In two recent civil antitrust complaints, the Antitrust Division of the U.S. Department of Justice (“DOJ”) alleged that hospital systems used payer contracting provisions—so‑called steering restrictions that require hospitals to be included in nearly all of an insurer’s commercial networks at the most favored level of benefits—to restrict health insurers’ ability to offer narrow network plans, tiered network plans or other insurance plans that give its members financial incentives to use specific network providers. DOJ brought these actions under the federal antitrust laws, alleging that the challenged provisions unlawfully restrain competition and help maintain market power in markets for inpatient general acute care hospital services.
On June 16, 2026, the DOJ resolved its case against OhioHealth, reaching a proposed consent decree that restricts the way that OhioHealth can contract with insurers and requires that a monitor be appointed to oversee OhioHealth’s compliance with the decree. The litigation against The New York and Presbyterian Hospital, which is based on the same theory, continues. These matters underscore increased enforcement attention on managed care contracting practices, even where alleged market shares are lower than those historically featured in similar cases.
Background
OhioHealth (filed February 20, 2026; proposed settlement filed June 16, 2026). DOJ filed a civil action alleging that OhioHealth negotiated provisions that prevent insurers from designing plans that give their members financial incentives to use hospitals that compete with OhioHealth. These “all-or-nothing” provisions require the inclusion of all OhioHealth hospitals in nearly all commercial network plans at the most favored level of benefits. DOJ further alleged that OhioHealth prevented insurers from even informing their members of cheaper options through the use of so‑called “gag clauses” that limit insurers’ ability to share price information with their members.
DOJ alleged that OhioHealth is a “must-have” in Central Columbus and the Columbus metropolitan statistical area, with market shares exceeding 35% in each market. DOJ alleged that these market shares enabled OhioHealth to negotiate and maintain the challenged clauses.
DOJ and OhioHealth agreed to resolve the lawsuit through a proposed consent decree, which contains the following terms:
- Prohibitions on steering restrictions. OhioHealth is prohibited from seeking or obtaining any contract provisions that “prohibit, deter, prevent, or Penalize Steering, Steered Plans, or Transparency,” and any such contract provisions in current agreements with insurers are void and unenforceable.
- “Steering” is defined broadly as “a Payor providing any incentive to that Payor’s members to seek care at specific Providers or types of Providers,” and a “Steered Plan” is any plan that incorporates steering, including narrow networks, tiered networks, reference-based pricing, site-of-service steering or centers of excellence.
- The prohibition on steering restrictions applies to all health care services, including inpatient services, outpatient services, professional services and ancillary services.
- The prohibitions apply to any provisions that “Penalize” steering, which is defined broadly as any provision “that has the actual or likely effect of restraining, discouraging, or reducing Steering.”
- Required Participation in Tiered Plans. OhioHealth can negotiate with insurers to participate in tiered plans at the most preferred tier, but if it does not participate in the most-preferred tier, it must participate in the plan on substantially the same conditions on which it participates in a broad-network plan, such as a PPO plan.
- Prohibition on Restricting Member Communications. The decree prevents OhioHealth from deterring or preventing insurers from communicating “price, cost, quality, or patient experience information” to their members, directly or indirectly. OhioHealth can, however, require insurers to allow it to review the information about OhioHealth to be disseminated, so long as the review does not materially delay the release of information, and OhioHealth can challenge inaccurate information. The decree also permits OhioHealth to prohibit information about its prices or costs from being shared with its competitors, other insurers or the general public, consistently with other applicable laws.
- Appointment of a Monitor. DOJ will propose a monitor to be approved by the Court, who will serve at OhioHealth’s expense. The monitor will serve for a term of up to five years and will have the power and authority to monitor OhioHealth’s compliance with the proposed decree. OhioHealth is required to provide the monitor with complete access to all its personnel, agents, consultants, books, records and facilities, and must provide the monitor with copies of new contracts or amendments with insurers on periodic intervals.
