Professional Documents
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Assistant Director, Health Care Presented at the "First Friday Forum" of the Alliance for Health Grand Rapids, Michigan
INTRODUCTION
I appreciate the opportunity to be here today to discuss federal antitrust enforcement involving hospital mergers. Members of my staff spent considerable time in and around this city two years ago when we challenged the merger between Butterworth Health Corporation and Blodgett Memorial Medical Center. As you all are aware, of course, we did not prevail in that challenge, and the merger has in fact taken place.(1) I do not intend to discuss that case specifically at any length, but to step back and take a look at the bigger picture -- to explain how we view hospital competition, and address some of the concerns we have heard expressed about the appropriateness of applying merger law to hospitals.(2) The increasing consolidation of hospital markets -- and the federal antitrust response to those consolidations -- are issues not only of significant interest in this community, but also of national concern. As we all are aware, antitrust enforcement in this area can raise complex and difficult issues. I know that some observers believe that we have not been sufficiently sensitive to some of these issues. On the other hand, I believe that many of the criticisms that have been leveled at our enforcement program are oversimplified, do not sufficiently acknowledge the range of consumer benefits that can flow from hospital competition, and do not recognize the breadth of our analysis or acknowledge the extent to which the facts of hospital competition in each market can differ. I would like to spend my time today examining some of these misconceptions. I am particularly happy to be able to speak to this group, not only to explain why we think preservation of competition among hospitals is important, but also to encourage you to continue to be actively involved in the changes taking place in the Grand Rapids health care market. Each hospital market is different, and in every case federal antitrust enforcement agencies have to analyze in depth the particular facts relating to the nature of hospital competition in that market. It is important for members of the local community to keep abreast of issues and developments affecting health care delivery in their communities, and to make their knowledge, experience, and views known to the enforcement agencies.
Before I get to the heart of my talk, I need to lay some groundwork by first briefly reviewing some of the changes that have marked hospital competition in recent years, and then summarizing the basic steps in the analysis that applies to all mergers the agencies consider, including hospitals.
occurred in the absence of any substantial government health care reform program and which has been generally attributed to market forces. Health care spending as a share of gross domestic product (13.6%) remained unchanged from 1993 through 1996. The rate of growth of those expenditures in 1996, 4.4% (or 1.9% after adjustment for inflation), was the lowest in 37 years.(6) The rate of growth in employer health care costs, which in the view of many threatened the ability of U.S. firms to compete in global markets, has been curtailed, and costs increased only slightly in 1997.(7) Industry observers credit the increased presence and activity of managed care plans (and the resulting competition in the insurance and provider markets), and the greatly increased enrollment of workers in such plans, for the slowdown in health care cost inflation.(8) Moreover, there appears to be growing empirical evidence that increased managed care penetration and increased managed care competition are associated with lower health care (including hospital) costs; that increased hospital concentration is associated with lower managed care penetration; and that increased hospital concentration is associated with higher hospital prices and a higher rate of increase in hospital costs.(9) Despite competitive pressures, most hospitals are in good financial condition. In fact, hospital profits increased significantly last year. According to the most recent data available from the American Hospital Association, aggregate hospital industry profits rose 24.7% in 1996 to more than $21 billion, setting new industry records. Total hospital revenues increased 4%, while expenses rose only 2.9%.(10) Data reported by the Prospective Payment Assessment Commission show that as a result of the financial pressures they face, hospitals have been able to reduce costs enough to improve their financial performance in recent years.(11)
merger may be felt in a narrower product market, such as primary care services, or the market for particular specialized services, such as obstetrics. Geographic market. Defining the geographic area within which competition takes place often is a difficult issue in hospital merger cases. Because employer health plans generally determine the price options that consumers face -both because the plans negotiate the prices, and because many plans incorporate financial incentives for patients to use certain providers -- we have to look at the likely responses of the health plans to a possible price increase, and at the effect their actions are likely to have on patient choice. Patients' choices, in turn, often are based on a number of factors, including the perceived quality of providers, distance to alternative suppliers, traditional loyalties, physician practice patterns, and the price (or effective cost to the patient). Market concentration and competitive effects. Market concentration is a function of the number of firms in the market and their respective market shares. The Merger Guidelines set market concentration thresholds at which concern about potential anticompetitive effects may arise that clearly are below the level at which we normally bring an enforcement action in hospital merger cases.