[Federal Register Volume 80, Number 21 (Monday, February 2, 2015)]
[Notices]
[Pages 5533-5537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01856]
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FEDERAL TRADE COMMISSION
Announcement of Public Workshop, ``Examining Health Care
Competition''
AGENCY: Federal Trade Commission.
ACTION: Notice of public workshop and opportunity for comment.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') will
hold a second public workshop on February 24-25, 2015, as part of the
workshop series, ``Examining Health Care Competition,'' \1\ to study
recent developments related to health care provider organization and
payment models that may affect competition and consumer protection in
the provision of health care services. The workshop will be co-hosted
by the Department of Justice, Antitrust Division (``DOJ''). Specific
topics for discussion may include: early observations regarding
accountable care organizations; alternatives to traditional fee-for-
service payment models; trends in provider consolidation; trends in
provider network and benefit design strategies, as well as contracting
practices and regulatory activity that may enhance or undermine these
strategies; and early observations regarding health insurance
exchanges. This notice invites public comments on a series of topics.
The FTC and DOJ (the ``Agencies'') will consider these comments as they
prepare for the workshop and may use them in subsequent reports or
policy papers, if any. For additional information, visit the workshop
Web site at http://www.ftc.gov/news-events/events-calendar/2015/02/examining-health-care-competition or http://www.justice.gov/atr/public/workshops/healthcare/2015/02/index.html.
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\1\ The first workshop in the Examining Health Care Competition
series was held on March 20-21, 2014, and examined issues concerning
occupational regulation, interstate licensure and telehealth, health
information technology, and price and quality transparency. See
http://www.ftc.gov/news-events/events-calendar/2014/03/examining-health-care-competition.
DATES: The workshop will be held on February 24-25, 2015, in the
Auditorium of the Constitution Center at 400 7th Street SW.,
Washington, DC 20024. To be considered for the workshop, comments in
response to this notice should be submitted by February 16, 2015. In
addition, any interested person may submit written comments in response
to this notice and workshop discussions until April 30, 2015. Prior to
the workshop, the Agencies will publish an agenda and additional
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information on their Web sites.
ADDRESSES: Interested parties may file a comment for this workshop at
https://ftcpublic.commentworks.com/ftc/examhealthcareworkshop online or
on paper, by following the instructions in the Request for Comment part
of the SUPPLEMENTARY INFORMATION section below. Write ``Health Care
Workshop, Project No. P131207,'' on your comment, and file your comment
online at https://ftcpublic.commentworks.com/ftc/examhealthcareworkshop
by following the instructions on the web-based form. If you prefer to
file your comment on paper, write ``Health Care Workshop, Project No.
P131207,'' on your comment, and on the envelope, and mail your comment
to the following address: Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex X),
Washington, DC 20580, or deliver your comment to the following address:
Federal Trade Commission, Office of the Secretary, Constitution Center,
400 7th Street SW., 5th Floor, Suite 5610 (Annex X), Washington, DC
20024.
FOR FURTHER INFORMATION CONTACT: Stephanie Wilkinson, Attorney Advisor,
Office of Policy Planning, Federal Trade Commission, 600 Pennsylvania
Avenue NW., Washington, DC 20580, 202-326-2084,
[email protected]. For more detailed information
about the workshop, including an agenda, please visit the workshop Web
site: http://www.ftc.gov/news-events/events-calendar/2015/02/examining-health-care-competition or http://www.
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justice.gov/atr/public/workshops/healthcare/2015/02/index.html.
SUPPLEMENTARY INFORMATION: The Federal Trade Commission and U.S.
