[Federal Register Volume 67, Number 100 (Thursday, May 23, 2002)]
[Notices]
[Pages 36190-36192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12953]


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FEDERAL TRADE COMMISSION

[File No. 011 0173]


Physician Integrated Services of Denver, Inc., et al.; Analysis 
To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint that accompanies the consent agreement and the terms of the 
consent order--embodied in the consent agreement--that would settle 
these allegations.

DATES: Comments must be received on or before June 12, 2002.

ADDRESSES: Comments filed in paper form should be directed to: FTC/
Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580. Comments filed in electronic form should be 
directed to: [email protected], as prescribed below.

FOR FURTHER INFORMATION CONTACT: Jeffrey Brennan, Bureau of 
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 
326-3688.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and  2.34 
of the Commission's rules of practice, 16 CFR 2.34, notice is hereby 
given that the above-captioned consent agreement containing a consent 
order to cease and desist, having been filed with and accepted, subject 
to final approval, by the Commission, has been placed on the public 
record for a period of thirty (30) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for May 13, 2002), on the World Wide Web, at ``http://www.ftc.gov/os/2002/05/index.htm.'' A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, 
DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. Comments filed in paper form should 
be directed to: FTC/Office of the Secretary, Room 159-H, 600 
Pennsylvania Avenue, NW., Washington, DC 20580. If a comment contains 
nonpublic information, it must be filed in paper form, and the first 
page of the document must be clearly labeled ``confidential.'' Comments 
that do not contain any nonpublic information may instead be filed in 
electronic form (in ASCII format, WordPerfect, or Microsoft Word) as 
part of or as an attachment to email messages directed to the following 
email box: [email protected]. Such comments will be considered 
by the Commission and will be available for inspection and copying at 
its principal office in accordance with  4.9(b)(6)(ii) of the 
Commission's rules of practice, 16 CFR 4.9(b)(6)(ii)).

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, an agreement containing a proposed consent order with 
Physician Integrated Services of Denver, Inc. (``PISD''), Michael J. 
Guese, M.D., and Marcia A. Brauchler (``Respondents''). The agreement 
settles charges that Respondents violated section 5 of the Federal 
Trade Commission Act, 15 U.S.C. 45, by facilitating and implementing 
agreements among PISD's members to fix prices and other terms of 
dealing with health insurance firms and other third-party payors 
(hereinafter, ``payors''), and to refuse to deal with payors except on 
collectively determined terms. The proposed consent order has been 
placed on the public record for 30 days to receive comments from 
interested persons. Comments received during this period will become 
part of the public record. After 30 days, the Commission will review 
the agreement and the comments received, and will decide whether it 
should withdraw from the agreement or make the proposed order final.
    The purpose of this analysis is to facilitate public comment on the 
proposed order. The analysis is not intended to constitute an official 
interpretation of the agreement and proposed order, or to modify their 
terms in any way. Further, the proposed consent order has been entered 
into for settlement purposes only and does not constitute an admission 
by any Respondent that said Respondents violated the law or that the 
facts alleged in the complaint (other than jurisdictional facts) are 
true.

The Complaint

    The allegations in the Commission's proposed complaint are 
summarized below.
    PISD has approximately 41 primary care physicians in its 
membership. Dr.

[[Page 36191]]

