Public Comment and Response on Proposed Final Judgment, 4268-4285 [08-227]
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Federal Register / Vol. 73, No. 16 / Thursday, January 24, 2008 / Notices
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2711.3–1. In the event of sale, the
unreserved mineral estate will be
conveyed simultaneously with the
surface estate. The unreserved mineral
interests have been determined to have
no known mineral value pursuant to 43
CFR 2720.2 (a). Acceptance of the sale
offer will constitute an application for
conveyance of the unreserved mineral
interests. The purchaser will be required
to pay a $50.00 non-refundable filing fee
for conveyance of the available mineral
interests.
Competitive Sale Procedures
The sales will be by sealed bid,
followed by oral auction. Sealed bids
must be received at the BLM Boise
District Office at the above address no
later than 4:30 p.m. MDT on the day
before the sale. Federal law requires that
bidders must be U.S. citizens 18 years
of age or older, or in the case of a
corporation, subject to the laws of any
State of the U.S. Proof of citizenship
shall accompany the bid.
At 10 a.m. MDT on May 6, 2008,
sealed bids will be opened at the BLM
Boise District Office, and the highest
acceptable sealed bid will be
determined for each parcel. An oral
auction will follow the determination of
the highest acceptable sealed bid at or
in excess of the appraised fair market
value, with the opening oral bid being
for not less than the highest acceptable
sealed bid. Oral bidding will continue
until the highest bid is determined. If no
oral bids are received, the highest
acceptable sealed bid will be considered
the purchaser. If neither a sealed nor an
oral bid is received for a particular
parcel, that parcel will remain available
for over-the-counter sale at the
appraised fair market value for a period
of 180 days following the sale date.
The purchaser will have 30 days from
the date of acceptance of the high bid to
submit a deposit of 20 percent of the
purchase price and the $50.00 filing fee
for conveyance of mineral interests. The
purchaser must remit the remainder of
the purchase price within 180 days from
the date of the sale. Payments must be
by certified check, postal money order,
bank draft or cashiers check payable to
the U.S. Department of the Interior—
BLM. Failure to meet conditions
established for this sale will void the
sale, and any monies received will be
forfeited to the BLM.
Public Comments: For a period until
March 10, 2008, the public and
interested parties may submit written
comments regarding the proposed sale
to the BLM Four Rivers Field Manager
at the above address. Before including
your address, phone number, e-mail
address, or other personal identifying
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information in your comment, be
advised that your entire comment—
including your personal identifying
information—may be made publicly
available at any time. While you can ask
us in your comment to withhold from
public review your personal identifying
information, we cannot guarantee that
we will be able to do so.
The BLM will make available for
public review, in their entirety, all
comments submitted by businesses or
organizations, including comments by
individuals in their capacity as an
official or representative of a business or
organization.
Any adverse comments on the
proposed sales will be reviewed by the
BLM Idaho State Director, who may
sustain, vacate, or modify this realty
action and issue a final determination.
In the absence of any objections, the
realty action will become the final
determination of the Department of the
Interior. (Authority: 43 CFR 2711.1–
2(a)). Protests on the proposed plan
amendment must be received or
postmarked no later than February 25,
2008 and must be sent to the Director
(760), Chief, Planning and
Environmental Coordination, at the
above address. Any protest to the plan
amendment should include: (1) Name,
address, telephone number and interest
of protesting party, (2) identification of
the issue being protested, (3) a statement
on the parts of the plan being protested,
(4) a copy of all documents addressing
the issues that were submitted during
the planning process, and (5) a concise
statement explaining why the State
Director’s decision is believed to be in
error. The State Director will make a
final decision on this proposed plan
amendment following the Governor’s
consistency review and resolution of
any protests that may be received by the
Director. (Authority: 43 CFR 1610.5–2)
Parcels 1 through 5, which require a
plan amendment, will not be sold prior
to the completion of the plan
amendment.
Dated: January 16, 2008.
John Sullivan,
Acting Four Rivers Field Manager.
[FR Doc. E8–1162 Filed 1–23–08; 8:45 am]
BILLING CODE 4310–GG–P
DEPARTMENT OF JUSTICE
Antitrust Division
Public Comment and Response on
Proposed Final Judgment
Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(b)–(h),
the United States hereby publishes
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below five comments received on the
proposed Final Judgment in United
States v. Federation of Physicians and
Dentists, Case No. 1:05–cv–431, which
were filed on December 17, 2007, in the
United States District Court for the
Southern District of Ohio, together with
the United States’ response to the
comments.
Copies of the comments and the
response are available for inspection at
the Department of Justice, Antitrust
Division; 325 Seventh Street, NW.;
Room 200; Washington, DC 20530
(telephone (202) 514–2481); and at the
Office of the Clerk of the United States
District Court for the Southern District
of Ohio, Potter Stewart U.S. Courthouse,
Room 103, 100 East Fifth Street,
Cincinnati, Ohio 45202 (telephone (513)
564–7500). Copies of any of these
materials may be obtained upon request
and payment of a copying fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
In the United States District Court for
the Southern District of Ohio Western
Division
United States of America, Plaintiff, vs.
Federation of Physicians and Dentists,
et al., Defendants.
[Case No. 1:05–cv–431]
Hon. Sandra S. Beckwith, C.J.
Hon. Timothy S. Hogan, M.J.
Plaintiff United States’ Response to
Public Comments
Pursuant to the requirements of the
Antitrust Procedures and Penalties Act
(‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C.
