Recently, the Antitrust Division of the Department of Justice and the Department of Health and Human Services Office of the Inspector General (HHS OIG) signed a memorandum of understanding (MOU). Through the MOU and partnership, the two agencies will be able to “better protect health care consumers and workers from collusion, ensure compliance with laws enforced by OIG and the Antitrust Division, and promote competitive health care markets.”
An MOU is a voluntary agreement that expresses the good-faith intention of the DOJ and HHS OIG but is not intended to be legally binding, does not create any contractual obligations, and is not enforceable by any party. The MOU will not result in any exchange of funds, personnel, property, services, or any kind of financial commitment. The MOU also does not imply any endorsements or promotions by either Agency of the policies, investigations, enforcement actions, programs, or services of the other Agency nor does it limit or restrict the Agencies from participating in similar activities or arrangements with other entities. It essentially outlines procedures both Agencies wish to follow to work together for “information sharing, coordinated investigations and enforcement activities, trainings, education, and outreach.”
The MOU outlines steps the agencies will take to continue to strengthen their partnership through coordination in information sharing, enforcement activity, and training. The MOU also allows the two agencies to make referrals of potentially illegal activity to one another and coordinate on policy, strategy, and training. To ensure health care assets remain in the market and competition is preserved and enhanced, OIG and the Antitrust Division will work together to ensure orderly winding down or sales of assets by excluded health care entities or other actions as appropriate.
Coordination
Each Agency will appoint one or more points of contact who will be responsible for ensuring effective, ongoing collaboration to meet with “sufficient regularity to carry out the purposes” of the MOU – at least quarterly.
Information Sharing
To the extent that it is permitted by law, regulation, Agency policy, and the MOU, the Agencies may share information – including complaints, investigative files, reports or analyses, and data – and provide technical assistance, including guidance on policy and enforcement matters.
Any requests for information made by either of the Agencies under the MOU shall be made through the Liaisons or others designated. Each Agency should “promptly respond” to any requests as allowed by their staff, resources, and priorities.
Coordinated Enforcement
The Agencies shall also establish “procedures for consulting and coordinating various stages of their respective investigative and enforcement activities with respect to potential violations of the antitrust laws or laws administered and enforced by OIG to promote coordinated enforcement initiatives, increase efficiency, and minimize duplication.” This coordination may include staff at the Agencies consulting on specific complaints or exchanging information about general patterns of conduct that may be anticompetitive or otherwise harm healthcare consumers, workers, or others.
Additionally, if a person or an entity resolves a criminal antitrust investigation through a plea agreement, deferred prosecution agreement, non-prosecution agreement, or other form of resolution and is subject to OIG’s exclusion authority, HHS OIG and the Antitrust Division will work together to ensure that exclusions are imposed where appropriate and Federal healthcare program beneficiaries maintain access to healthcare products and services.
Non-Public Information
When one of the Agencies provides Non-Public Information to the other under the MOU, the Receiving Agency has duties to ensure the information remains confidential unless and until the Providing Agency designates otherwise in writing. The MOU outlines in greater detail how the Agencies will protect the confidentiality of non-public information.