The Federal Trade Commission is revamping a key tool in its arsenal to police competition across a plethora of industries, a development that could have direct implications for future healthcare deals.
In September, the FTC said it was expanding its retrospective merger program to consider new questions and areas of study that the bureau previously has not researched extensively.
One avenue it will zero in on is labor markets, including workers and their wages, and how mergers may ultimately affect them.
It's an area that could be ripe for scrutinizing healthcare deals, and the FTC has already begun to use this argument to bolster its case against anticompetitive tie-ups. Prior to this new argument, the antitrust agency — in its legal challenges and research — has primarily focused on how healthcare mergers affect prices.
The retrospective program is hugely important to the FTC as it is a way to examine past mergers and produce research that can be used as evidence in legal challenges to block future anticompetitive deals or even challenge already consummated deals.
"I do suspect that healthcare is a significant concern underlying why they decided to expand this program," Bill Horton, an attorney with Jones Walker LLP, said.
So far this year, the FTC has tried to block two proposed hospital mergers. The agency sued to stop a proposed tie-up in Philadelphia in February between Jefferson Health and Albert Einstein Healthcare Network.
More recently, the FTC is attempting to bar Methodist Le Boneheur in Memphis from buying two local hospitals from Tenet Health in a $350 million deal.
In both cases, the agency alleges the deals will end the robust competition that exists and harm consumers in the form of higher prices, including steeper insurance premiums, and diminished quality of services.
The agency has long leaned on the price argument (and its evidence) to challenge proposed transactions. However, recent actions signal the FTC will include a new argument: depressed wages, particularly those of nurses.
In a letter to Texas regulators in September, the FTC warned that if the state allowed a health system to acquire its only other competitor in rural West Texas, it would lead to limited wage growth among registered nurses as an already consolidated market compresses further.
As part of its arguments, the FTC pointed to a 2020 study that researched the effects on labor market concentration and worker outcomes.
Last year, the agency sent orders to five health insurance companies and two health systems to provide information so it could further study the affect COPAs, or Certificates of Public Advantage, have on price and quality. The FTC also noted it was planning to study the impact on wages.
Despite strong objections and evidence from the agency, numerous states have gone ahead and passed legislation to establish COPAs, which are designed to shield hospital mergers from any FTC enforcement in exchange for state oversight.
The agency did not mention effects on nurse wages when it sent a similar warning letter to state officials in Tennessee just a few years prior, further highlighting the new focus.
Noah Phillips, an FTC commissioner, confirmed workers and wage suppression were garnering more attention and standardized analysis at the FTC when he was asked during a webinar with law firm Dechert LLP in October.
FTC turned to review after string of defeats
A number of losses in the 1990s led the agency to conduct a hospital merger retrospective, Chris Garmon, a former economist with the FTC, said. Garmon has helped conduct and author retrospective reviews.
Between 1994 and 2000, there were about 900 hospital mergers by the U.S Department of Justice's count. The bureau lost all seven of the cases they attempted to litigate in that time period, according to the DOJ.
The defendants in those cases succeeded by employing two types of defenses. The nonprofit hospitals would argue they would not charge higher prices because as nonprofits they had the best interests of the community in mind. Second, hospitals tried to argue that their markets were much larger than the FTC's definition, and that they compete with hospitals many miles away.
Retrospective studies found evidence that undermined these claims. That's why the studies are so important, Garmon said.
"It really is to better understand what happens after mergers," Garmon said. It's an evaluation exercise, given many transaction occur prospectively or before a deal is consummated. So the reviews help the FTC answer questions like: "Did we get it right? Or did we let any mergers we shouldn't let through?"