16(b)–(h), the United States submits this
response to five public comments
relating to the proposed Final Judgment
that has been lodged with the Court for
eventual entry in this case. After review
of the comments, the United States
continues to believe that the proposed
Final Judgment will provide an effective
and appropriate remedy for the antitrust
violation alleged in the Complaint.
Following publication of the comments
and this response to them in the Federal
Register, pursuant to 15 U.S.C. 16(d),
the United States will request that the
Court enter the proposed Final
Judgment.
I. Procedural History
On June 24, 2005, the United States
filed this civil antitrust action, alleging
that the Federation of Physicians and
Dentists (‘‘Federation’’) and Federation
employee Lynda Odenkirk, along with
physician co-defendants Drs. Warren
Metherd, Michael Karram, and James
Wendel, coordinated a conspiracy
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among about 120 obstetriciangynecologist physicians (‘‘OB–GYNs’’)
practicing in greater Cincinnati, Ohio,
that unreasonably restrained interstate
trade and commerce in violation of
Section 1 of the Sherman Act, 15 U.S.C.
1. The physician defendants agreed to a
judgment that was filed concurrently
with the Complaint and entered by this
Court on November 14, 2005, as being
in the public interest. (Dkt. Entry #36).
The Federation and Ms. Odenkirk (the
‘‘Federation defendants’’), however,
contested the charges.
On January 26, 2006, the United
States filed with the Court a motion
seeking entry of partial summary
judgment on liability against the
Federation defendants. (Dkt. entry ##
40, 47). After briefing on this motion
was completed, the Federation
defendants filed an unopposed motion
requesting the Court to order that the
case be referred to mediation. (Dkt.
entry # 63). On April 14, 2006, the Court
ordered that the case be referred to
mediation.
Following two mediation conferences
and protracted settlement negotiations,
on June 19, 2007, the United States filed
with the Court a settlement stipulation
(Dkt. Entry # 81) with the Federation
defendants, consenting to entry of the
proposed Final Judgment (Dkt. entry #
81–2), which was lodged with the Court
pending the parties’ compliance with
the APPA. On July 18, 2007, the United
States published the Stipulation,
proposed Final Judgment, and
Competitive Impact Statement (‘‘CIS’’)
(Dkt. Entry # 84) in the Federal Register
39450 (2007), as required by the APPA
to facilitate public comments on the
proposed Final Judgment. A summary of
the terms of the proposed Final
Judgment and CIS was published for
seven consecutive days in the
Cincinnati Enquirer from July 20
through July 26, 2007, and in the
Washington Post from July 18 through
July 24, 2007, also pursuant to the
APPA. The 60-day period for public
comments on the proposed Final
Judgment began on July 27, 2007, and
expired on September 24, 2007. During
that period, five comments were
submitted.
II. Summary of the Complainant’s
Allegations
The Federation is a membership
organization of physicians and dentists,
headquartered in Tallahassee, Florida.
the Federation’s membership includes
economically independent physician
groups in private practice in many
states, including Ohio. The Federation
has offered member physicians
assistance in negotiating fees and other
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terms in their contracts with health care
insurers.
In spring 2002, several Cincinnati
OB–GYNs became interested in joining
the Federation to negotiate higher fees
from health care insurers. The physician
defendants assisted the Federation in
recruiting other Cincinnati-area OB–
GYNs as members. By June 2002, the
membership of the Federation had
grown to include a large majority of
competing OB–GYN physicians in the
Cincinnati area.
Withe substantial assistance from the
physician defendants and Ms. Odenkirk,
the Federation coordinated and helped
implement its members’ concerted
demands to insurers for higher fees and
related terms, accompanied by threats of
contract terminations. From September
2002 through the fall of 2003, Ms.
Odenkirk communicated with the
physician defendants and other
cincinnati-area OB–GYN Federation
members to coordinate their contract
negotiations with health care insurers.
Along with the physician defendants,
Ms. Odenkirk developed a strategy to
intensify Federation member
physicians’ pressure on health care
insurers to renegotiate their contracts,
including informing member physicians
about the status of competing member
groups’ negotiations and taking steps to
coordinate their negotiations.
The agreement coordinated by the
Federation defendants forced
Cincinnati-area health care insurers to
raise fees paid to Federation member
OB–GYNs above the levels that would
likely have resulted if Federation
members had negotiated competitively
with those insurers. As a result of the
conspirators’ conduct, the three largest
Cincinnati-area health care insurers
each were forced to increase fees paid
to most Federation member 0B-GYNs by
approximately 15–20% starting July 1,
2003, followed by cumulative increases
of approximately 20–25% starting
January 1, 2004, and approximately 25–
30% effective January 1, 2005. This
conduct by Federation member OBGYNs, coordinated by the Federation
defendants, also caused other insurers
to raise the fees that they paid to
Federation OB-GYN members. The
increased fees paid by health care
insurers to Federation OB-GYN
members in the Cincinnati area are
ultimately borne by employers and their
employees.
iii. Summary of Relief to be Obtained
Under the Proposed Final Judgment
The proposed Final Judgment is
designed to enjoin the Federation
defendants from taking future actions
that could facilitate private-practice
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physicians in coordinating their
dealings with payers for health care
services. It accordingly prohibits the
Federation defendants from being
involved in its private-practice
members’ negotiations or contracting
with health insurers or other payers for
health care services anywhere in the
United States.
