Antitrust Immunity to Healthcare Collaborations: The Interplay Between State and Federal Antitrust Enforcement Authority
Recently, New York amended its Partnership Plan and authorized the Delivery System Reform Incentive Payment (DSRIP) plan to reform, improve, and reduce the cost of the state’s Medicaid system. Furthermore, New York’s Certificate of Public Advantage (COPA) regulations allow for state supervision of collaborative health care programs, and require the Department of Health to consult with the New York Attorney General before conferring antitrust immunity.
In April 2015, the Federal Trade Commission (FTC) submitted a letter to the New York State Department of Health expressing 'strong concerns' about state regulations offering antitrust immunity to some healthcare collaborations under their supervision. The FTC is concerned that granting COPAs to these entities would permit anticompetitive conduct without effective antitrust review.
This reflects the FTC’s continued opposition to State grants of immunity from federal antitrust laws, and its intent to challenge anticompetitive transactions.
This webinar will describe recent state legislative efforts to confer antitrust immunity on selected health care providers and analyze the economic trade-offs behind coming up with effective regulation that will encourage collaboration among healthcare providers while minimizing risk of anticompetitive behavior. The objective is to provide an interesting and important insight into the interplay between state and federal oversight of the healthcare industry.
Colin Kass, Partner
Proskauer Rose LLP
John R. Ingrassia, Senior Counsel
Proskauer Rose LLP
- Supreme Court cases that provide basis for immunity, and how is has developed
- Existing and trending state legislative efforts to maintain immunity for health care providers (CON, COPA, Other)
- Agency position, enforcement efforts, and other initiatives
- Recent and pending civil cases invoking the immunity defense
- Implications for health care transactions and health care delivery
Dr. Subramaniam (Subbu) Ramanarayanan, Vice President
NERA Economic Consulting
- Certificates of Public Advantage: Objectives and Relevance
- Factors for states to consider before issuing a COPA
- Policy Choices and Challenges in Addressing Market Consolidation through Regulation
- Competition vs. regulation
- Duration of regulation
- Metrics that are suitable to regulate: prices, costs vs. margins
- Choice of appropriate benchmarks
- Monitoring and supervision
- The Role of Antitrust: alternate remedies to state action immunity
Mitchell D. Raup, Shareholder
- Recent FTC guidance on what the state must do to satisfy the “active state supervision” requirement for state action immunity from the federal antitrust laws.
- Do state antitrust immunity statutes satisfy the “active state supervision” requirement?
- Practical considerations for providers considering applying for antitrust immunity under a state immunity statute:
- Does your proposed collaboration need antitrust immunity?
- Does your state’s statute satisfy the requirements for valid state action antitrust immunity?
- Does your state regulator have the resources, ability and motivation to actively supervise your conduct?
- Do you want that active supervision?
- Do you want to be the FTC’s test case on the validity of your state’s antitrust immunity statute and regulatory scheme?
Who Should Attend:
- Bio/Pharma and Related Attorneys & In-House Counsel
- IP Attorneys and Related Consultants
- Antitrust Lawyers
- General Counsel
- Senior Management
- Senior Executives
- Professionals from Food and Drug Industries
- Consultants & Clients in the Food and Drug Industries
- Other Related/Interested Professionals and Organizations
Dr. Subramaniam (Subbu) Ramanarayanan is a member of NERA’s Antitrust and Healthcare practices and specializes in the analysis of competitive effects of mergers and acquisitions, evaluation of anticompetitive behaviour as well as analysis of litigation-related issues in healthcare markets. Prior to NERA, Subbu was a member of the faculty at UCLA Anderson School of management where he was an award-winning MBA instructor and taught courses on Business Strategy and modules on Healthcare Strategy to MBA students and Executives.
Subbu has written extensively on the nature of competition in health care markets and its impact on health care costs and quality. Some of his recent academic research has focused on examining the extent to which health insurance premiums are affected by market structure and ownership in the private health insurance industry, as well as investigating the response of outpatient dialysis facilities to being rated on quality. His academic research has been published in some of the leading economics journals, such as the American Economic Review and the Journal of Law and Economics, and has been cited in many mainstream media outlets, such as the Wall Street Journal, The Economist, and the Washington Post. He has also acted as an academic reviewer to many leading journals in the fields of economics and management.
Subbu holds a PhD in managerial economics and strategy from the Kellogg School of Management at Northwestern University, an MBA from the Indian Institute of Management (Calcutta) where he was a Silver medalist, and a B.Tech. in electrical engineering from the Indian Institute of Technology. Prior to starting graduate school at Northwestern, he worked as a management consultant for McKinsey & Co. in India, where he served clients in retail and health care.
