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Health Care Efficiencies

Consolidation and Alternative Models vs. Health Care and Antitrust Regulation – Irreconcilable Differences?

Published online by Cambridge University Press:  06 January 2021

Michael W. King
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Abstract

Despite the U.S. substantially outspending peer high income nations with almost 18% of GDP dedicated to health care, on any number of statistical measurements from life expectancy to birth rates to chronic disease,1 the U.S. achieves inferior health outcomes. In short, Americans receive a very disappointing return on investment on their health care dollars, causing economic and social strain.2 Accordingly, the debates rage on: what is the top driver of health care spending? Among the culprits: poor communication and coordination among disparate providers, paperwork required by payors and regulations, well-intentioned physicians overprescribing treatments, drugs and devices, outright fraud and abuse, and medical malpractice litigation.

Fundamentally, what is the best way to reduce U.S. health care spending, while improving the patient experience of care in terms of quality and satisfaction, and driving better patient health outcomes? Mergers, partnerships, and consolidation in the health care industry, new care delivery models like Accountable Care Organizations and integrated care systems, bundled payments, information technology, innovation through new drugs and new medical devices, or some combination of the foregoing? More importantly, recent ambitious reform efforts fall short of a cohesive approach, leaving fundamental internal inconsistencies across divergent arms of the federal government, raising the issue of whether the U.S. health care system can drive sufficient efficiencies within the current health care and antitrust regulatory environments.

While debate rages on Capitol Hill over “repeal and replace,” only limited attention has been directed toward reforming the current “fee-for-service” model pursuant to which providers are paid for volume of care rather than quality or outcomes. Indeed, both the Patient Protection and Affordable Care Act (“ACA”)3 and proposals for its replacement focus primarily on the reach and cost of providing coverage for health care, rather than specifics for the delivery of health care.4 With the U.S. expenditures on health care producing inferior results, experts see consolidation and alternatives to fee-for-service as fundamental to reducing costs.5 Integrating care coordination and delivery and increasing scale to drive efficiencies allows organizations to benefit from shared savings and relationships with payors and vendors.6 Deloitte forecasts that, by 2024, the current health system landscape—which includes roughly 80 national health systems, 275 regional systems, 130 academic medical centers, and 1,300 small community systems—will morph into just over 900 multi-hospital systems.7

Even though health care market and payment reforms encourage organizations to consolidate and integrate, innovators must proceed with extreme caution. Health care organizations attempting to drive efficiencies and bring down costs through mergers may run afoul of numerous federal and state laws and regulations.8 Calls for updates or leniency in these laws are growing, including the possible recognition of an “Obamacare defense” to antitrust restrictions9 and speculation that laws restricting physicians from having financial relationships will be repealed, ostensibly to allow sharing of the rewards reaped from coordinated care.10 In the meantime, however, absent specific waivers or exemptions, all the usual rules and regulations apply, including antitrust constraints,11 physician self-referral12 and anti-kickback laws and regulations,13 state fraud and abuse restrictions,14 and more. In short, a maelstrom of conflicting political prescriptions, health care regulations, and antitrust restrictions undermine the ability of innovators to achieve efficiencies through joint ventures, transactions, innovative models, and other structures.

This article first considers the conflicting positions taken by the United States government with respect to achieving efficiencies in health care under the ACA and alternative delivery models, on the one hand, and health care regulatory enforcement and antitrust enforcement, on the other. At almost a fifth of the U.S. economy,15 health care arguably has grown ungovernable, exceeding the ability of any one law or branch of government to create or implement coherent reform. Indeed, the article posits that although the ACA reformed and expanded access to health care, it failed to transform the way health care is delivered beyond limited “demonstration projects”, leaving fee-for-service intact. Nonetheless, even with limited rather than revolutionary goals, the ACA still lacks sufficient authority across disparate branches of government to achieve its stated goals. The article then examines the conflicting positions of the various United States regulatory schemes and enforcement agencies governing health care, and whether they can be reconciled with the stated goal of the government, often referred to as the “Triple Aim”:16 improving quality of care, improving population health, and lowering health care costs. It examines fundamental, systemic challenges to achieving the “Triple Aim”: longstanding health care regulatory laws that impede adoption of innovative delivery systems beyond their current “demonstration project” status, and antitrust enforcement that promotes waste and duplication in densely populated areas, while preventing necessary consolidation to more efficiently reach rural areas. The article concludes with recommendations for promoting efficiency through modest reconciliation of the conflicting goals and regulations in health care.

Type
Articles
Information
American Journal of Law & Medicine , Volume 43 , Issue 4 , November 2017 , pp. 426 - 467
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2017

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References

1 Jason Kane, Health Costs: How the U.S. Compares with Other Countries, PBS (Oct. 22, 2012), http://www.pbs.org/newshour/rundown/health-costs-how-the-us-compares-with-other-countries/ [https://perma.cc/Z3NU-3BA9].

2 See discussion infra Sections I and I(A) for detailed statistical data.

3 Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).

4 Alison Kodjak, ‘Millions’ Fewer Would Have Coverage Under GOP Health Bill, Says CBO Analysis, NPR, (Sept. 25, 2017), http://www.npr.org/sections/health-shots/2017/09/25/553459455/-millions-may-lose-coverage-under-gop-health-bill-says-cbo-analysis [https://perma.cc/BE3J-7759].

5 Monica Noether & Sean May, Hospital Merger Benefits: Views from Hospital Leaders and Econometric Analysis, Charles River Associate (Jan.2017), http://www.crai.com/sites/default/files/publications/Hospital-Merger-Full-Report-_FINAL-1.pdf [https://perma.cc/2FPQ-KGZ4].

6 Achieving Health Care Efficiencies through Consolidation and Alternative Models: Irreconcilable Differences?, Brownstein Hyatt Farber Schreck (Feb. 9, 2017), https://www.bhfs.com/insights/alerts-articles/2017/achieving-health-care-efficiencies-through-consolidation-and-alternative-models-irreconcilable-differences- [https://perma.cc/WP7B-WKXL].

7 Ion Skillrud, Wendy Gerhardt & Maulesh Shulka, The Great Consolidation: The Potential for Rapid Consolidation of Health Systems, Deloitte (2014), https://www2.deloitte.com/us/en/pages/life-sciences-and-health-care/articles/great-consolidation-health-systems.html [https://perma.cc/XXF5-FR49]; see Lola butcher, Health Care 2020: Consolidation (HFMA, 2016).

