Is the proposed consolidation per se illegal?
The consolidation is not per se illegal because the proposal does not involve an agreement on the price to be charged for any services in which the hospitals compete or any other agreement that inherently appears to reduce price competition or output. The joint setting of the rate for services provided to the County is not per se illegal because Marin and Ross are neither actual nor potential competitors for that business since Ross is not an eligible provider under the Medicaid program. Similarly, the pooling of revenues from County patients with those received under the Medicare program, and the sharing of profit and loss on these pooled revenues is not per se illegal. The Medicare program reimburses the parties for the consolidated services on a cost-plus basis.(2) Accordingly, this aspect of the proposal does not eliminate price competition. Beyond the rates charged to the County, the proposal does not contemplate joint pricing. Indeed, the proposal embodies the belief of the parti
