The American Hospital Association has penned a 23-page letter asking the Federal Trade Commission and Justice Department not to finalize proposed adjustments to their merger guidelines.
The proposed changes to premerger notifications under the Hart-Scott-Rodino Act — which requires organizations to report large transactions to the FTC and Justice Department for antitrust review — reflect a "fundamental hostility to mergers," according to the AHA.
In a previous letter dated Sept. 5, the AHA alleged the proposed guidelines would require filing parties to submit more "arbitrary" information than the FTC and Justice Department could reasonably review in 30 days. The updated letter, addressed to Jonathan Kanter, assistant attorney general, and Lina Khan, chair of the Federal Trade Commission, expands on these concerns.
The FTC and Justice Department — addressed by the AHA as "the Agencies" — assert in the draft guidelines that the antitrust laws "reflect a preference for internal growth over acquisition." The AHA notes a discrepancy here, stating antitrust laws actually reflect a preference for competition to prevent monopolies.
Further, the AHA alleges the draft guidelines give the agencies too much discretion to derail a beneficial transaction; place too much weight on outdated cases while largely ignoring modern ones; and undervalue cost savings and other efficiencies, which are "often a major driver of hospital transactions and are materially beneficial for patients and surrounding communities."
The AHA disagrees that the guidelines would promote transparency. It alleges the agencies have taken steps away from transparency over the past two years by withdrawing healthcare statements and vertical merger guidelines, and pursuing "aggressive theories of harm" regarding market definition.
"Leaving health care providers without any particularized guidance on dozens of important issues has far reaching impacts on patients and communities that the Agencies never considered," the letter states. "Against this backdrop, the Agencies now offer draft merger guidelines that provide virtually no meaningful guidance to hospitals and health systems."
The AHA asks the agencies to focus on opportunities for incremental improvement rather than sharply departing from the "balanced," "bi-partisan" practices established by the 2010 horizontal and vertical merger guidelines.
"The Agencies should tread much more lightly," according to the AHA.
Read the full letter here.