Antitrust and Nonprofit Hospital Mergers: A Return to Basics

Courts reviewing proposed mergers of nonprofit hospitals have too often abandoned the bedrock principles of antitrust law, failing to pay heed to the most elemental hallmarks of socially beneficial competition. This Article suggests that courts’ misapplication of antitrust law in these cases reflects a failure to understand the structural details of the American health care market. After reviewing recent cases in which courts have rejected challenges to proposed mergers between nonprofit hospitals, it documents how courts have engaged in a faulty analysis that ultimately protects nonprofit hospitals from the rigors of standard antitrust scrutiny. It then identifies the core principles of antitrust law—preventing supracompetitive prices, optimizing output, and maximizing allocative efficiency—that have been absent from, if not violated by, the rulings in these merger cases

Updating the Merger Guidelines: Comments

These comments (originally submitted to the DOJ and FTC in November 2009) make a number of comments relevant to revising the Merger Guidelines. The comments focus on the use of the GUPPI (gross upward pricing pressure index) in unilateral effects analysis. They also comment on the deterrence and incipiency standard, exclusionary effects of horizontal mergers and market definition when there are multi-product firms or pre-merger coordination, among other issues

Considering a Health Insurance Exchange: Lessons From the Rhode Island Experience

Describes Rhode Island's public process to clarify and prioritize stakeholders' goals for a health insurance exchange, evaluate its components, consider the state's market characteristics, and identify and evaluate options. Outlines lessons learned

Critical loss analysis in market definition and merger control

The last couple of years have seen an increasing interest in critical loss analysis, both, in academia and in practice. This development is documented by various research papers, high-level exchanges between antitrust experts as well as an increasing number of case decisions which make use of some form of critical loss analysis. In this context, it is the aim of this article to describe the general method of critical loss analysis, to assess important properties of the concept, to show how critical loss analysis has to differ between market definition exercises and the evaluation of the competitive effects of horizontal mergers and to discuss applications of critical loss analysis in recent cases. The results suggest that the application of critical loss analysis in practice is often not as straightforward as the rather simple theoretical concept might suggest. In fact, the method has to be applied with great care in order to receive meaningful results. --Antitrust,competition policy,market power,market definition,merger control,unilateral effects

Recruitment and retention of estates and facilities staff in the NHS

Purpose – Agenda for Change is set to be the biggest reform of pay since the National Health Service (NHS) began in 1948. As well as introducing a standardised pay structure; it also aims to improve recruitment, retention and staff morale. Staff groups identified as having recruitment and retention problems include estates/works officers, qualified maintenance crafts persons and qualified maintenance technicians. The object of this research was to investigate recruitment and retention problems for estates and facilities staff currently experienced by Trusts. Design/methodology/approach – Focus groups were used as the primary method of data collection in an attempt to tap into the existing expertise of staff working at strategic and operational supervisory positions in a wide range of Trusts. Findings – Although our findings suggest that the main recruitment and retention issues fall into four main themes: social, financial, environmental and political; recruitment and retention of estates and facilities management staff is a complex problem involving a wide range of issues and these can vary from location to location. Furthermore this should also be seen as a series of issues that varies across employment groups including: domestic/housekeeping, trades, managers/officers and facilities directors, which need to be distinguished. Practical implications – There is a continuing need to raise the profile of estates and facilities management staff in the NHS to those levels enjoyed by Human Resource (HR) and Financial Management. Furthermore perceptions surrounding both recruitment and retention issues and the nature of work within estates and facilities management staff in the NHS can lead to a negative and self-perpetuating “cycle of failure” where there is an assumption of loss of control. However, there are some initiatives being undertaken that suggest it is possible to concentrate on internal matters such as more appropriate and flexible recruitment processes, improved support services for staff and greater flexibility within the job and that these can generate “cycles of success”.</p

Differentiated Duopoly and Horizontal Merger Profitability under Monopoly Central Union and Convex Costs

Can a merger from duopoly to monopoly be detrimental for profits? This paper deals with this issue by focusing on the interaction between decreasing returns to labour (which imply firms’ convex production costs) and centralised unionisation in a differentiated duopoly model. It is pointed out that the wage fixed by a monopoly central union in the post-merger case is higher than in the pre-merger/Cournot equilibrium, opening up the possibility that merger reduces profits. Indeed, it is shown that this “reversal result” actually applies when the central union is sufficiently little interested to wages with respect to employment. Moreover, the lower the degree of substitutability between firms’ products and the higher the workers’ reservation wage, the higher ceteris paribus the probability that profits decrease as a result of the merger.merger profitability, unionised duopoly, convex costs

Health policy and hospital mergers: how the impossible became possible

This study seeks to explain major shifts in health policy. It takes as case studies two governmentally-led hospital mergers in the 1990s - one in London and one in Reykjavik - when national governments, as part of broader administrative reforms, decided to merge teaching hospitals in their capitals. The decision to merge, and the implementation of the decision, followed a long history in both cities, in which the mergers had been repeatedly held up as highly desirable but had always been blocked or abandoned. The merger decisions in the 1990s represent “the impossible becoming possible”. And they stand out as defining moments because of the way they shape the successive course of events in the health care systems. By answering the empirical question why it was possible to merge these hospitals in the 1990s but not in the 1980s, the research aims to contribute to a body of literature that seeks to improve theoretical understanding about how health care systems are shaped by national governments. It carries out two sets of analysis: historical analysis of the main explanatory factors within the health care arenas in both cities; and political analysis of the degree of political authority and will for action of the governments of Britain and Iceland in the 1980s and 1990s. The research concludes that in both cases the merger decisions in the 1990s are best understood as resulting from a confluence of three main factors: 1) weakening cohesion inside the health care arenas; 2) national governments with a long-term hold on power providing an opportunity to consolidate political authority and will through which the wider context of the reform agenda was adopted, 3) the prolonged continuity of executive forces in the governments providing specific political actors with scope for action. In bringing these factors together, ideas which had once united and divided groups of actors in the health care arenas and caused fragmentations in the old order, became glue to the new structure. Theoretical interpretations of the findings suggest that public policies “happen”, as opposed to being made. The merger decisions can be seen more as indicative of past development within the health care systems than as directive themselves. Political interventions, however, changed the balance between groups of actors in the system resulting in strengthening of influence of particular groups of actors, who now possess ever greater control over where, how, when, how much and at what price medical services are provided

Dominant Search Engines: An Essential Cultural & Political Facility

When American lawyers talk about essential facilities, they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance. In this chapter, I sketch a new concept of essential cultural and political facility, which can help policymakers recognize and address situations where a bottleneck has become important enough that special scrutiny is warranted. This scrutiny may not always culminate in regulation. However, it clearly suggests a need for publicly funded alternatives to the concentrated conduits and content providers colonizing the web