Regulatory neutrality is essential to establishing a level playing field for accountable care organizations.

Accountable care organizations (ACOs) are among the most widely discussed models for encouraging movement away from fee-for-service payment arrangements. Although ACOs have the potential to slow health spending growth and improve quality of care, regulating them poses special challenges. Regulations, particularly those that affect both ACOs and Medicare Advantage plans, could inadvertently favor or disfavor certain kinds of providers or payers. Such favoritism could drive efficient organizations from the market and thus increase costs or reduce quality of and access to care. To avoid this type of outcome, we propose a general principle: Regulation of ACOs should strive to preserve a level playing field among different kinds of organizations seeking the same cost, quality, and access objectives. This is known as regulatory neutrality. We describe the implications of regulatory neutrality in four key areas: antitrust, financial solvency regulation, Medicare governance requirements, and Medicare payment models. We also discuss issues relating to short-term versus long-term perspectives--to promote the goal of regulatory neutrality and allow the most efficient organizations to prevail in the marketplace.

Competition rules and health care players: principles and consequences.

PURPOSE: Competition rules maximise consumer welfare by promoting efficient use of scarce resource and thus high output, low prices, high quality, varied services, innovation, production and distribution. European courts consider doctors and hospital staff as undertakings (any entity that performs economic activities), so that if they enter into agreements then they have to comply with competition rules. This paper's objective is to determine whether competition law, which applies to undertakings, can in fact be applied to different healthcare-sector players and whether specific rules are needed regarding competition between healthcare undertakings. DESIGN/METHODOLOGY/APPROACH: Data were selected from relevant European and national case law, European institution legal documents (such as regulations, guidelines and communications) and healthcare competition law literature, and then examined. FINDINGS: The paper finds that competition rules are applicable to healthcare players considering the consequences if competition rules are applied to the healthcare market. For market processes to result in the appropriate cost, quality and output, competition law must be proactive. In other words, quality must be fully factored into the competitive mix, allowing consumers to weigh healthcare price and non-price characteristics. RESEARCH LIMITATIONS/IMPLICATIONS: Countries have different healthcare system and competition rules (although similar), competition rule impact is different for each country. Some healthcare systems are more regulated and there will be less opportunity for healthcare players to compete. PRACTICAL IMPLICATIONS: Efficiently applying competition law to healthcare players means that several challenges need facing, such as healthcare quality complexity and court scepticism. ORIGINALITY/VALUE: This article points out the challenges when competition law is applied to the healthcare sector and how these challenges are faced in certain countries such as The Netherlands.

An analysis of recent antitrust issues affecting specialty practice: is dermatology immune?

In the healthcare industry, the rules of regulation and competition often collide. Despite the view of Medicine as a "learned profession", it is clear that physicians will be subject to the same legal restrictions against sharing price information as those in place for any other industry. Thus, the relevant provisions of antitrust law will apply to most activities of physicians. Although recent case law has involved actions undertaken by physicians in other specialties of Medicine (e.g. oncology) the activities reviewed will likely be applicable to Dermatologists as well.

Rural hospital mergers, antitrust policy, and the Ukiah case.

This article examines the antitrust issues in rural hospital mergers by focusing on an important antitrust case involving the merger of two small hospitals in Ukiah, California. A key issue in this matter was whether the geographic market served by the merger included a nearby larger city. The economic efficiency of small rural hospitals and the competitive implications of their mergers are examined in the context of the Ukiah case. Economies of scale are shown to be important for small rural hospitals and should mitigate any increase in price. The efficiencies defense is shown to be difficult to make even when economies of scale make the likelihood of efficiencies high. The financial difficulties of many rural hospitals, especially in areas where too many exist, mean that mergers such as this one in Ukiah often are an efficient way to keep these hospitals financially sound and accessible. The Ukiah case suggests the desirability of the merger guidelines that permit most mergers of small rural hospitals.

Managed cooperation, not competition: a proposal for implementing national health reform.

National health reform should be implemented in a policy framework that encourages cooperation--not competition--to promote efficiency while extending universal coverage. "Managed cooperation" is defined here as a national health system built on collaborative efforts between purchasers, providers, consumers, and government through voluntary collective action, like the structural cooperation seen in the Japanese economy between government and the private sector. Six partnerships are encouraged: (1) government-industry, (2) purchaser-provider, (3) physician-hospital, (4) public-private data sharing, (5) consumer-provider, and (6) community health. Structural and legal barriers to cooperation, such as antitrust and malpractice reform, should be reduced or eliminated to encourage collaborative initiatives under national health reform.

Employer liability in the managed care setting.

Managed care may present legal risks for employers. To avoid potential liability, employers should engage in due diligence and carefully draft plan documents, vendor contracts and employee communications.

Special report on antitrust. Criminal antitrust enforcement--when, who, and why?

Government civil antitrust enforcement and private antitrust litigation are not always easy to avoid, because even innocent actions can be alleged to have been improperly motivated or to adversely affect competition. On the other hand, criminal antitrust violations can be readily avoided by following a set of basic, simple, and easy to remember rules: 1. Providers should not agree with competing or potentially competing providers on any terms of price, quantity, or quality of service; 2. Providers should not agree with competing or potentially competing providers as to which patients (or payors) will be served, what kinds of services will be offered, or where to locate offices or facilities; and 3. Providers should not agree with competing or potentially competing providers to refuse to offer services to payors or other alternative delivery systems. There are circumstances in which exceptions to these general rules are appropriate, such as when an agreement among providers is necessary in order to participate in a legitimate alternative delivery system, preferred provider organization, or individual practice association. However, these exceptions are narrow and technical. The best advice is the following warning to providers by Charles F. Rule, former U.S. Assistant Attorney General for antitrust: "You should never act as if an exception applies until after you have consulted an experienced antitrust lawyer or until you have obtained adequate assurance that competent counsel has structured the system to eliminate antitrust problems."