Guese is PISD's president and sole director. Ms. Branchler is a 
consultant and advisor to PISD. Except to the extent that competition 
has been restrained in the manner set forth in the proposed complaint, 
PISD's members compete with each other as internists, pediatricians, 
family physicians, or general practitioners, in offices located in the 
southern part of the Denver, Colorado, metropolitan area (``South 
Denver area''). To be competitively marketable to employers and other 
purchasers in the South Denver area, a payor's health insurance plan 
must include in its network of participating physicians a large number 
of primary care physicians who practice in the South Denver area.
    The physicians formed PISD as a vehicle collectively to negotiate 
contracts with payors, and thereby to achieve contracts containing 
higher fees and other, more advantageous terms than the individual 
physicians could obtain unilaterally. PISD members authorized PISD to 
negotiate for this purpose. They also authorize PISD to negotiate 
``non-risk'' contracts, which are contracts that do not involve sharing 
among physicians of financial risk, through arrangements such as 
capitation or fee withholds. Further, before the entire organization 
can accept a proposed mayor contract, a majority of PISD's members must 
approve it.
    Sometimes a network of competing physicians uses an agent to convey 
to payors information obtained individually from the physicians about 
fees or other significant contract terms that they are willing to 
accept. The agent may also convey to the physicians all payor contract 
offers, which the physicians then unilaterally decide whether to accept 
or reject. Such a ``messenger model'' arrangement, which is described 
in the 1996 Statements of Antitrust Enforcement Policy in Health Care 
jointly issued by the Federal Trade Commission and U.S. Department of 
Justice (see http://www.ftc.gov/reports/hlth3s.htm.), can failitate and 
minimize the costs involved in contracting between physicians and 
payors, without fostering an agreement amont competing physicians on 
fees or fee-related terms.
    PISD purported to operate as a messenger, but, in practice, it did 
not do so. Rather, from 1999 through 2001, Dr. Guese and Ms. Brauchler 
negotiated fees and other competitively significant terms collectively 
on behalf of PISD's members. Only if a payor offered a contract 
containing sufficiently high fees did Dr. Guese and Ms. Brauchler 
recommend to the members that they accept the contract. Dr. Guese and 
Ms. Brauchler refused to convey to PISD's members contract offers 
containing price and other terms that Dr. Guese and Ms. Brauchler 
deemed to be deficient. Instead, they demanded, and received, contract 
terms that were more economically advantageous, from the physicians' 
perspective, than the physicians themselves could have obtained by 
negotiating individually rather than collectively.
    PISD functioned as its members' de facto exclusive representative. 
Respondents told payors that PISD had the authority to negotiate and 
sign contracts on behalf of all of its members, and members themselves 
sent letters to payors, asserting that they would deal with payors only 
through PISD, Dr. Guese, or Ms. Brauchler, and not unilaterally. 
Respondents also successfully applied coercive tactics. For example, 
they advised PISD members to terminate, or threaten to terminate, their 
pre-existing, individual contracts with payors. Many PISD members 
complied, to pressure payors into offering a new contract to PISD that 
paid fees at or above the level that the physicians, through PISD, 
collectively demanded. The terminations and threats of termination left 
payors in the untenable position of having to pay higher fees to PISD 
members, or being denied such members' inclusion in the payors' 
respective provider networks. As a consequence of this conduct, PISD or 
its members contracted with various payors for fees that were higher 
than the fees such payors had agreed to pay other primary care 
physicians in the area.
    Respondents' joint negotiation of fees and other competitively 
significant terms has not been reasonably related to any efficiency-
enhancing integration. PISD refused to consider any form of financial 
risk-sharing, and its members have not clinically integrated their 
practices to create sufficiently substantial potential efficiencies. 
Respondents' actions have restrained price and other forms of 
competition among the members, caused fees for physician services to 
rise, and harmed consumers, including health plans, employers, and 
individual patients.

