[Federal Register Volume 68, Number 7 (Friday, January 10, 2003)]
[Notices]
[Pages 1478-1482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-503]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States of America v. Mountain Health Care Proposed Final 
Judgment and Competitive Impact Statement

    Notice is hereby given pursuant to the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Section 16(b) through (h), that a proposed 
Final Judgment and Competitive Impact Statement have been filed in a 
civil antitrust case, United States of America v. Mountain Health Care, 
Civil Action No. 1:02CV288-T, in the United States District Court for 
the District of Western North Carolina. The Complaint alleges that 
Mountain Health Care (``MHC'') and its participating physicians 
developed a uniform fee schedule and used that fee schedule in 
negotiations with managed care purchasers in violation of Section 1 of 
the Sherman Act, 15 U.S.C. Sec.  1. In order to restore competition, 
the proposed Final Judgment requires that MHC be dissolved. Copies of 
the Complaint, proposed Final Judgment and Competitive Impact Statement 
are available for inspection at the Department of Justice in 
Washington, DC in Room 200, 325 7th Street, NW., and at the Office of 
the Clerk of the United States District Court for the District of 
Western North Carolina. The documents may also be found on the 
Antitrust Division's Web site, ltte://www.usdoj.gov/atr.
    Public comment on the proposed Final Judgement is invited within 
the statutory 60-day comment period. Such comments and responses 
thereto will be published in the Federal Register and filed with the 
Court. Comments should be directed to Mark J. Botti, Chief; Litigation 
I; Antitrust Division; United States Department of Justice; 1401 H 
Street., NW.; Room 4000; Washington, DC 20530 (Tel.: (202) 307-0001).

Constance K. Robinson,
Director of Operations.

Stipulation

    It is stipulated by and between the undersigned parties, by 
their respective attorneys, that:
    1. The Court has jurisdiction over the subject matter of this 
action and over each of the parties hereto, and venue of this action 
is proper in the Western District of North Carolina.
    2. The parties consent that a Final Judgment in the form hereto 
attached may be filed and entered by the Court, upon the motion of 
any party or upon the Court's own motion, at any time after 
compliance with the requirements of the Antitrust Procedures and 
Penalties Act (15 U.S.C. 16), and without further notice to any 
party or other proceedings, provided that plaintiff has not

[[Page 1479]]

withdrawn its consent, which it may do at any time before the entry 
of the proposed final Judgment by serving notice thereof on the 
defendants and by filing that notice with the Court.
    3. Defendant shall abide by and comply with the provisions of 
the proposed Final Judgment pending entry of the final Judgment, and 
shall, from the date of the filing of this Stipulation, comply with 
all the terms and provisions thereof s though the same were in full 
force and effect as an order of the Court.
    4. In the event plaintiff withdraws its consent or if the 
proposed Final Judgment is not entered pursuant to this Stipulation, 
this Stipulation shall be of no effect whatever, and the making of 
this Stipulation shall be without prejudice to any party in this or 
any other proceeding.

    Dated: October 2, 2002.
    For Plaintiff United States of America:
Weun Wang,
Litigation II Section, Antitrust Division, U.S. Department of Justice.
    September 26, 2002.
    For Defendant Mountain Health Care, P.A.:
John J. Miles,
Ober, Kaler, Grimes & Shriver, Counsel for Defendant Mountain Health 
Care, P.A.

Final Judgment

    Whereas, defendant has represented to the United States that its 
dissolution as ordered herein can and will be made promptly and that 
defendant later will raise no claim of hardship or difficulty as 
grounds for asking the Court to modify any of the provisions 
contained below;
    Now, therefore, before taking any testimony, and without trial 
or adjudication of any issue of fact or law herein, and upon consent 
of the parties hereto, it is hereby ordered, adjudged, and decreed 
as follows:

I. Jurisdiction

    This Court has jurisdiction over each of the parties hereto and 
over the subject matter of this action. The Complaint states a claim 
upon which relief may be granted against defendant under Section 1 
of the Sherman Act (15 U.S.C. Sec.  1).