8 Achieving Health Care Efficiencies, supra note 6.

9 Fed. Trade Comm'n v. Penn. State Hershey Med. Ctr, 185 F. Supp. 3d 552, 564 (M.D. Pa. 2016) (recognizing “a growing need for all those involved to adapt to an evolving landscape of healthcare that includes, among other changes, the institution of the Affordable Care Act, fluctuations in Medicare and Medicaid reimbursement, and the adoption of risk-based contracting”), rev'd on other grounds by 838 F.3d 327 (3d Cir. 2016).

10 Ayla Ellison, Stark Law: The 27-Year-Old Act Killing Healthcare Reform Before It Can Begin?, Becker's Hospital Review (Sept. 7, 2016), https://www.beckershospitalreview.com/legal-regulatory-issues/stark-law-the-27-year-old-act-killing-healthcare-reform-before-it-can-begin.html [https://perma.cc/32WH-5F6H].

11 Achieving Health Care Efficiencies, supra note 6.

12 Id.

13 Id.

14 Id.

15 David Morgan, Government Forecasts Modest Health Spending Growth, Reuters (June 12, 2012), http://www.reuters.com/article/us-usa-healthcare-spending/government-forecasts-modest-health-spending-growth-idUSBRE85B1DI20120612 [https://perma.cc/99WF-4ENU].

16 Achieving Health Care Efficiencies, supra note 6.

17 Ctrs. for Medicare & Medicaid Servs., NHE Fact Sheet, CMS, https://www.cms.gov/research-statistics-data-and-systems/statistics-trends-and-reports/nationalhealthexpenddata/nhe-fact-sheet.html [https://perma.cc/73JFX68S] (last updated June 14, 2017).

18 Id.

19 Id.

20 Id. See Ctrs. for Medicare & Medicaid Servs., National Health Expenditure Projections 2016-2025: Forecast Summary, CMS, https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/NationalHealthExpendData/Downloads/proj2016.pdf [https://perma.cc/PY25-7WJF].

21 National Health Expenditure Projections, supra note 20.

22 Michelle Long et al., Trends in Employer-Sponsored Insurance Offer and Coverage Rates, 1999-2014, The Henry J. Kaiser Family Found. (Mar. 2016), http://files.kff.org/attachment/issue-brief-trends-in-employer-sponsored-insurance-offer-and-coverage-rates-1999-2014-2 [https://perma.cc/9ER9-BHDU].

23 Jessica C. Barnett & Marina S. Vornovitsky, U.S. Dep't of Commerce, Health Insurance Coverage in the United States: 2015 1 (Sept. 2016).

24 Id.

25 Id.

26 Policy Basics: Where Do Our Federal Tax Dollars Go?, Ctr. on Budget & Pol'y Priorities, https://www.cbpp.org/research/federal-budget/policy-basics-where-do-our-federal-tax-dollars-go [https://perma.cc/B6RJ-ELAP] (last updated Oct. 4, 2017).

27 Id.

28 Philip Ellis, Deputy Assistant Dir., Health, Ret., & Long-Term Analysis Div., Cong. Budget Office, CBO's Analysis of Health Care Spending and Policy Proposals (Sept. 21, 2016), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/presentation/51994-healthcare.pdf [https://perma.cc/T2KU-NFMZ].

29 Juliette Cubanski & Tricia Neuman, The Facts on Medicare Spending and Financing, Henry J. Kaiser Family Found. (July 20, 2016), http://www.kff.org/medicare/issue-brief/the-facts-on-medicare-spending-and-financing/ [https://perma.cc/8GLW-2MGE].

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Cong. Budget Office, The 2016 Long-Term Budget Outlook 43 (July 12, 2016), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/51580-ltbo-one-col-2.pdf [https://perma.cc/XL6R-6SUU].

37 See Robert D. Reischauer & Alice M. Rivlin, Health Policy Issues and the 2016 Presidential Election, Brookings (Nov. 18, 2015), https://www.brookings.edu/research/health-policy-issues-and-the-2016-presidential-election/ [https://perma.cc/C2UV-GA6H].

38 42 U.S.C. § 18031 (2006).

39 See Anderson, Gerard & Hussey, Peter Sotir, Comparing Health System Performance in OECD Countries, 20 Health Aff. 219 (2001)CrossRefGoogle ScholarPubMed; Anderson, Gerard F. & Poullier, Jean-Pierre, Health Spending, Access, and Outcomes: Trends in Industrialized Countries, 18 Health Aff. 178 (1999)CrossRefGoogle ScholarPubMed; Anderson, Gerard F. et al., Health Spending and Outcomes: Trends in OECD Countries, 1969-1998, 19 Health Aff. 150 (2000)CrossRefGoogle Scholar; Anderson, G. F. et al., Health Spending in OECD Countries in 2004: An Update, 26 Health Aff. 1481 (2007)CrossRefGoogle ScholarPubMed; Anderson, Gerard F. & Frogner, Bianca K., Health Spending in OECD Countries: Obtaining Value per Dollar, 27 Health Aff. 1718 (2008)CrossRefGoogle ScholarPubMed; Anderson, Gerard F. et al., Health Spending in the United States and the Rest of the Industrialized World, 24 Health Aff. 903 (2005)CrossRefGoogle ScholarPubMed; Anderson, Gerard F. et al., It's the Prices, Stupid: Why the United States is so Different from Other Countries, 22 Health Aff. 89 (2003)CrossRefGoogle ScholarPubMed; Gerard F. Anderson & David A. Squires, Measuring the U.S. Health Care System: A Cross-National Comparison, Commonwealth Fund, June 2010, at 1; Reinhardt, Uwe E. et al., Cross-National Comparisons of Health Systems Using OECD Data, 1999, 21 Health Aff. 169 (2002)CrossRefGoogle Scholar; Reinhardt, Uwe E. et al., U.S. Health Care Spending in an International Context, 23 Health Aff. 10 (2004)CrossRefGoogle Scholar; David Squires, Explaining High Health Care Spending in the United States: An International Comparison of Supply, Utilization, Prices, and Quality, Commonwealth Fund, May 2012, at 1; Squires, David, The Global Slowdown in Health Care Spending Growth, 312 J. Am. Med. Ass'n 485 (2014)CrossRefGoogle ScholarPubMed; David Squires, The U.S. Health System in Perspective: A Comparison of Twelve Industrialized Nations, Commonwealth Fund, July 2011, at 1; see also Org. for Econ. Cooperation & Dev., Health at a Glance: OECD Indicators (2015); Org. for Econ. Cooperation & Dev., Focus Health Spending: OECD Health Statistics 2015 (July 2015), https://www.oecd.org/health/health-systems/Focus-Health-Spending-2015.pdf [https://perma.cc/8CN6-4M9V].