(16) However, as the Guidelines themselves make clear, concentration is only the beginning of the analysis. First, factors such as changing market conditions, and the degree to which other suppliers are close substitutes for the merging parties, affect the extent to which changes in concentration resulting from the merger adequately predict the competitive significance of a merger.(17) Moreover, the critical question is whether the merger, in light of other market characteristics, is likely to have anticompetitive effects.(18) The analysis of this question includes examination of the nature of current and likely future competition in the market and the views of customers regarding the effects of the merger. In many cases, these factors will indicate that a hospital merger is not likely to threaten competition. Accordingly, most mergers that increase concentration are not challenged, or even extensively investigated, by the Commission staff. Likelihood of entry or repositioning of firms already in the market. The agencies also consider whether, if market prices were to rise as the result of a merger, new firms would be likely to enter the market, or to reposition themselves in a market they already serve, in a timely manner so as to deter or counteract the anticompetitive effects likely to flow from the merger.(19) In the case of hospitals, timely entry often is not likely because of certificate-ofneed restrictions and the delays associated with hospital construction. Efficiencies. The agencies also consider whether the merger would produce efficiency gains that could not practicably be achieved by the parties by other means and, if so, whether those gains likely would reverse the merger's potential to harm consumers. This could occur if the efficiencies generated by the merger would enhance the merged firm's ability and incentive to compete, resulting in lower prices, improved quality or service, or new products. For example, a merger might permit two weak hospitals to become a more effective competitor, or reduce costs in a way that lessens the hospital's incentive to raise price. However, where the potential adverse competitive effects of a merger are particularly large, extraordinarily great efficiencies would be necessary to prevent the merger from being anticompetitive. Under the Horizontal Merger Guidelines, efficiencies almost never would justify a merger to monopoly or near-monopoly.(20) Failing Firm. Finally, the agencies consider whether either party to the merger would be likely to fail in the absence of the merger, thus removing it from the market in any event. If so, the merger is not likely to impair competition that otherwise would exist.(21)
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The merger of the Blodgett and Butterworth hospitals clearly raised significant concerns under the standards just discussed. The two hospitals were the major institutions in the area, they were vigorous competitors of one another, and we thought the costs of lost competition would outweigh whatever efficiency benefits might result. Indeed, Judge McKeague in his opinion acknowledged that the Commission had established its prima facie case that the proposed merger would violate Section 7 of the Clayton Act, and that the hospitals would have substantial power over price in the market after the merger.(22) His refusal to enjoin the transaction was based on his belief that the merged entity,
because of its nonprofit status and the presence of community leaders on its board of directors, would not use that power to the detriment of consumers. I will address those issues in a moment. While my purpose today is not to reargue the Butterworth decision, I would like to briefly address one area of confusion that arose concerning the procedures involved in that case. In establishing the Federal Trade Commission in 1914, Congress intended that the Commission issue and adjudicate complaints, including complaints challenging mergers, through an administrative proceeding, rather than through the courts. Congress adopted this system on the premise that an expert agency would be best suited to adjudicate the variety of matters the Commission was authorized to consider, including particularly, difficult antitrust issues.(23) In 1973, Congress expanded the Commission's authority by allowing it to seek a preliminary injunction in federal court to prevent threatened violations of the law pending completion of administrative proceedings before the Commission. The injunction is intended to maintain the status quo and avoid the "scrambling" of assets, and thus to protect the Commission's ability to order effective relief, pending full resolution of the issues in the administrative forum, and to prevent interim harm to competition. The preliminary injunction is an aid to the administrative process rather than a substitute for it, and the hearing is not intended to be the vehicle for a definitive resolution of the underlying issues. Judge McKeague's opinion reflects a full understanding of this standard, and an expectation that administrative litigation could follow denial of the preliminary injunction. And the FTC's appeal of Judge McKeague's decision to the 8th Circuit involved only the propriety of his denial of the preliminary injunction; its decision did not purport to finally adjudicate the merits of the underlying case. Thus, the Commission's challenge to the merger in administrative litigation after the preliminary injunction was denied was not an effort to get a "third bite at the apple," but rather simply to seek, as Congress had intended, a full hearing on the merits which would allow for a more detailed consideration of the complex issues in the case. The Commission also has implemented rules, however, that allow it to reconsider whether it should proceed in a matter after a preliminary injunction has been denied.(24) As you know, in this case, after careful consideration, the Commission concluded that a further hearing would not be in the public interest, so it dismissed the administrative complaint, thereby allowing the merger to proceed.(25)
Misconception #1: The federal government has no legitimate interest in local hospital mergers.