The proposed Final Judgment
prohibits the Federation defendants
from providing any services to any
physician in private practice (defined as
an ‘‘independent physician’’) regarding
such physician’s negotiation,
contracting, or other dealings with any
payer. The proposed Final Judgment
also prohibits the Federation defendants
from (1) representing any independent
physician with any payer (including as
a messenger); (2) reviewing or
analyzing, for any such physician, any
proposed or actual contract or contract
term between the physician and any
payer; and (3) communicating with any
independent physician about the status
of that physician’s, or any other
physician’s, negotiations, contracting, or
participation with any payer. The
Federation defendants are also generally
prohibited from communicating about
any proposed or actual contract or
contract term between any independent
physician and any payer. In addition,
the proposed Final Judgment enjoins the
Federation defendants from responding
to any question initiated by any payer,
except to state that the Final Judgment
prohibits such a response. Finally, the
proposed Final Judgment generally
prohibits the Federation defendants
from training or educating, or
attempting to train or educate, any
independent physician in any aspect of
contracting or negotiating with any
payer.
The proposed decree includes
exceptions to these prohibitions
covering conduct that neither threatens
competitive harm nor undermines the
clarity of the prohibitions. For example,
the proposed decree limits its
prohibition on training or educating
independent physicians in any aspect of
contracting or negotiating with payers
by allowing the Federation defendants
to
(1) Speak on general topics (including
contracting), when (a) invited to do so as part
of a regularly scheduled medical educational
seminar offering continuing medical
education credit, (b) advance written notice
has been given to Plaintiff, and (c) documents
relating to what was said by the Federation
defendants are retained by them for possible
inspection by the United States.
(2) Publish articles on general topics
(including contracting) in a regularly
disseminated newsletter; and
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(3) Provide education to independent
physicians regarding the regulatory structure
(including legislative developments) of
workers compensation, Medicaid, and
Medicare, except Medicare Advantage,
provided that such conduct does not
violate any other injunctive provision of
the proposed Final Judgment.
In a section titled ‘‘permitted
conduct,’’ the proposed decree permits
certain other conduct as well:
(1) Federation defendants may engage in
activities involving physician participation
in written fee surveys that are covered by the
‘‘safety zone’’ under Statement 6 of the 1996
Statements of Antitrust Enforcement Policy
in Health Care, 4 Trade Reg. Rep. (CCH)
¶ 13,153, which addresses provider
participation in exchanges of price and cost
information;
(2) Federation defendants and Federation
members may engage in lawful union
organizational efforts and activities;
(3) Federation defendants may petition
governmental entities in accordance with
doctrine established in Eastern Railroad
Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127 (1961), and its progeny;
and
(4) Federation physician members may
choose independently, or with other
members or employees of such member’s
bona fide solo practice or practice groups, the
health insurers with which to contract, and/
or to refuse to enter into discussions or
negotiations with any health care payer.
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The proposed Final Judgment clarifies
that it does not alter the Federation’s
obligations under the decree entered by
the district court in Delaware in a prior,
similar case against the Federation,
United States v. Federation of
Physicians and Dentists, Inc., CA 98–
475 JJF (D. Del., consent judgment
entered Nov. 6, 2002) (the ‘‘Delaware
decree’’). If there is any conflict between
the injunctive provisions of the
proposed Final Judgment and the
injunctive provisions or conduct
permitted by the Delaware decree, the
proposed Final Judgment controls. The
proposed Final Judgment embodies
more stringent relief than that provided
by the Delaware decree because it
prohibits the Federation, for example,
from representing physicians in their
dealings with payers as a messenger and
reviewing and analyzing physician
contracts with any payer. The Delaware
decree had permitted such conduct in
limited circumstances.
IV. Summary of Public Comments and
the United States’ Responses to Them
During the 60-day public comment
period, the United States received
comments from one individual and four
medical societies. Upon review, the
United States believes that nothing in
the comments warrants a change in the
proposed Final Judgment or suggests
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that the proposed Final Judgment is not
in the public interest. None of the
comments contend that the proposed
decree fails adequately to redress the
violations and competitive harm alleged
in the Complaint. Rather, two of the
comments contend that the proposed
Final Judgment is too stringent, and
another implies the same point. Two
other comments contend that this case
resulted from an unfair application of
the antitrust laws to physicians in their
dealings with insurers. The remaining
comment generally criticizes what is
characterized as an unreasonably
aggressive antitrust enforcement policy
by the Department of Justice and
Federal Trade Commission with respect
to physicians. The United States
addresses these concerns below and
explains why the proposed Final
Judgment is appropriate.
A. Comments Questioning the Charges
Brought Against the Federation
Defendants
1. Summary of Comments Submitted by
Dr. Michael Connair and the American
Academy of Orthopaedic Surgeons
Dr. Michael Connair, an orthopedic
surgeon in Connecticut and a Vice
President of the defendant Federation of
Physicians and dentists, has submitted
a comment (attachment 1) that criticizes
the United States’ Competitive Impact
Statement (‘‘CIS’’) (Dkt. Entry # 84) as
‘‘reflect[ing] a misguided DOJ
enforcement policy that ignores
antitrust principles and that encourages
anticompetitive behavior by insurers.’’
According to Dr. Connair, the CIS
ignores that Cincinnati ‘‘physicians
were forced to react to anti-competitive
behaviors by Cincinnati insurers
because the Department of Justice did
not enforce antitrust principles against
those insurers.’’