40 Elizabeth H. Bradley & Lauren A. Taylor, The American Health Care Paradox, Why Spending More is Getting us Less (2013).

41 OECD Health Statistics 2015, supra note 39.

42 See Bradley & Lauren, supra note 40; see also David Squires & Chloe Anderson, U.S. Health Care from a Global Perspective: Spending, Use of Services, Prices, and Health in 13 Countries, Commonwealth Fund, Oct. 8, 2015, at 1, 7.

43 Chronic conditions included hypertension or high blood pressure, heart disease, diabetes, lung problems, mental health problems, cancer, and joint pain/arthritis. See Robin Osborn et al., The Commonwealth Fund 2014 International Health Policy Survey of Older Adults, The Commonwealth Fund, Nov. 19, 2014, at 1.

44 See Freeman, Joseph D. et al., The Causal Effect of Health Insurance on Utilization and Outcomes in Adults: A Systematic Review of US Studies, 46 Med. Care 1023 (2008)CrossRefGoogle ScholarPubMed; see also U.S. Health in International Perspective: Shorter Lives, Poorer Health 78-84 (Steven H. Woolf & Laudan Aron eds., 2013).

45 Id. See Squires & Anderson, supra note 39, at 13.

46 OECD Health Statistics 2015, supra note 39.

47 Ali Veshi, For Facts Sake: U.S. Healthcare Lags Others, MSNBC, (July 18, 2017, 9:44 AM) https://www.nbcnews.com/business/velshi-ruhle/facts-sake-u-s-healthcare-lags-others-n782126 [https://perma.cc/3AWY-MGD7].

48 See Hadley, Jack, Sicker and Poorer—The Consequences of Being Uninsured: A Review of the Research on the Relationship between Health Insurance, Medical Care Use, Health, Work, and Income, 60 Med. Care Res. Rev. 3S (2003)CrossRefGoogle ScholarPubMed; see, e.g., Care Without Coverage: Too Little, Too Late, Inst. Med., May 2002, at 1, 7.

49 See, e.g., 26 U.S.C. § 5000A (individual mandate); 45 CFR 147.108 (pre-existing condition coverage) 26 U.S. Code § 4980H (employer mandate).

50 Current Procedural Terminology (CPT) code set is a medical code set maintained by the American Medical Association.

51 See generally 42 U.S.C. § 1395ww(d) (adopting the Prospective Payment System); Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System and Proposed Fiscal Year 2015 Rates, 79 Fed. Reg. 27,298 (May 15, 2014).

52 See, e.g., Berenson, Robert A. & Rich, Eugene C., U.S. Approaches to Physician Payment: The Deconstruction of Primary Care, 25 J. Gen. Internal Med. 613 (2010)CrossRefGoogle ScholarPubMed; Michael E. Porter & Robert S. Kaplan, How to Pay for Health Care, Harv. Bus. Rev. July-Aug. 2016, at 88; Amerling, Should the U.S. Move Away From Feefor-Service Medicine?, Wall Street J. (Mar. 22, 2015 11:00 PM), https://www.wsj.com/articles/should-the-u-s-move-away-from-fee-for-service-medicine-1427079653.

53 See Berenson & Rich, supra note 52.

54 See Inst. of Med., Report of a Study: A Manpower Policy for Primary Health Care (1978); see also World Trade Organization, Declaration of Alma-Ata: International Conference on Primary Health Care (Sept. 12, 1978).

55 Rushika Fernandopulle, Breaking The Fee-For-Service Addiction: Let's Move to a Comprehensive Primary Care Payment Model, Health Aff. Blog (Aug.17, 2015), http://healthaffairs.org/blog/2015/08/17/breaking-the-fee-for-service-addiction-lets-move-to-a-comprehensive-primary-care-payment-model/ [https://perma.cc/ZA5Y-UBRK]. See Berenson & Rich, supra note 52, at 7; Paul Demko, If Fee-For-Service is a Problem, What's the Solution?, Mod. Health Care (Feb. 25, 2015), http://www.modernhealthcare.com/article/20150225/NEWS/150229939 [https://perma.cc/X4TX-SSWY].

56 Fernandopulle, supra note 55.

57 See generally Brent C. James & Gregory P. Poulsen, The Case for Capitation, Harv. Bus. Rev., July–Aug. 2016, at 103.

58 See id. at 109.

59 Id. at 106.

60 Id.

61 U.S. Dept. of Health & Human Servs., Multiple Chronic Conditions Chartbook: 2010 Medical Expenditure Panel Survey Data (2014), https://www.cdc.gov/chronicdisease/overview/#sec3 [https://perma.cc/EZ5P-HQWT].

62 Death and Mortality, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/nchs/fastats/deaths.htm [https://perma.cc/H2TT-R3LL] (last updated May 3, 2017).

63 Joe Klein, The Long Goodbye, Time (June 11, 2012), http://time.com/735/the-long-goodbye/ [https://perma.cc/6JA7-R8QM].

64 Id.

65 Id.

66 Id.

67 Id.

68 Jessie Hellmann, GOP Healthcare Plans Push Healthcare Savings Account Expansion, Hill (Feb. 22, 2017 1:22 PM), http://thehill.com/policy/healthcare/320656-gop-healthcare-plans-push-health-savings-account-expansion [https://perma.cc/PWB8-8Y6D].

69 See James & Poulsen, supra note 57; Porter & Kaplan, supra note 52.

70 James & Poulsen, supra note 57, at 107.

71 Id. at 104.

72 Id. at 108.

73 Porter & Kaplan, supra note 52, at 90.

74 Id. at 91.

75 See Szostak, David C., Vertical Integration in Health Care: The Regulatory Landscape, 17 Depaul J. Health Care L. 65, 74 (2015).Google Scholar

76 Rob Garver, Hospitals Plot the End of Insurance Companies, Fiscal Times, Mar. 27, 2014, http://www.thefiscaltimes.com/Articles/2014/03/27/Hospitals-Plot-End-Insurance-Companies [https://perma.cc/CV8J-WWQJ]; see Szostak, supra note 75, at 72-73.

77 See Berenson & Rich, supra note 52, at 614-15 (describing the tension between the fee-for-services system pay structure as it relates to the facilitation of communication).

