DOJ Antitrust, HHS Enter 2023 With New Memorandum of Understanding, Coordinated Enforcement

December 27, 2022

RELATED UPDATE: DOJ Withdraws ‘Out of Date’ Antitrust Enforcement Guidance Relating to Healthcare Providers (February 8, 2023)

On Dec. 9, 2022, the Antitrust Division of the U.S. Department of Justice (DOJ) and the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) signed a memorandum of understanding (MOU) to strengthen the collaborative relationship between the two agencies in order to enhance and maximize the effectiveness of federal antitrust and healthcare enforcement.

The MOU arose out of the agencies’ shared “interest in protecting Federal healthcare programs and the people they serve and promoting competition in healthcare markets, including through the protection of American healthcare consumers and workers” and in “holding individuals or entities accountable for violations of the law, while preventing further harm to the healthcare system and patients.” The MOU is also consistent with DOJ’s much-publicized prioritization of “rigorous antitrust enforcement in health care,” which has resulted in a sharp uptick in civil and criminal enforcement matters involving healthcare providers.

Under the MOU, the agencies will enhance enforcement efforts through greater coordination and information sharing, cross-agency training and outreach:

  • The MOU sets forth a cadence of quarterly or more frequent meetings and establishes that each agency will designate liaisons to facilitate expanded communication and coordination in specific areas, including “[a]pproaches to identifying and remedying anticompetitive conduct or deceptive trade practices that may implicate OIG’s exclusion authority and activities.” Because certain antitrust law violations by healthcare entities are grounds for exclusion by OIG from federal healthcare programs such as Medicare and Medicaid, the agencies have agreed that they will coordinate in determining how exclusion should figure into resolution of these matters. Healthcare entities resolving antitrust enforcement actions through plea agreements, deferred prosecution agreements, non-prosecution agreements or other types of agreements may find OIG playing a more direct role in these negotiations.
  • DOJ and OIG agreed to follow a formal protocol under which the agencies will make referrals of potentially illegal activity to each other to the extent that one agency uncovers information in the course of an investigation that would be of interest to the other, including information regarding “general patterns of conduct that may be anticompetitive or otherwise harm healthcare consumers, workers, or others.” Increased training of investigative teams, another initiative referenced in the MOU, may lead to more antitrust violations being detected in OIG investigations and vice versa.
  • The MOU also formalizes information sharing of complaints, investigative files, reports and other information and sets forth specific protocols for handling nonpublic information, including information subject to subpoenas and other requests for production.
  • In light of the different laws and regulations governing DOJ and OIG enforcement, the MOU states that each agency will provide the other with “technical assistance” in understanding how these laws and regulations apply, and in some instances, they will issue joint policy statements.

This MOU is the latest in a series of similar agreements DOJ has entered into with other government agencies, such as with the Department of Labor in March 2022 and the National Labor Relations Board in July 2022, as detailed in prior McGuireWoods alerts.

McGuireWoods’ antitrust, government investigation and white collar litigation, and healthcare teams have significant experience representing healthcare entities in government investigations and enforcement matters. The teams closely monitor developments in these areas and are available to respond to questions about how these initiatives may affect your business.