Similarly, the American Academy of
Orthopaedic Surgeons’ comment
(Attachment 2) expresses the Academy’s
belief that this case ‘‘is the result of the
antitrust laws not being applied equally
to the insurance industry as they are to
physicians or other professions,’’ which
‘‘would reduce competition in the
insurance industry and, ultimately,
harm consumers.’’ The Academy’s
comment also asserts that ‘‘[i]n this
case, the physicians appeared to be
reacting to anticompetitive behaviors by
Cincinnati insurers which artifically
lowered prices below Medicare levels.’’
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2. United States’ Response to Comments
Submitted by Dr. Michael Connair and
the American Academy of Orthopaedic
Surgeons
Dr. Connair’s and the Academy’s
comments challenge the United States’
decision to prosecute the defendants’
alleged anticompetitive conduct, rather
than alleged anticompetitive actions by
health insurers. Such an argument is
outside the scope of this APPA
proceeding because the APPA does not
permit the Court to review the efficacy
or ‘‘correctness’’ of the United States’
enforcement policy or its determination
to pursue—or not pursue—a particular
claim in the first instance. As explained
by the District Court for the District of
Columbia, in a Tunney Act ‘‘public
interest’’ proceeding, the district court
should not second-guess the
prosecutorial decisions of the Antitrust
Division regarding the nature of the
claims brought in the first instance;
‘‘rather, the court is to compare the
complaint filed by the United States
with the proposed consent decree and
determine whether the proposed decree
clearly and effectively addresses the
anticompetitive harms initially
identified.’’ United States v. The
Thomson Corp, 949 F. Supp. 907, 913
(D.D.C. 1996); accord, United States v.
Microsoft Corp., 56 F.3d 1448, 1459
(D.C. Cir. 1995) (in APPA proceeding,
‘‘district court is not empowered to
review the actions or behavior of the
Department of Justice; the court is only
authorized to review the decree itself’’).
Although the comments of Dr.
Connair and the Academy are beyond
the scope of an APPA proceeding, the
United States nevertheless observes that
their comments are incorrect as a matter
of fact and law. The United States
believes that the uncontested evidence
and law presented in support of its
motion for summary judgment, which
the Court was not called on to decide in
view of the parties’ proposed settlement,
strongly supports the Complaint’s
allegations that the Federation
defendants violated the antitrust laws.
(Dkt. Entry ## 1, 47). Further, even if the
Federation defendants believed that
Cincinnati insurers had colluded on
payments made to OB–GYNs, as the
comments imply, such circumstances
would provide no defense for the
Federation defendants’ coordination of
Cincinnati OB–GYNs price fixing.
Controlling law is clear ‘‘[t]hat a
particular practice may be unlawful is
not, in itself, a sufficient justification for
collusion among competitors to prevent
it.’’ FTC v. Indiana Fed’n of Dentists,
476 U.S. 447, 465 (1986).
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B. Comments Arguing that the Proposed
Final Judgment is Overly Restrictive
1. Summary of Comments Submitted by
the Connecticut State Medical Society,
Connecticut Orthopedic Society, and
Utah State Orthopaedic Society
The Connecticut State Medical
Society (CSMS) comments (Attachment
3) that the proposed Final Judgment is
‘‘unnecessarily restrictive and more
onerous than final decrees typically
proposed by both the [Department of
Justice] and the Federal Trade
Commission (FTC) under similar
circumstances in that it precludes the
Federation from engaging in lawful
conduct including representing
physicians in their dealing with payers
as messengers and from reviewing and
analyzing physician contracts with any
third-party payer.’’ The CSMS asks the
United States to modify the proposed
Final Judgment to allow the defendant
Federation to participate in (1) qualified
risk-sharing and qualified clinically
integrated joint arrangements, (2)
messenger-model arrangements, and (3)
communications with physicians about
insurer contracts. The Connecticut
Orthopedic Society comments
(Attachment 4) in support of the letter
submitted by the CSMS.
The Utah State Orthopaedic Society’s
(‘‘USOS’s’’) comment (Attachment 5)
states that the defendant Federation has
served as a messenger for orthopedists
in Utah with productive results. Based
on the Utah experience, the comment
‘‘presume[s] that the activities in
Cincinnati have been handled in a
similar fashion by the Federation.’’ The
USOS’s comment further expresses the
‘‘hope * * * [that] the ‘messenger
model’ throughout the country is
managed legally by those that employ
it.’’
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2. United States’ Response to Comments
Submitted by the Connecticut State
Medical Society, Connecticut
Orthopedic Society, and Utah State
Orthopaedic Society
These comments seek entry of a
decree that essentially tracks the
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Delaware decree. The United States had
agreed to resolve its earlier case against
the Federation, in part, to give the
Federation an opportunity to conduct
some of its activities in a lawful manner
that should not have led to
anticompetitive results. The Federation
defendants’ actions in Cincinnati, as
alleged in the United States’ Complaint
(Dkt. Entry # 1) and demonstrated in its
summary judgment brief (Dkt. Entry
# 47), however, have shown that such a
decree is insufficient to prevent the
Federation defendants from engaging in
substantial anticompetitive conduct
and, therefore, that a more restrictive
decree is appropriate. The Federation
defendants’ alleged conduct in
Cincinnati demonstrates that the
USOS’s expressed ‘‘hope’’ that the
Federation defendants have employed
the ‘‘messenger model’’ appropriately
elsewhere has not been realized.
Had the Federation defendants’
complied with the Delaware decree, it
plainly would have prevented them
from coordinating Cincinnati OB-GYNs’
fee negotiations with health insurers.