78 See Patient Protection and Affordable Care Act § 2705, 42 U.S.C. § 1315a (2010).

79 See id. § 1395.

80 Id. § 1396a.

81 Comprehensive Care for Joint Replacement, 80 Fed. Reg. 73,276 (Nov. 24, 2015) (to be codified at 42 C.F.R. pt. 510).

82 See Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), 42 U.S.C. §1305.

83 See Medicare Access and CHIP Reauthorization Act § 101a.

84 See id.

85 See id. § 101a-b.

86 Id. § 101c.

87 Julie Barnes, Moving Away from Fee-for-Service, The Atlantic (May 7, 2012), https://www.theatlantic.com/health/archive/2012/05/moving-away-from-fee-for-service/256755/ [https://perma.cc/HQS8-W55T].

88 See Patient Protection and Affordable Care Act § 2705, 42 U.S.C. § 1315a (2010).

89 See, e.g., Editorial, Looking Past the Obamacare Debate, N.Y. Times, Aug. 27, 2017, at SR8.

90 An Act Providing Access to Affordable, Quality, Accountable Healthcare, 2006 Mass. Acts 77.

91 See Patient Protection and Affordable Care Act § 2702.

92 Id. §§ 2702, 2714.

93 See id. § 5000a.

94 See id. § 2001.

95 Adam Liptak, Supreme Court Upholds Health Care Law, 5-4 in Victory for Obama, N.Y. Times, June 29, 2012, at A1.

96 See Patient Protection and Affordable Care Act § 1311.

97 Alec McGillis, Preface to Landmark: The Inside Story of America's New Health-Care Law and What it Means for us All 70, 73 (2010).

98 See Julie Brill, Comm'r, Fed. Trade Comm'n, Keynote Address at the National Summit on Provider Market Power, Promoting Healthy Competition in Health Care Markets: Antitrust, the ACA, and ACOS at 2 (June 11, 2013).

99 See id. at 3.

100 See Patient Protection and Affordable Care Act § 3022.

101 See Russell Berman, The Conservative Uprising Against the Republican Health-Care Bill, Atlantic (Mar. 6, 2017), https://www.theatlantic.com/politics/archive/2017/03/conservatives-revolt-against-gop-obamacare-repeal-replacement/518775/ [https://perma.cc/XWQ9-CNMS].

102 The American Health Care Act of 2017 (AHCA) (H.R. 1628), passed by the United States House of Representatives on May 4, 2017, constituted the first step in a three stage process to repeal the ACA. After passages by the House of Representatives, the AHCA bill was sent to the United States Senate for consideration. As a budget reconciliation bill, and as part of the 2017 federal budget process, the AHCA cannot be filibustered in the Senate and, accordingly, can be passed into law by the Senate with a simple majority. If passed, the AHCA would repeal the portions of the ACA that fall within the ambit of the federal budget, including the “individual mandate”, the employer mandate and a variety of taxes, and would largely reverse the expansion of the federal Medicaid program implemented by the ACA.

103 Meet the Press (NBC television broadcast Mar. 12, 2017), https://www.nbcnews.com/politics/first-read/hhs-sec-tom-price-nobody-will-be-worse-financially-under-n732376 [https://perma.cc/P4VJ-JSVT].

104 American Health Care Act, H.R. 1628, 115th Cong. § 205 (2017).

105 Id. § 104.

106 Matt Broaddus & Edwin Park, House Republican Health Bill Would Effectively End ACA Medicaid Expansion, Ctr. Budget & Pol'y Priorities (June 6, 2017), https://www.cbpp.org/research/health/house-republican-health-bill-would-effectively-end-aca-medicaid-expansion [https://perma.cc/YH2T-SAMT].

107 Cong. Budget Office, Cost Estimate: American Health Care Act (Mar. 13, 2017).

108 Carolyn Y. Johnson & Brady Dennis, How an $84,000 Drug Got its Price: ‘Let's Hold our Position…Whatever the Headlines, Wash. Post (Dec. 1, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/12/01/how-an-84000-drug-got-its-price-lets-hold-our-position-whatever-the-headlines/?utm_term=.656141d3b25e.

109 Robert Pear et al., In Major Defeat for Trump, Push to Repeal Health Law Fails, N.Y. Times, Mar. 25, 2017, at A1.

110 Stefan Becket, Health Care Vote: Paul Ryan Says Obamacare to Stay “for the Foreseeable Future,” CBS News (Mar. 24, 2017), https://www.cbsnews.com/news/no-health-care-bill-vote-ryan-obamacare-stay-foreseeable-future/ [https://perma.cc/F6KJ-4V29].

111 Mollie Reilly, Chuck Schumer Says Senate Democrats Are Open to Single-Payer Health Care, Huffington Post (July 23, 2017), https://www.huffingtonpost.com/entry/chuck-schumer-single-payer_us_5974b05be4b00e4363e0164e [https://perma.cc/NA45-QF3G].

112 Michael S. Sparer, “Medicare for All” is Democrats' New Rallying Cry. “Medicaid for More” Would be Even Better, Vox (Aug. 11, 2017), https://www.vox.com/the-big-idea/2017/8/11/16119292/medicare-for-all-medicaid-health-care-expansion [https://perma.cc/788L-DDRR].

113 Kocher, Robert et al., The Affordable Care Act and the Future of Clinical Medicine: The Opportunities and Challenges, 153 Annals Internal Med. 536, 538 (2010).CrossRefGoogle ScholarPubMed

114 Id.

115 Id.

116 Id. at 536.

117 Id. at 538.

118 Robert Lowes, Physicians Say White House Should Not Write Off Small Practices, Medscape Med. News (Aug. 24, 2010), https://www.medscape.com/viewarticle/727420 [https://perma.cc/5NQD-YJM5].

119 Id.

120 Bob Herman, Potential Insurance Mergers Could Spur More Provider Consolidation, Mod. Healthcare (June 20, 2015), www.modernhealthcare.com/article/20150620/MAGAZINE/306209961 [https://perma.cc/7U3E-9YC8].

121 Irving Levin Assocs., Inc., Announced Hospital Mergers and Acquisitions, 1998-2013, Am. Hosp. Ass'n, www.aha.org/research/reports/tw/chartbook/2014/chart2-9.pdf [https://perma.cc/3C7D-WFWX].

122 For example, 2014 included announcement of ninety-five hospital transactions. Molly Gamble, 2014: The Year of 95 Hospital Transactions – and more innovative ones at that, Becker's Hosp. Rev. (Feb. 10, 2015), www.beckershospitalreview.com/hospital-transactions-and-valuation/2014-the-year-of-95-hospital-transactions-and-more-innovative-ones-at-that.html [https://perma.cc/DX2G-LDLH].