Department of Justice seek to better understand the competitive
dynamics and effects of evolving health care provider and payment
models. In recent years, changes in the way that health care services
and products are delivered and reimbursed have been occurring in
response to diverse market trends, including pressure to reduce costs
and improve quality in the health care industry. The Patient Protection
and Affordable Care Act (``ACA'') may have accelerated many of these
changes. Providers are increasingly seeking ways to improve the
coordination of health care services to patients. Meanwhile, payers are
seeking ways to incentivize providers to practice more efficient,
outcomes-based medicine and to avoid the overutilization of services
and products. This workshop and comment process are expected to
identify and examine strategies currently used by providers and payers
seeking to reduce costs and improve quality, with a particular emphasis
on the strategies' potential implications for competition and consumer
protection. Information obtained during this workshop and through
comments will enrich the Agencies' knowledge in this critical sector of
the economy and thereby support their enforcement, advocacy, and
consumer education efforts.
This Notice invites comments on a number of topics, including:
The kinds of changes occurring with respect to health care
provider organization and payment models;
the economic, quality enhancing, technological,
regulatory, and legislative factors that may be influencing such
changes; and
additional empirical research that would be helpful in
evaluating these topics.
The Agencies are particularly interested in receiving comments on the
specific topics discussed below, and this Notice includes questions as
examples of the types of information that are likely to be helpful.
Commenters should feel neither compelled to answer each question nor
constrained by the questions listed.
1. Early Observations of Accountable Care Organizations
Accountable care organizations (``ACOs'') are networks formed by
physicians, hospitals, and other health care providers to coordinate
patient care. Although the term ACO is used to describe a wide range of
provider collaboration, ACO members typically share clinical and
financial responsibilities for designated patient populations, and are
held accountable for the quality, appropriateness, and efficiency of
the health care services they provide. ACOs can be structured to serve
commercial patient populations, Medicare or Medicaid patient
populations, or a combination of patient populations.
Some health policy experts and economists have raised concerns that
ACOs might increase the ability of providers to obtain and exercise
market power. For example, providers participating in ACOs may be able
to exercise market power through collective negotiations with payers.
Furthermore, in preparing to form ACOs, some providers argue that they
need to consolidate through merger, claiming that increased scale and
resources will better position them to achieve positive results as an
ACO. However, this may lead to more concentrated provider markets.
In 2011, the FTC and DOJ issued a joint statement regarding the
antitrust enforcement policy that would be applied to ACOs
participating in the Medicare Shared Savings Program.\2\ Since that
time, the Agencies have continued to monitor developments within the
Medicare ACO programs, not only to enhance their understanding of these
programs, but also to assess how they may impact the formation and
operation of ACOs in commercial markets. For example, some health
policy experts have observed that the Medicare ACO programs may
encourage the development of ACOs that operate in commercial markets.
Also, some have warned about the potential for cost-shifting from
Medicare ACOs to commercial ACOs, which could result in higher prices
for commercial patients.
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\2\ See FTC-DOJ Statement of Antitrust Enforcement Policy
Regarding Accountable Care Organizations Participating in the
Medicare Shared Savings Program, 60 FR 67,026 (Oct. 28, 2011),
available at http://www.gpo.gov/fdsys/pkg/FR-2011-10-28/pdf/2011-27944.pdf.
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Comments regarding early observations of ACOs might address the
following types of questions:
How are ACOs defined, and what are some of the challenges
associated with clearly defining an ACO?
How do ACOs operate? Are ACOs an effective mechanism for
aligning the clinical and financial incentives of providers, payers,
and patients?
What strategies do ACOs use when trying to achieve the
goals of reducing costs, improving quality, and increasing patient
satisfaction?
What are some similarities and differences between ACOs
and patient-centered medical homes? Are there potential benefits to
using these provider models in combination with each other?
What preliminary observations can be made regarding the
success or failure of ACOs that operate in Medicare, Medicaid, or
commercial markets?
[cir] Is there any evidence of efficiencies, cost savings, or
quality improvements?
What preliminary observations can be made regarding the
competitive impact of ACOs, particularly in commercial markets?
[cir] Is there any evidence of cost reductions or quality
improvements as a result of increased competition among providers
participating in ACOs?
