Houston partner Robert Wolin authored an article, "Health Reform Collaborations, Beware–Sherman's Offense is Still Potent," which was published in the July 26, 2010, edition of Bloomberg Law Reports.
According to Wolin: "At first blush, it wouldn't seem that the National Football League (NFL) would have much in common with health care providers in the post-reform era. However, as the federal Patient Protection and Affordable Care Act's (PPACA) payment changes unfold through the implementation of medical homes, accountable care organizations, bundled payment arrangements, and value based purchasing, it is becoming clear that the current fragmented health care delivery system will be encouraged to and will need to collaborate, much as the 32 separately owned NFL teams do to produce a season of football. For example, PPACA's payment reforms are encouraging the replacement of the paradigm fee-for-service health care payment system with systems that will pay for care on a per episode of care basis or in a more holistic manner across many different types of providers and levels of care. These systems are coupled with mechanisms to hold providers accountable for the quality of care and the resources used to provide the care. These reforms will necessitate integration and continuing collaboration among providers."
Wolin's article continues: "Many collaborations, as the NFL recently experienced, are limited by Section 1 of the Sherman Act, which prohibits contracts, combinations, or conspiracies in restraint of trade. The Sherman Act carefully distinguishes between concerted action, or action among multiple parties, and independent action by a single entity. The conduct of a single entity is governed by Section 2 of the Sherman Act and is unlawful only when it threatens actual monopolization of a relevant market. As the Supreme Court recently noted in American Needle, Inc. v. National Football League, collaborative or concerted activities, on the other hand, are more strictly governed under Section 1 because concerted activity is 'inherently fraught with anti-competitive risk.'"
Wolin goes on to provide background on and details of the case, and the implications for health care providers considering joint ventures. He concludes: "Interest in promoting health care provider integration increased dramatically as health care reform was debated. Indeed, integration may well be integral and perhaps critical to bending the all-important health care cost curve as health care reform is implemented in the coming years. With the implementation of round one of health care reform, health care providers are beginning to position themselves for the integration required by health care reform and the new competitive environment. With the drive to integration, providers must carefully monitor their joint venture relationships, which can present some of the most difficult antitrust issues. In addition, before entering into relationships providers must also carefully consider whether other legal hurdles, such as Stark, Civil Monetary Penalties under 42 U.S.C. § 1320a–7a, anti-kickback and corporate practice of medicine laws will limit the providers' ability to integrate."