123 Hospital Merger and Acquisition Activity Continues Upward Trend, According to Kaufman Hall Analysis, Advance Healthcare Network: Health Sys. Mgmt. (Jan. 24, 2017), http://health-system-management.advanceweb.com/hospital-merger-and-acquisition-activity-continues-upward-trend-according-to-kaufman-hall-analysis/ [https://perma.cc/A733-VZSM] (“There were 102 hospital merger and purchase transactions announced in 2016, an increase of 55% since 2010.”).

124 Hospital Merger and Acquisition Activity Continues to Climb, According to Kaufman Hall Analysis, Cision: PR Newswire (Apr. 19, 2017, 09:00 ET), http://www.prnewswire.com/news-releases/hospital-merger-and-acquisition-activity-continues-to-climb-according-to-kaufman-hall-analysis-300441445.html [https://perma.cc/9JE3-UBA2] (“The number of hospital and health system partnership transactions continued an upward trajectory in the first quarter of 2017, with an 8 percent increase from 25 to 27 transactions compared to the first quarter of 2016 …. The increase follows another year of continued growth, with transactions climbing from 66 announced deals in 2010 to 102 in 2016. The overall trend illustrates that healthcare organizations across the country continue to seek new efficiencies and capabilities for a transforming industry.”).

125 Ashley Gold, Despite Increasing Healthcare Consolidation, FTC Remains Wary, FierceHealthcare (Mar. 14, 2013, 1:01 PM), www.fiercehealthcare.com/story/despite-increasing-healthcare-consolidation-ftc-remains-wary/2013-03-14 [https://perma.cc/V2E3-M6CA].

126 Id.

127 Healthcare Mergers and Acquisitions in 2015: Running List, Healthcare Fin. (Dec. 21, 2015), http://www.healthcarefinancenews.com/slideshow/healthcare-mergers-and-acquisitions-2015-running-list [https://perma.cc/GFV9-EF9J].

128 See Bob Herman, Potential Insurance Mergers Could Spur More Provider Consolidation, Modern Healthcare (June 20, 2015), www.modernhealthcare.com/article/20150620/MAGAZINE/306209961 [https://perma.cc/8CHJ-SJD9].

129 United States v. Aetna Inc., 240 F.Supp.3d 1, 99 (D.D.C 2017). See Reed Abelson & Leslie Picker, Judge Blocks Aetna's $37 Billion Deal for Humana, N.Y. Times (Jan. 23, 2017), https://www.nytimes.com/2017/01/23/business/dealbook/aetna-humana-deal-blocked.html.

130 Rebecca Hersher, Aetna and Humana Call Off Merger After Court Decision, NPR (Feb. 14, 2017), http://www.npr.org/sections/thetwo-way/2017/02/14/515167491/aetna-and-humana-call-off-merger-after-court-decision [https://perma.cc/RMQ9-ACT2].

131 United States v. Anthem, Inc., 855 F.3d 345, 364 (D.D.C. 2017). See Brent Kendall & Anna Wilde Mathews, Appeals Court Affirms Decision Blocking Anthem-Cigna Merger, Wall Street J. (Feb. 14, 2017, 7:28 PM), https://www.wsj.com/articles/appeals-court-affirms-decision-blocking-anthem-cigna-merger-1493390311.

132 Victoria Pelham, Medicaid Overhaul Could Imperil Rural Health, Analysts Warn, Bloomberg BNA (May 23, 2017), https://www.bna.com/medicaid-overhaul-imperil-n73014451402/ [https://perma.cc/KM4X-XYEG].

133 North Carolina Mayor Walks to Washington to Bring Focus to ObamaCare's Effect on Rural Hospitals, Fox News: Pol. (July 28, 2014), http://www.foxnews.com/politics/2014/07/28/carolina-mayor-walks-to-washington-to-argue-administration-actions-help-closed.html [https://perma.cc/8H9F-LV83].

134 Id.

135 Vanderschuren, Marianne & McKune, Duncan, Emergency Care Facility Access in Rural Areas Within the Golden Hour? Western Cape Case Study, 14 Int'l J. Health Geographics 1, 2 (2015)Google ScholarPubMed, https://doi.org/10.1186/1476-072X-14-5 [https://perma.cc/J57X-72AS].

136 The story of St. Vincent's Hospital, a critical access hospital serving a mountainous rural area as the only hospital in Lake County and North America's highest city of Leadville, Colorado, is one such example. See Jack Queen, New Leadville Hospital Dealt Major Setback After Feds Withhold Loan, Summit Daily (May 23, 2017), http://www.summitdaily.com/news/new-leadville-hospital-dealt-major-setback-after-feds-withhold-loan/ [https://perma.cc/S6XB-ESN8].

137 See, e.g., Cal. Att'y Gen., Guide for Charities (2005); Mass. Office of the Att'y Gen, Attorney General Guidelines on Notice Requirements of G.L. c. 180, §8A(c); Ohio Att'y Gen., Handbook for NonProfits: An Operational Resource for Board Members of Charitable Organizations (Apr. 2015).

138 Jesse Cross-Call et al., House-Passed Bill Would Devastate Health Care in Rural America, Ctr. on Budget & Pol'y Priorities (May 16, 2017), https://www.cbpp.org/research/health/house-passed-bill-would-devastate-health-care-in-rural-america [https://perma.cc/YPH6-YNQK].

139 Id.

140 Id.

141 See discussion infra Section III(A).

142 Hospital Merger and Acquisition Activity, supra note 127.

143 Kocher et al., supra note 113, at 538.

144 See, e.g., Deborah L. Feinstein, Dir. Bureau of Competition, Fed. Trade Comm'n, Address at the Fifth National Accountable Care Organization Summit: Antitrust Enforcement in Health Care: Proscription, Not Prescription (June 19, 2014), https://www.ftc.gov/system/files/documents/public_statements/409481/140619_aco_speech.pdf [https://perma.cc/WQA4-UYEK] (discussing the role the FTC has in enforcing antitrust laws in the healthcare field). The Antitrust Division of the Department of Justice and state Attorneys General also recently have played a role in regulating health care mergers.

145 Kyle Cheney, Brett Norman & Sarah Wheaton, Hospital Consolidations: ‘The ACA Made Me Do It’—Inside Capitol Hill's Black Snack Market, Politico (Sept. 9, 2014, 10:03 AM), www.politico.com/tipsheets/politico-pulse/2014/09/hospital-consolidations-the-aca-made-me-do-it-inside-capitol-hills-black-snack-market-212543 [https://perma.cc/25AS-XWCF].

