Government impediments to the efficient provision of health care services in the United States are legion. While much recent attention has focused on the federal Patient Protection and Affordable Care Act, which by design reduces consumer choice and competition, harmful state law restrictions have long been spotlighted by the U.S. Federal Trade Commission (FTC) and the U.S. Department of Justice (DOJ). For example, research demonstrates that state “certificate of need” (CON) laws, which require prior state regulatory approval of new hospitals and hospital expansions, “create barriers to entry and expansion to the detriment of health care competition and consumers.”
Less attention, however, has been focused on relatively new yet insidious state anticompetitive restrictions that have been adopted by three states (North Carolina, South Carolina, and New York), and are being considered by other jurisdictions as well – “certificates of public advantage” (COPAs). COPAs are state laws that grant federal and state antitrust law immunity to health care providers that enter into approved “cooperative arrangements” that it is claimed will benefit state health care quality. Like CONs, however, COPAs are likely to undermine, rather than promote, efficient and high quality health care delivery, according to the FTC.
As the FTC has pointed out, federal antitrust law already permits joint activity by health care providers that benefits consumers and is reasonably necessary to create efficiencies. A framework for assessing such activity is found in joint FTC and DOJ Statements of Antitrust Enforcement in Health Care, supplemented by subsequent agency guidance documents. Moreover, no antitrust exemption is needed to promote efficient cooperative arrangements, because the antitrust laws already allow procompetitive collaborations among competitors.
While COPA laws are not needed to achieve socially desirable ends, they create strong incentives for unnecessary competitive restrictions among rival health care providers, which spawn serious consumer harm. As the bipartisan Antitrust Modernization Commission observed, “[t]ypically, antitrust exemptions create economic benefits that flow to small, concentrated interest groups, while the costs of the exemption are widely dispersed, usually passed on to a large population of consumers through higher prices, reduced output, lower quality and reduced innovation.” In short, one may expect that well-organized rent-seekers generally will be behind industry-specific antitrust exemptions. This is no less true in health care than in other sectors of the economy.
Legislators should not assume that competitive problems created by COPAs can be cured by active supervision carried out by state officials. Such supervision is difficult, costly, and prone to error, particularly because the supervised entities will have every incentive to mischaracterize their self-serving actions as welfare-enhancing rather than welfare-reducing. In effect, state supervision absent antitrust sanction may devolve into a form of ad hoc economic regulation, subject to all the imperfections of regulation, including regulatory capture by special interests.
A real world example of the difficulties in regulating COPA arrangements is outlined in a 2011 state-commissioned economic analysis (2011 Study) of the 1995 COPA agreement (NC-COPA) between the State of North Carolina and Mission Health Systems (MHS). In 1993 the State of North Carolina enacted a COPA statute, which grants federal and state antitrust immunity to parties that submit their cooperative agreements to active supervision by the State of North Carolina. In 1995, to forestall a DOJ antitrust investigation into the merger of the only two acute-care hospitals in Asheville, North Carolina, MHS, the parent of the acquiring hospital, sought and was granted a COPA by the State. (This COPA agreement was the first in North Carolina and the first in the nation.) MHS subsequently expanded into additional health care ventures in western North Carolina, subject to state regulatory supervision specified in NC-COPA and thus free from antitrust scrutiny. The 2011 Study identified a number of potentially harmful consequences flowing from this regulatory scheme: (1) by regulating MHS’s average margin across all services and geographic areas, NC-COPA creates an incentive for MHS to expand into lower-margin markets to raise price in core markets without violating margin cap limitations; (2) NC-COPA’s cost cap offers only limited regulatory protection for consumers and creates undesirable incentives for MHS to increase outpatient prices and volumes; and (3) NC-COPA creates an incentive and opportunity for MHS to evade price or margin regulation in one market by instead imposing price increases in a related, but unregulated, market. Moreover, the 2011 Study concluded that the NC-COPA was unnecessary to address competitive concerns attributable to the 1995 merger. The State of North Carolina has not yet responded to recommendations in the Study for amending the NC-COPA to address these ills. What the Study illustrates is that even assuming the best of intentions by regulators, COPAs raise serious problems of implementation and are likely to have deleterious unanticipated effects. State governments would be well advised to heed the advice of federal (and state) antitrust enforcers and avoid the temptation to substitute regulation for competitive market forces subject to general antitrust law.
In sum, state legislatures should resist the premise that health care competitors will somehow advance the “public interest” if they are freed from antitrust scrutiny and subjected to COPA regulation. Efficient joint activity can proceed without such special favor, whose natural effect is to incentivize welfare-reducing anticompetitive conduct – conduct which undermines, rather than promotes, health care quality and the general welfare.