In an ironic turn, the federal government, which regulates much of health care, is taking steps to investigate why the industry is so uncompetitive.
Teaming up with the Federal Trade Commission (FTC) and the U.S. Department of Health and Human Services (HHS), the U.S. Department of Justice launched an online portal, HealthyCompetition.gov, the agencies say will allow “the public to report potentially unfair and anticompetitive health care practices to the FTC and the Justice Department’s Antitrust Division,” on April 24.
“All too often, we hear how unfair methods of competition and monopolistic practices may be depriving Americans of access to affordable, high-quality healthcare,” said FTC chair Lina M. Khan, in a statement. “This joint initiative between FTC, DOJ, and HHS will provide a crucial channel for the agencies to hear from the public, bolstering our work to check illegal business practices that harm consumers and workers alike.”
Looking for Monopolies
Khan’s statement and her agency leave little doubt that a complaint submitted to the portal is the first step in a process that could lead to a full-scale investigation of the alleged anticompetitive practice.
“Complaints will undergo preliminary review by staff at the FTC and Justice Department, Antitrust Division,” the FTC states. “If a complaint raises sufficient concern under the antitrust laws and is related to HHS authorities, it will be selected for further investigation by the appropriate agency. This action may lead to the opening of a formal investigation.”
The DOJ Antitrust Division cites four federal statutes it says “ensure healthy competition.” They include the Sherman Act, “which prohibits certain agreements between companies that harm competition. It also prohibits companies from unlawfully gaining or maintaining monopoly power.” The other statutes are the Clayton Act, which regulates mergers, the Federal Trade Commission Act, which bans unfair competition or deception, and the Robinson-Patman Act, which forbids price discrimination by sellers.
Examples of Complaints
The DOJ Antitrust Division gives examples of complaints it would be interested in reviewing. They include “consolidation, joint ventures, and ‘roll-ups,’” the limitation of choice and fair wages to health care workers, collusion and or price fixing among competitors, the prevention of transparency, contracts that restrict competition, “anticompetitive” uses of health care data, and “Unnecessary Healthcare Provider Recertification or Accreditation Requirements.”
Alerting its members to the opportunity for input into federal enforcement actions, the Arizona-based Association of American Physicians and Surgeons (AAPS) urged them to “expose the onerous, counterproductive, and harmful mandates and policies imposed by entities, like the American Board of Medical Specialties (ABMS), and their member boards, that control specialty board certification and recertification for physicians.”
Anticompetitive Pandemic Actions
During the COVID-19 pandemic, doctors who questioned government-ordered lockdowns, school closures, mask and vaccine mandates, and suppression of readily available treatments, such as ivermectin, were threatened with loss of certification in their medical specialty.
For example, renowned cardiologist Peter McCullough, M.D. was stripped of his medical credentials in 2022 after speaking out against policies imposed during the pandemic.
What’s more, the FTC may have engaged in anticompetitive practices of its own during the pandemic. On October 28, 2021, the FTC sued Xlear, a Utah-based company, for claiming its over-the-counter xylitol-based nasal sprays could help prevent and treat COVID-19.
The FTC has sought to stop the company from making such claims and has imposed monetary penalties on the company. Yet, in September 2023, nearly two years after the FTC’s action, Xlear’s attorney, Rob Housman, told Health Care News “The FTC has produced no studies to rebut the studies Xlear has provided the government.”
‘Only Enormous Enterprises Can Comply’
Given this history, some may be reluctant to submit unwelcome complaints to the government.
Jane Orient, M.D. executive director of the AAPS, sees government policies behind much that stifles competition in the healthcare sector.
“Anticompetitive practices are destroying American medicine,” said Orient. “So far, the federal government has done nothing to contain them but instead encourages them through regulations that only enormous enterprises can comply with. It is trying to force people into managed care. It exempts big actors, such as pharmacy benefits managers, from anti-kickback laws that cripple small practices.”
Enforcement of government policies is often delegated to unaccountable groups, says Orient.
“Supposedly private entities like specialties boards with quasi-government powers crush independent practitioners with demanding, costly requirements that do nothing to improve patient care,” said Orient.
Consumer Welfare Ignored
The U.S. health care system needs a radical overhaul, but Biden administration antitrust policy is making the situation worse, says Jeff Stier, a senior fellow at the Consumer Choice Center.
“Short of a complete repeal of Obamacare, tort reform, and an end to the war against profitable, innovative pharmaceutical and medical devices companies, one of the few options to rein in health care costs is consolidation,” said Stier. “Unfortunately, FTC chair Lina Khan has made it clear that she does not respect the longstanding antitrust litmus test, the consumer welfare standard.”
Khan is focused on the size and number of competitors, rather than how the structure of a market serves consumers, says Stier.
“In practice, this means that rather than allowing a large but struggling company to be bought by a competitor and preserve customer choice, the Biden administration would rather see the company shut down,” said Stier. “That’s why Khan blocked the Jet Blue-Spirit Airlines merger, among others. If you want your future health care experiences to be as competitive as Spirit Airlines, you have got this Biden administration move to thank.”
Bonner Russell Cohen, Ph.D. (bcohen@nationalcenter.org) is a senior fellow at the National Center for Public Policy Research.
