Clarke Edwards Letter to Indiana State Senate Regarding Senate Bill 119

February 11, 2025
UNITED STATES OF AMERICA
Federal Trade Commission
WASHINGTON, D.C. 20580
Office of Policy Planning
Senator Ed Charbonneau
Chair, Health & Provider Services Committee
Indiana State Senate
200 W. Washington St.
Indianapolis, IN 46204
Re: Senate Bill 119
Dear Senator Charbonneau,
I am the Acting Director of the Federal Trade Commission’s (“FTC”) Office of Policy
Planning. My office is charged with engaging with state legislatures, regulatory boards, and
officials on competition and consumer protection principles to champion the interests of the
American people. Promoting competition, spurring innovation, and lowering prices in the
healthcare sector are among Chairman Andrew Ferguson’s highest priorities for the FTC. I write
this letter to advance those objectives.
I understand that the Indiana legislature is considering Senate Bill 119 (“SB119” or “Bill”),
which would repeal the certificate of public advantage (“COPA”) statute concerning hospital
mergers.1 This letter responds to your February 6, 2025, inquiry regarding the competition and
consumer protection implications of SB119. I write to highlight the FTC’s prior work in this area
that you may find informative as you consider this Bill.
Vigorous competition among hospitals in an open marketplace provides patients with the
benefits of lower prices, higher quality of care, greater access, and increased innovation; it also
supports improved wages and benefits for hospital employees.2 With the FTC Act and Section 7
of the Clayton Act, “Congress empowered the FTC to weed out those mergers whose effect ‘may
be substantially to lessen competition’ from those that enhance competition.”3 The FTC has
considerable experience in evaluating proposed hospital, outpatient facility, and physician group
1 Indiana General Assembly 2025 Session, Senate Bill 119 (introduced Jan. 8, 2025), https://iga.in.gov/pdf-
documents/124/2025/senate/bills/SB0119/SB0119.01.INTR.pdf.
2 See e.g., Nat’l Soc. Of Prof. Eng’rs v. United States, 435 U.S. 679, 695 (1978) (The antitrust laws “reflect a legislative
judgment that ultimately competition will produce not only lower prices, but also better goods and services. The heart
of our national economic policy long has been faith in the value of competition.” (cleaned up)); FTC POLICY
PERSPECTIVES ON CERTIFICATES OF PUBLIC ADVANTAGE 3–4 (Aug. 15, 2022) (hereinafter “2022 FTC Staff COPA
Paper”), https://www.ftc.gov/system/files/ftc_gov/pdf/COPA_Policy_Paper.pdf.
3 FTC v. H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001) (cleaned up).

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mergers to determine whether they may substantially lessen competition and harm Americans.4
When warranted, the FTC has challenged these mergers in court.5
COPA statutes attempt to immunize hospital mergers from antitrust scrutiny, often leaving
the FTC unable to challenge even mergers to a monopoly.6 In effect, COPA statutes protect
anticompetitive mergers, and they instead impose governmental oversight and regulation in an
attempt to mitigate the competitive harm. Unfortunately, the consequences of COPAs are still often
harmful to consumers. As a recent FTC policy paper reports, empirical evidence on COPAs
indicates that, in the long run, hospital mergers shielded with COPAs often lead to higher prices
and reduced quality of care for Americans seeking healthcare.7 Such outcomes occur because
providers shielded by COPAs often ultimately enjoy unconstrained market power.8 The existing
research also shows that COPAs’ purported benefits are flawed and unsubstantiated.9 For these
reasons, the FTC has previously asked states with existing COPA laws to consider repealing those
laws if they do not have an active COPA in place.10 And FTC staff has commended states that
have repealed their COPA laws.11
Currently, there is no active COPA in place in Indiana. On September 5, 2024, the FTC
Commissioners unanimously voted to authorize staff to submit a public comment urging the
Indiana Department of Health to deny the then-pending COPA application filed by Union Health
and Terre Haute Regional Hospital in connection with their proposed merger.12 After conducting
a thorough investigation of the proposed transaction, FTC staff concluded that it “was likely to
lead to higher costs and worse healthcare outcomes for Indiana consumers, as well as lower wage
growth for hospital workers.”13 The hospitals voluntarily withdrew their COPA application in
4 See FTC, OVERVIEW OF FTC ACTIONS IN HEALTH CARE SERVICES AND PRODUCTS 51–91 (Jan. 2025),
https://www.ftc.gov/system/files/ftc_gov/pdf/Overview-Healthcare.pdf.
5 See id.
6 See FTC, Certificates of Public Advantage (COPAs), FTC.GOV (noting that “COPAs immunize mergers and
collaborations from antitrust scrutiny under the state action doctrine” and describing the FTC’s state-focused actions),
https://www.ftc.gov/copa.
7 2022 FTC Staff COPA Paper at 7–12.
8 Ibid.
9 Id. at 4–6.
10 Id. at 1. After states have COPAs in place, it may become more difficult to remove a COPA statute because doing
so could also eliminate oversight of any existing COPAs. Id. at 8. The FTC has also consistently advocated that states
not enact COPA legislation. See e.g., FTC Staff Comment to Hon. Mike Pushkin, West Virginia State Senate,
Concerning S.B. 597, Intended to Exempt Health Care Providers Subject to Cooperative Agreements from the
Antitrust Laws (Mar. 9, 2016), https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-
west-virginia-house-delegates-regarding-sb-597-competitive-implications-provisions/160310westvirginia.pdf; FTC
Staff Comment to New York State Department of Health, Concerning Certificate of Public Advantage Applications,
Intended to Exempt Performing Provider Systems from the Antitrust Laws (Apr. 22, 2015),
https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-center-health-care-policy-
resource-development-office-primary-care-health-systems/150422newyorkhealth.pdf.
11 See FTC Press Release, FTC Policy Director Issues Statement Commending Maine’s Repeal of Certificate of Public
Advantage Law (Jun. 13, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-policy-director-
issues-statement-commending-maines-repeal-certificate-public-advantage-law.
12 FTC Staff Submission to Indiana Health Department Regarding the COPA Application of Union Health and Terre
Haute Regional Hospital (Sept. 5, 2024), https://www.ftc.gov/system/files/ftc_gov/pdf/in_copa_comment_9-5-
24_public_redacted.pdf.
13 Id. at 1, 4.

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November 2024—days before the decision deadline—stating an intent to file a new application at
a later time.14 We understand that the same two hospitals have, just recently, reapplied for a COPA.
I attach for your and your colleagues’ review the above-referenced policy paper (FTC
Policy Perspectives on Certificates of Public Advantage), Key COPA Facts, and the September
2024 FTC Staff Submission to the Indiana Health Department Regarding the COPA Application
of Union Health and Terre Haute Regional Hospital. I hope that the FTC’s research, analyses, and
findings to date concerning COPAs are valuable as you consider SB119. Please do not hesitate to
contact the FTC’s Office of Policy Planning if we can be of further assistance.
Sincerely,
/s/Clarke Edwards
___________________
Clarke Edwards
Acting Director
Office of Policy Planning
Attachments
14 See Union Health, Union Health COPA Application Update (Nov. 25, 2024), https://www.union.health
/news/unionhealthcopaapplicationupdate. See also FTC Press Release, Statement Regarding Union Health’s COPA
Application Withdrawal (Nov. 26, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/11/statement-
regarding-union-healths-copa-application-withdrawal.