Health Care and Competition Law and Policy

June Topics

The Antitrust Division and the Federal Trade Commission are cohosting hearings on health care and competition law and policy. This page provides details on topics for the June hearings.

For more information, consult the hearings information page or contact David Kelly, Litigation I Section (david.kelly@usdoj.gov or 202-616-9447).

June 10, 2003

Morning Session
9:15 a.m. to 12:30 p.m.
Afternoon Session
2:00 p.m. to 5:00 p.m.
Quality and Consumer Protection: Market Entry

In health care, market entry is influenced by a number of factors, including the necessity of meeting state regulatory requirements such as licensure and certificate of need. Professional associations and individual providers have used a variety of strategies to limit entry by potential competitors and prevent unbundling and de-skilling of the services that they provide. Thus, in many states, there are significant limitations on market entry by new competitors, and opposition to the efforts of existing competitors to expand the range of services they provide.

Questions for consideration:

• What does the empirical evidence indicate about the cost, quality, and availability of services provided by nurse-midwives, nurse-anesthetists, dental hygienists, physician-assistants, pharmacists, optometrists, physical therapists, and other professionals and para-professionals?
• What regulatory and non-regulatory strategies have been employed to restrict independent practice or broadened clinical autonomy by these providers?
• What reasons have been advanced to justify such restrictions on entry?
• Do the regulatory strategies that have been employed reflect the least restrictive means of accomplishing the intended objectives?
• What consumer information and protection issues would be raised by a less-restrictive environment for market entry?

Morning Session Panelists:

Susan Apold, American College of Nurse Practitioners
Tammi O. Byrd, American Dental Hygienists’ Association
John Hennessy, Kansas City Cancer Centers
Lynne Loeffler, American College of Nurse Midwives
Tom Piper, American Health Planning Association
Megan D. Price, Professional Nurses Services, Inc.
Robin Wilson, University of South Carolina School of Law

Afternoon Session Panelists:

Jeffrey C. Bauer, Superior Consultant Company, Inc.
Greg Bloche, M.D., Georgetown University School of Law
Morris Kleiner, University of Minnesota
Francis J. Mallon, American Physical Therapy Association
Jerome H. Modell, M.D., representing American Society of Anesthesiologists
Michael Morrisey, University of Alabama
Russ Newman, American Psychological Association

June 11, 2003

Morning Session
9:15 a.m. to 12:30 p.m.
Noerr Pennington/State Action

Questions for consideration:

• How do Noerr Pennington and the state action doctrines affect competition law and policy?
• Are there specific anti-competitive practices that current enforcement efforts have not addressed because of the Noerr Pennington or state action doctrines, including but not limited to abuses of state licensure, certificate of need and other regulatory and petitioning processes?
• Does competition law and policy impede providers from jointly discussing their concerns with government payors?
• What are the appropriate boundaries for these doctrines given the competing interests at stake?
• Are antitrust enforcement efforts appropriately targeted in light of the impact of the Noerr Pennington and state action doctrines?

Meredyth Smith Andrus, Office of the Attorney General, Maryland
John Delacourt, Federal Trade Commission
Clark Havighurst, Duke University Law School
Kenneth W. Kizer, M.D., National Quality Forum

Afternoon Session
2:00 p.m. to 5:00 p.m.
Long Term Care/Assisted Living Facilities

An increasing number of elderly Americans spend time in long term care or an assisted living facility.

Questions for consideration:

• What is the nature of the information that is disclosed to such consumers about the cost and quality of the services they will receive?
• Is the type and amount of the information that these facilities provide concerning quality adequate to allow consumers to make well-informed purchasing decisions?
• If not, what additional information do consumers need or want to make such decisions and why are these facilities not already providing it in the marketplace?
• Does the quantity and quality of the information that consumers would find helpful vary?
• What is the state of the art with regard to measures of nursing home and assisted living facility quality, whether structure, process, or outcome?
• What are the risks of relying on (and disclosing) process-based measures of quality?
• How would competition on quality measures affect costs, prices, and decisions by payors and customers?
• How does compensation affect quality?
• Can compensation be harnessed to enhance the performance of nursing homes and assisted living facilities?

Donna Lenhoff, National Citizens Coalition for Nursing Home Reform
Karen Love, Consumer Consortium on Assisted Living
Barbara Manard, American Association of Homes and Services for the Aging
Barbara Paul, M.D., Center for Medicare and Medicaid Services
Jan Thayer, National Center for Assisted Living
Keren Brown Wilson, Jessie F. Richardson Foundation

June 12, 2003

Morning Session
9:15 a.m. to 12:30 p.m.
Financing Design/Consumer Information Issues

For the non-elderly, health care is financed through voluntary insurance contracts. Employment-based health insurance covers the majority of non-elderly insured Americans.

Questions for consideration:

• How effectively do employers reflect the preferences of their employees in designing and implementing health insurance coverage?
• What distortions result from making employers the nexus of health insurance?
• Are there off-setting advantages associated with having employers involved in the health insurance market?
• What changes have there been in the structure of employment-based health insurance in recent years?
• What information is disclosed to employees in connection with obtaining health insurance?
• How does employment-based health insurance differ from insurance available in the individual market?

Health insurance is aggressively regulated by the states, with more limited regulation by the federal government.

