[Federal Register Volume 76, Number 94 (Monday, May 16, 2011)]
[Notices]
[Pages 28226-28228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11885]


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FEDERAL TRADE COMMISSION

[File No. 091 0013]


Southwest Health Alliances, Inc., Doing Business as BSA Provider 
Network; Analysis of Agreement Containing Consent Order 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 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 10, 2011.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Southwest Health, File 
No. 091 0013'' on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/southwesthealthalliances, by following 
the instructions on the Web-based form. If you prefer to file your 
comment on paper, mail or deliver your comment to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-113 
(Annex D), 600 Pennsylvania Avenue, NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: John P. Wiegand (415-848-5174), FTC, 
Western Region, San Francisco, 600 Pennsylvania Avenue, NW., 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade

[[Page 28227]]

Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 the 
Commission 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 10, 2011), on the World Wide Web, at http://www.ftc.gov/os/actions.shtm. 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.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before June 10, 2011. 
Write ``Southwest Health Alliances, File No. 091 0013'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment doesn't include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment doesn't include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, don't 
include any ``[t]rade secret or any commercial or financial information 
which is obtained from any person and which is privileged or 
confidential,'' as provided in Section 6(f) of the FTC Act, 15 U.S.C. 
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don't 
include competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/southwesthealthalliances by following the instructions on the web-
based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.
    If you file your comment on paper, write ``Southwest Health 
Alliances, File No. 091 0013'' on your comment and on the envelope, and 
mail or deliver it to the following address: Federal Trade Commission, 
Office of the Secretary, Room H-113 (Annex D), 600 Pennsylvania Avenue, 
NW., Washington, DC 20580. If possible, submit your paper comment to 
the Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before June 8 2011. You can find more information, 
including routine uses permitted by the Privacy Act, in the 
Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

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 
Southwest Health Alliances, Inc., dba BSA Provider Network (``BSA 
Provider Network'' or ``Respondent''). The agreement settles charges 
that BSA Provider Network violated Section 5 of the Federal Trade 
Commission Act, 15 U.S.C. 45, by fixing prices charged to those 
offering coverage for health care services (``payors'') in the 
Amarillo, Texas, area. 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 Consent Order final.
    The purpose of this analysis is to facilitate public comment on the 
proposed Consent Order. The analysis is not intended to constitute an 
official interpretation of the agreement and proposed Consent 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 Respondent that it violated the law or that 
the facts alleged in the Complaint (other than jurisdictional facts) 
are true.

The Complaint's Allegations

    BSA Provider Network is a multi-specialty independent practice 
association consisting of multiple, independent medical practices with 
a total of approximately 900 physician members, of which approximately 
300 are devoted to primary care, in the Amarillo, Texas, area.
    Since at least 2000, BSA Provider Network has acted to restrain 
competition by facilitating, entering into, and implementing agreements 
to fix the prices and other terms at which it would contract with 
payers; and to engage in collective negotiations over terms and 
conditions of dealing with payers.
    BSA Provider Network did not engage in any activity that might 
justify collective agreements on the prices its members would accept 
for their services. For example, the physicians in BSA Provider Network 
have not clinically or financially integrated their practices to create 
efficiencies sufficient to justify their acts and practices. The 
Respondent's actions have restrained price and other forms of 
competition among physicians in the Amarillo, Texas, area and thereby 
harmed consumers (including health plans, employers, and individual 
consumers) by increasing the prices for physician services.

The Proposed Consent Order

    The proposed Consent Order is designed to prevent the continuance

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and recurrence of the illegal conduct alleged in the complaint while it 
allows BSA Provider Network to engage in legitimate, joint conduct. The 
proposed Consent Order does not affect BSA Provider Network's 
activities in contracting with payers on a capitated basis.
    Paragraph II.A prohibits Respondent from entering into or 
facilitating agreements between or among any health care providers: (1) 
To negotiate on behalf of any physician with payer; (2) to negotiate 
with any physician as a payer; (3) to deal, refuse to deal, or threaten 
to refuse to deal with any payer; (4) regarding any term, condition, or 
requirement upon which any physician deals, or is willing to deal, with 
any payer, including, but not limited to price terms; or (5) not to 
deal individually with any payer, or not to deal with any payer except 
through BSA Provider Network.
    The other parts of Paragraph II reinforce these general 
prohibitions. Paragraph II.B prohibits Respondent from facilitating 
exchanges of information between health care providers concerning 
whether, or on what terms, to contract with a payer. Paragraph II.C 
bars attempts to engage in any action prohibited by Paragraph II.A or 
II.B, and Paragraph II.D proscribes encouraging, suggesting, advising, 
pressuring, inducing, or attempting to induce any person to engage in 
any action that would be prohibited by Paragraphs II.A through II.C.
    As in other Commission orders addressing health care providers' 
collective bargaining with health care purchasers, certain kinds of 
agreements are excluded from the general bar on joint negotiations. 
Paragraph II does not preclude BSA Provider Network from engaging in 
conduct that is reasonably necessary to form or participate in 
legitimate ``qualified risk-sharing'' or ``qualified clinically-
integrated'' joint arrangements, as defined in the proposed Consent 
Order. Also, Paragraph II would not bar agreements that only involve 
physicians who are part of the same medical group practice, defined in 
Paragraph I.B, because it is intended to reach agreements between and 
among independent competitors.
    Paragraphs III-VI require BSA Provider Network to notify the 
Commission before it initiates certain contacts regarding contracts 
with payers. Paragraphs III and IV apply to arrangements under which 
BSA Provider Network would be acting as a messenger on behalf of its 
member physicians. Paragraphs V and VI apply to arrangements under 
which BSA Provider Network plans to achieve financial or clinical 
integration.
    Paragraph VII.A requires BSA Provider Network to send a copy of the 
Complaint and Consent Order to its physician members, its management 
and staff, and any payers who communicated with BSA Provider Network, 
or with whom BSA Provider Network communicated, with regard to any 
interest in contracting for physician services.
    Paragraph VII.B allows for contract termination if a payer 
voluntarily submits a request to BSA Provider Network to terminate its 
contract. Pursuant to such a request, Paragraph VII.B requires BSA 
Provider Network to terminate, without penalty, any payer contracts 
that they had entered into since it began its alleged restraint of 
trade in 2000. This provision is intended to eliminate the effects of 
BSA Provider Network's joint price setting behavior. Paragraph VII.C 
requires that BSA Provider Network send a copy of any payer's request 
for termination to every physician who participates in each group.
    Paragraph VII.D contains notification provisions relating to future 
contact with physicians, payers, management, and staff. These 
provisions require BSA Provider Network to distribute a copy of the 
Complaint and Consent Order to each physician who begins participating 
in each group; each payer who contacts each group regarding the 
provision of physician services; and each person who becomes an 
officer, director, manager, or employee for three years after the date 
on which the Consent Order becomes final. In addition, Paragraph VII.D 
requires BSA Provider Network to publish a copy of the Complaint and 
Consent Order, for three years, in any official publication that it 
sends to its participating physicians.
    Paragraphs VII.E and VIII-IX impose various obligations on BSA 
Provider Network to report or to provide access to information to the 
Commission to facilitate monitoring its compliance with the Consent 
Order.
    Pursuant to Paragraph X, the proposed Consent Order will expire 20 
years from the date it is issued.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-11885 Filed 5-13-11; 8:45 am]
BILLING CODE 6750-01-P