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AID Acts on Capitol Hill

We have much to report about our recent activities at the nation's capital. Last month AID Executive Director Marni Jameson Carey went to Washington DC and met with officers at both the Federal Trade Commission and the Centers for Medicare and Medicaid on behalf of AID.

Last weekend, she participated remotely in two more meetings on the hill. On Saturday, she gave a Skype presentation to over 45 doctors who'd gathered for a meeting of Practicing Physicians of America, a coalition of doctor's organization that AID is part of. On Sunday, she collaborated with AID member Dr. Niran Al-Agba to create a presentation for the National Council on Healthcare Policy about the need for transparency in health-care costs, and provided an outline of our legislative asks, which was passed on to lawmakers.

Here is the first updates in three-part series sharing the highlights of these events.

FTC Meets with AID on Ways to Fight Mergers

One of the key ways AID works to stop health-care consolidation is to help the FTC investigate and block mergers that could reduce competition, raise costs, compromise care and hurt independent doctors. In October, Marni Carey met in Washington with three attorneys who work for the FTC's Bureau of Competition. Here are highlights of that meeting:

Current cases: Though FTC attorneys cannot comment on which cases they are investigating unless they file a complaint, which is public, they assured this: "If it's in the press, we're looking at it, even if we're not commenting publicly."

Included in that group are two proposed mergers that will directly affect AID members: The Greenville and Palmetto Health merger in South Carolina, and the St. Luke's and Blue Mountain merger in Eastern Pennsylvania. We have arranged for several AID members to speak to the FTC about these proposed mergers.

FTC's sweet spot: The FTC's primary focus is to enforce antitrust laws to protect competition. Thus, the attorneys are most interested in hearing examples of how two systems proposing to merge currently compete. That would help them prove that a merger would eliminate competition.

"We see a lot of mergers that don't eliminate head-to-head competition, so they can miss the mark," they said, adding this reminder: "Monopolies are not illegal."

No acquisition is too small if it violates antitrust law, they said. However, in cases that don't meet the agency's criteria, sometimes working with a state's attorney general can prove helpful. That office often has more latitude.

Matters of conduct, in which, say, a hospital engages in unseemly practices that hurt independent doctors, are typically handled by the Department of Justice.

How AID members can be heard: The FTC attorneys appreciate that AID provides access to a large group of independent doctors who can provide first-hand accounts of how certain hospital mergers or behaviors could potentially impact them. If you want to talk with the FTC about a prospective merger, call the AID office. Be thinking, specifically, of how you can prove the two systems currently compete. Again, for the FTC to pursue a case, attorneys need to tie it to a loss of competition.

About confidentiality: Although FTC attorneys prefer to work with cooperative third-party sources, that is, doctors who will speak on the record, they understand the professional risks that speaking out may pose. Thus, for doctors who want to keep their comments confidential, the agency can provide some cover if those doctors want to contribute to the investigation.

Here's the caveat. If a case goes to court, during the discovery process, the opposing side may ask for all source documents, including written letters or emails from doctors who might have preferred to remain anonymous. For that reason, calls are better than emails.

"We may have to disclose the names of those we talked to, but not the content of the telephone communication," the attorneys said.

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