[cir] What spill-over effects, if any, have been observed between
Medicare and commercial ACOs, both positive and negative?
[cir] Is there any evidence to suggest that ACO formation has been
a mechanism for competing or non-competing providers to achieve and
exercise market power?
What impact, if any, has ACO formation had on patient
referral patterns?
Has the FTC-DOJ joint policy statement provided helpful
guidance to market participants?
2. Alternatives to Traditional Fee-for-Service Payment Models
Traditional fee-for-service payment models reimburse health care
providers for services rendered. Some have argued that traditional fee-
for-service payment models have contributed to the high cost of health
care in the United States because these models may create incentives to
maximize the volume of health care services provided. In recent years,
various health policy experts, providers, and payers have emphasized
the importance of shifting away from traditional fee-for-service
payment models toward alternative payment models that seek to use
performance indicators and patient outcomes to reward higher quality
and more efficient use of medical services.
Comments regarding alternatives to traditional fee-for-service
payment models might address the following types of questions:
What are the alternatives to traditional fee-for-service
payment models, including either reforms to fee-for-service (e.g.,
maintaining a fee-for-service model and adding bonus incentives for
achieving certain cost and/or quality benchmarks) or replacing fee-for-
service with some type of prospective payment approach (e.g., global
payment, bundled payment,
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partial capitation)? How are these terms defined?
[cir] Who bears the financial risk in each model?
[cir] How are prices established in each model? Is competition a
significant factor in establishing prices for these models?
How does the use of alternative payment models affect the
incentives of payers, providers, and patients? How does this differ
from the incentives created by traditional fee-for-service payment
models?
What are the challenges of transitioning from traditional
fee-for-service to an alternative payment model?
What are the economic, quality, legal, or regulatory
factors influencing this shift away from traditional fee-for-service
reimbursement?
What impact, if any, do alternative reimbursement methods
have on efficient forms of provider organization?
Is there a relationship between the size and scale of a
provider organization and its capacity to bear financial risk? What
size and scale is sufficient for a provider organization to participate
in existing or future risk-bearing programs?
What are the competitive implications of this shift away
from traditional fee-for-service reimbursement?
Is there any evidence that alternative payment models
increase competition among providers?
Is there any evidence that alternative payment models
improve coordination and quality of care or reduce costs?
Is there any evidence of alternative payment models
leading to restrictions on the availability of, or patient use of,
essential health care services?
3. Trends in Provider Consolidation
Over the last two decades, there has been significant consolidation
among health care providers, particularly among hospitals. Some
economists and health policy experts point to this consolidation as a
contributor to the rise in health care costs in the United States. The
Agencies have a long history of analyzing this consolidation and
bringing enforcement actions against specific mergers and acquisitions
when they believe an antitrust violation has occurred. Since the
passage of the ACA, some providers have argued that further
consolidation is necessary to achieve quality improvements and cost
reductions through more efficient health care delivery systems. The
Agencies have long observed that in many cases providers may achieve
these benefits through various forms of collaboration rather than
consolidation.
Comments regarding trends in provider consolidation might address
the following types of questions:
a. Hospital-Physician Practice Consolidation
What economic, quality, legal, or regulatory factors may
be influencing consolidation between hospitals and physician practices?
What factors should be considered when analyzing the
competitive effects of mergers of complementary service providers?
What evidence exists regarding the competitive effects of
these arrangements, both positive and negative?
What does evidence show regarding physician service fees
and facility charges following the acquisition of physician practices
by hospitals?
Is there any evidence that merged hospital systems and
physician practices have more bargaining power than they would have
independently, thereby allowing them to negotiate higher reimbursement
rates or otherwise increase prices?
What does evidence demonstrate about the quality of health
care services following the acquisition of physician practices by
hospitals?
