Coordination or Consolidation? Accountable Care Organizations and Antitrust Policy Under the Medicare Shared Savings Program
Michael J. Montgomery
Volume 67, Issue 4, 1119-52
The U.S. health care system is expensive, fragmented, poorly organized, and fails too often to deliver high quality care that is both accessible and cost efficient. In 2014, Americans spent an estimated $3.1 trillion on health care, averaging $9695 per capita and accounting for 17.8% of gross domestic product (“GDP”). Over the course of the next decade, these figures are projected to increase by an average of 5.8% per year, reaching an estimated $5.4 trillion and 19.8% of GDP by 2024. In an effort to curb this unsustainable trend of rising health care costs, Congress enacted the Medicare Shared Savings Program (“MSSP”) in conjunction with the Affordable Care Act (“ACA”) in 2010. The MSSP created a Medicare framework for Accountable Care Organizations (“ACOs”), a new health care delivery model that promotes health care provider accountability, cost efficiency, and higher quality care. At the same time, the program raises serious antitrust concerns in that it facilitates horizontal integration between competitors, thus perpetuating increased concentrations of provider market power that allow providers to drive up health care prices. This Note argues that there is a need for increased vigilance on the part of Centers for Medicare and Medicaid Services in regulating ACOs participating in the MSSP to prevent the acquisition and exercise of pricing power. Antitrust enforcement alone remains an inadequate solution to the problem of provider market power and, accordingly, additional regulatory efforts are necessary to promote competition and, at the very least, mitigate and contain the anticompetitive effects of health care market consolidation under the MSSP.