True story from 1985: a large, black bear who was minding his own business in Tennessee came across a duffle bag containing 40 packages of cocaine after an airborne smuggler dropped it. The poor bear promptly ingested $20M worth. Understandably, the funny, creative people of the world took this story and ran with it in Cocaine Bear. What is less funny but equally perplexing is the U.S. Department of Justice’s decision to suddenly withdraw three long-time health care antitrust enforcement policies. These non-binding guidance documents were never considered “the law” but were relied on for decades by the health industry as the parameters for acceptable information sharing between competitors. The DOJ claims that, given the dramatic changes in the health care landscape over the years, the statements are “overly permissive on certain subjects, such as information sharing” and announced its intention to evaluate mergers and conduct on a case-by-case basis. Rather than “Justice Department Withdraws Outdated Enforcement Policy Statements,” the DOJ’s press release headline could have been “Announcing Our Full Employment Act for Lawyers.” An impressive number of law firms (see just a sample here, here, here, here, here, here, here) immediately realized that no one, including them, knows exactly what this means (but everyone will need to hire them to figure it out). So we are quite curious about the impact of this move by the DOJ when there is a concerted effort by other parts of the government to encourage more health information exchange. It is like what one Cocaine Bear character says after seeing the bear ingest cocaine: “Let’s see what kind of effect it has on it.”
February 10, 2023 | 3 min read
February 10, 2023
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