II. Definitions

    As used in this Final Judgment:
    A. ``Mountain Health Care'' means defendant Mountain Health Care 
P.A., a North Carolina corporation, and includes its successors and 
assigns, and its subsidiaries, divisions, groups, affiliates, 
partnerships, and joint ventures, shareholders, participating 
members, and its directors, officers, managers, agents, and 
employees.
    B. ``Participate'' in an entity means to be a partner, 
shareholder, owner, member, or employee of such entity, or to 
provide services, agree to provide services, or offer to provide 
services, to a payer through such entity.
    C. ``Payer'' means any person that pays, or arranges for 
payment, for all or any part of any provider services for itself or 
for any other person.
    D. ``Person'' means any natural person, corporate entity, 
partnership, association, joint venture, government entity, or 
trust.
    E. ``Preexisting contract'' means a contract that was in effect 
prior to the date of the filing of the Complaint in this matter.
    F. ``Provider'' means a doctor of allopathic medicine, a doctor 
of osteopathic medicine, or any other person licensed by the state 
to provide ancillary health care services.

III. Applicability

    This Final Judgment applies to defendant Mountain health Care 
and all other persons in active concert or participation with 
Mountain Health Care who receive actual notice of this Final 
Judgment by personal service or otherwise.

IV. Dissolution of Mountain Health Care

    A. Defendant will cause the complete and permanent dissolution 
of Mountain Health Care as an on-going business entity by no later 
than 120 calendar days after the filing of the Complaint in this 
matter, or 10 days after notice of the entry of this Final Judgment 
by this Court, whichever is later.
    B. Beginning immediately after filing of the Complaint in this 
matter:
    1. defendant will not enter into any new contracts with any 
payers for the provision of provider services or renew any terms of 
any preexisting contract with any payer for the provision of 
provider services;
    2. defendant will terminate all preexisting contracts with 
payers by no later than 120 calendar days after the filing of the 
Complaint in this matter, or 10 days after notice of the entry of 
this Final Judgment by this Court, whichever is later.
    C. Defendant will cease doing business of any kind or manner at 
the expiration of 120 calendar days after the filing of the 
Complaint in this matter, or 10 days after notice of the entry of 
this Final Judgment by this Court, whichever is later.
    D. Within 14 calendar days after the date of filing of the 
Complaint in this matter, defendant will distribute by first-class 
mail:
    1. to the chief executive officer of each payer then under 
contract with Mountain Health Care, a copy of the Complaint, this 
Final Judgment, a notice of the dissolution required under Sec.  IV, 
and a notice of contract termination pursuant Sec.  IV.B.2;
    2. to each provider then participating in Mountain Health Care, 
a copy of the Complaint, this Final Judgment, and a notice of the 
dissolution required under section IV.

V. Compliance Inspection

    A. For the purposes of determining or securing compliance with 
this Final Judgment, or of determining whether this Final Judgment 
should be modified or vacated, and subject to any legally recognized 
privilege, from time to time, duly authorized representatives of the 
United States Department of Justice, including consultants and other 
persons retained by the United States, upon written request of a 
duly authorized representative of the Assistant Attorney General in 
charge of the Antitrust Division, and on reasonable notice to 
defendant made to its principal offices, shall be permitted:
    1. Access during office hours of defendant to inspect and copy, 
or at plaintiff's option, to require defendant to provide copies of, 
all books, ledgers, accounts, correspondence, memoranda, and other 
records and documents in the custody or possession or under the 
control of defendant relating to any matters contained in this Final 
Judgment; and
    2. To interview, either informally or on the record, defendant's 
officers, employees, and agents, who may have their individual 
counsel present, regarding any such matters. The interviews shall be 
subject to the reasonable convenience of the interviewee and without 
restraint or interference by defendant.
    B. Upon the written request of a duly authorized representative 
of the Assistant Attorney General in charge of the Antitrust 
Division, made to defendant's principal offices, defendant shall 
submit written reports, under oath if requested, relating to any 
matter contained in this Final Judgment as may be requested.
    C. No information or documents obtained by the means provided in 
this Section shall be divulged by the United States to any person 
other than an authorized representative of the executive branch of 
the United States, except in the course of legal proceedings to 
which the United States is a party (including grand jury 
proceedings), or for the purpose of securing compliance with this 
Final Judgment, or as otherwise required by law.
    D. If at the time information or documents are furnished by 
defendant to the United States, defendant represents and identifies 
in writing the material in any such information or documents to 
which a claim of protection may be asserted under Rule 26(c)(7) of 
the Federal Rules of Civil Procedure, and marks each pertinent page 
of such material, ``Subject to claim of protection under Rule 
26(c)(7) of the Federal Rules of Civil Procedure,'' then 10 calendar 
days notice shall be given defendant by the United States prior to 
divulging such material in any legal proceeding (other than a grand 
jury proceeding) to which defendant is not a party.

