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ACOs, Antitrust and Anesthesiologists

The Centers for Medicare and Medicaid Services (CMS) has been encouraging the growth of accountable care organizations (ACOs) and other integrated models under the impetus of the Affordable Care Act (ACA).  The Federal Trade Commission (FTC), on the other hand, remains fiercely protective of competition.  If competitors coalesce into a single large organization, there will be fewer competitors. The ACA provides that “nothing [in the legislation] shall be construed to modify, impair or supersede the operation of the antitrust laws.”  In October 2011 the FTC jointly with the Department of Justice issued its Final Statement of Antitrust Enforcement Policy Regarding Accountable Care Organizations—following, but not allaying, much criticism of the corresponding proposed rule. The tension between the two drives, integration versus competition, has increased steadily since the passage of the ACA.  A recent and unusual FTC decision to go to court to block the acquisition of a medical group by a hospital...
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