Is there any evidence demonstrating that common ownership
(e.g., hospitals employing physicians or acquiring physician practices)
produces better quality or cost outcomes than other forms of
collaboration (e.g., physicians of different specialties forming
organizations that are not owned by hospitals, or virtual networks of
physicians)?
b. ``Cross-Market'' Hospital Mergers
Is there theory or evidence that mergers between hospitals
that operate in different geographic or service markets may increase
the combined entity's ability to negotiate higher reimbursement rates
with health plans?
If such mergers can lead to anticompetitive effects, what
kinds of evidence and economic analysis would help to identify such
effects?
If traditional antitrust analysis of relevant product and
geographic markets does not adequately identify anticompetitive harm in
these situations, what other factors, if any, may help identify such
harm?
c. Provider-Payer Consolidation
What are the recent trends and some examples of providers
and payers that have consolidated, or otherwise partnered, to offer
integrated health care services and insurance plans to consumers?
What are the competitive implications of such
consolidation in both payer and provider markets?
[cir] Does this type of consolidation increase the incentives for
exclusionary conduct or otherwise facilitate the exercise of market
power? If so, under what circumstances?
[cir] Does this type of consolidation affect incentives to
coordinate and improve the quality of health care, as well as reduce
costs?
[cir] Does this type of consolidation increase competition in
health insurance markets, by allowing providers to compete with payers?
4. Provider Network and Benefit Design
There are many ways for health plans to design provider networks
and benefits packages for consumers, which range from individuals
purchasing health insurance to large national employers contracting for
health insurance coverage for their employees. Recent developments
include strategies that limit the number of providers in a network.
Certain contracting practices or regulatory activity may potentially
enhance or undermine the use of these strategies to spur competition
among providers and reduce health care costs.
Comments regarding provider network and benefit design might
address the following types of questions:
What types of provider network and benefit design
strategies have been implemented recently or are under consideration?
What are the competitive effects of network design
strategies that limit the number of providers in a network (e.g.,
narrow networks, tiered networks, reference pricing, etc.)?
[cir] Can these strategies lead to cost reductions or improved
coordination and quality of care?
[cir] Are there circumstances under which they might create or
facilitate the exercise of market power, or otherwise be
anticompetitive?
What is the relationship between market structure and
network and benefit design?
[cir] Is robust provider competition a predicate for successful
implementation of any of these designs?
[cir] Does concentration in health insurance markets impact
provider network and benefit design strategies?
[cir] To what extent might some network and benefit designs enhance
competition, even when provider or payer markets are highly
concentrated?
What types of provider-payer contracting practices may
limit the
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implementation of these types of network design strategies (e.g., anti-
tiering/anti-steering provisions, gag clauses, all-or-nothing
contracting, and most-favored nation provisions)?
[cir] How prevalent are these contracting practices and which
parties seek to include them?
[cir] What are the procompetitive rationales for adopting these
provisions, and what are their potential anticompetitive effects?
[cir] To what extent might these practices affect incentives for
innovation in health plan pricing models?
What types of regulatory or legislative interventions may
enhance or undermine innovative network and benefit design strategies
(e.g., essential benefits and network adequacy requirements, any
willing provider legislation, price transparency legislation, or
prohibitions on certain provider-payer contracting practices)?
5. Early Observations of Health Insurance Exchanges
Most Americans receive health insurance through their employers. As
a result of the ACA, individuals without employer-sponsored coverage
can now purchase health insurance on public exchanges. Small group
employers also can utilize public exchanges to make coverage available
to their employees. In addition to public exchanges, private exchanges
created by private sector companies, such as health insurance companies
or consulting firms, also are emerging.
Comments regarding early observations of health insurance exchanges
might address the following types of questions:
How many and what types of plans are being offered on the
exchanges?
Who is buying on the exchanges and what types of plans are
they choosing?
[cir] Have actuarial values and other information created greater
transparency and helped consumers make meaningful decisions about the
health plans that they purchase?