VI. Retention of Jurisdiction

    This Court retains jurisdiction to enable any party to this 
Final Judgment to apply to this Court at any time for further orders 
and directions as may be necessary or appropriate to carry out or 
construe this Final Judgment, to modify any of its provisions, to 
enforce compliance, and to punish violations of its provisions.

VII. Public Interest

    Entry of this Final Judgment is in the public interest.

VIII. Expiration of Final Judgment

    Unless this Court grants an extension, this Final Judgment shall 
expire ten years from the date of its entry.
    Dated: ------------, 2003.

Court approval subject to procedures of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. 16

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United States District Judge

Competitive Impact Statement

    The United States, pursuant to Section 2 of the Antitrust 
Procedures and Penalties Act

[[Page 1480]]

(``APPA''), 15 U.S.C. Sec.  16(b)-(h), files this Competitive Impact 
Statement relating to the proposed Final Judgment submitted for 
entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

    The plaintiff filed a civil antitrust Complaint on December 13, 
2002, in the United States District Court for the Western District 
of North Carolina, alleging that Mountain Health Care and its 
participating physicians have participated in an agreement which has 
unreasonable restrained interstate trade and commerce in violation 
of Section 1 of the Sherman Act, 15 U.S.C. 1. As alleged in the 
Complaint, this agreement has artificially raised the reimbursements 
paid to physicians in Western North Carolina by managed care 
companies, health insurance companies, third party administrators 
and employers (collectively ``managed care purchasers'') who provide 
health care benefits directly to their employees and enrollees. The 
Complaint requests that Mountain Health Care be ordered to promptly 
dissolve.
    The proposed Final Judgment requires Mountain Health Care to 
dissolve within one hundred twenty (120) calendar days after the 
filing of the Final Judgment, or within ten (10) days after notice 
of entry of the Final Judgment by the Court, whichever is later, 
unless the United States grants an extension of time.
    The plaintiff and the defendant have stipulated that the 
proposed Final Judgment may be entered after compliance with the 
APPA. Entry of the proposed Final Judgment would terminate this 
action, except that the Court would retain jurisdiction to construe, 
modify, or enforce the provisions of the proposed Final Judgment, 
and to punish violations thereof.

II. Description of the Events Giving Rise to the Alleged Violation of 
the Antitrust Laws

A. Background

    Mountain Health Care, a physician network joint venture, is a 
professional corporation that incorporated in 1994 under the laws of 
North Carolina, and which is located in Asheville, North Carolina. 
Mountain Health Care is comprised of more than 1,200 participating 
physicians practicing in Western North Carolina, consisting of 
Buncombe, Burke, Cherokee, Clay, Graham, Haywood, Henderson, 
Jackson, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, 
Swain, Transylvania, and Yancey counties. It is entirely owned by 
its participating physicians, although not all participating 
physicians are owners; the shareholders and the majority of its 
board are physicians. Mountain Health Care sells its physician 
network to managed care purchasers, and its member physicians and 
medical practices offer health care services to consumers located in 
North Carolina.
    Mountain Health Care's members constitute the vast majority of 
the physicians in private practice in Asheville, North Carolina, and 
surrounding Buncombe County, representing virtually every medical 
specialty. In certain practice specialities, 100 percent of the 
Asheville area physicians are Mountain Health Care members. The 
group includes the majority of physicians with admitting privileges 
at Mission St. Joseph's Hospital, the only hospital available to the 
general public in Asheville, North Carolina, and surrounding 
Buncombe County.
    Physicians frequently contract with managed care purchasers who 
provide health care benefits directly to their employees and 
enrollees. These contracts establish the terms and conditions, 
including price, under which physicians will provide care to the 
employees and enrollees of the health care plans offered by managed 
care purchasers. In order to gain access to managed care purchasers' 
enrollees, physicians often negotiate rates below their customary 
fees. As a result of these lower rates, contracts with managed care 
purchasers may lower the costs of health care for their enrollees. 
Independent physicians and medical practices compete against each 
other to offer health care services to managed care purchasers. Each 
physician or medical group decides whether or not to enter into a 
contract with a particular managed care purchaser, and independently 
negotiates the terms of such an agreement. Managed care purchasers 
are representatives of the ultimate consumers, and higher rates to 
managed care purchasers lead to higher health care costs for the 
ultimate consumers.

