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Antitrust Healthcare Guidelines for Small Firm Counsel

October 24, 2023 (2 min read)
Federal Trade Commission text

Summary:

The complex world of healthcare antitrust, once dominated by massive mergers and conduct cases involving giant insurers and hospital chains, has expanded its reach to envelop even solo practitioners, small physician groups, and local community hospitals. Costly enforcement actions were formerly reserved for the "big fish" in the healthcare industry. But today, even the smallest minnows must grapple with antitrust scrutiny of their mergers, collaborations, joint ventures, pricing decisions, and strategic moves. For small firm counsel guiding these smaller clients through antitrust waters, developing expertise in this specialized area is now mandatory rather than optional. This article will explore key considerations and strategies for attorneys advising smaller healthcare entities facing a new antitrust reality.

Developing a Strong Antitrust Foundation

For small firm attorneys, getting up to speed on healthcare antitrust fundamentals is critical when partner resources are limited. Online resources like treatises and training available through Lexis+ or Lexis+ AI can help build a strong baseline understanding of antitrust law, economic principles, and healthcare regulatory schemes. Invest time early in developing literacy around core concepts – it will pay dividends when guiding clients.

Cost-Effective Risk Assessment

When advising smaller physician groups or providers on transactions and strategic decisions, small firm counsel must prioritize areas of highest antitrust risk. Broad discovery or exhaustive economic analysis may not be feasible. Focus risk assessment on market definition, deal implications for concentration, pricing power, barriers to entry, and other potential red flags. Use readily available data and analytical tools through Lexis+ to complement your analysis efficiently.

Leveraging Agency Precedent for Smaller Clients

Carefully track FTC/DOJ closing letters, consent decrees, and case resolutions involving healthcare entities comparable in size to your clients. The precedent can prove useful when structuring a small hospital merger or defending a local ACO arrangement. Having case examples from small entity matters can bolster your position with agencies.

Building Relationships with Specialists

For small firm lawyers, relationships with former DOJ/FTC attorneys and other top specialists are invaluable substitutes for in-house antitrust expertise. Network to find mentors who can provide informal guidance on nuanced matters. Proactively reach out to introduce yourself and describe your antitrust experience.

Avoiding Small Firm Overconfidence

While larger entities bear the brunt of scrutiny, small firm healthcare clients still face antitrust risk. Even small mergers or joint ventures can raise flags, and collusion/exclusionary conduct claims loom large. Develop affordable compliance steps like training webinars and audits focused on high-risk areas. Follow agency guidance for smaller entities. Avoid being lulled into a false sense of security.

With healthcare antitrust only growing in complexity, having resources like LexisNexis enables small firm counsel to provide sound legal advice rooted in precedent and the latest trends. Combining substantive analysis with pragmatic guidance, attorneys can empower smaller clients to make smart antitrust decisions and avoid missteps. Leverage the robust offerings available through Lexis+ and Lexis+ AI and Practical Guidance to tackle this murky area for the benefit of your clients.

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