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ACO Market Consolidation and Antitrust Considerations: Current Issues, Implications and Considerations 
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While aggregation does not equal accountability, it is widely acknowledged that some size and scale is necessary for an Accountable Care Organization to succeed under changing reimbursement models. The organization needs to be of sufficient size to support comprehensive performance measurement, cost savings, and expenditure projections. It needs to be able to manage the continuum of care for a defined population, and it requires capital to make the infrastructure investments necessary to achieve integration, such as care redesign systems and information technology.

As a result, both change of control transactions and non-change of control transactions among providers are taking place in large numbers across the country, including for-profit/non-profit deals, and some private equity investment. The regulatory dialogue that has taken place around accountable care seeks to distinguish “good” collaboration from “bad” and relies heavily on clinical and financial integration as a basis for allowable transactions.

The guidance from multiple agencies taken together suggests that qualified and effectively operating ACOs do gain a degree of legal protection under these regulatory schemes through waivers, safety zones, and announced agency protocols. CMS’ definition of and requirements for ACOs align with the historical thinking of the federal antitrust enforcement agencies about clinical and financial integration. Therefore, the agencies have stated that they will accord rule of reason treatment to the commercial market activities of ACOs participating in the Medicare Shared Savings Program.

However, market share and market power concerns remain the subject of an ongoing national policy debate. The Department of Justice and Federal Trade Commission have clearly stated that they will continue to protect competition in markets served by ACOs, will use CMS data, and will “vigorously monitor complaints.” Furthermore, merger enforcement is not affected by the ACO guidance – the FTC and DOJ will continue to enforce under the current merger guidelines, as evidenced by cases such as the FTC’s successful challenge of St. Luke’s Health System’s acquisition of Saltzer Medical Group.

Please join Epstein Becker Green's Mark Lutes and Patricia Wagner on Friday, October 3rd, 2014 at 1PM Eastern as they discuss current issues and considerations that stakeholders need to address regarding ACO consolidation and antitrust issues in the marketplace.
Learning Objectives
Participants will be able to:
  1. Review available regulatory guidance addressing ACO development, operations and allowable transactions with respect to market consolidation and antitrust concerns.
  2. Identify ACO antitrust "gray-areas" that current guidance and past cases have not fully resolved.
  3. Explore case examples and how various ACO market consolidation and market power scenarios might play out going forward in the current legal and regulatory environment
  4. Understand what levels and structures of integration may be required to survive antitrust scrutiny for potential consolidation activities.
  5. Consider what private market behaviors, protocols and policies in this arena might reduce exposure in this environment.
  6. Examine the potential implications of the regulatory environment for current and future ACO transactions
  7. Engage in interactive learning through online question submission, attendee feedback and opportunity for follow-up questions, and networking with attendees, faculty and other professionals through a dedicated LinkedIn group.
Who Should Attend
Interested attendees would include:
  • C-Suite Executives
  • Legal, Regulatory and Policy Executives and Staff
  • Accountable Care Directors and Staff
  • Compliance Officers and Staff
  • Strategy and Planning Executives and Staff
  • Health Reform, Transformation and Clinical Integration Executives and Staff
  • Business Intelligence and Research Analysts
  • Managed Care Executives and Staff
  • Business Development Executives and Staff
  • Operations Executives and Staff
  • Provider Network Managers and Staff
  • Provider Contracting Managers and Staff
  • Medical Directors

Attendees would represent organizations including:

  • Accountable Care Organizations
  • Hospitals and Health Systems
  • Provider Networks
  • Medical Groups 
  • Health Plans 
  • Government Agencies
  • Solutions Providers 
  • Provider Management Organizations
  • Associations, Institutes and Research Organizations 
  • Pharmaceutical Organizations
  • Media
  • Other Interested Parties
ACO Market Consolidation and Antitrust Considerations: Current Issues, Implications and Considerations 
  Individual Registration Fee: $195. Post-event materials, with video syncing slides and recorded audio, plus presentation pdf file: $45 for attendees; $260 for non-attendees after the event. Register online or download the event brochure.
Register Now   Corporate Site licensing also available. Click here to register or call 209.577.4888 We look forward to your participation in this event!
Mark E. Lutes

Mark E. Lutes
Chair, Board of Directors; Member of the Firm


Mark E. Lutes is a Member of the Firm in the Health Care and Life Sciences practice of Epstein Becker Green and the Chair of the firm's Board of Directors. Based in Washington, DC, he has practiced with the firm for nearly three decades. Prior to that, he was a legislative adviser to the Federal Trade Commission. He also offers strategic counsel in health policy and on reimbursement strategy through the firm's affiliates EBG Advisors, Inc., and National Health Advisors, LLC.