B. The Violation

    The Mountain Health Care joint venture brought together a large 
group of physicians with the objective of increasing their 
bargaining power with managed care purchasers; indeed, Mountain 
Health Care was created by its participating physicians to maximize 
physician reimbursement in Western North Carolina. The participating 
physicians authorized Mountain Health Care to represent them in 
negotiations with managed care purchasers, even though many of the 
independent physicians and medical practices that make up Mountain 
Health Care would have competed against each other. To facilitate 
such negotiations, Mountain Health Care and its participating 
physicians developed a uniform fee schedule for use in negotiations 
with managed care purchasers. The fee schedule was developed, in 
part, by comparing and blending the rates of multiple physicians. 
Mountain Health Care then adopted the uniform fee schedule that 
applied to all its members--nearly every physician in Asheville and 
the surrounding area.
    For several years, using the uniform fee schedule, Mountain 
Health Care has negotiated for its participating physicians with 
managed care purchasers. Thus, it has acted as a vehicle for 
collective decisions by its participating physicians on price and 
other significant terms of dealing. Mountain Health Care has 
incorporated the fee schedule into contracts with health plans, 
thereby setting reimbursement rates its various participating 
physicians would receive from managed care purchasers. Under such 
contracts that provide access to the Mountain Health Care network of 
physicians, each competing physician is paid the same amount for the 
same service.
    Mountain Health Care did not engage in any activity that might 
justify collective agreements on the prices its members would charge 
for their services. Its participating physicians have not clinically 
or financially integrated their practices to create significant 
efficiencies to the benefit of managed care purchasers and their 
employees and enrollees.

C. The Competitive Effects of the Violation

    The agreement on a uniform fee schedule has had anticompetitive 
results. Through use of the uniform fee schedule, Mountain Health 
Care has operated as a price-setting organization. Without Mountain 
Health Care, the participating physicians normally would have 
competed against each other for managed care purchasers. Instead, 
the participating physicians authorized Mountain Health Care to 
negotiate and set common prices and other competitively significant 
terms with managed care purchasers. Through Mountain Health Care, 
its participating physicians collectively agreed on prices for 
services rendered under Mountain Health Care contracts, an agreement 
in violation of Section 1 of the Sherman Act.
    Mountain Health Care's imposition of a uniform fee schedule 
increased physician reimbursement fees to managed care purchasers 
throughout Western North Carolina. The physician reimbursement rates 
that have resulted from Mountain Health Care's negotiations with 
managed care purchasers are higher than those which would have 
resulted from individual negotiations with each competing 
independent physician or medical practice that participates in 
Mountain Health Care. With the large majority of physicians in 
Asheville and the surround area as members of Mountain Health Care 
and adhering to its uniform fee schedule, few, if any, competitive 
alternatives remained for managed care purchasers. The agreement on 
a uniform fee schedule, implemented through Mountain Health Care, 
eliminated meaningful competition for health care services in 
Asheville and the surrounding area.

III. Explanation of the Proposed Final Judgment

    The proposed Final Judgment is designed to end the illegal 
concerted action alleged in the Complaint by requiring the defendant 
to dissolve within 120 days. This time period will allow the 
defendant's customers adequate time to seek alternative means of 
procuring physician services. This dissolution will reestablish 
competition below many of the independent participating physicians 
and medical practices of Mountain Health Care. This competition will 
benefit the purchasers of physician services by enabling them to 
negotiate with independent physicians and practice groups and 
enabling them to negotiate price independently, instead of being 
forced to pay the fees outlined in Mountain Health Care's uniform 
fee schedule.
    Unless the United States grants an extension of time, Mountain 
Health Care's dissolution must be completed within one hundred 
twenty (120) calendar days after the filing of the Final Judgment, 
or ten (10) days

[[Page 1481]]

after notice of entry of the Final Judgment by the Court, whichever 
is later. The Final Judgment imposes certain obligations on Mountain 
Health care with respect to facilitating its dissolution, including 
providing notice to its members and customers.

