The development of managed care has been dynamic and progressive. Changes in the industry forced the revision of the policy statements in September of 1994. For more than a year it has been known that the agencies were working on further revisions, and in fact there was considerable criticism that the September 1994 Statements were too narrow and might actually inhibit otherwise pro-competitive managed care activities. These criticisms came from all areas, including from the Chairman of the FTC himself. Similarly, the introduction to the 1996 Guidelines notes that, since the 1994 Guidelines, health care markets have continued to evolve in response to consumer demand and competition.
New arrangements involving joint activity by health care providers continue to emerge.
The agencies have gained additional experience with arrangements involving joint provider activity. Our health care clients are not only routinely being requested to consider joining existing or newly-emerging joint provider arrangements such as IPA's, PHO's and similar arrangements, but are also themselves considering the creation and operation of such entities as competitive vehicles in the new health care environment. A brief explanation of the expanded portions of the Guidelines may therefore assist many of our clients with immediate considerations and concerns. Due to the numerous considerations involved with multi-provider networks, however, no actual safety zone was created. Absent extraordinary circumstances, conduct falling within an antitrust safety zone will not be challenged by the enforcement agencies.