Antitrust guideline withdrawal could dampen M&A, boost uncertainty for provider joint ventures

Editor's Note

In a move that could hinder provider-led joint ventures and increase regulatory uncertainty, The Federal Trade Commission (FTC) and Justice Department have withdrawn antitrust guidance issued in 2000. Modern Healthcare reported the news December 16.

Passed in a 3-2 vote the decision eliminates previously relied-upon safe harbors, including protections for affiliations with a combined market share of less than 20%, the outlet reports. Reasons for the move cited by the FTC include the guidelines’ outdated nature, omission of recent court rulings, and failure to address technological changes such as artificial intelligence and vertical integration strategies.

According to the article, uncertainty resulting from the withdrawn guidance could deter joint ventures and partnerships as well as increase the costs of collaboration. Without clear benchmarks for antitrust enforcement, healthcare organizations will likely require more legal oversight to evaluate risk.

The end of the safe harbor rule, which ensured regulators would not challenge affiliations with less than a 20% combined market share, is a key concern among stakeholders, Modern Healthcare reports. Healthcare attorneys caution that collaborations that previously fell within this threshold will now require greater scrutiny. For example, partnerships resulting in an 18% market share—once considered safe—may now face antitrust challenges. This uncertainty could stifle smaller collaborations, particularly at the margins.

Experts quoted in the article also highlighted risks to existing joint ventures. For example, the absence of clear antitrust guidance could prompt organizations to reconsider long-standing agreements that would not have drawn scrutiny under the prior rules.

As detailed in the article, some critics argue that withdrawing the guidelines so close to a political transition creates unnecessary disruption. Others view the withdrawal as a calculated effort to deter mergers and acquisitions without offering clear alternatives for compliance.