Senior living and nursing home operators increasingly lean on third-party “revenue management” software to set rates, discounts, and concessions. Recent cases and enforcement actions show that this can create antitrust exposure, even if you never speak to a competitor directly. In Duffy v. Yardi, the plaintiffs allege a residential landlord pricing platform collected nonpublic, competitor data and used algorithms to steer participating landlords toward aligned rents; several large property managers recently agreed to substantial settlements and data-sharing restrictions. Regulators have also raised concerns that when multiple companies supply nonpublic competitive data into a shared pricing platform, algorithms may generate recommendations that lead to aligned or coordinated pricing outcomes. These theories, including information exchange and coordinated outcomes via a shared vendor, apply to any sector that prices private-pay services, including assisted living and memory care.
Courts are actively drawing lines. In Yardi, the district court has allowed per se conspiracy allegations to proceed past a motion to dismiss. For counsel that means plaintiffs and enforcers are testing both per se and rule-of-reason theories against algorithmic pricing, putting pressure on governance, data provenance, and vendor contracts.
In Gibson v. Cendyn (hotel pricing), the California district court (upheld by the Ninth Circuit) dismissed claims where plaintiffs failed to allege sharing of confidential data or agreement to follow the vendor’s recommendations, indicating that mere parallel use of software is not enough without a concerted mechanism that ties rivals together. Reading Gibson alongside Duffy clarifies the risk factors: nonpublic competitor inputs, vendor-facilitated signaling, and adherence to common pricing outputs.
For senior living and skilled nursing facilities, private-pay tiers, move-in incentives, and payer mix strategies intersect with fair housing, unfair and deceptive practices, and reimbursement rules. If your vendor aggregates competitor data or nudges “portfolio discipline” across local rivals, you could inherit antitrust risk even without a traditional cartel.
Practical steps senior living and skilled nursing facilities can take to reduce antitrust risk include:
- Ban nonpublic competitor inputs. Contractually prohibit your vendor from ingesting or redistributing confidential, competitor-specific pricing/occupancy data; allow only public or appropriately aggregated sources. Audit their compliance.
- Keep humans in the loop and deviate from recommendations. Treat outputs as recommendations, not rules. Document independent factors (acuity mix, staffing, quality metrics, capital plans) when you accept or reject suggested prices. Gibson highlights the importance of there being no agreement to adhere.
- Disable cross-client signaling. Prohibit features that reveal rivals’ current or future prices, concessions, inventory, or “recommended moves,” even in aggregated dashboards, if they enable inference at the market level.
- Segregate and time-delay data. If benchmarking is essential, require aggregation across many providers and meaningful time lags to avoid current, market-sensitive exchange.
- Preclear high-risk configurations. Run an antitrust review of vendor contracts, integration settings, and governance policies; track evolving case law (RealPage settlements, Yardi orders) and local bans on pricing algorithms.
Bottom line: Algorithmic tools aren’t per se unlawful, but the how matters. Build a record showing that your pricing remains independent and that your software can’t serve as the conduit for competitor coordination.