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Conyers Presses the DOJ and FTC on Lack of Healthcare Antitrust Enforcement Congressman John Conyers

For Immediate Release
December 1, 2010
Contact: Nicole Triplett

(Washington)— In today’s Judiciary Subcommittee on Courts and Competition Policy Hearing on "Antitrust Laws and Their Effects on Health Care Providers, Insurers, and Patients," House Judiciary Committee Chairman, John Conyers, Jr. (D-Mich.) demanded the US Justice Department (DOJ) and the Federal Trade Commission (FTC) defend their records of antitrust enforcement in light of the over 400 health care mergers that have occurred in the past 10 years. Conyers noted the disconnect between President Obama’s promise to increase antitrust enforcement and the DOJ’s testimony that they had only taken three enforcement actions in the past year.

Chairman Conyers promised that in the next Congress he would continue to press for more robust action in this field and to exercise continued oversight. Below is the statement Mr. Conyers issued at the hearing.

Today’s hearing brings together two subjects that have been central to the work of this committee, and the House itself, this past Congress: reform of our health care system and strong, fair enforcement of our antitrust laws.

The health care reform bill that was passed last spring was not perfect, but it was a big step forward towards ensuring that all Americans have access to health care they can afford.

For our purposes today, the critical thing about the health care reform bill is that it depends very heavily on free market competition. Indeed, for all the complaints about purported "socialism" that during our health care debate, the bill that passed was in fact rather conservative, based on private insurance and existing health care markets. Indeed, the bill was very similar to health care proposals supported by Republicans in the past and enacted by Mitt Romney up in Massachusetts. But of course in many areas, our Republican friends do not seem so willing to support their own ideas once President Obama has accepted them.

In any event, because the bill relies on fair competition in a healthy, open marketplace, it is critical that our health care markets function well. And this, in turn, requires a level playing field for all participants in the market and evenhanded enforcement of our antitrust fair competition laws.

That is why this is such an important hearing and why I am so grateful Chairman Johnson has called these distinguished witnesses to explore with us whether antitrust law and antitrust enforcement is working well in the health care arena.  In particular, there are three points I hope our witnesses will address:

First, as many of you know, the insurance business, including health care insurance, is currently immune from antitrust under the McCarran-Ferguson law. The House, of course, has passed legislation to strip that immunity, but the Senate unfortunately has not seen fit to act on that. So how can we have a level playing field where the biggest strongest players – the health insurers – have a broad immunity from antitrust which other participants – such as doctors and hospitals – do not?

One approach here is the type of bipartisan legislation I have sponsored in the past – the Campbell/Conyers or Barr/Conyers Acts to give health care providers their own antitrust immunity. If we cannot repeal the insurers McCarran-Ferguson protection, why shouldn’t we give the folks at the other side of the table some protection of their own?

Second, even under existing law, are the rules truly being enforced in a fair and evenhanded manner? Many of us have heard that the antitrust enforcers are quick to go after providers, but hesitant to take action against the larger insurers. I know that the agencies have brought recent actions, including a very significant case against Blue Cross in my state. But, overall, is there any truth to the assertion that providers face stricter enforcement because they are easier targets? What data can DOJ and the FTC give us to shed some light on this question?

Finally, I understand that health care providers are frustrated with the amount of time it takes and money it costs for them to get guidance from the antitrust agencies. To hear the doctors tell it, on the one hand, they are told they must find new efficiencies and coordinate care with other providers. But on the other hand, they are told if they coordinate too closely, they will run afoul of the antitrust laws and find themselves in federal court. And worst of all, when they go to the agency and say "this is what we want to do – is it ok?" it takes more than a year to get an answer and costs more than $100,000.

Do the agencies agree that this is unacceptable? And what will they do to improve?

I look forward to hearing from our witnesses on these and the other important questions before us today.

 

 

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