146 See, e.g., Liz Crampton, Hospital Merger Enforcement is a Uniting Issue at FTC, Bloomberg BNA (Mar. 28, 2017), https://www.bna.com/hospital-merger-enforcement-n57982085797/ [https://perma.cc/7HWS-CMJ4] (explaining that FTC challenges to hospital mergers are likely to continue and that “aggressive enforcement” of antitrust laws can be expected); Lisl J. Dunlop & Shoshana S. Speiser, The FTC Continues to Challenge Healthcare Mergers, Manatt (Jul. 24, 2017), https://www.manatt.com/Insights/Newsletters/Antitrust-Law/The-FTC-Continues-to-Challenge-Healthcare-Mergers [https://perma.cc/UQ32-P3V7] (contending that antitrust enforcement of hospital mergers continues to be a top priority for the FTC).

147 Edith Ramirez, Chairwoman, Fed. Trade Comm'n, Retrospectives at the FTC: Promoting an Antitrust Agenda, Address at the ABA Retrospective Analysis of Agency Determinations in Merger Transactions Symposium (June 28, 2013), https://www.ftc.gov/public-statements/2013/06/retrospectives-ftc-promoting-antitrust-agenda [https://perma.cc/YZR8-3LH2].

148 15 U.S.C. § 18 (2017).

149 Hart-Scott-Rodino Antitrust Improvements Act (HSR) of 1976, 15 U.S.C. § 18a (2017).

150 Id. § 18a(a).

151 Id. § 18a(a)(2).

152 Id.

153 Revised Jurisdictional Thresholds for Section 7A of the Clayton Act, 82 Fed. Reg. 8524 (Jan. 26, 2017) (to be codified at 16 C.F.R. §801-803 (2017).

154 Id.

155 Dale Collins, Agency Challenges to Non-HSR Reportable Transactions, Shearman & Sterling: Antitrust Unpacked (Aug. 15, 2011), http://www.shearmanantitrust.com/siteFiles/BlogPosts/006_nonhsr_challenges.pdf [https://perma.cc/5DS6-8GQU] (“Since January 1, 2001, the DOJ and FTC have challenged 24 non-HSR reportable transactions. Nineteen of these transactions fell below the minimum reporting threshold in effect at the time of the acquisition. The smallest of these transactions was $ 4.4 million. Of the five remaining transactions, three were covered by an HSR exemption, one did not involve the acquisition of voting securities or assets, and one had no public explanation. Twenty of the transactions were already consummated at the time: of the challenge, and four of the transactions were pending.”).

156 See, e.g., Fed. Trade Comm'n Premerger Notification Office, What is the Premerger Notification Program? An Overview (Mar. 2009).

157 See Richard B. Benenson & Kerry J. LeMonte, FTC's Focus on Healthcare Mergers and Consolidation, Colorado Law., Feb. 2016, at 15, 17 (2016).

158 15 U.S.C. § 1 (2017).

159 Federal Trade Commission Act (FTCA) of 1914, 15 U.S.C. §§ 41-58 (2017).

160 15 U.S.C. § 1.

161 Copperweld v. Independence Tube Corp., 467 U.S. 752 (1984) (holding that a corporation cannot form a combination or conspiracy in violation of Section 1 of the Sherman Act with its wholly owned subsidiary, establishing the “Copperweld Doctrine”).

162 See, e.g., Am. Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 195 (2010) (noting that, “while the president and a vice president of a firm could (and regularly do) act in combination, their joint action generally is not the sort of ‘combination’ that § 1 is intended to cover,” because “[s]uch agreements might be described as ‘really unilateral behavior flowing from decisions of a single enterprise.’”) (citation omitted); Weiss v. York Hosp., 745 F.2d 786, 814-15 (3d Cir. 1984) (hospital cannot legally conspire with its medical staff); McMorris v. Williamsport Hosp., 597 F.Supp. 899, 914 (M.D. Pa. 1984) (“It is generally agreed that officers, agents and employees of a business ‘are legally incapable of conspiring among themselves or with their firm in violation of Section 1.’”) (citations omitted).

163 Feinstein, supra note 144, at 4-6.

164 Id.

165 Id. at 6; see Gaynor, Martin, Competition Policy in Health Care Markets: Navigating the Enforcement and Policy Maze, 33 Health Aff. 1088, 1089 (2014)CrossRefGoogle ScholarPubMed (“Hospital mergers that create a dominant system can lead to very large price increases, even as high as 40–50 percent”).

166 Martin Gaynor, Letter to the Editor, Health Law and Antitrust, N.Y. Times, Feb. 18, 2014), at A22.

167 Pear et al., supra note 109.

168 Brill, supra note 98 (emphasis in original).

169 See, e.g., FTC v. Phoebe Putney Health Sys., 568 U.S. 216, 216 (2013) (challenged transaction reduced number of county's hospitals from 2 to 1); ProMedica Health Sys. v. FTC, 749 F.3d 559, 561 (6th Cir. 2014), cert. denied 135 S.Ct. 2049 (2015) (challenging a merger of two of the county's four hospitals); Press Release, Fed. Trade Comm'n, FTC and Pennsylvania Attorney General Challenge Reading Health Systems Proposed Acquisition of Surgical Institute of Reading (Nov. 16, 2012) (announcing challenge to proposed merger of area's only two hospitals); see also Competition in the Health Care Marketplace, Fed. Trade Comm'n, https://www.ftc.gov/tips-advice/competition-guidance/industry-guidance/health-care [https://perma.cc/V4HT-S4MK] (last visited Sept. 12, 2017) (FTC describing its role as stymying hospitals' anticompetitive conduct in order to protect consumers and improve health care quality).

170 U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines 32 (2010).

171 See Fed. Trade Comm'n v. Whole Foods Mkt., Inc., 502 F. Supp. 2d 1, 49 (D.D.C. 2007), overruled by Fed. Trade Comm'n v. Whole Foods Mkt., Inc., 548 F.3d 1028 (D.C. Cir. 2008) (defendants contending that the challenged merge would not be anticompetitive due to the firm being a weakened or “flailing” company); Fed. Trade Comm'n v. Tenet Healthcare Corp., 17 F. Supp. 2d 937, 947 (E.D. Mo. 1998) (“Defendants denominate DRMC a ‘flailing firm,’ presumably to distinguish their claimed defense from the ‘failing firm’ defense, which they concede does not apply in this case.”).