The Federation defendants nonetheless
have steadfastly maintained that their
conduct challenged in this matter
complied with the Delaware decree,
which—like the proposed Final
Judgment—is nationwide in scope.
Accordingly, the United States decided
in this matter to negotiate a more
restrictive proposed Final Judgment
with the Federation defendants that
assures that the Federation will not
again engage in conduct that has the
anticompetitive effect alleged in the
complaint. The proposed Final
Judgment thus provides appropriate
additional assurance that the type of
conduct that occurred in Cincinnati,
despite the Delaware decree, will not
recur.
In short the orthopedic groups’
comments fail to recognize that the
Federation defendants’ conduct in
Cincinnati has shown that the Delaware
decree is insufficient to prevent their
recurrent anticompetitive conduct and,
therefore, that a more stringent decree is
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required. ‘‘While the resulting
[proposed Final Judgment] may curtail
the exercise of liberties that the
[Federation defendants] might otherwise
enjoy, that is a necessary and, in cases
such as this, unavoidable consequence
of the [recurrent] violation.’’ Nat’l Soc’y
of Prof’l Eng’rs v. United States, 435
U.S. 679, 697 (1978). Although the
proposed Final Judgment ‘‘goes beyond
a simple proscription against the precise
conduct previously pursued[,] that is
entirely appropriate’’ under the
circumstances. Id. at 698.
Conclusion
After considering the five comments
received, the United States continues to
believe that the proposed Final
Judgment reasonably and appropriately
addresses the harm alleged in the
Complaint. Therefore, following
publication of this response to
comments in the Federal Register and
submission of the United States’
certification of compliance with the
APPA, the United States intends to
request entry of the proposed Final
Judgment once the Court determines
that entry is in the public interest.
Dated: December 17, 2007.
Respectfully submitted,
For Plaintiff United States of America
Gregory G. Lockhart,
United States Attorney.
/s/ Gerald F. Kaminski
Gerald F. Kaminski,
Assistant United States Attorney,
Bar No. 0012532.
Office of the United States Attorney, 221 E.
4th Street, Suite 400, Cincinnati, Ohio
45202, (513) 684–3711.
/s/ Steven Kramer
Steven Kramer
Attorney, Antitrust Division.
U.S. Department of Justice, 1401 H Street,
NW., Suite 4000, Washington, DC 20530,
(202) 307–0997, steven.kramer@usdoj.gov.
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]]>Agencies
[Federal Register Volume 73, Number 16 (Thursday, January 24, 2008)]
[Notices]
[Pages 4268-4285]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-227]
=======================================================================
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DEPARTMENT OF JUSTICE
Antitrust Division
Public Comment and Response on Proposed Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below five comments
received on the proposed Final Judgment in United States v. Federation
of Physicians and Dentists, Case No. 1:05-cv-431, which were filed on
December 17, 2007, in the United States District Court for the Southern
District of Ohio, together with the United States' response to the
comments.
Copies of the comments and the response are available for
inspection at the Department of Justice, Antitrust Division; 325
Seventh Street, NW.; Room 200; Washington, DC 20530 (telephone (202)
514-2481); and at the Office of the Clerk of the United States District
Court for the Southern District of Ohio, Potter Stewart U.S.
Courthouse, Room 103, 100 East Fifth Street, Cincinnati, Ohio 45202
(telephone (513) 564-7500). Copies of any of these materials may be
obtained upon request and payment of a copying fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
In the United States District Court for the Southern District of Ohio
Western Division
United States of America, Plaintiff, vs. Federation of Physicians and
Dentists, et al., Defendants.
[Case No. 1:05-cv-431]
Hon. Sandra S. Beckwith, C.J.
Hon. Timothy S. Hogan, M.J.
Plaintiff United States' Response to Public Comments
Pursuant to the requirements of the Antitrust Procedures and
Penalties Act (``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), the
United States submits this response to five public comments relating to
the proposed Final Judgment that has been lodged with the Court for
eventual entry in this case. After review of the comments, the United
States continues to believe that the proposed Final Judgment will
provide an effective and appropriate remedy for the antitrust violation
alleged in the Complaint. Following publication of the comments and
this response to them in the Federal Register, pursuant to 15 U.S.C.
16(d), the United States will request that the Court enter the proposed
Final Judgment.
I. Procedural History
On June 24, 2005, the United States filed this civil antitrust
action, alleging that the Federation of Physicians and Dentists
(``Federation'') and Federation employee Lynda Odenkirk, along with
physician co-defendants Drs. Warren Metherd, Michael Karram, and James
Wendel, coordinated a conspiracy
[[Page 4269]]
among about 120 obstetrician-gynecologist physicians (``OB-GYNs'')
practicing in greater Cincinnati, Ohio, that unreasonably restrained
interstate trade and commerce in violation of Section 1 of the Sherman
Act, 15 U.S.C. 1. The physician defendants agreed to a judgment that
was filed concurrently with the Complaint and entered by this Court on
November 14, 2005, as being in the public interest. (Dkt. Entry
36). The Federation and Ms. Odenkirk (the ``Federation
defendants''), however, contested the charges.
On January 26, 2006, the United States filed with the Court a
motion seeking entry of partial summary judgment on liability against
the Federation defendants. (Dkt. entry 40, 47).