Hospital mergers generally are distinctly local in nature, and some have argued that the federal government has little interest in such matters, and should leave whatever review is appropriate to the local community or to state officials. However, the federal agencies have several compelling reasons for taking an active part in ensuring vigorous local hospital competition.
The federal government's interest as a buyer. The federal government, of course, has a direct interest in hospital competition as a buyer: in 1996 it paid just over 50% of all hospital care expenditures (up from 17.3% in 1960 and 41.4% as recently as 1990), amounting to $181.6 billion.(26) With respect to Medicare, while prices are to a large extent set administratively under the traditional fee-for-service program (whereby hospitals are paid under a prospective payment system), Medicare beneficiaries derive direct benefits from hospital competition on quality, and from the ability to choose the hospital that best services their needs. Moreover, the government is attempting to move Medicare increasingly toward a competitive model. Medicare now offers beneficiaries in many areas the option of enrolling in HMOs that are paid by the government on a fixed, per-enrollee-per-month basis, and that generally offer more extensive benefits than the standard Medicare program. The level of benefits offered, if not the cost of the program in the short run, is directly determined by competition among health plans, which in turn requires competition among hospitals and other care providers. Medicare enrollment in such managed care plans increased 132% from 1992 to 1997, and now represents 14% of the total Medicare population.(27) The Congressional Budget Office has projected that Medicare beneficiary enrollment in managed care plans will increase from less than six million in 1998 to almost 11 million in 2002.(28) And competition among hospitals and other providers may be an important factor in the decision of Medicare HMOs to enter particular geographic markets.(29) The federal government likewise bears a major portion of the cost of state Medicaid programs. The states increasingly are moving Medicaid recipients into managed care plans paid on a per person or fixed-budget basis in an effort to provide better service at a lower cost. Enrollment in Medicaid managed care plans increased 170% from 1992 to 1997, and accounted for 40% of the total Medicaid population in 1997.(30) The federal government's interest in the overall economic impact of health care costs. More broadly, the federal government, and consumers throughout the nation, have a stake in hospital competition. Hospitals have a major impact on competition and costs in health care markets generally. Hospital costs are a large part of the overall health care costs, and hospitals often have additional competitive significance as the hub of health plans' provider networks. Aggregate health care costs and rates of increase in the past few decades are without question a national concern, as well as a concern of each local community. In the aftermath of the recent Congressional consideration, and rejection, of various nationwide health care reform proposals, it appears that we as a nation, at least for the present, have decided to rely on market forces, rather than extensive government oversight or operation of the health care system, as the principal means of regulating the hospital and other health care industries. The only alternatives to competition are private, unregulated market power or comprehensive government regulation. The latter course has been rejected; and the former course holds serious dangers for consumers and for the health of the economy generally. The federal government's interest in protecting consumers. The overriding national policy is that competition will govern the economy unless Congress creates a specific exemption from the antitrust laws, or a state clearly decides to displace competition with regulation and commits to actively reviewing private conduct undertaken pursuant to the regulatory scheme. Congress has not created an antitrust exemption for hospitals, and only a few states have adopted a regulatory system that might allow merging hospitals to seek state review that would preempt federal oversight.(31) It is sometimes suggested that antitrust enforcement concerning hospitals should be left to the states, on the assumption that state authorities are closer to the needs and concerns of the affected population. It is, indeed, our policy to cooperate with state enforcement officials whenever possible, and on a number of occasions we have brought antitrust actions jointly with state authorities. In general, however, state attorney general offices do not have the resources necessary to conduct an independent legal challenge to a proposed hospital merger. Consequently, responsibility for protecting the public interest in competition must, in most cases, fall to the federal authorities.
Misconception #2: Competition for Managed Care Contracts Does Not Benefit the Public.
