.

Experience

Ropes & Gray’s antitrust attorneys have successfully represented clients in all types of health care related antitrust matters, including:

Joint Ventures & Mergers

  • Hospital of St. Raphael in connection with its combination with Yale New Haven Hospital. The parties complied with the Second Request and persuaded both the FTC and the State of Connecticut to close their investigation.
  • Lahey Clinic in its merger with Northeast Health System. The affiliation agreement established a new nonprofit organization called Lahey Health System.
  • Milton Hospital Foundation in connection with its affiliation with Beth Israel Deaconess Medical Center, valued at $89 million, securing early termination of the HSR waiting period.
  • Danbury Hospital in connection with its non-profit acquisition of New Milford Hospital. The transaction resulted in the formation of Western Connecticut Health Network.
  • University Medical Center in its affiliation and integration with University Physicians Healthcare. The transaction resulted in the formation of The University of Arizona Health Network.
  • Welsh, Carson, Anderson & Stowe and its portfolio company, Viant, Inc., before the FTC in the successful clearance of the combination of Viant and MultiPlan, Inc., the two leading nationwide independent PPO networks.
  • Metalmark Capital in its acquisition of Diversified Clinical Services, Inc., a unit of Wound Care Holdings LLC from Jordan & Co. Following the acquisition, the unit merged with National Healing Corp., a Florida-based wound care provider.

Government Investigations

  • Multiple hospitals and providers concerning civil investigative demands issued by a state attorney general’s office in connection with regulatory proceedings regarding cost drivers and increased health care costs in the state.
  • A large group of specialty physicians in connection with an FTC investigation of alleged anticompetitive conduct.
  • Physician practices in connection with the sale of medical devices and equipment to hospitals, providers, and group purchasing organizations.
  • An integrated physician group in connection with an FTC investigation of the group’s joint managed care contracting practices.
  • A health insurer in connection with a DOJ investigation of provider and payor contracting practices.

Counseling & Compliance

  • Health care systems in connection with the formation of accountable care organizations and other types of physician hospital organizations (PHO’s).
  • Hospitals and hospital systems in connection with payor contracting and joint contracting issues, including the use of most favored nation pricing clauses and the use of the messenger model to convey payor proposals to physicians and physician groups.
  • Hospital systems concerning staff privileges and peer review committees and representation of hospitals in connection with peer review proceedings and corrective action cases.
  • Hospitals and physician groups in connection with open and closed physician staffing models, coordination of physician on-call coverage, physician group affiliations, and formation of independent physician associations (IPA’s).
  • Health care providers in connection with creating an antitrust compliance program.
  • Health care providers and medical professional societies on the antitrust implications of standard-setting and advocacy related to commercial payor contracts.
  • State universities and hospitals with respect to Noerr-Pennington and state action immunity issues in connection with Medicaid reimbursement efforts.
  • Hospitals and hospital systems on practices and procedures in connection with referrals to hospital-owned physician practices.

Health Care Related Antitrust Litigation

  • Fox v. Good Samaritan Hospital L.P. Lead counsel in obtaining successful summary judgment of claims that the hospital unlawfully monopolized by denying provider privileges. The U.S. Court of Appeals for the Ninth Circuit affirmed the summary judgment ruling.
  • Jane Doe v. Arizona Hospital and Healthcare Association. Lead counsel on behalf of for-profit hospitals in multi-defendant class action litigation alleging an illegal agreement and conspiracy among certain Arizona hospitals in a trade association to set the prices paid for temporary nursing services.
  • HealthSouth Corporation v. SNH. Lead counsel at successful trial of a case involving default, transfer, and ownership issues in connection with two HealthSouth rehabilitation hospitals.
  • Deutsch v. William W. Backus Hospital. Lead counsel in an action arising out of peer review proceeding.
  • Five Star Quality Care, Inc. v. Sunrise Senior Living. Lead counsel for a health care services company in connection with claims against a manager of senior living communities.