After briefing on this motion was completed, the Federation defendants
filed an unopposed motion requesting the Court to order that the case
be referred to mediation. (Dkt. entry 63). On April 14, 2006,
the Court ordered that the case be referred to mediation.
Following two mediation conferences and protracted settlement
negotiations, on June 19, 2007, the United States filed with the Court
a settlement stipulation (Dkt. Entry 81) with the Federation
defendants, consenting to entry of the proposed Final Judgment (Dkt.
entry 81-2), which was lodged with the Court pending the
parties' compliance with the APPA. On July 18, 2007, the United States
published the Stipulation, proposed Final Judgment, and Competitive
Impact Statement (``CIS'') (Dkt. Entry 84) in the Federal
Register 39450 (2007), as required by the APPA to facilitate public
comments on the proposed Final Judgment. A summary of the terms of the
proposed Final Judgment and CIS was published for seven consecutive
days in the Cincinnati Enquirer from July 20 through July 26, 2007, and
in the Washington Post from July 18 through July 24, 2007, also
pursuant to the APPA. The 60-day period for public comments on the
proposed Final Judgment began on July 27, 2007, and expired on
September 24, 2007. During that period, five comments were submitted.
II. Summary of the Complainant's Allegations
The Federation is a membership organization of physicians and
dentists, headquartered in Tallahassee, Florida. the Federation's
membership includes economically independent physician groups in
private practice in many states, including Ohio. The Federation has
offered member physicians assistance in negotiating fees and other
terms in their contracts with health care insurers.
In spring 2002, several Cincinnati OB-GYNs became interested in
joining the Federation to negotiate higher fees from health care
insurers. The physician defendants assisted the Federation in
recruiting other Cincinnati-area OB-GYNs as members. By June 2002, the
membership of the Federation had grown to include a large majority of
competing OB-GYN physicians in the Cincinnati area.
Withe substantial assistance from the physician defendants and Ms.
Odenkirk, the Federation coordinated and helped implement its members'
concerted demands to insurers for higher fees and related terms,
accompanied by threats of contract terminations. From September 2002
through the fall of 2003, Ms. Odenkirk communicated with the physician
defendants and other cincinnati-area OB-GYN Federation members to
coordinate their contract negotiations with health care insurers. Along
with the physician defendants, Ms. Odenkirk developed a strategy to
intensify Federation member physicians' pressure on health care
insurers to renegotiate their contracts, including informing member
physicians about the status of competing member groups' negotiations
and taking steps to coordinate their negotiations.
The agreement coordinated by the Federation defendants forced
Cincinnati-area health care insurers to raise fees paid to Federation
member OB-GYNs above the levels that would likely have resulted if
Federation members had negotiated competitively with those insurers. As
a result of the conspirators' conduct, the three largest Cincinnati-
area health care insurers each were forced to increase fees paid to
most Federation member 0B-GYNs by approximately 15-20% starting July 1,
2003, followed by cumulative increases of approximately 20-25% starting
January 1, 2004, and approximately 25-30% effective January 1, 2005.
This conduct by Federation member OB-GYNs, coordinated by the
Federation defendants, also caused other insurers to raise the fees
that they paid to Federation OB-GYN members. The increased fees paid by
health care insurers to Federation OB-GYN members in the Cincinnati
area are ultimately borne by employers and their employees.
iii. Summary of Relief to be Obtained Under the Proposed Final Judgment
The proposed Final Judgment is designed to enjoin the Federation
defendants from taking future actions that could facilitate private-
practice physicians in coordinating their dealings with payers for
health care services. It accordingly prohibits the Federation
defendants from being involved in its private-practice members'
negotiations or contracting with health insurers or other payers for
health care services anywhere in the United States.
The proposed Final Judgment prohibits the Federation defendants
from providing any services to any physician in private practice
(defined as an ``independent physician'') regarding such physician's
negotiation, contracting, or other dealings with any payer. The
proposed Final Judgment also prohibits the Federation defendants from
(1) representing any independent physician with any payer (including as
a messenger); (2) reviewing or analyzing, for any such physician, any
proposed or actual contract or contract term between the physician and
any payer; and (3) communicating with any independent physician about
the status of that physician's, or any other physician's, negotiations,
contracting, or participation with any payer. The Federation defendants
are also generally prohibited from communicating about any proposed or
actual contract or contract term between any independent physician and
any payer. In addition, the proposed Final Judgment enjoins the
Federation defendants from responding to any question initiated by any
payer, except to state that the Final Judgment prohibits such a
response. Finally, the proposed Final Judgment generally prohibits the
Federation defendants from training or educating, or attempting to
train or educate, any independent physician in any aspect of
contracting or negotiating with any payer.
The proposed decree includes exceptions to these prohibitions
covering conduct that neither threatens competitive harm nor undermines
the clarity of the prohibitions. For example, the proposed decree
limits its prohibition on training or educating independent physicians
in any aspect of contracting or negotiating with payers by allowing the
Federation defendants to
(1) Speak on general topics (including contracting), when (a)
invited to do so as part of a regularly scheduled medical
educational seminar offering continuing medical education credit,
(b) advance written notice has been given to Plaintiff, and (c)
documents relating to what was said by the Federation defendants are
retained by them for possible inspection by the United States.
(2) Publish articles on general topics (including contracting)
in a regularly disseminated newsletter; and
[[Page 4270]]
(3) Provide education to independent physicians regarding the
regulatory structure (including legislative developments) of workers
compensation, Medicaid, and Medicare, except Medicare Advantage,
provided that such conduct does not violate any other injunctive
provision of the proposed Final Judgment.