Mr. Lutes is a leader in the firm's representation of private equity and financial services firms with health care companies in their portfolios. He routinely deploys multidisciplinary teams of attorneys, reimbursement specialists, engineers, and scientists to assess the reimbursement, FDA and other domestic and international regulatory approvals, fraud and abuse compliance, CMS and legislative landscapes and other issues impacting proposed client investments in health care companies. Mr. Lutes combines experience with the corporate aspects of transactions with his deep experience in health care compliance issues to provide clients with practical advice in the negotiation of warranty and indemnification issues and in assessing risk factors in health and life science deals. He has advised on the largest transactions in the health care market including services, pharmaceutical and device companies.

Mr. Lutes is also an experienced antitrust counselor to health care companies contemplating mergers or acquisitions and has facilitated the antitrust clearance of numerous significant hospital mergers. He has managed the defense of high profile healthcare antitrust actions by the FTC.

Mr. Lutes has a deep understanding of managed care markets and regulation. He is consulted by a variety of providers and payors in structuring innovative payment arrangements. Additionally, he counsels on hospital and physician ventures and compliance issues and in the area of information privacy and security. Mr. Lutes has developed privacy and security audit tools which support client compliance needs.

He has been selected for inclusion in Washington, DC Super Lawyers (2007 to 2010, 2013, 2014) and honored by Nightingales as a leading health care antitrust lawyer. He is ranked among the "Leaders in Their Field" by Chambers USA (2010 to 2014).

Mr. Lutes is active in his parish and serves as Chair of the Advisory Board of the Spanish Catholic Center, a social and health services nonprofit. He also serves on the President's Council of Catholic Charities, Archdiocese of Washington, DC, which honored him with The Caritas Award, its highest recognition of volunteers. Mr. Lutes also has over a decade of service in leadership in the Boy Scouts of America organization.

Patricia Wagner

Patricia M. Wagner
Member of the Firm
Epstein Becker Green

Patricia M. Wagner is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office.

Ms. Wagner's experience includes the following:
•Advising clients on a variety of matters related to federal and state antitrust issues
•Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities
•Advising clients on issues related HIPAA Privacy and security
•Advising clients on issues related to state licensure and regulatory requirements

Ms. Wagner is a contributor to the Health Law Advisor and speaks and writes frequently in her areas of practice. Selected presentations and articles include the following:
•Contributor to ABA Health Law Series: E-Health, Privacy, and Security Law: Evaluating Antitrust Concerns in the Electronic Marketplace, 2nd ed.
•Speaker at Massachusetts Medical Society Symposium: "A Path to Accountable Care Organizations: How Do We Get There from Here?" (September 13, 2011)
•Panelist at Federal Trade Commission Workshop: "Another Dose of Competition - Accountable Care Organizations and Antitrust" (May 9, 2011)
•Lecturer in DC Bar Introduction to Health Law Series: "Managed Care Contracting" (2005 to 2012)
•Presentation for Lorman Group: "Privacy Compliance for Medical Records" (February 2008, November 2008, and December 2008)
•Presenter in Webinar: "HIPAA and Wellness Programs" (March 2007)
•Coauthor with William G. Kopit, Dagher Redux: Searching for the Missing Pieces, 39 J. HEALTH L. 349 (Summer 2006)

Prior to practicing law, Ms. Wagner received her doctorate in microbiology (1990) from the University of Kansas. With that degree, she worked as a research microbiologist at a number of research institutions around the country, including the Centers for Disease Control in Atlanta, Georgia.


Paul Gomez
Paul A. Gomez

Member of the Firm
Epstein Becker Green

Paul A. Gomez is a Member of the Firm in the Health Care and Life Sciences and Corporate Services practices, in the Los Angeles office of Epstein Becker Green. He represents a wide variety of health care providers, including nonprofit and for-profit hospitals, health systems, dialysis providers, medical groups, laboratories, and other health care entities. Mr. Gomez’s practice focuses on all of the transactional and regulatory aspects of the health care industry.

Mr. Gomez advises clients with respect to:

Complex hospital/physician integration models
Physician practice acquisitions
Mergers and acquisitions
Health care joint ventures
Strategic affiliation models
Health care fraud and abuse compliance
Medicare/Medicaid reimbursement
Provider licensing and certification
HIPAA and state privacy laws
For several years, Mr. Gomez has been ranked by Chambers USA in the Healthcare category in California. He was also selected as a “Southern California Rising Star” by Super Lawyers Magazine in the areas of health care and business/corporate for years 2009-2012.

Mr. Gomez is a frequent speaker and author on various health care topics, including strategic affiliations, acquisitions and joint ventures, as well as fraud and abuse compliance. He is actively involved in several health care legal professional associations.

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