In the Butterworth case, Judge McKeague stated that the price concessions obtained by managed care plans as a result of the competition between the two hospitals were "illusory" because they resulted in a shifting of costs to other payers, and that they were not entitled to the protection of the antitrust laws. (32) I strongly disagree with Judge McKeague's view that managed care contracting is simply a device to obtain favorable prices for a few selected groups of buyers, and is not of benefit to the public at large. On the contrary, it is primarily through managed care contracting that market forces currently are brought to bear on hospitals.(33) The existence of large, knowledgeable, and price-sensitive buyers, willing and able to shift patients among available providers, prompts hospitals to engage in a full range of activities to respond to these buyers, including finding ways to operate more efficiently, adopting innovative payment arrangements, and doing whatever is necessary to attract and retain business. In many areas, managed care plans are growing rapidly, and in some places cover a large percentage of the commercial population. And as I noted earlier, managed care techniques also are being applied increasingly to the Medicare and Medicaid programs. Moreover, the activities that hospitals undertake to improve quality and efficiency in response to managed care may very well create benefits for the rest of the population. I believe it is seriously short-sighted to dismiss managed care plans as the beneficiaries of favorable discounts at the expense of the rest of consumers. On the contrary, selective contracting is the mechanism that forces hospitals to operate more efficiently and to innovate. The very process of competing for customers against market rivals forces firms to become more productive, to increase product quality and service, and to reduce costs and margins -- to the benefit of the public as a whole. Clearly, existing managed care organizations have given rise to some criticisms and concerns. Many plans are evolving rapidly in response to these concerns, and to customer demands; those that do not will be forced out of the market by competitive forces. But managed care exists only because of the demand from employers, the ultimate payers, and it is increasing rapidly because it appears to have succeeded in significantly reducing the rate of increase in employers' health benefits premiums. The remedy for imperfections in existing managed care arrangements is to make the market work better, by providing more and better information to consumers, thereby permitting them to make better informed choices among providers and health plans. You in this audience are in the best position to demand the development of plans that address all your concerns (and those of your employees), including quality and service as well as price. Finally, competition among hospitals stimulates competition based on quality. As is recognized in the recent report of the President's Advisory Commission of Consumer Protection and Quality in the Health Care Industry, ongoing progress in developing mechanisms to measure and report quality differences among providers will permit competition based on quality to become a more important factor in choices made by health plans, other purchasers, and consumers.(34) Noting that increased value-based purchasing by health plans has the potential to stimulate quality improvement by providers generally, the report recommends using market forces to promote the nationwide quality improvement agenda it describes.(35)
In light of both the continuing flurry of hospital mergers and other types of collaborative activities, and the relative scarcity of litigated cases involving such conduct, it is doubtful that the threat of antitrust enforcement, much less its actuality, has had a negative effect on the level of such activities. The fact that we have challenged so few mergers, paradoxically, has given rise to the complaint in some quarters that our decisions to challenge some mergers are arbitrary, and fail to give sufficient guidance to hospitals that are considering merging. To some extent, I suppose, this is the inevitable result of the fact that our enforcement decisions are based on in-depth review of the market in question, and do not depend on any simple formula. Thus, simply looking at the basic facts of the number and size of the hospitals in a market is not enough to predict whether a merger would pose a significant danger to competition. Moreover -- in order to protect the persons from whom we obtain information, including both the parties to a merger under investigation and the third parties from whom we seek information -- we are prohibited from disclosing to the public much of the information upon which our decisions are based. Consequently, we typically cannot explain in detail why we challenged one merger, and let another proceed unopposed. On the other hand, I believe that informed antitrust counsel can predict with a great deal of accuracy the types of transactions that are likely to cause the most concern. Finally, it needs to be understood that the antitrust laws do not stand in the way of joint ventures short of merger that permit hospitals to achieve efficiencies without unnecessarily sacrificing competition among themselves. For example, our Health Care Policy Enforcement Guidelines explicitly sanction joint ventures among hospitals to provide a specialized clinical service or to purchase and operate expensive equipment that neither profitably could support individually.(36) Thus, in many cases it is possible for hospitals to cooperate in bringing new services into the community, while preserving competition for services that can profitably be provided competitively. Other types of collaboration -- for example, joint ventures to provide maintenance and support services, or to purchase supplies jointly -- rarely endanger competition, and thus do not raise antitrust issues, in most instances.
