FTC Chief Says Tech Advancements Risk Health Care Price Fixing

Yves here. More props to FTC head Lina Khan. As you will see in Links today, she’s getting headlines and corporate aghastitute for her plan to ban non-compete agreements. So her other new salvo, which is getting less attention, is on how technology can enable price fixing and price collusion in health care. This charge is a big deal because price fixing and manipulation are per se violations of the Sherman Act.

By Julie Rovner, chief Washington correspondent for KFF Health News, who previously worked for National Journal’s Congress Daily and for Congressional Quarterly, and David Hilzenrath, KFF Heltha News Washington correspondent, who previously was editor-in-chief and chief investigative reporter at the Project on Government Oversight and a reporter at the Washington Post. Originally published at KFF Health News

New technologies are making it easier for companies to fix prices and discriminate against individual consumers, the Biden administration’s top consumer watchdog said Tuesday.

Algorithms make it possible for companies to fix prices without explicitly coordinating with one another, posing a new test for regulators policing the market, said Lina Khan, chair of the Federal Trade Commission, during a media event hosted by KFF.

“I think we could be entering a somewhat novel era of pricing,” Khan told reporters.

Khan is regarded as one of the most aggressive antitrust regulators in recent U.S. history, and she has paid particular attention to the harm that technological advances can pose to consumers. Antitrust regulators at the FTC and the Justice Department set a record for merger challenges in the fiscal year that ended Sept. 30, 2022, according to Bloomberg News.

Last year, the FTC successfully blocked biotech company Illumina’s over $7 billion acquisition of cancer-screening company Grail. The FTC, Justice Department, and Health and Human Services Department launched a website on April 18, healthycompetition.gov, to make it easier for people to report suspected anticompetitive behavior in the health care industry.

The American Hospital Association, the industry’s largest trade group, has often criticized the Biden administration’s approach to antitrust enforcement. In comments in September on proposed guidance the FTC and Justice Department published for companies, the AHA said that “the guidelines reflect a fundamental hostility to mergers.”

Price fixing removes competition from the market and generally makes goods and services more expensive. The agency has argued in court filings that price fixing “is still illegal even if you are achieving it through an algorithm,” Khan said. “There’s no kind of algorithmic exemption to the antitrust laws.”

By simply using the same algorithms to set prices, companies can effectively charge the same “even if they’re not, you know, getting in a back room and kind of shaking hands and setting a price,” Khan said, using the example of residential property managers.

Khan said the commission is also scrutinizing the use of artificial intelligence and algorithms to set prices for individual consumers “based on all of this particular behavioral data about you: the websites you visited, you know, who you had lunch with, where you live.”

And as health care companies change the way they structure their businesses to maximize profits, the FTC is changing the way it analyzes behavior that could hurt consumers, Khan said.

Hiring people who can “help us look under the hood” of some inscrutable algorithms was a priority, Khan said. She said it’s already paid off in the form of legal actions “that are only possible because we had technologists on the team helping us figure out what are these algorithms doing.”

Traditionally, the FTC has policed health care by challenging local or regional hospital mergers that have the potential to reduce competition and raise prices. But consolidation in health care has evolved, Khan said.

Mergers of systems that don’t overlap geographically are increasing, she said. In addition, hospitals now often buy doctor practices, while pharmacy benefit managers start their own insurance companies or mail-order pharmacies — or vice versa — pursuing “vertical integration” that can hurt consumers, she said.

The FTC is hearing increasing complaints “about how these firms are using their monopoly power” and “exercising it in ways that’s resulting in higher prices for patients, less service, as well as worse conditions for health care workers,” Khan said.

Policing Noncompetes

Khan said she was surprised at how many health care workers responded to the commission’s recent proposal to ban “noncompete” clauses — agreements that can prevent employees from moving to new jobs. The FTC issued its final rule banning the practice on Tuesday. She said the ban was aimed at low-wage industries like fast food but that many of the comments in favor of the FTC’s plan came from health professions.

Health workers say noncompete agreements are “both personally devastating and also impeded patient care,” Khan said.

In some cases, doctors wrote that their patients “got really upset because they wanted to stick with me, but my hospital was saying I couldn’t,” Khan said. Some doctors ended up commuting long distances to prevent the rest of their families from having to move after they changed jobs, she said.

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  1. john r fiore

    “Health care price fixing…”, oh really…health care has had price fixing since 1970…it works on administered pricing…there are no competitive markets in that industry and so, pricing has gone up 5000% since the 70’s and will continue until the system collapses or is declared illegal…and insane….

  2. JustAnotherVolunteer

    The two efforts are both in play in Oregon where health care is imploding due to Optum/United Heathcare

    See: https://tradeoffs.org/2024/04/18/independent-practice-optum/

    I just changed doctors AGAIN (5 in 5 years) after being kicked out of the Optum owned practice which has lost 32 doctors in the last couple of years. None still in local practice due to non-compete.

    The clinics in Corvallis got squeezed in the billing crunch after UHC got hacked and had to sell – to UHC!

  3. Polar Socialist

    How about if the FTC pointed out that markets can’t operate if the consumers don’t have the information they need, and ask companies to report the costs of production and the markup they use. Or suffer from the government intervention in the form of price control.

    Algorithm shmalgorithm. Algorithms are just a bunch of instructions, like a cooking book. Even if they all used the same algorithm, they would also have to use the same input to get the same output.

    1. barefoot charley

      I think the point is that competing institutions each feed their data into a common algorithm, which creates a high-tech back room where prices are compared and arbitraged automatically. Similar algorithmic price-fixing in retail rentals and housing has already been laid low by Khan, as we’ve read here. What a miracle that she got appointed and is still in office!

  4. Laura in So Cal

    I’ve been thinking for a while that Lina Khan is the only bright spot in the entire Biden administration.

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