Manatt Antitrust and Competition Partner Dylan Carson and Litigation Partner Harvey Rochman wrote an article for Competition Policy International about the antitrust implications for health care organizations that are considering integrating artificial intelligence (AI) into their business practices.
As government antitrust regulators continue to scrutinize AI use as it spreads through industries, companies utilizing automated systems are at increased risk of allegations including for algorithmic price fixing, particularly in health care. For example, after a report revealed a national managed care organization provided several large health plans and third-party administrators with algorithms used to set out-of-network costs, concerns were raised to the DOJ and FTC that such tools could allow competitors to work together in raising health care costs. In recent years, the organization was sued by several health care entities for price-fixing and monopolizing the market for commercial health insurance reimbursement. By collecting confidential claims data from competing insurers, the organization was allegedly enabled to use a repricing method to suppress reimbursement payments for out-of-network services.
The authors wrote, “As the health care industry increasingly embraces AI and the power of its big data to make operating health care businesses more efficient, it is crucial that providers, payers and others carefully consider whether reliance on AI systems for core functions…creates a risk of liability under existing legal schemes such as antitrust and unfair competition laws.”
Competition Policy International subscribers can read the full article here.