to go elsewhere helps assure that nonprofit hospitals provide what their customers actually demand, as that demand is expressed through their purchasing decisions. The absence of vigorous competition eliminates the most direct and powerful incentive for hospitals to serve consumers as efficiently and as well as they can. Community involvement in governance, no matter how dedicated, cannot duplicate these market forces.(42) The board may not be representative of all segments of the community, and community board members' views on what is best for the community may well differ from what those actually purchasing the services would prefer. Because it is not elected by the community at large, a non-profit Board also lacks the accountability that is present in government institutions. It is also very difficult for community board members to exercise detailed and on-going supervision of management actions; and in any event, board members owe a fiduciary duty to the hospital to put its interests first. This, of course, in no way is a reflection on the integrity or commitment to the public of leaders of nonprofit hospitals. The changes sweeping the health care market are the result of payers' demands for new ways of producing and coordinating services; new mechanisms for aligning the incentives of providers, payers, and patients; new methodologies for determining appropriate care and measuring its quality; and a lot of effort by hospitals, doctors and other health care providers -- all in the interest of providing high quality care more efficiently. These goals are difficult to realize, and require hard work. It is the fundamental premise of the antitrust laws that the presence of vigorous competitors in the market -- and not a "benevolent" hospital monopoly -- is the best way of ensuring that hospitals have the direct incentives to keep up with these market changes, innovate, and ultimately provide the best mix of price, quality and services for consumers.
Fourth, the commitments or orders usually are temporary. And drafting commitments to extend over longer periods is impractical because it is impossible to accurately foresee changes in the future that a commitment may need to address. Thus, in the absence of new entry, consumers eventually will be left in the unfettered power of the merged entity. Finally, some of the commitments contain provisions that are affirmatively anticompetitive, such as commitments to terminate individual price negotiations and charge all health plans the same price. For all of these reasons, I do not believe that "community commitments" are an adequate substitution for vigorous hospital competition.
Misconception #6: Mergers are essential to creating efficiencies and dealing with excess capacity.
In analyzing hospital mergers, we carefully consider the potential of efficiencies to benefit competition and thus consumers. The hospital industry is experiencing rapid and significant change, and there is excess capacity in many areas. In many cases, there is a significant potential for efficiencies that are likely to benefit consumers, and that is one of the reasons we decide not to challenge many mergers. At the same time, there are ample reasons for skepticism about many hospital efficiency claims. Over the last two decades, the hospital industry has succeeded in reaping extraordinary efficiency gains,(44) principally without mergers, and many of the efficiencies claimed in connection with planned consolidations could be achieved even in the absence of a merger. And while hospital mergers always involve consolidation of ownership, they often do not result in the kinds of consolidation of facilities that can be expected to produce significant efficiencies.(45) Furthermore, the economic literature suggests that, at best, the achievement of efficiencies from hospital consolidation is more difficult, and more costly, than anticipated, and is lagging well behind the consolidation of ownership, and market power, that flows immediately from mergers among direct competitors. For these reasons, some observers are concerned that a primary motivation for many mergers is to increase market power, rather than to increase efficiency,(46) and feel that antitrust scrutiny of mergers in highly concentrated markets is imperative.(47) Moreover, at some point, the danger of anticompetitive effects simply outweighs the benefits that can be expected to flow, even from mergers that can create substantiated real efficiencies. There can be no competition in any market without some duplication of facilities, and all mergers, even highly anticompetitive ones, can be expected to create some efficiencies. Efficiencies are of most direct benefit to consumers when they permit the merging parties to be more effective competitors or otherwise increase competition in the market. A related concern is that antitrust is preventing struggling firms from exiting the market gracefully. This concern also is misplaced. The law provides a defense to a merger enforcement action in the case of a firm that is failing financially. The requirements of this defense are quite strict, and it does not apply in most cases. But even if a firm is not failing according to the legal standard, the prospects (or lack thereof) that it will remain a vigorous competitor in the future is taken into account in our analysis of competitive effects. Thus, if a hospital is not likely to be a significant constraint on the behavior of other hospitals in the market, its acquisition by another hospital is not likely to have a significant anticompetitive effect. However, the mere fact that inpatient admissions may be declining, or that there is some excess bed capacity, does not mean that a hospital cannot survive, or that the public would not benefit from its remaining independent. Neither does the inability of current management to operate a hospital profitably necessarily indicate that the only viable alternative is a merger with a hospital operating in the same market. Where such claims are made, we carefully evaluate the actual competitive attractiveness of the hospital -- that is, the extent to which other potential purchasers have expressed interest in purchasing the facility and maintaining it as an independent institution. If an outside firm is willing to put its money into purchase and operation of a hospital as a independent entity, this is powerful evidence
that it is not, in fact, in danger of failure and market exit. In such cases, the public is likely to be better served by sale of the facility to another owner, than by elimination of competition in the market.
