By Keagan Potts and James Kovacs
The Trump administration is engaging in a full-court press to rescind “anticompetitive regulations,” directing the antitrust enforcers to identify and eliminate federal regulations that stifle competition.[1] In response, the Department of Justice (DOJ) Antitrust Division announced the formation the Anticompetitive Regulations Task Force,[2] and the FTC launched a public inquiry seeking public comment on anticompetitive regulations.[3]
While broader in scope, the administration’s recent actions follow a long history of efforts to eliminate rules and regulations that stifle competition and limit innovation, particularly in the healthcare arena. As one example, the FTC has previously targeted Certificate of Public Advantage (“COPA”) laws that “attempt to immunize hospital mergers from antitrust laws by replacing competition with state oversight.”[4] The FTC argues that COPA laws as anticompetitive because they facilitate consolidation and thereby increase healthcare costs without improving quality of care and reduce hospital employee wage growth.[5] Moreover, COPA laws are a poor substitute for antitrust enforcement because they are temporary, susceptible to regulatory evasion, and COPA oversight is often under-resourced.[6] As recently as last month, the FTC urged the Indiana Department of Health to deny a merger under a COPA law.[7]
Moreover, for decades the FTC and DOJ have also regularly challenged the related Certificate of Need (“CON”) laws.[8] These laws typically require health care providers seeking to enter a market or make certain capital improvements to first obtain state approval.[9] Like COPA laws, CON laws inhibit socially beneficial competition, but by providing a barrier to entry that “help[s] incumbent firms amass or defend dominant market positions.”[10]
According to the DOJ’s press release, federal healthcare regulations will be a primary focus of the newly established task force.[11] There are a range of potential federal regulations that could be targeted, including Medicare and Medicaid reimbursement regulations that may prioritize certain types of providers, rules determining what procedures healthcare professionals may perform and in what settings, and electronic medical record and telehealth requirements. Interested parties may submit a comment either to the DOJ’s Anticompetitive Regulations Task Force, scheduled to close on May 26, 2025,[12] or to the FTC, scheduled to close on May 27, 2025.[13] If you have any additional questions, please contact James Kovacs or Keagan Potts.
[1] Exec. Order. No. 14267, 90 Fed. Reg. 71 (Apr. 9, 2025); Exec. Order No. 14192 § 1, 90 Fed. Reg. 24 (Jan. 31, 2025); Exec. Order No. 14219 § 2, 90 Fed. Reg. 36 (Feb. 19, 2025).
[2] Press release, U.S. Dep’t of Justice, Justice Department Launches Anticompetitive Regulations Task Force (Mar. 27, 2025), https://www.justice.gov/opa/pr/justice-department-launches-anticompetitive-regulations-task-force [hereinafter DOJ Press Release].
[3] Press release, Fed. Trade Comm’n, FTC Launches Public Inquiry into Anti-Competitive Regulations (Apr. 14 ,2025), https://www.ftc.gov/news-events/news/press-releases/2025/04/ftc-launches-public-inquiry-anti-competitive-regulations [hereinafter FTC Anti-Competitive Regulation Press Release].
[4] Fed. Trade Comm’n, Key COPA Facts, https://www.ftc.gov/system/files?file=ftc_gov/pdf/Key_
COPA_Facts.pdf (last visited Apr. 15, 2025).
[5] Id.
[6] Id.
[7] Press Release, Fed. Trade Comm’n, FTC Staff Reaffirm Opposition to Proposed Indiana Hospital Merger (Mar. 17, 2025), https://www.ftc.gov/news-events/news/press-releases/2025/03/ftc-staff-reaffirm-opposition-proposed-indiana-hospital-merger.
[8] U.S. Dep’t of Justice, Comment Letter on Proposed Repeal of Alaska’s Certificate-of-Need Laws (May 3, 2023), https://www.justice.gov/atr/file/1302691/dl?inline; Maureen K. Ohlhausen, Certificate of Need Laws: A Prescription for Higher Costs, 30 Antitrust 50 (2015), available at https://www.ftc.gov/system/files/documents/public_statements/896453/1512fall15-ohlhausenc.pdf.
[9] Id. at 50.
[10] Id. at 51.
[11] Supra note 2.
[12] Id.
[13] Supra note 3.