The Proposed Consent Order

    The proposed order is designed to prevent recurrence of these 
illegal concerted actions, while allowing Respondents to engage in 
legitimate conduct that does not impair competition. The proposed 
order's core prohibitions are contained in Paragraphs II and III.
    Paragraph II is intended to prevent the Respondents from 
participating in, or creating, future unlawful physician agreements.
    Paragraph II.A prohibits PISD, Dr. Guese, and Ms. Brauchler from 
entering into or facilitating any agreement between or among any 
physicians: (1) To negotiate with payors on any physician's behalf; (2) 
to deal, not to deal, or threaten not to deal with payors; (3) on what 
terms to deal with any payor; or (4) not to deal individually with any 
payor, or not to deal with any payor through an arrangement other than 
PISD.
    Paragraph II.B prohibits these Respondents from facilitating 
exchanges of information between physicians concerning whether, or on 
what terms, to contract with a payor. Paragraph II.C prohibits them 
from attempting to engage in any action prohibited by Paragraph II.A or 
II.B. Paragraph II.D prohibits them from inducing anyone to engage in 
any action prohibited by Paragraphs II.A through II.C.
    Paragraph II also contains three provisos intended to clarify 
certain types of agreements that Paragraph II does not prohibit. The 
first proviso applies to Ms. Brauchler, the second to Dr. Guese, and 
the third to PISD. Each provides that nothing in Paragraph II prohibits 
the applicable Respondent from engaging in conduct that is reasonably 
necessary to form, participate in, or act in furtherance of, a 
``qualified risk-sharing joint arrangement'' or a ``qualified 
clinically-integrated joint arrangement.'' The proviso applies to PISD 
only if the physicians who participate in the arrangement are available 
to enter into payor contracts outside the arrangement, i.e., the 
arrangement is not exclusive.
    As defined in the proposed order, a ``qualified risk-sharing joint 
arrangement'' must satisfy two conditions. First, all physician 
participants must share substantial financial risk through the 
arrangement and thereby create incentives for the physician 
participants jointly to control costs and improve quality by managing 
the provision of services. Second, any agreement concerning 
reimbursement or other terms of conditions of dealing must be 
reasonably necessary to obtain significant efficiencies through the 
joint arrangement. The definition of financial risk-sharing tracks the 
discussion of that term contained in the Health Care Statements.
    As defined in the proposed order, a ``qualified clinically-
integrated joint arrangement'' also must satisfy two conditions. First, 
all physician participants must participate in active and ongoing 
programs to evaluate and modify their clinical practice patterns, 
creating a high degree of

[[Page 36192]]

interdependence and cooperation among physicians, in order to control 
costs and ensure the quality of services provided. Second, any 
agreement concerning reimbursement or other terms or conditions of 
dealing must be reasonably necessary to obtain significant efficiencies 
through the joint arrangement. This definition also reflects the 
analysis contained in the Health Care Statements.
    Paragraph II's provisos, as they apply to Dr. Guese and Ms. 
Brauchler, also provide that Paragraph II does not prohibit them from 
facilitating an agreement solely between physicians who are part of the 
same medical group practice. The proposed order defines such a practice 
as a bona fide, integrated firm in which physicians practice medicine 
together as partners, shareholders, owners, members, or employees, or 
in which only one physician practices medicine.
    Paragraph III prohibits Ms. Brauchler, for a period of three years, 
from negotiating with any payor on behalf of any current or past member 
of PISD, and from advising any current or past member of PISD to accept 
or reject any term, condition, or requirement of dealing with any 
payor.
    Ms. Brauchler is not prohibited from performing legitimate 
``messenger'' services, including with respect to PISD. As noted above, 
a properly constituted messenger can efficiently facilitate the 
establishment of physician-payor contracts and avoid fostering unlawful 
agreements among the participating physicians. As set forth in the 
proposed complaint, however, while Ms. Brauchler purported to operate 
as a legitimate messenger, in practice she fostered anticompetitive 
physician agreements by negotiating directly with payors for higher 
fees on behalf of PISD's entire membership, and by advising PISD's 
members collectively to reject various payor offers and to engage in 
concerted refusals to deal. For this reason, Paragraph III is a 
necessary and appropriate supplement to Paragraph II's provisions. 
Under the proposed order, Ms. Brauchler may serve as PISD's messenger, 
but, pursuant to Paragraph III, may not negotiate for or advise any 
PISD member with respect to payor contracts.
    Paragraph IV.C requires PISD to terminate, without penalty at any 
payor's request, current contracts with payors with respect to 
providing physician services. This provision is intended to eliminate 
the effects of Respondent's anticompetitive concerted actions. The 
remaining provisions of Paragraph IV and Paragraphs V through VIII of 
the proposed order impose obligations on Respondents with respect to 
distributing the proposed complaint and order to PISD's members and to 
offer specified persons, and reporting information to the Commission.
    The proposed order will expire in 20 years.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 02-12953 Filed 5-22-02; 8:45 am]
BILLING CODE 6750-01-M