172 ProMedica, 749 F.3d at 572.

173 Feinstein, supra note 144, at 4.

174 Id. at 4-5.

175 Id.

176 Id. at 5.

177 Fed. Trade Comm'n, Building on a Strong Foundation: The FTC Year in Review (Apr. 2002).

178 In re Evanston Nw. Healthcare Corp. & ENH Medical Group, Inc., F.T.C No. 9315 (Aug. 6, 2007), 2007 WL 2286195.

179 Id.

180 In re Inova Health Sys. Found. & Prince William Health Sys., Inc., F.T.C. No. 9326 (June 17, 2008), 2008 WL 2556051 (order dismissing complaint).

181 Fed. Trade Comm'n v. OSF Healthcare Sys. & Rockford Health Sys., 852 F.Supp.2d 1069 (N.D. Ill. 2012).

182 In re Reading Health Sys. & Surgical Inst. of Reading, F.T.C. No. 9353 (Dec. 7, 2012) (order dismissing complaint).

183 Fed. Trade Comm'n v. Phoebe Putney Health Sys., Inc., 568 U.S. 216 (2013).

184 ProMedica Health Sys., Inc. v. Fed. Trade Comm'n, 749 F.3d 559 (6th Cir. 2014).

185 Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke's Health Sys., Ltd., 778 F.3d 775 (9th Cir. 2015).

186 The FTC is on a health care winning streak of late, racking up wins in hospital merger challenges.

187 15 U.S.C. § 18 (1996).

188 Anna Wilde Mathews & Brent Kendall, Antitrust Rulings Put Chill on Health-Insurance Mergers, Wall Street J. (Feb. 14, 2017), https://www.wsj.com/articles/cigna-calls-off-merger-with-anthem-1487104016.

189 See Saint Alphonsus, 778 F.3d at 781-82.

190 Id.; Brief of Appellants at 9-10, Saint Alphonsus Med. Ctr. v. St. Luke's Health Sys., 778 F.3d 775, 781-82 (9th Cir. 2015) (No. 14-35173), 2014 WL 2812656.

191 Mathews & Kendall, supra note 188, at 2.

192 Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke's Health Sys., Ltd., No. 12-00560, 2014 WL 407446, at *23-*25 (D. Idaho Jan 24, 2014).

193 Id. at *13-14.

194 Saint Alphonsus, 778 F.3d at 784-785, 788, 791-93.

195 Id. See Benenson & LeMonte, supra note 157, at 19.

196 Id. at 790.

197 Id.

198 Id.

199 Id. See Benenson & LeMonte, supra note 157, at 19.

200 Robert Pear, F.T.C. Wary of Mergers by Hospitals, N.Y. Times, Sept. 18, 2014, at B1.

201 See, e.g., id.; Julie Brill, Comm'r, FTC, Keynote Address at the 2014 Hal White Antitrust Conference: Competition in Health Care Markets (June 9, 2014) (“ACA neither requires nor encourages providers to merge or otherwise consolidate”).

202 Fed. Trade Comm'n v. Penn State Hershey Med. Ctr., 185 F. Supp. 3d 552, 564 (M.D. Pa. 2016), rev'd on other grounds 185 F. Supp. 3d 552 (3d Cir. 2016).

203 Id.

204 Id. (explaining that the district court applied a hypothetical monopolist test in an incomplete fashion in determining the relevant geographic market).

205 Horizontal Merger Guidelines, supra note 170, at 30 (“The Agencies will not challenge a merger if cognizable efficiencies are of a character and magnitude such that the merger is not likely to be anticompetitive in any relevant market.”). See, e.g., Perry, Jeffrey H. & Cunningham, Richard H., Effective Defenses of Hospital Mergers in Concentrated Markets, 27 Antitrust 43, 43 (2013)Google Scholar (“When substantiated – meaning that the evidence supports the notion that a hospital merger will improve the quality of care at the affected hospitals – such claims may well carry the day, overcoming high market concentration levels, ‘hot documents’, health plan concerns about a merger, and other factors that weigh in favor of enforcement.”).

206 In re Penn State Hershey Med. Ctr. & PinnacleHealth Sys., F.T.C. No. 9368 (Dec. 7, 2015), 2015 WL 9412611, at 16 (complaint).

207 See, e.g., Miles, John J., The Trump Administration and Antitrust Challenges to Hospital Mergers, 10 J. Health & Life Sci. L. 1, 7 (2017)Google Scholar (“A Trump Administration FTC may change this calculus, swinging the pendulum away from a disturbing possible interpretation of the Ninth Circuit's discussion of efficiencies in a successful challenge to St. Luke's Health System's acquisition of a large physician practice. There, the court held, or at least suggested, that better quality of care resulting from the merger would not constitute a cognizable efficiency because there was no evidence that it would improve competition. A Trump FTC may be inclined to determine, however, that as long as competition is based in part on quality, quality improvements would inherently further competition without the necessity of direct proof of that effect. The benefits of these efficiencies, it follows, would be passed on to consumers as the Merger Guidelines and court decisions require.”).

208 FTC v. Penn. State Hershey Med. Ctr., 838 F.3d 327 (3d Cir. 2016).

209 Crampton, supra note 146.

210 42 U.S.C. § 1395nn (2012).

211 Id. §1320a-7b.

212 See Medicare Program; Final Waivers in Connection with the Shared Savings Program; Final Rule, 80 Fed. Reg. 66,726, 66,743 (Oct. 29, 2015) (to be codified at 42 C.F.R. chs. IV and V) (explaining that ACO must remain in good standing under its ACO participation in order to enjoy waivers of the application of the physician self-referral law and the Federal anti-kickback statute).

213 See, e.g., N.Y. Public Health Law § 238-a (McKinney 2012).

214 See, e.g., N.M. Stat. Ann. § 30-41-3 (West. 2016) (providing only two statutory exemptions compared to the numerous federal safe harbors in the Federal Anti-Kickback Statute).

215 See generally 42 CFR § 411.355 (2016).

216 Id. § 411.353(b).

217 Id. § 411.354.

218 See generally id. § 411.355.

219 Id. § 411.355(a).

220 Id. § 411.355 (b).

221 Id. § 411.355(b)(3).

222 See id. § 411.355(b)(7) (specifying that referring physicians must provide notice to the patient regarding certain imaging services).

223 See generally Colo. Rev. Stat. § 25.5-4-414(2)(b) (2015) (explaining that exceptions under the federal Stark law are also considered as not violating the Colorado state self-referral prohibition statute).