Dr. Subramaniam (Subbu) Ramanarayanan is a member of NERA’s Antitrust and Healthcare practices and specializes in the analysis of competitive …
As vice-chair of Polsinelli’s Antitrust practice, Mitchell Raup has 30 years’ experience solving the most difficult antitrust problems. He has been lead antitrust counsel on dozens of health care M&A transactions involving hospitals, physician groups, provider networks, health insurers, pharmaceuticals, dialysis clinics, and group purchasing organizations. He regularly represents businesses and witnesses in antitrust investigations by the FTC, the DOJ’s Antitrust Division, and state attorneys general. He litigates high-stakes cases involving allegations of illegal monopoly and monopsony; price-fixing and price-signaling; vertical restraints on pricing and distribution; exclusive contracts, tying and bundling, and boycotts and refusals to deal.
As vice-chair of Polsinelli’s Antitrust practice, Mitchell Raup has 30 years’ experience solving the most difficult antitrust problems. He has …
Colin Kass is a partner in the Litigation Department and vice-chair of the Antitrust Group. An experienced antitrust and commercial litigation lawyer, Colin has litigated cases before federal and state courts throughout the United States and before administrative agencies. His practice involves a wide range of industries and spans the full-range of antitrust and unfair competition-related litigation, including class actions, competitor suits, dealer/distributor termination suits, price discrimination cases, criminal price-fixing investigations, and merger injunctions.
Colin also has extensive experience dealing with the Federal Trade Commission and Department of Justice in obtaining clearance for competitively-sensitive transactions and handling anticompetitive practices investigations. His practice also includes counseling clients on their sales, distribution, and marketing practices, strategic ventures, and general antitrust compliance. He earned his bachelors and masters degrees from the University of Chicago, and his JD from University of Michigan Law School.
Colin Kass is a partner in the Litigation Department and vice-chair of the Antitrust Group. An experienced antitrust and commercial …
John Ingrassia is a special counsel in Proskauer’s Washington, D.C. office and advises clients on a wide range of antitrust matters in various industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services, health care, and others. His practice includes a significant focus on the analysis of Hart-Scott-Rodino pre-merger notification requirements, the coordination and submission of Hart-Scott-Rodino filings, and the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures. John has extensive experience with all aspects of the Hart-Scott-Rodino Act, and is regularly invited to participate in Federal Trade Commission and bar association discussions regarding HSR-related issues.
John also advises clients regarding international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign competition filing regimes. He is a graduate of Pace University, and earned his JD from Hofstra University School of Law.
John Ingrassia is a special counsel in Proskauer’s Washington, D.C. office and advises clients on a wide range of antitrust …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
Specialized Knowledge and Applications
NY Category of CLE Credit:
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About NERA Economic Consulting
NERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For half a century, NERA’s economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world’s leading law firms and corporations. We bring academic rigor, objectivity, and real world industry experience to bear on issues arising from competition, regulation, public policy, strategy, finance, and litigation. NERA’s clients value our ability to apply and communicate state-of-the-art approaches clearly and convincingly, our commitment to deliver unbiased findings, and our reputation for quality and independence.
NERA’s Global Health Care Practice covers the full range of litigation, regulatory/reform, public policy, and business strategy questions that arise in this complex industry. Our health economists have analyzed hundreds of mergers involving hospitals, health insurers, physicians, pharmaceuticals, and medical device companies. Many of these mergers have been reviewed by both US and European antitrust authorities. Our litigation experience covers antitrust issues such as monopolization, price fixing, unfair methods of competition, exclusive dealing, and other vertical restraints issues, such as those posed by integrated health care systems. In the area of public policy, our economists in the US and Europe have worked with governments as well as purchasers and providers of health care around the world to create competitive markets, develop alternative administrative strategies, and enact realistic health care reforms that can improve both the efficiency and the fairness of health systems around the world. We have also analyzed such topics as intellectual property protection, parallel trade of pharmaceuticals, and health care. Our work has been used by organizations such as the European Commission, World Trade Organization, and US Trade Representatives to improve the environment for pharmaceutical research and development.
Polsinelli is an Am Law 100 firm with more than 750 attorneys in 18 offices. Ranked in the top five percent of law firms for client service and top five percent of firms for innovating new and valuable services, the firm has risen more than 100 spots in Am Law’s annual firm ranking over the past six years. Polsinelli attorneys provide practical legal counsel infused with business insight, and focus on health care, financial services, real estate, life sciences and technology, and business litigation.
About Proskauer Rose LLP
Proskauer is a leading global law firm focused on creating value. Our roots go back to 1875, when we were founded in New York City. With 700+ lawyers active in virtually every major market worldwide, we are recognized not only for our legal excellence, but also our dedication to client service. Our clients include many of the world’s top companies, financial institutions, investment funds, not-for-profit institutions, governmental entities and other organizations across industries and borders. We also represent individuals in transactions and other matters. We have U.S offices New York, Washington, D.C., Boston, Chicago, Los Angeles, Newark, Boca Raton and New Orleans, as well as international offices in London, Paris, Hong Kong, Beijing and São Paulo.