In late February of 2024, the U.S. Department of Justice initiated an antitrust investigation against UnitedHealth Group, Inc., (“United”). United has become a major market player in the health insurance industry in the United States. In May of 2023, United was labeled as the largest health-care company in the United States based on market cap and revenue of over $300 billion.
The Wall Street Journal reported that the Department of Justice’s (the “DOJ”) current investigative inquiries are focused on the “nature” of the relationship between United’s insurance unit and Optum Health’s assets. Optum Health provides care to patients directly through local medical groups and ambulatory care systems, including primary and specialty care. Optum Health also provides an array of products and services, including but not limited to, mental health and behavioral support, pharmacy benefits management, and third-party claims administration for United.
This isn’t the first time United has undergone antitrust scrutiny. In February of 2022, the DOJ filed a civil lawsuit to stop United from acquiring Change Healthcare Inc. The DOJ alleged that the proposed transaction would harm competition in the commercial health insurance markets as well as the market for a vital technology used by health insurers to process health insurance claims and reduce health care costs. Ultimately, United was successful in federal court and was able to complete its acquisition of Change Healthcare.
With recent healthcare costs rising, the average American spent approximately $13,493 in 2022. Further, given the Biden administration’s priority on lowering costs, it’s not surprising that the DOJ is closely investigating United’s activity.
The DOJ’s investigative goal is likely to uncover information that United (through Optum Health) engaged in anticompetitive conduct and/or mergers that deprived the market of the benefits of competition. The DOJ has two tools to use in their investigation (and potential lawsuit) against United: [1] The Sherman Antitrust Act and [2] The Clayton Act.
The Sherman Act makes it illegal to monopolize and/or conspire to monopolize a market for products or services. The DOJ may find that United has maintained market power and suppressed competition by engaging in anticompetitive conduct through their health insurance arm and Optum Health.
The Clayton Act prohibits certain actions that might restrict competition, like predatory pricing and certain mergers that could lessen competition. The Clayton Act also prohibits individuals from sitting on boardings of competition corporations. Through their investigation, the DOJ could find that United, through and by having control of Optum Health, is (1) controlling how products and services are paid and rendered, (2) limiting competitors’ ability to compete, and (3) restricting consumers/providers ability to engage in our market system.
Notably, the DOJ’s probe into United’s and Optum Health’s activities and relationship is in the early stages. It is difficult to fully predict the outcome of an ongoing government investigation. Furthermore, to date, the DOJ has not initiated a lawsuit against United for any alleged antitrust activities related to Optum Health.
Hospital systems and healthcare providers working with United and/or Optum Health should monitor the ongoing situation, specifically as it pertains to payor disputes and complex claims, staying appraised of developments and likely outcomes.
Gabriela Guzman
Gabriela Guzman is an associate attorney at Wolfe Pincavage. In this role, she investigates and navigates the complex climate of healthcare law by staying on top of the latest regulations and rulings that stand to impact the firm’s provider clients. Through rigorous data collection pertinent to ongoing provider disputes and claims analysis, Gabriela helps identify patterns and trends to build the firm’s analytics capabilities. She is also a skillful writer and drafts a variety of legal documents on behalf of health system clients throughout Florida.
