124 Annals of Health Law Vol. 25
with similar products.213 If insurers refuse to change the identified operations of concern, federal regulators could file for a preliminary injunction in federal court to block the deal.214 In evaluating the mergers, the DOJ and FTC establish product and geographic markets for both proposals. They evaluate the concentration of the defined markets, the competitive effect of the mergers, and the likelihood of new entrants into the market.215 The analysis considers both pro- competitive effects as well as anti-competitive effects.216 Pro-competitive effects include potential efficiencies obtained through the acquisition or increased ability to offer new or improved products. Anti-competitive effects include reduction in price competition potentially leading to higher prices, reduction in quality or increased barriers to new entrants into the market. Both pro-competitive effects and anti-competitive effects will aid in establishing the merger impact on the market.
C. Impact of Proposed Mergers
The American Academy of Family Practitioners (AAFP), the AMA, and the AHA have petitioned the DOJ to block the pending deals.217 Providers argue these proposed mergers will “impair access, affordability and innovation in the sell-side market for health insurance, and, on the buy side, will deprive physicians of the ability to negotiate competitive health insurer contract terms in markets around the country,” leading to detrimental results for consumers.218 Independent hospitals and physician groups already have limited negotiating leverage with insurers. For those who choose to remain independent, they are often forced to refuse contracts with insurers, leaving patients with out-of-network medical bills or forced to find new in-network providers.219 In contrast, some argue that providers have been consolidating for years and have the upper hand; therefore, to sustain competition in the market, these mergers should go forward.220 As providers consolidated to meet
213. Infantino, supra note 181. 214. Id. 215. DEP’T OF JUSTICE & FTC, STATEMENTS OF ANTITRUST ENFORCEMENT POLICY IN HEALTH CARE (Aug. 1996), https://www.ftc.gov/sites/default/files/attachments/competition- policy-guidance/statements_of_antitrust_enforcement_policy_in_health_care_august_ 1996.pdf [hereinafter DOJ & FTC, STATEMENTS]. 216. Id. 217. Jeffrey Young, Health Insurance Mega-Mergers Attract Powerful Enemy, HUFFINGTON POST (Nov. 11, 2015), http://www.huffingtonpost.com/entry/health-insurance- mega-mergers-attract-powerful-enemy_us_5643a001e4b0603773477931. 218. Id. 219. Herman, Providers Fear, supra note 75. 220. Editorial, The Case for Bigger Health Insurers, BLOOMBERG VIEW (July 8, 2015