[cir] What does evidence demonstrate about the use of narrow
provider networks in the exchange plan offerings?
How do the state-based exchanges differ from the federally
facilitated exchanges?
How have the exchanges and related regulatory developments
impacted competition in health insurance markets?
[cir] Have the exchanges had any impact on the pricing of health
insurance plans?
[cir] Has there been entry or exit from the individual health
insurance market as a result of the exchanges?
[cir] Have incumbent health insurers offered new types of products
or lowered their prices in response to competition from the exchanges?
[cir] What has been the competitive impact of the multistate plans
and cooperatives?
[cir] Have there been any discernible changes to concentration
levels in health insurance markets since the exchanges were introduced?
[cir] Have requirements like minimum benefits, medical loss ratios,
and guaranteed issue affected competition among health insurers?
How do the exchanges impact antitrust enforcement?
[cir] Is there potential for anticompetitive practices that may
undermine competition on the exchanges?
What are the recent trends in health insurance markets
(e.g., increased use of private exchanges, increasing self-insurance by
employers, employers migrating employees to public or private
exchanges, increased small-employer coverage)?
You can file a comment online or on paper. To be considered for the
workshop, comments in response to this notice should be submitted by
February 16, 2015. In addition, any interested person may submit
written comments in response to this notice and workshop discussions
until April 30, 2015. Comments should refer to ``Health Care Workshop,
Project No. P131207.'' Comments filed in electronic form should be
submitted using the following web link: https://ftcpublic.commentworks.com/ftc/examhealthcareworkshop and by following
the instructions on the web-based form. If this notice appears at
http://www.regulations.gov, you may also file an electronic comment
through that Web site. The Agencies will consider all comments that
regulations.gov forwards to them.
A comment filed in paper form should include the ``Health Care
Workshop, Project No. P131207'' reference both in the text and on the
envelope, and should be mailed to the following address: Federal Trade
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite
CC-5610 (Annex X), Washington, DC 20580, or delivered to the following
address: Federal Trade Commission, Office of the Secretary, 400 7th
Street SW., 5th Floor, Suite 5610 (Annex X), Washington, DC 20024. If
possible, submit your paper comment to the Commission by courier or
overnight service.
Please note that your comment--including your name and state--will
be placed on the public record of this proceeding, including on the
publicly accessible FTC and DOJ Web sites, at http://www.ftc.gov/os/publiccomments.shtm and http://www.justice.gov/atr/public/workshops/healthcare/2015/02/index.html. As a matter of discretion, the
Commission tries to remove individuals' home contact information from
comments before placing them on the Commission's Web site.
Because comments will be made public, you are solely responsible
for making sure that your comment does not include any sensitive
personal information, such as an individual's Social Security Number;
date of birth; driver's license number or other state identification
number, or foreign country equivalent; passport number; financial
account number; or credit or debit card number. You are also solely
responsible for making sure that your comment does not include any
sensitive health information, such as medical records or other
individually identifiable health information. In addition, comments
should not include ``trade secret or any commercial or financial
information which . . . is privileged or confidential,'' as discussed
in Section 6(f) of the Federal Trade Commission Act (``FTC Act''), 15
U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In
particular, do not include competitively sensitive information such as
costs, sales statistics, inventories, formulas, patterns, devices,
manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).
For any copyrighted material, please provide authorization (signed by
the publisher or author if they retain the copyright) so that the
material may be republished on the Agencies' Web sites.
The FTC Act and other laws that the Commission administers permit
the collection of public comments to consider and use in this
proceeding as appropriate. The Commission will consider all timely and
responsive public comments that it receives, whether filed in paper or
electronic form. More information, including routine uses permitted by
the Privacy Act, may be found in the FTC's privacy policy, available at
http://www.ftc.gov/ftc/privacy.htm.
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By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2015-01856 Filed 1-27-15; 8:45 am]
BILLING CODE 6750-01-P