224 Id. § 25.5-4-414(3).

225 Medicare Program; Physician's Referrals to Health Care Entities with Which They Have Financial Relationships (Phase III), 72 Fed. Reg. 51,012, 51,098 (Sept. 5, 2007) (to be codified at 42 C.F.R. pts. 411 and 424).

226 See U.S. ex rel. Parikh v. Citizens Med. Ctr., 977 F. Supp. 2d 645, 665-66 (D.C. Tex. 2013).

227 § 25.5-4-414(3).

228 42 U.S.C §1320a-7b (b) (2012).

229 See U.S. Dep't of Health & Human Servs., Office of Inspector Gen., OIG Advisory Opinion No. 13-18 (Nov. 27, 2013).

230 U.S. ex rel. Bartlett v. Ashcroft, 39 F. Supp. 3d 656, 676 (W.D. Pa. 2014).

231 See, e.g., United States v. Greber, 760 F.2d 68, 72 (3d Cir. 1985) (holding payments intended to induce referral constitutes Medicare fraud even if the payments were also for compensation of professional services).

232 See, e.g., Ohio Rev. Code Ann. §2913.40 (C) (2) (LexisNexis. 2014).

233 See, e.g., U.S. Dep't of Health & Human Servs., Office of Inspector Gen., OIG Advisory Opinion No. 11-08 (June 21, 2011).

234 See United States v. Robinson, No. 11-20645, 2013 WL 57901 (5th Cir. Jan. 4, 2013); Med. Dev. Network v. Prof. Respiratory Care, 673 So. 2d 565 (Fla. Dist. Ct. App. 1996); U.S. Dep't of Health & Human Serv., Office of Inspector Gen., OIG Advisory Opinion No. 10-14 (Sept. 8, 2010) (explaining that determination of applicability of safe harbor to certain arrangement must be made by examining totality of facts and circumstances); U.S. Dep't of Health & Human Servs., Office of Inspector Gen., OIG Advisory Opinion No. 98-1 (Mar. 25, 1998) (explaining one regulatory safe harbor protects certain arrangements if the contracts do not determine compensation based on volume or value of any referrals).

235 See 42 U.S.C. § 1395nn (2015).

236 See 42 C.F.R. § 1001.952 (2017).

237 42 C.F.R. § 411.352 (2015).

238 Id.

239 Id.

240 Id.

241 See 42 C.F.R. § 1001.952(a)(2)(i-viii).

242 Id.

243 See, e.g., United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 372 (4th Cir. 2015) (government intervened in qui tam action against health care provider for submitting false claims respecting physician reimbursement).

244 225 Ill. Comp. Stat. 60/3 (2017).

245 See Carter-Shields v. Alton Health Inst., 777 N.E.2d 948, 956 (Ill. 2002) (quoting Berlin v. Sarah Bush Lincoln Health Ctr., 688 N.E.2d 106 (Ill. 1997)).

246 See 805 Ill. Comp. Stat. 10/1-10/19 (2017); 805 Ill. Comp. Stat. 15/1-15/18 (2017); 805 Ill. Comp. Stat. 180/1-1-180/1-65 (2017).

247 See 210 Ill. Comp. Stat. 85/10.8 (2017).

248 See 225 Ill. Comp. Stat. 60/49 (2017).

249 See id.; Carter-Shields, 777 N.E.2d at 956.

250 See Drakeford, 792 F.3d at 377.

251 Medicare Program; Final Waivers in Connection with the Shared Savings Program, 80 Fed. Reg. 66,726 (Oct. 29, 2015).

252 Id. at 66,726. Notably, the final rule eliminated the waiver to the gainsharing civil monetary penalties because it determined that changes to the statutory gainsharing prohibition made a waiver unnecessary. Previously, the statute prohibited hospitals from knowingly paying physicians to reduce or limit services. The statute now prohibits hospitals from knowingly incentivizing physicians to reduce or limit only medically necessary care.

253 Id. at 66,728.

254 See 42 U.S.C. § 1395jjj(b)(2)(B) (2017); 42 C.F.R. § 425.200 (2017).

255 See Fraud and Abuse Waivers, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/Fraud-and-Abuse-Waivers.html [https://perma.cc/Z4YY-P6FX] (last modified July 28, 2017).

256 Id.

257 See Ellison, supra note 10.

258 Banking (Glass Steagall) Act of 1933, Pub. L. No. 73-66, 48 Stat. 162 (1933) (codified as amended in scattered sections of 12 U.S.C.).

259 The Gramm-Leach-Bliley Act (GBLA) of 1999 repealed Sections 20 and 32 of the Glass-Steagall Act of 1933. Pub L. No. 106-102, § 101, 113 Stat. 1338, 1341 (1999) (codified as amended in scattered sections of 12 and 15 U.S.C.).

260 See Pub. L. 73-66, 48 Stat. 162 (stated purpose of Glass-Steagall was “[t]o provide for the safer and more effective use of the assets of banks, to regulate interbank control, to prevent the undue diversion of funds into speculative operations, and for other purposes.”).

261 Simon Sinek, Leaders Eat Last: Why Some Teams Pull Together and Others Don't 240-41 (repl. rev. ed. 2017).

262 Id. at 242.

263 Proceed with caution: politically, similar efforts have, in the past, been branded as “death panels.”

264 Press Release, Fed. Trade Comm'n, FTC Challenges Proposed Merger of Two W. Va. Hospitals (Nov. 6, 2015), https://www.ftc.gov/news-events/press-releases/2015/11/ftc-challenges-proposed-merger-two-west-virginia-hospitals [https://perma.cc/P89P-XDB3].

265 Id.

266 Jeffery May, FTC Drops Challenge to West Virginia Hospital Merger, Wolters Kluwer (July 7, 2016), https://lrus.wolterskluwer.com/news/antitrust-law-daily/ftc-drops-challenge-to-west-virginia-hospital-merger/31743/ [https://perma.cc/8J22-L3D5].

267 See supra Section III.

268 Carl W. Hittinger & Tyson Y. Herrold, Presidential Powers and Antitrust Politics: Part One, Legal Intelligencer (July 28, 2017), http://www.thelegalintelligencer.com/id=1202794270895/Presidential-Powers-and-Antitrust-Politics-Part-One?slreturn=20170906151930 [https://perma.cc/5PMU-38CE].

269 Id.

270 See N. Sec. Co. v. United States, 193 U.S. 197 (1904) (affirming finding of lower court that merger was unlawful under the Sherman Anti-Trust Act).

271 See Hittinger & Herrold, supra note 268.