Questions for consideration:

• What are the effects of this regulation on the cost and content of the health insurance products available in the marketplace?
• Does such regulation correct for specific failures in the market for health insurance coverage?
• Has the emergence of new forms of health insurance coverage (point-of-service options, consumer-driven health insurance, and medical savings accounts) had an effect on the health insurance market and the regulatory environment?

Marcia L. Comstock, M.D., Wye River Group on Healthcare
Helen Darling, Washington Business Group on Health
Newt Gingrich, The Gingrich Group
Warren Greenberg, George Washington University
Greg Kelly, Coalition against Guaranteed Issue
David Lansky, Foundation for Accountability
Michael Young, Aon Consulting

Afternoon Session
2:00 p.m. to 5:00 p.m.
Information and Advertising

Questions for consideration:

• To what extent do consumers use quality information in making choices among health care financing arrangements and among health care providers?
• What information regarding quality is available to consumers?
• How accurate is this information?
• Does the quantity and quality of the available information depend on the nature of the underlying condition (acute v. chronic) and treatment (surgical v. medical; curative v. palliative; elective v. necessary)?
• What effects does this information have on the behavior of health care providers?
• What quality information do health care providers disseminate through advertising?
• What characteristics distinguish health care providers who provide quality information through advertising from those who do not?
• Do health care providers who advertise quality differ from those who advertise price or other attributes of their services?
• What percentage of health care providers engage in any advertising?
• What role does comparative advertising (including scorecards) play in competition among health care providers?
• What role does comparative advertising concerning access to specialists or specialized services play in competition among health care financing options?
• Do governmental or professional restrictions limit the advertising of health care goods and services based on quality?
• What are the effects of these restrictions on competition in markets for health care goods and services?
• What are the pro-competitive justifications for such restrictions?
• What empirical evidence supports these justifications?

Laura Carabello, CPRi Communications
Bernie Dana, American Health Care Association
Helen Darling, Washington Business Group on Health
John E. Gebhart, III, DoctorQuality.com
Douglas D. Koch, M.D., Baylor College of Medicine
Thomas Henry Lee, Jr., M.D., Partners Healthcare
Peter M. Sfikas, American Dental Association

June 25, 2003

Afternoon Session
2:00 p.m. to 5:00 p.m.
Mandated Benefits

A number of states have long mandated coverage of a variety of health care services, including certain pharmaceuticals.

Questions for consideration:

• How prevalent are these mandates?
• Which benefits are most and least widely mandated?
• What are the effects of these mandates?
• To what extent do these mandates increase the cost of health insurance coverage?
• To what extent would these benefits be available in the private coverage market, absent the mandate?
• For example, are these benefits typically provided by self-funded employee benefit plans, which are not subject to these mandates?
• What factors explain why certain states choose to mandate certain benefits?

Daniel P. Gitterman, University of North Carolina, Chapel Hill
David A. Hyman, University of Maryland
Ralph Ibson, National Mental Health Association
Karen Ignagni, American Association of Health Plans
Anthony J. Knettel, The ERISA Industry Committee
Rachel Laser, National Women’s Law Center
Tom Miller, Cato Institute
William Vogt, Carnegie Mellon University

June 26, 2003

Morning Session
9:15 a.m. to 12:30 p.m.
Pharmeceuticals: Formulary Issues

Pharmacy benefit managers (PBMs) have emerged as major factors in the marketing and distribution of pharmaceuticals.

Questions for consideration:

• How do PBMs work?
• What information do PBMs disseminate about their operations?
• What factors enter into PBM formulary listing decisions and how transparent are those decisions?
• What tools do PBMs employ, and how effective are these tools?
• What are the effects of PBMs on the cost of pharmaceuticals?
• What state and federal laws affect how PBMs operate?
• What, if any, are the barriers to entry for potential competitors to existing PBMs?
• What consumer information, consumer protection, and antitrust issues are raised by the presence of PBMs in the market?

David Balto, White & Case
Anthony Barueta, Kaiser Foundation Health Plan
Thomas M. Boudreau, Express Scripts
Jack Calfee, American Enterprise Institute
John Dicken, General Accounting Office
John Richardson, Health Strategies Consultancy

Afternoon Session
2:00 p.m. to 5:00 p.m.
Prospective Guidance

To provide prospective guidance to requesting parties and to the public, the FTC provides advisory opinions and the DOJ provides business review letters. Over the past decade, the FTC and DOJ have each generated approximately a half dozen such opinions and letters relating to health care per year.

Questions for consideration:

• Does this modest volume reflect the true demand for prospective guidance, or are parties discouraged from obtaining advisory opinions and business review letters?
• Is prospective guidance helpful or unhelpful in the health care context?
• Is prospective guidance too costly or too slow?
• What changes would make prospective guidance more useful?
• How does the prospective guidance provided by the FTC and DOJ compare to that provided by other federal agencies?

Jeff Brennan, Federal Trade Commission
William Cohen, Federal Trade Commission
Ellen S. Cooper, Maryland Office of the Attorney General
Claudia H. Dulmage, Department of Justice, Antitrust Division
Warren Grimes, Southwestern University School of Law
Clifton E. Johnson, Hall, Render, Killian, Heath & Lyman, P.S.C.
Jeff Miles, Ober, Kaler
Vicky Robinson, Office of the Inspector General, Department of Health & Human Services

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