Accountable Care Organizations: How Antitrust Law Impacts the Evolving Landscape of Health Care
Elizabeth L. Rowe | 2012 U. Ill. L. Rev. 1855
Health-care costs are threatening to destroy the economy in the United States. More money is spent on health care in the United States than in any other country, yet several countries have a much higher quality of care. Accountable care organizations (ACOs), organizations that take responsibility for all health-care needs of patients and reap the benefits of keeping costs down if they provide a high enough standard of care at the same time, have been suggested as a way to both cut health-care spending and raise the quality of care. Because these organizations can have anticompetitive effects, however, they potentially run afoul of antitrust laws. To date, most doctors are afraid to join ACOs for fear of antitrust liability.
This Note argues that ACOs will indeed provide a higher quality of care at a lower cost. The efficiencies created by having several different physicians working together to care for a patient and sharing information in doing so cannot be matched by the system of fragmented care in place today. As a result of these positive benefits and the fact that health-care services markets do not operate in the same way as traditional markets, this Note asserts that room should be made in antitrust law for the establishment of ACOs. ACOs must be evaluated retrospectively to see if their anticompetitive effects outweigh the benefits they provide—and, accordingly, this Note argues ACOs should be presumptively legal at this point. Additionally, this Note argues a more general exception should be established in statute for ACOs because of the different ways in which health-care markets function. Finally, this Note asserts that ACOs that run afoul of antitrust laws should be fined rather than immediately dismantled to give doctors confidence that the organizations have staying power. These provisions are essential if ACOs are to form and achieve the considerable benefits they offer.