Leading up to the U.S. presidential election this November, our Antitrust & Competition team will offer thoughts and insights into what antitrust enforcement will look like under the next presidential administration. While there is at least some uncertainty regarding antitrust enforcement under either a Harris or Trump administration, there is no doubt that the current Biden administration has been extraordinarily active.
Healthcare has been one of the centers of this activity. As we have previously covered, the Biden administration has focused on the healthcare industry, which included launching “whole of government” policy initiatives, inquiries into private equity investment, enforcement actions, and a healthcare task force. The Biden administration has also proposed sweeping changes to the Hart-Scott-Rodino Antitrust Improvements Act (“HSR”) filing process that was first announced in June 2023. The proposed rule would greatly expand the breadth of information that merging parties in all industries must submit with premerger notifications. These changes are designed to provide the FTC and DOJ (the “Agencies”) with more information concerning private equity investments in particular, and would have a significant impact on the healthcare industry.
One would expect antitrust scrutiny of the healthcare industry to continue under a Harris administration, but the previous Trump administration was also aggressive in this space, and healthcare has been an enforcement priority at the Agencies for several years.
The key antitrust enforcement question we will be examining over the next couple of months is the likelihood that either administration would continue, further, or walk-back the various initiatives and ongoing enforcement actions by the Agencies, including the proposed HSR rules described above and the relatively new merger guidelines, and with respect to healthcare in particular, the withdrawal of the healthcare statements.
There are many factors at play here, including not just what the candidates are saying on the campaign trail, but also the leadership at the Agencies, potential contemplated transactions by major players, and regulatory and financial challenges facing the healthcare industry.
Moreover, we should keep in mind the focus on antitrust enforcement in healthcare has not been limited to the federal enforcement agencies. States have begun vigorously enforcing their own antitrust statutes and state legislatures have been busy giving their AGs more investigative and enforcement tools. Many states, such as Oregon, have recently enacted or have proposed enacting their own ”mini-HSR Acts” to review and potentially challenge transactions that could lead to consolidation in the healthcare industry. California recently proposed Assembly Bill 3129 that would require a private equity firm to provide written notice at least 90 days before closing on any deals involving healthcare facilities, provider groups, or providers.
We will continue to examine potential healthcare antitrust enforcement priorities under a Harris or Trump administration as we head toward the election this fall.