Trump Administration Continues Federal Antitrust Activity
Department of Justice Looking Into United Health
On February 21, 2025, the Wall Street Journal reported that the Department of Justice (DOJ) has launched a civil fraud investigation against UnitedHealth. The investigation is centered on Medicare billing practices, with sources saying that UnitedHealth-employed physicians were trained to document higher revenue-generating diagnoses, even if that was not what patients were being treated for. Additionally, the investigation is apparently looking into claims that UnitedHealth used software to suggest additional codes and offered bonuses to clinicians who coded for these additional diagnoses. If true, these patient diagnosis practices would result in higher payments from the Medicare Advantage program.
The DOJ has not commented on the news, but UnitedHealth stated that they were not aware of any new activity, and that any suggestion of fraudulent practices are outrageous and false. This investigation would be separate from an ongoing DOJ antitrust investigation.
This comes on the heels of other United Health actions. In November 2024, the DOJ, along with the attorneys general from Maryland, Illinois, New Jersey, and New York, sued to prevent UnitedHealth Group from acquiring Amedisys, one of the largest providers of home health services and the second largest provider of hospice care in the United States. This deal is especially problematic as United Health has already acquired LHC Group, which is a direct competitor of Amedisys.
In January 2025, Stat News reported that the DOJ and the California Attorney General have contacted doctors who had spoken to reporters about how the quality of care in their practices declined after being acquired by a United Health subsidiary. It is unclear at this time what may actions may result from these communications.
In March 2025, United Health scored a win when a special master issued a recommendation stating that the DOJ had failed to prove its case in a court case that claimed United Health acquired billions in Medicare Advantage overpayments by exaggerating how ill patients actually were. This recommendation would have to be adopted by the U.S. District Judge before it could end the case against United Health.
Trump’s Federal Trade Commission and Department of Justice Commit to Keeping Merger Guidelines
On February 18, 2025, the Federal Trade Commission (FTC) and the DOJ issued statements expressing an intent to keep the 2023 Guidelines as the blueprint for FTC/DOJ merger review analysis, at least for now. Given the current administration's hostility toward the previous administration's actions, the fate of the 2023 Guidelines was definitely in question.
Recent statements from FTC and DOJ leadership indicate that, at least for the time being, the 2023 Merger Guidelines will remain in effect. Federal Trade Commission Chairman Andrew N. Ferguson (chosen by President Trump to chair the FTC in January 2025) issued a statement saying that the “2023 Merger Guidelines are in effect and are the framework for this agency’s merger-review analysis”, and adding that “Stability is good for the enforcement agencies. The wholesale rescission and reworking of guidelines is time consuming and expensive.” The statement of Omeed Assefi, Acting Assistant Attorney General - Antitrust Division, added, "The 2023 Merger Guidelines are not necessarily perfect. Indeed, there may be opportunities for revisions in the future. … Until then — and consistent with applicable law — the Antitrust Division will continue use of the 2023 Merger Guidelines.”
The FTC and DOJ have had merger guidelines since 1968, although they have frequently been amended. Merger Guidelines are nonbinding standards that clarify how the FTC and DOJ will interpret and apply existing law when considering if a merger might harm competition or create a monopoly, and give transparency to the decision-making process.
Early in his term, President Joe Biden announced an intention to reinvigorate antitrust enforcement, which included a focus on healthcare. In 2023, the FTC and DOJ issued new merger guidelines primarily due to this order. Source staff published an analysis of these rules at that time.
Other Litigation Updates
Johnson and Johnson ERISA Allegations Dismissed
On April 16, 2024, The Source reported on a class action suit against Johnson & Johnson (J&J) in its capacity as the sponsor of employee group health and prescription drug plans, claiming breaches of fiduciary duties and other violations under the Employee Retirement Income Security Act (ERISA), which establishes a duty to manage employee benefit plans prudently. The suit claimed that J&J violated its fiduciary duty to keep health plan drug prices reasonable, and that lack of oversight resulted in higher premiums, higher out-of-pocket costs and limits on employee wage growth, which harmed its beneficiaries (e.g. employees).
On January 24, 2025, the U.S. District Court for the District of New Jersey dismissed the suit on procedural grounds, without addressing the merits of the suit. The Court ruled that the Plaintiff’s claim of paying higher premiums due to J&J’s actions was too speculative. The Court also ruled that, even if the Plaintiff could show injury, the Court would be unable to redress the harm.
The Court did not address questions about whether a health plan breaches its fiduciary duty by mismanaging the health plan’s prescription drug benefits, and by not properly monitoring the actions of the Pharmacy Benefit Manager.
Radiology Partners Files Motion to Dismiss
On February 17, The Source reported on a suit by Aetna against Radiology Partners, claiming a manipulation of the No Surprises Act and its dispute resolution process to boost payments improperly. In response, on February 25, Radiology Partners filed two motions: one to dismiss the claim and one to compel arbitration in their dispute. In an associated press release, Rich Whitney, CEO and Board Chair of Radiology Partners, stated that it is "clear that Aetna is using litigation to try to shape public perception while shamelessly prioritizing profits over patient care. Aetna's strategy includes terminating physician contracts, exploiting the system and avoiding payments—even when those payments are binding and ordered by a neutral, federally approved arbiter. These tactics harm patients, contribute to the national physician shortage and waste healthcare resources, including driving up costs for Aetna's own self-funded employer plans. We vehemently refute all their manufactured allegations, and we will vigorously defend our position."