The New York and Presbyterian Hospital (filed March 26, 2026). DOJ filed a civil action alleging that The New York and Presbyterian Hospital similarly negotiated provisions that prevent insurers from designing plans that gave their members financial incentives to use competing hospitals. Like OhioHealth, DOJ contends that The New York and Presbyterian Hospital contracts with insurers on an “all-or-nothing” basis, requiring its hospitals to be included in nearly all of an insurer’s commercial networks at the most favored level of benefits. DOJ alleges that these provisions prevent many health plans from designing lower‑cost products (including narrow or tiered networks) that steer members to lower‑priced, but equal quality competitors. The alleged result is fewer plan choices and higher costs for employers and patients.
DOJ alleges the system is a “must‑have” in two separate geographic markets—Manhattan alone, and separately, the “Four Boroughs” (Manhattan, Queens, Brooklyn and the Bronx). The DOJ cites market shares in each market of approximately 30% and 25%, respectively, as supporting the system’s ability to obtain and maintain the challenged provisions. This litigation is ongoing.
Key Takeaways
- Network design and steering are a stated enforcement focal point. DOJ’s theory emphasizes harm to employers and patients when a dominant system allegedly prevents payers from building products that steer to lower‑cost alternatives.
- Market power remains central to the DOJ’s narratives, but the alleged market shares are noteworthy. DOJ alleges that “must‑have” status and market power enable the challenged contracting outcomes. The cited shares trend lower than those seen in prior contracting‑practice matters and both systems face significant local competition.
- DOJ’s view of “all‑or‑nothing” clauses is broader than classic system “tying” narratives. These complaints focus less on leveraging a flagship facility to include smaller facilities and more on provisions that require inclusion of the system in each (or nearly each) commercial network product—at preferred benefit levels—thereby limiting a payer’s ability to offer a narrow, tiered, or other budget‑conscious network without the higher‑cost system.
- The complaints focus on inpatient services, but the OhioHealth settlement applies to all health services. Although DOJ only alleged market power in a market for inpatient general-acute care hospital services in both the OhioHealth and New York and Presbyterian complaints, the remedy in OhioHealth applies to inpatient services, outpatient services, physician services, and ancillary services. DOJ also specifically references “Site-of-Service Steering,” which is steering to a specific facility or type of facility (e.g., a free-standing imaging lab), which is typically less relevant for inpatient services.
- Internal communications may matter. Both complaints reference internal statements and strategy materials as support for DOJ’s theory. As a practical matter, contracting language and internal messaging can both become central in an investigation.
- Broader agency focus is increasing scrutiny of managed care contracting. These cases align with broader DOJ and Federal Trade Commission statements and initiatives emphasizing competition concerns tied to network design, steering, and price transparency.
Practical Considerations for Hospitals and Health Systems
- Assess market position and “must‑have” dynamics. These cases demonstrate the DOJ appears to be lowering the thresholds for which hospitals and health systems would be viewed as a “must-have” for a network and having the necessary market share to influence negotiations with payers.
- Inventory and review payer contracting provisions that affect network participation and tier placement. Consider whether contracting terms could be characterized as requiring inclusion across most or all commercial products offered by payers, requiring placement at the most favored level of benefits, or otherwise preventing insurers from providing their members with incentives to use competing providers.
- Review internal communications and ordinary course documents. Review ordinary course business documents, internal communications and negotiating guidance to ensure all are consistent with procompetitive objectives and avoid language that could be misconstrued if reviewed by enforcement agencies.
If you have any questions or would like additional information about this topic, please contact one of the following members of Hall Render’s Antitrust Practice:
- William Berlin at (202) 370-9582 or wberlin@hallrender.com;
- Michael Greer at (317) 977-1493 or mgreer@hallrender.com;
- David Stoltzfus at (202) 780-2991 or dstoltzfus@hallrender.com;
- Hannah Clarke at (317) 429-3615 or hclarke@hallrender.com;
- Liza Sawyer at (303) 557-2120 or lsawyer@hallrender.com;
- Camilla Moreno Jimenez at (317) 429-3679 or cjimenez@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
