House Judiciary Subcommittee Hears Testimony on the Impact of the Affordable Care Act on Health Care Competition

House Judiciary Subcommittee Hears Testimony on the Impact of the Affordable Care Act on Health Care Competition

A mere two weeks before the health insurance marketplaces created by the Patient Protection and Affordable Care Act (“ACA”) are scheduled to open for enrollment, the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Committee on the Judiciary heard testimony on the effect of the ACA on health care competition. Representatives from the American Hospital Association and America’s Health Insurance Plans, in addition to antitrust health care policy experts, presented varying views on this question, focusing particularly on the impact of the ACA’s encouragement of more integrated health care. The key witnesses presented both oral and written testimony expressing the following general positions:

  • Sharis Pozen, Partner at Skadden, Arps, Slate, Meagher & Flom LLP and former acting Assistant Attorney General of the U.S. Department of Justice, testified on behalf of the American Hospital Association (“AHA”) and cited a recent AHA study that the overwhelming majority of hospital mergers over the past six years are procompetitive and supportive of the twin goals of higher quality and more affordable health care.
  • Joe Miller, General Counsel for America’s Health Insurance Plans, testified that mergers of providers can substantially reduce competition and urged increased vigilance on the part of the antitrust enforcement agencies, including ongoing scrutiny of Accountable Care Organizations (“ACOs”).
  • Barack D. Richman, Bartlett Professor of Law and Business Administration at Duke University, argued that the formation of ACOs “run the specific risk of creating even more aggregation of pricing power in the hands of providers” and advocated for more policy instruments to protect health care consumers.
  • Thomas Miller from the American Enterprise Institute for Public Policy Research testified that the ACA does little to address provider monopoly power and resulted in a “defensive wave of consolidation” and anticompetitive strategies as “predictable responses.”
  • Professor Thomas L. Greaney, Chester A. Myers Professor of Law and Director of the Center for Health Law Studies at Saint Louis University School of Law, provided a contrary view testifying that the ACA in several ways may result in more competitive markets, but also cautioned that vigorous antitrust enforcement continued to be necessary.
  • David Balto, Attorney with the Law Offices of David A. Balto and former policy director of the Federal Trade Commission, advocated increased antitrust enforcement with respect to health plans, but also noted that antitrust enforcement is only a limited tool and that in some cases greater regulation may be necessary.
A full copy of each witness’s written testimony is available here.

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