CONCLUSION
For the reasons I have described, assessment of the likely impact of hospital mergers can be particularly challenging. Market conditions are changing rapidly, and we will adapt our analysis and enforcement strategies as necessary to keep abreast of market realities. Our commitment is to maintain competitive markets where it is feasible to do so, so that consumers can have reasonable choice among providers, and enjoy the quality, services, and price benefits that flow from competition.
Endnotes
1. Federal Trade Commission v. Butterworth Health Corp., 946 F.Supp.1285 (W.D. Mich. 1996), aff'd without published opinion, 1997-2 Trade Cas. 71,863 (6th Cir. 1997). 2. As always, I am speaking only for myself, and my views do not necessarily reflect those of the Commission, any Commissioner, or the Bureau of Competition. 3. For discussions of recent changes in health care and hospital markets, see Managed Health Care Improvement Task Force, "Health Industry Profile," in Improving Managed Health Care in California, Vol. 3, 155-201 (1998); Congressional Budget Office, "Trends in Health Care Spending by the Private Sector" (April 1997); Prospective Payment Assessment Commission, "Hospital Payments, Costs, and Financial Condition," in Medicare and the American Health Care System: Report to the Congress 63-95 (June 1997); Frech, Competition and Monopoly in Medical Care 17-50 (1996); Zelman, The Changing Health Care Marketplace (1996); Etheredge et al., "What is Driving Health System Change," 15:4 Health Affairs 93 (1996). 4. Aggregate expenses in 1996 totaled $1.035 trillion. Levit et al., "National Health Expenditures, 1996," 19:1 Health Care Financing Review 161-62, 166 (1997). 5. While the employers and health plans that structure the health benefit plans and negotiate with providers are not the ultimate consumers of health services, it is often appropriate, in analyzing marketplace dynamics, to consider these parties as surrogates for consumers when they negotiate with providers and evaluate the alternatives available in the market. As the Supreme Court has stated:
Insurers deciding what level of care to pay for are not themselves the recipients of those services, but it is by no means clear that they lack incentives to consider the welfare of the patient as well as the minimization of costs. They are themselves in competition for the patronage of the patients -- or, in most cases, the unions or businesses that contract on their behalf for group insurance coverage -- and must satisfy their potential customers not only that they will provide coverage at a reasonable cost, but also that coverage will be adequate to meet their customers' [medical] needs.
FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 463 (1986). 6. Levit et al., "National Health Expenditures, 1996," 19:1 Health Care Financing Review 161, 162 (1997). 7. See, e.g., "Health-Care Inflation Kept in Check Last Year," Wall Street Journal, Jan. 20, 1998, at B1. However, there are some signs of an impending resurgence of significant health care cost increases. See "Health Care Inflation Revives in Minneapolis Despite Cost-Cutting," Wall Street Journal May 19, 1998, at A1; "Large Firms Paying More for Health Care," Washington Post Jan. 7, 1998, at D11. 8. See Congressional Budget Office, "Trends in Health Care Spending by the Private Sector," (1997); Prospective Payment Assessment Commission, Medicare and the American Healthcare System: Report to the Congress 19, 2526 (June 1997). 9. See, e.g., Dranove et al., "Determinants of Managed Care Penetration," forthcoming in Journal of Health Economics; Connor et al., "Which Types of Hospital Mergers Save Consumers Money," 16:6 Health Affairs 62 (1997); Manheim et al., "Local Hospital Competition in Large Metropolitan Areas," 3 J. of Econ. and Man. Str. 143 (1994); Dranove & White, "Recent Theory and Evidence on Competition in Hospital Markets," 3 J. Econ. and Man. Str. 169 (1994); Arnould et al., "The Role of Managed Care in Competitive Policy Reforms," in Competitive Approaches to Health Care Reform, Arnould, Rich, & White, eds, 83-109 (1993); Dranove, "The Case for Competitive Reform in Health Care" in Competitive Approaches to Health Care Reform, Arnould, Rich, & White, eds, 67-82 (1993); Zwanziger et al., "California Providers Adjust to Increasing Price Competition," in Health Policy Reform:
