On December 9, 2022, the Department of Justice Antitrust Division (DOJ) and the Office of the Inspector General (OIG) of the Department of Health and Human Services (HHS) announced they are joining forces to protect healthcare markets.1 The two agencies signed a memorandum of understanding (MOU) detailing how they will work together to protect healthcare consumers and workers from collusion, ensure compliance with applicable laws, and promote competition in healthcare markets. This effort signals the agencies' increased focus on policing violations in healthcare markets.
The MOU indicates that the agencies share an interest in "protecting Federal healthcare programs," "promoting competition in healthcare markets," and "holding individuals and entities accountable for violations of the law, while preventing further harm to the healthcare system and patients."2 The agencies aim to coordinate information sharing, enforcement activity, and training to strengthen the enforcement of federal laws, including the full force of the OIG's exclusion authorities and the DOJ's antitrust laws.
Anticipated coordination activities between the DOJ and OIG include:3
- Appointing Liaisons. Each agency will designate agency liaisons to meet to discuss topics of mutual interest and establish procedures for coordination.
- Information Sharing. The agencies will share information (including complaints, investigative files, reports, and data) and guidance on policy and enforcement matters.
- Training, Education, and Outreach. The agencies will provide training to each other's staff to assist in identifying cases and issues that may arise under the other agency's jurisdiction. The agencies will also engage in public outreach, share training materials and programs, and develop joint policy statements and technical assistance documents.
- Consultation and Coordinated Enforcement. The agencies will establish procedures for coordinating their investigative and enforcement activities to increase efficiency and minimize duplication. Coordination will include consulting on specific complaints and general patterns of conduct that may be anticompetitive.
- Referrals. When either agency detects potential violations that may run afoul of laws or regulations within the other agency's jurisdiction, it may refer the matter to the other agency.
The initiative is the latest in a string of agreements among the antitrust agencies and other federal agencies.4 The interagency agreements support objectives outlined in President Biden's Executive Order on Promoting Competition in the American Economy, which directed agencies, including the DOJ and the HHS, to protect and enhance competition across various industries, including healthcare.5
The MOU underscores increasing regulatory enforcement efforts at the intersection of antitrust and healthcare laws. The agreement also generates new risks for healthcare and pharmaceutical companies subject to antitrust or OIG investigations, as any potential violations uncovered by one agency can be shared with and referred to the other agency.
For more information, please contact Georgia Ravitz, or any member of the firm's antitrust and competition or FDA regulatory, healthcare, and consumer products practices.
[1] Press Release, Dep’t of Justice, Justice Department’s Antitrust Division and the Office of the Inspector General of the Department of Health and Human Services Announce Partnership to Protect Health Care Markets (Dec. 9, 2022), https://www.justice.gov/opa/pr/justice-department-s-antitrust-division-and-office-inspector-general-department-health-and.
[2] Memorandum of Understanding Between the Antitrust Division of the U.S. Department of Justice and the Office of the Inspector General of the U.S. Department of Health and Human Services (Dec. 9, 2022), https://www.justice.gov/opa/press-release/file/1556856/download, at § 1 (“MOU”).
[4] See Press Release, Dep’t of Justice, Justice Department and National Labor Relations Board Announce Partnership to Protect Workers (July 26, 2022), https://www.justice.gov/opa/pr/justice-department-and-national-labor-relations-board-announce-partnership-protect-workers; Press Release, Fed. Trade Comm’n, Federal Trade Commission, National Labor Relations Board Forge New Partnership to Protect Workers from Anticompetitive, Unfair, and Deceptive Practices (July 19, 2022), https://www.ftc.gov/news-events/news/press-releases/2022/07/federal-trade-commission-national-labor-relations-board-forge-new-partnership-protect-workers; Press Release, Dep’t of Justice, Departments of Justice and Labor Strengthen Partnership to Protect Workers (Mar. 10, 2022), https://www.justice.gov/opa/pr/departments-justice-and-labor-strengthen-partnership-protect-workers; Press Release, Dep’t of Justice, Justice Department and Federal Maritime Commission Reaffirm and Strengthen Partnership to Promote Fair Competition in the Shipping Industry (Feb. 28, 2022), https://www.justice.gov/opa/pr/justice-department-and-federal-maritime-commission-reaffirm-and-strengthen-partnership.
[5] Exec. Order No. 14,036 on Promoting Competition in the American Economy, 86 Fed. Reg. 36,897 (July 9, 2021).