IV. Remedies Available to Potential Private Litigants

    Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any 
person who has been injured as a result of conduct prohibited by the 
antitrust laws may bring suit in federal district court to recover 
three times the damages the person has suffered, as well as the 
costs of bringing a lawsuit and reasonable attorneys' fees. Entry of 
the proposed Final Judgment will neither impair nor assist the 
bringing of any private antitrust damage action.

V. Procedures Available for Modification of the Proposed Final Judgment

    The parties have stipulated that the proposed Final Judgment may 
be entered by this Court after compliance with the provisions of the 
APPA, provided that the United States has not withdrawn its consent. 
The APPA conditions entry of the decree upon this Court's 
determination that the proposed Final Judgment is in the public 
interest.
    The APPA provides a period of at least sixty (60) days preceding 
the effective date of the proposed Final Judgment within which any 
person may submit to the United States written comments regarding 
the proposed Final Judgment. Any person who wishes to comment should 
do so within sixty (60) days of the date of publication of this 
Competitive Impact Statement in the Federal Register. The United 
States will evaluate and respond to the comments. All comments will 
be given due consideration by the Department of Justice, which 
remains free to withdraw its consent to the proposed Final Judgment 
at any time prior to entry. The comments and the response of the 
United States will be filed with this Court and published in the 
Federal Register. Written comments should be submitted to: Mark J. 
Botti, Chief, Litigation I Section, Antitrust Division, United 
States Department of Justice, 1401 H Street, NW., Suite 4000, 
Washington, DC 20530.
    The proposed Final Judgment provides that this Court retains 
jurisdiction over this action, and the parties may apply to this 
Court for any order necessary or appropriate for the modification, 
interpretation, or enforcement of the Final Judgment.

VI. Alternatives to the Proposed Final Judgment

    The United States considered, as an alternative to the proposed 
Final Judgment, a full trial on the merits against defendant 
Mountain Health Care. The United States is satisfied, however, that 
the dissolution of Mountain Health Care proposed in the Final 
Judgment will more quickly achieve the primary objective of a trial 
on the merits--reestablishing competition in the relevant market.

VII. Standard of Review Under the APPA for Proposed Final Judgment

    The APPA requires that proposed consent judgments in antitrust 
cases brought by the United States be subject to a sixty (60) day 
comment period, after which the court shall determine whether entry 
of the proposed Final Judgment is ``in the public interest.'' In 
making that determination, the court may consider--
    (1) The competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration or relief sought, anticipated effects of 
alternative remedies actually considered, and any other 
considerations bearing upon the adequacy of such judgment;
    (2) The impact of entry of such judgment upon the public 
generally and individuals alleging specific injury from the 
violations set forth in the complaint including consideration of the 
public benefit, if any, to be derived from a determination of the 
issues at trial.

15 U.S.C 16(e) (emphasis added). As the Court of Appeals for the 
District of Columbia has held, the APPA permits a court to consider, 
among other things, the relationship between the remedy secured and 
the specific allegations set forth in the government's complaint, 
whether the decree is sufficiently clear, whether enforcement 
mechanisms are sufficient, and whether the decree may positively 
harm third parties. See United States  v. Microsoft Corp., 56 F.3d 
1448, 1458-62 (DC Cir. 1995).
    In conducting this inquiry, ``the Court is nowhere compelled to 
go to trial or to engage in extended proceedings which might have 
the effect of vitiating the benefits of prompt and less costly 
settlement through the consent decree process.'' \1\ Rather, absent 
a showing of corrupt failure of the government to discharge its 
duty, the Court, in making its public interest finding, should * * * 
carefully consider the explanations of the government in the 
competitive impact statement and its responses to comments in order 
to determine whether those explanations are reasonable under the 
circumstances.\2\
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    \1\ 119 Cong. Rec. 24,598 (1973). See United States v. Gillette 
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest'' 
determination can be made properly on the basis of the Competitive 
Impact Statement and Response to Comments filed pursuant to the 
APPA. Although the APPA authorizes the use of additional procedures, 
those procedures are discretionary (15 U.S.C. 16(f)). A court need 
not invoke any of them unless it believes that the comments have 
raised significant issues and that further proceedings would aid the 
court in resolving those issues. See H. R. Rep. No. 93-1463, 93rd 
Cong. 2d Sess. 8-9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 
6538.
    \2\ United States v. Mid-America Dairymen, Inc., 1977-1 Trade 
Cas. (CCH ]61,508, at 71,980 (W.D. Mo. 1977); see also United States 
v. Loew's Inc., 783 F. Supp. 211, 214 (S.D.N.Y. 1992); United States 
v. Columbia Artists Mgmt., Inc., 662 F. Supp. 865, 870 (S.D.N.Y. 
1987).