Competition and Controls, Helms, ed., 241, 254 (1993); Dranove et al., "Price and Concentration in Hospital Markets: The Switch from Patient-Driven to Payer-Driven Competition," 36 J. L. & Econ. 179 (1993); Melnick et al., "The Effects of Market Structure and Bargaining Position on Hospital Prices," 11 J. Health Econ. 217, 229 (1992). 10. "A fat year for hospitals," Modern Healthcare 2 (Jan. 12, 1998). See also "Nation's Hospitals the Picture of Health," Washington Post, Feb. 7, 1998, at H1 (noting that even teaching hospitals have flourished, with a median profit margin of 4.5% in 1996). 11. Prospective Payment Assessment Commission, Medicare and the American Health Care System: Report to the Congress 63, 82 (June 1997). 12. 15 U.S.C 18. 13. U.S. Department of Justice and the Federal Trade Commission, Horizontal Merger Guidelines (1992). This document, along with other materials concerning the Commission's enforcement mission and health care competition issues specifically, can be found on the Commission's website at http://www.ftc.gov. 14. Id. at 0.1-0.2. 15. The analysis covers not only firms currently producing goods or services in the market, but those firms that could quickly and easily begin to compete in the market in the event of a price increase resulting from the merger. Id. at 1.3. 16. See id. at 1.51. The Guidelines threshold for a highly concentrated market is one in which there are approximately 6 equally-sized firms. The hospital mergers that we have challenged involved markets with much higher levels of concentration. 17. Id. at 1.52. 18. Id. at 0.2, 2.0. 19. Id. at 0.2, 3. 20. Id. at 4. 21. Id. at 5. 22. 946 F. Supp. at 1294. 23. "One of the main reasons for creating the Federal Trade Commission and giving it concurrent jurisdiction to enforce the Clayton Act was that Congress distrusted judicial determination of antitrust questions. It thought the assistance of an administrative body would be helpful in resolving such questions and indeed expected the FTC to take the leading role in enforcing the Clayton Act, which was passed at the same time as the statute creating the Commission." Hospital Corp. of America v. FTC, 807 F.2d 1381, 1386 (7th Cir. 1986, cert. denied, 481 U.S. 1038 (1987). 24. Section 3.26(d) of the Commission's Rules of Practice, 16 C.F.R. 3.26(d). 25. Butterworth Health Corporation, Docket No. 9283 (order granting motion to dismiss complaint issued Sept. 25, 1997). 26. Levit et al., "National Health Expenditures, 1996," 19:1 Health Care Financing Review 161, 193 (1997).
27. Health Care Financing Administration, "Managed Care in Medicare and Medicaid," Fact Sheet, August 19, 1997. 28. "For PSOs, it's . . . ready, set, go!" Modern Healthcare 34, 36 (Nov. 24, 1997). 29. Prospective Payment Assessment Commission, Medicare and the American Health Care System: Report to the Congress 41 (June 1997). In the long run, competitive bidding arrangements across hospitals may also offer the opportunity for significant savings to the Medicare program. For example, a demonstration project involving a negotiated global price for all inpatient care for heart bypass patients saved the government and beneficiaries more than $17 million over 27 months at only 4 cites. Cromwell et al., "Cost Savings and Physician Responses to Global Bundled Payments for Medicare Heart Bypass Surgery," 19:1 Health Care Financing Review 41 (1997). 30. 48 states offer some type of Medicaid managed care plan. Health Care Financing Administration, "Managed Care in Medicare and Medicaid," Fact Sheet, August 19, 1997. See Prospective Payment Assessment Commission, Medicare and the American Health Care System: Report to the Congress 26-27 (June 1997). 31. See, e.g., Mont. Code Ann. 50-4-601, 50-4-605 (1995). 32. 946 F.Supp. at 1299. 