Joint Operation is not a Merger: Did you know that a group of hospitals participating in a joint operating agreement was found to have engaged in concerted action in violation of antitrust law? In Med. Center at Elizabeth Place v. Atrium Health Sys., the court found that the hospitals were separately incorporated, maintained separate assets, and competed with each other for patients. Therefore, the hospitals were not a single entity, and could not avoid scrutiny under the federal antitrust laws. Moreover, the hospitals seem to have used their joint venture to keep another competitor out of the marketplace, by threatening physicians and insurers with financial loss if they were to do business with that competitor.
Licensing Boards: Did you know that there is a new Maryland law that brings Maryland into compliance with the antitrust requirements for licensing boards created by North Carolina Board of Dental Examiners v. Federal Trade Commission? In NC Dental, the U.S. Supreme Court found that state boards, on which a controlling number of decision-makers are active market participants in the occupation the board regulates, are immune from antitrust scrutiny if they: (1) follow clearly articulated State policy, and (2) are actively supervised by the State. Accordingly, the new law, which took effect June 1, 2017, gives the Department of Health and Mental Hygiene (DHMH) the authority to develop regulations to delegate authority to the Office of Administrative Hearings to review the merits of the proposed actions by DHMH licensing boards.
Leslie M. Cumber
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