    Accordingly, with respect to the adequacy of the relief secured by 
the decree, a court may not ``engage in an unrestricted evaluation of 
what relief would best serve the public.'' United States v. BNS, Inc., 
858 F.2d 456, 462-63 (9th Cir. 1988), quoting United States v. Bechtel 
Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083 
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(1981); see also Microsoft, 56 F.3d at 1458. Predecent requires that

    [t]he balancing of competing social and political interests 
affected by a proposed antitrust consent decree must be left, in the 
first instance, to the discretion of the Attorney General. The 
court's role in protecting the public interest is one of insuring 
that the government has not breached its duty to the public in 
consenting to the decree. The court is required to determine not 
whether a particular decree is the one that will best serve society, 
but whether the settlement is ``within the reaches of the public 
interest.'' More elaborate requirements might undermine the 
effectiveness of antitrust enforcement by consent decree.\3\
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    \3\ United States v. Bechtel Corp., 648 F.2d at 666 (citations 
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d 
at 463; United States v. National Broadcasting Co., 449 F. Supp. 
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F. 
Supp. at 716. See also United States v. American Cyanamid Co., 719 
F.2d 558, 565 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984).
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    The proposed Final Judgment, therefore, should not be reviewed 
under a standard of whether it is certain to eliminate every 
anticompetitive effect of a particular practice or whether it 
mandates certainty of free competition in the future. Court approval 
of a final judgment requires a standard more flexible and less 
strict than the standard required for a finding of liability. A 
``proposed decree must be approved even if it falls short of the 
remedy the court would impose on its own, as long as it falls within 
the range of acceptability or is `within the reaches of public 
interests.' '' \4\
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    \4\ United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 
151 (D.D.C. 1982) (quoting Gillette, 406 F. Supp. at 716), aff'd sub 
nom. Maryland v. United States, 460 U.S. 1001 (1983); United States 
v. Alcan Aluminum, Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985); 
United States v. Carrols Dev. Corp., 454 F. Supp. 1215, 1222 
(N.D.N.Y. 1978).
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    Moreover, the court's role under the APPA is limited to 
reviewing the remedy in relationship to the violations that the 
United States alleges in its Complaint, and does not authorize the 
court to ``construct [its] own hypothetical case and then evaluate 
the decree against that case.'' Microsoft, 56 F.3d at 1459. Since 
the ``court's authority to review the decree depends entirely on the 
government's exercising its prosecutorial discretion by bringing a 
case in the first place,'' if follows that the court ``is only 
authorized to review the decree itself,'' and not to ``effectively 
redraft the complaint'' to inquire into other matters that the 
United States might have but did not pursue. Id.

VIII. Determinative Documents

    There are no determinative materials or documents within the 
meaning of the APPA that were considered by the United States in 
formulating the proposed Final Judgment.
Dated: December 18, 2002. Washington, DC
    Respectfully submitted,

[[Page 1482]]

Mark J. Botti,
Weeun Wang,
David C. Kelly,
Steven R. Brodsky,
Barry L. Creech,
Karl D. Knutsen.
U.S. Department of Justice, Antitrust Division, Litigation I 
Section, 1401 H Street, NW., Suite 4000, Washington, DC 20530, 202-
307-0001.

Certificate of Service

    I hereby certify that I served a copy of the foregoing 
Competitive Impact Statement via First Class United States Mail, 
this 18th day of December, 2002, on:

    For Defendant Mountain Health Care.

Jeri Kumar, Esq.,
D.B & T. Building, Suite 510, Asheville, NC 28801.
    I hereby certify that I personally served a copy of the 
foregoing Competitive Impact Statement, this 18th day of December, 
2002, on:
    For Defendant Mountain Health Care.

Jeff Miles,
Ober, Kaler, Grimes & Shriver, Suite 5000, 1401 H Street, NW, 
Washington, DC 20005, (202) 326-5008.

David C. Kelly.
[FR Doc. 03-503 Filed 1-9-03; 8:45 am]
BILLING CODE 4410-11-M