33. Nor can I agree with Judge McKeague's conclusion that "hospitals are in the business of saving lives, and managed care organizations are in the business of saving dollars." Id. at 1302. Like all other businesses, including hospitals, managed care companies are in the business of providing that which their customers demand, and are in competition with one another to make high-quality, affordable health care available to consumers. 34. President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Quality First: Better Health Care for all Americans 75 (1998). 35. Id. at 92. 36. U.S. Department of Justice and the Federal Trade Commission, Statements of Enforcement Policy in Health Care 12, 31 (1996). 37. See, e.g., Sims, "A New Approach to the Analysis of Hospital Mergers," 64 Antitrust L. J. 633 (1996); Kopit and Vanderbilt, "Unique Issues in the Analysis of Non-Profit Hospital Mergers," 35 Washburn L.J. 254 (1996); Bazzoli et al., "Federal Antitrust Merger Enforcement Standards: A Good Fit for the Hospital Industry?" 20 J. Health Politics, Policy & Law 137 (1995). 38. See Federal Trade Commission v. Butterworth Health Corp., 946 F.Supp.1285 (W.D. Mich. 1996), aff'd without published opinion, 1997-2 Trade Cas. 71,863 (6th Cir. 1997); FTC v. University Health, Inc., 1991-1 Trade Cases 69,400 (S.D. Ga.) and 1991-1 Trade Cases 69,444 (S.D. Ga.), rev'd, 938 F.2d 1206 (11th Cir. 1991); U.S. v. Long Island Jewish Med. Center, 983 F. Supp. 121 (E.D.N.Y. 1997); Federal Trade Commission v. Freeman Hospital, 1995-1 Trade Cas. 71,037 (W.D. Mo.), aff'd, 69 F.3d 260 (8th Cir. 1995); U.S. v. Carilion Health System, 707 F.Supp. 840 (W.D. Va.), aff'd without published opinion, 1989-2 Trade Cas. (CCH) 68,859 (4th Cir. 1989). 39. For example, some nonprofit hospitals may have governing boards with significant representation of local employers, while other hospitals may be part of religious or other nonprofit chains that are controlled outside the local community. These differences also may be reflected in pricing behavior. 40. Lynk, "Nonprofit Hospital Mergers and the Exercise of Market Power," 38 J. of Law & Econ. 437 (1995).
41. Simpson, J. and R. Shin, "Do Nonprofit Hospitals Exercise Market Power?" Federal Trade Commission Working Paper No. 214, December 1996, accepted for publication by International Journal of Economics and Business; Keeler, E. B., G. Melnick, and J. Zwanziger, "The Changing Effects of Competition on Non-Profit and For-Profit Hospital Pricing Behavior," June 1997, mimeo, accepted for publication by Journal of Health Economics; Dranove, D. and R. Ludwick, "Competition and Pricing by Nonprofit Hospitals: a Reassessment," November 1997, mimeo, accepted for publication by Journal of Health Economics. 42. In making these general observations, I am not commenting, of course, on any of the activities of the new Spectrum Health Board, with which I am generally unfamiliar. 43. Prospective Payment Assessment Commission, Medicare and the American Health Care System: Report to the Congress 87 (June 1997). 44. See Prospective Payment Assessment Commission, Medicare and the American Health Care System: Report to the Congress 7-8, 22-25 (June 1997). 45. See Fubini and Limb, "The Ties that Bind," Health Systems Review 44 (Sept./Oct. 1997); Wicks et al., "Assessing the Early Impact of Hospital Mergers" (1998). 46. See, e.g., Ballit, "Ominous Signs and Portents: A Purchaser's View of Health Care Market Trends," 16:6 Health Affairs 65 (1997). 47. Id.; Wicks et al., "Assessing the Early Impact of Hospital Mergers" (1998). 48. See, e.g., "Cash rich and ready to deal; not-for-profit systems poised to gobble up market competitors," Modern Healthcare 27-28 (Jan. 5, 1998). 49. Columbia Hospital Corporation/Galen Health Care, Inc., C-3472, 116 F.T.C. 1362 (1993) (consent order); Columbia/HCA Healthcare Corporation/Healthtrust, Inc. - The Hospital Company, C-3619, 61 Fed. Reg. 33,509 (June 27, 1996) (consent order); Tenet Healthcare Corporation/OrNda Healthcorp., C-3743, 63 Fed. Reg. 3748 (January 26, 1998) (consent order).