FTC orders health systems, insurers to hand over data for study

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The Federal Trade Commission has ordered two health systems and five healthcare insurers to turn over aggregated patient billing and discharge data, as well as employee wage and other information.

The FTC says the data is necessary for analyzing health systems’ prices, quality, access and innovation as part of the agency’s efforts to study the impact of hospital consolidation on employee wages and the effects of certificates of public advantage.

Certificates of Public Advantage (COPAs) are regulatory regimes adopted by state governments to displace competition among healthcare providers, and immunize mergers and collaborations from antitrust scrutiny.

Ballad Health in Johnson City, Tenn., and Cabell Huntington Hospital in Huntington, W.Va., are the two provider organizations on the receiving end of the FTC orders. The five health payers also ordered to hand over data are Aetna, Anthem, BlueCross BlueShield of Tennessee, Cigna and United Healthcare.

“The FTC intends to collect information over the next several years that will help FTC staff to conduct retrospective analyses of the Ballad Health and Cabell COPAs,” states the agency’s announcement. “Once the study is complete, the FTC intends to report publicly the study’s findings in a manner that is consistent with the FTC’s confidentiality rules.”

According to the FTC, it is interested in developing a better understanding of the actual benefits and harms associated with COPA. The initiative is meant to “enhance the agency’s knowledge of COPAs and inform future advocacy and enforcement” as well as “serve as a resource for state governments and stakeholders who may be considering using COPAs.”

Increasingly, states are leveraging COPAs so that certain hospital mergers can proceed despite clear antitrust concerns, with the intention that state regulatory oversight will address the effects resulting from the elimination of competition and enable the hospitals to achieve certain efficiencies.

In June, following an FTC public workshop on the issue, the American Hospital Association stated that while it takes no position on COPA such laws are “fueled in part by the agency’s overly harsh treatment of efficiencies claims made by merging hospitals.”

In response to the FTC’s orders for the two health systems and five insurers to provide data for the COPA study, AHA General Counsel Melinda Hatton commented that it’s “unfortunate that the FTC is adding to the cost of healthcare with an investigation when its own rigidity is at the heart of the attractiveness of COPAs for communities that rely on their hospitals to be there to provide essential care."

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