Community-based organizations (CBOs) and networks of CBOs providing services under contract with health care providers and payers must recognize that their contracting activity takes place under the auspices of federal, state and local antitrust laws and regulations. To assist aging and disability CBOs engaging in such efforts, the Aging and Disability Business Institute provides this antitrust overview and the attached sample Antitrust Statement. Both are intended as general sample information to guide your organization in discussions about the facts and circumstances of specific situations with your legal counsel. This information must not be relied upon and is not legal advice.
Generally speaking, antitrust laws are intended to protect consumers and smaller marketplace competitors from predatory business practices of larger competitors that can lead to unfair concentration of market power. However, these rules are not exclusive to large companies and are intended to prevent behaviors from any organization engaging in activities that might restrain trade and competition among separate organizations or competitors. Essentially, this body of law seeks to ensure a level playing field for potential and actual business competitors of any size and any organizational structure (nonprofit and for profit) and to prevent any one entity from having too much market power.
CBOs often do not view similar organizations as competitors, especially where much of their work is defined by government programs and grants that outline specific deliverables that are tasked exclusively to a single organization. For example, a CBO might be awarded an exclusive contract to provide a specific product or service in a named county. Health districts, Area Agencies on Aging and other organizations often operate in this type of environment under government programs. In the open competitive market, CBOs—even those that may have exclusive contracts with government programs in a specific geographic area—must operate in compliance with antitrust laws and regulations.
For CBOs, three categories of discussions deserve specific mention as they may unintentionally resemble anti-trust behavior:
- discussions with potential competitors around cost and pricing of products and services;
- discussions with potential competitors around products or services one competitor intends to offer (or not offer) in relation to the activities of another potential competitor (e.g., a meal delivery service, transitional care services, or evidence-based programs); or
- discussions with potential competitors around specific geographic areas (e.g., a county) in which a competitor agrees to (or not to) offer a product or service.
Any discussion you might have with potential market competitors regarding cost and pricing, products and services, or geography served should be avoided or entered into only with the advice of legal counsel. These conversations may take place at association meetings, training seminars, learning collaboratives or other similar venues.
This sample Antitrust Compliance Policy Statement is intended to be a guide for associations, network hubs and lead entities and others for use in meetings of two or more potential competitors. As noted above, it is only a guide to assist and does not constitute legal advice. Organizations convening meetings of potential competitors should use this sample only as a basis for discussion with legal counsel to assist in drafting an appropriate antitrust statement for distribution, reading and use in such meetings. Large industry associations typically read a similar antitrust statement at the beginning of any meeting of potential competitors to ensure that restricted subjects are not discussed. We encourage CBO associations, network hubs and lead entities and others convening meetings of two or more potential competitors to consider adopting a similar business practice.
View the resource: Antitrust Compliance Policy Statement