In a section titled ``permitted conduct,'' the proposed decree
permits certain other conduct as well:
(1) Federation defendants may engage in activities involving
physician participation in written fee surveys that are covered by
the ``safety zone'' under Statement 6 of the 1996 Statements of
Antitrust Enforcement Policy in Health Care, 4 Trade Reg. Rep. (CCH)
] 13,153, which addresses provider participation in exchanges of
price and cost information;
(2) Federation defendants and Federation members may engage in
lawful union organizational efforts and activities;
(3) Federation defendants may petition governmental entities in
accordance with doctrine established in Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and
its progeny; and
(4) Federation physician members may choose independently, or
with other members or employees of such member's bona fide solo
practice or practice groups, the health insurers with which to
contract, and/or to refuse to enter into discussions or negotiations
with any health care payer.
The proposed Final Judgment clarifies that it does not alter the
Federation's obligations under the decree entered by the district court
in Delaware in a prior, similar case against the Federation, United
States v. Federation of Physicians and Dentists, Inc., CA 98-475 JJF
(D. Del., consent judgment entered Nov. 6, 2002) (the ``Delaware
decree''). If there is any conflict between the injunctive provisions
of the proposed Final Judgment and the injunctive provisions or conduct
permitted by the Delaware decree, the proposed Final Judgment controls.
The proposed Final Judgment embodies more stringent relief than that
provided by the Delaware decree because it prohibits the Federation,
for example, from representing physicians in their dealings with payers
as a messenger and reviewing and analyzing physician contracts with any
payer. The Delaware decree had permitted such conduct in limited
circumstances.
IV. Summary of Public Comments and the United States' Responses to Them
During the 60-day public comment period, the United States received
comments from one individual and four medical societies. Upon review,
the United States believes that nothing in the comments warrants a
change in the proposed Final Judgment or suggests that the proposed
Final Judgment is not in the public interest. None of the comments
contend that the proposed decree fails adequately to redress the
violations and competitive harm alleged in the Complaint. Rather, two
of the comments contend that the proposed Final Judgment is too
stringent, and another implies the same point. Two other comments
contend that this case resulted from an unfair application of the
antitrust laws to physicians in their dealings with insurers. The
remaining comment generally criticizes what is characterized as an
unreasonably aggressive antitrust enforcement policy by the Department
of Justice and Federal Trade Commission with respect to physicians. The
United States addresses these concerns below and explains why the
proposed Final Judgment is appropriate.
A. Comments Questioning the Charges Brought Against the Federation
Defendants
1. Summary of Comments Submitted by Dr. Michael Connair and the
American Academy of Orthopaedic Surgeons
Dr. Michael Connair, an orthopedic surgeon in Connecticut and a
Vice President of the defendant Federation of Physicians and dentists,
has submitted a comment (attachment 1) that criticizes the United
States' Competitive Impact Statement (``CIS'') (Dkt. Entry
84) as ``reflect[ing] a misguided DOJ enforcement policy that ignores
antitrust principles and that encourages anticompetitive behavior by
insurers.'' According to Dr. Connair, the CIS ignores that Cincinnati
``physicians were forced to react to anti-competitive behaviors by
Cincinnati insurers because the Department of Justice did not enforce
antitrust principles against those insurers.''
Similarly, the American Academy of Orthopaedic Surgeons' comment
(Attachment 2) expresses the Academy's belief that this case ``is the
result of the antitrust laws not being applied equally to the insurance
industry as they are to physicians or other professions,'' which
``would reduce competition in the insurance industry and, ultimately,
harm consumers.'' The Academy's comment also asserts that ``[i]n this
case, the physicians appeared to be reacting to anticompetitive
behaviors by Cincinnati insurers which artifically lowered prices below
Medicare levels.''
2. United States' Response to Comments Submitted by Dr. Michael Connair
and the American Academy of Orthopaedic Surgeons
Dr. Connair's and the Academy's comments challenge the United
States' decision to prosecute the defendants' alleged anticompetitive
conduct, rather than alleged anticompetitive actions by health
insurers. Such an argument is outside the scope of this APPA proceeding
because the APPA does not permit the Court to review the efficacy or
``correctness'' of the United States' enforcement policy or its
determination to pursue--or not pursue--a particular claim in the first
instance. As explained by the District Court for the District of
Columbia, in a Tunney Act ``public interest'' proceeding, the district
court should not second-guess the prosecutorial decisions of the
Antitrust Division regarding the nature of the claims brought in the
first instance; ``rather, the court is to compare the complaint filed
by the United States with the proposed consent decree and determine
whether the proposed decree clearly and effectively addresses the
anticompetitive harms initially identified.'' United States v. The
Thomson Corp, 949 F. Supp. 907, 913 (D.D.C. 1996); accord, United
States v. Microsoft Corp., 56 F.3d 1448, 1459 (D.C. Cir. 1995) (in APPA
proceeding, ``district court is not empowered to review the actions or
behavior of the Department of Justice; the court is only authorized to
review the decree itself'').
Although the comments of Dr. Connair and the Academy are beyond the
scope of an APPA proceeding, the United States nevertheless observes
that their comments are incorrect as a matter of fact and law. The
United States believes that the uncontested evidence and law presented
in support of its motion for summary judgment, which the Court was not
called on to decide in view of the parties' proposed settlement,
strongly supports the Complaint's allegations that the Federation
defendants violated the antitrust laws. (Dkt. Entry
1, 47). Further, even if the Federation defendants believed that
Cincinnati insurers had colluded on payments made to OB-GYNs, as the
comments imply, such circumstances would provide no defense for the
Federation defendants' coordination of Cincinnati OB-GYNs price fixing.
Controlling law is clear ``[t]hat a particular practice may be unlawful
is not, in itself, a sufficient justification for collusion among
competitors to prevent it.'' FTC v. Indiana Fed'n of Dentists, 476 U.S.
447, 465 (1986).
[[Page 4271]]
B. Comments Arguing that the Proposed Final Judgment is Overly
Restrictive
1. Summary of Comments Submitted by the Connecticut State Medical
Society, Connecticut Orthopedic Society, and Utah State Orthopaedic
Society
The Connecticut State Medical Society (CSMS) comments (Attachment
3) that the proposed Final Judgment is ``unnecessarily restrictive and
more onerous than final decrees typically proposed by both the
[Department of Justice] and the Federal Trade Commission (FTC) under
similar circumstances in that it precludes the Federation from engaging
in lawful conduct including representing physicians in their dealing
with payers as messengers and from reviewing and analyzing physician
contracts with any third-party payer.'' The CSMS asks the United States
to modify the proposed Final Judgment to allow the defendant Federation
to participate in (1) qualified risk-sharing and qualified clinically
integrated joint arrangements, (2) messenger-model arrangements, and
(3) communications with physicians about insurer contracts. The
Connecticut Orthopedic Society comments (Attachment 4) in support of
the letter submitted by the CSMS.
The Utah State Orthopaedic Society's (``USOS's'') comment
(Attachment 5) states that the defendant Federation has served as a
messenger for orthopedists in Utah with productive results. Based on
the Utah experience, the comment ``presume[s] that the activities in
Cincinnati have been handled in a similar fashion by the Federation.''
The USOS's comment further expresses the ``hope * * * [that] the
`messenger model' throughout the country is managed legally by those
that employ it.''
2. United States' Response to Comments Submitted by the Connecticut
State Medical Society, Connecticut Orthopedic Society, and Utah State
Orthopaedic Society
These comments seek entry of a decree that essentially tracks the
Delaware decree. The United States had agreed to resolve its earlier
case against the Federation, in part, to give the Federation an
opportunity to conduct some of its activities in a lawful manner that
should not have led to anticompetitive results. The Federation
defendants' actions in Cincinnati, as alleged in the United States'
Complaint (Dkt. Entry 1) and demonstrated in its summary
judgment brief (Dkt. Entry 47), however, have shown that such
a decree is insufficient to prevent the Federation defendants from
engaging in substantial anticompetitive conduct and, therefore, that a
more restrictive decree is appropriate. The Federation defendants'
alleged conduct in Cincinnati demonstrates that the USOS's expressed
``hope'' that the Federation defendants have employed the ``messenger
model'' appropriately elsewhere has not been realized.
Had the Federation defendants' complied with the Delaware decree,
it plainly would have prevented them from coordinating Cincinnati OB-
GYNs' fee negotiations with health insurers. The Federation defendants
nonetheless have steadfastly maintained that their conduct challenged
in this matter complied with the Delaware decree, which--like the
proposed Final Judgment--is nationwide in scope. Accordingly, the
United States decided in this matter to negotiate a more restrictive
proposed Final Judgment with the Federation defendants that assures
that the Federation will not again engage in conduct that has the
anticompetitive effect alleged in the complaint. The proposed Final
Judgment thus provides appropriate additional assurance that the type
of conduct that occurred in Cincinnati, despite the Delaware decree,
will not recur.
In short the orthopedic groups' comments fail to recognize that the
Federation defendants' conduct in Cincinnati has shown that the
Delaware decree is insufficient to prevent their recurrent
anticompetitive conduct and, therefore, that a more stringent decree is
required. ``While the resulting [proposed Final Judgment] may curtail
the exercise of liberties that the [Federation defendants] might
otherwise enjoy, that is a necessary and, in cases such as this,
unavoidable consequence of the [recurrent] violation.'' Nat'l Soc'y of
Prof'l Eng'rs v. United States, 435 U.S. 679, 697 (1978). Although the
proposed Final Judgment ``goes beyond a simple proscription against the
precise conduct previously pursued[,] that is entirely appropriate''
under the circumstances. Id. at 698.
Conclusion
After considering the five comments received, the United States
continues to believe that the proposed Final Judgment reasonably and
appropriately addresses the harm alleged in the Complaint. Therefore,
following publication of this response to comments in the Federal
Register and submission of the United States' certification of
compliance with the APPA, the United States intends to request entry of
the proposed Final Judgment once the Court determines that entry is in
the public interest.
Dated: December 17, 2007.
Respectfully submitted,
For Plaintiff United States of America
Gregory G. Lockhart,
United States Attorney.
/s/ Gerald F. Kaminski
Gerald F. Kaminski,
Assistant United States Attorney,
Bar No. 0012532.
Office of the United States Attorney, 221 E. 4th Street, Suite 400,
Cincinnati, Ohio 45202, (513) 684-3711.
/s/ Steven Kramer
Steven Kramer
Attorney, Antitrust Division.
U.S. Department of Justice, 1401 H Street, NW., Suite 4000,
Washington, DC 20530, (202) 307-0997, steven.kramer@usdoj.gov.
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[FR Doc. 08-227 Filed 1-23-08; 8:45 am]
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