Federal Register / Vol. 75, No. 38 / Friday, February 26, 2010 / Notices 8947 

TRANSACTION GRANTED EARLY TERMINATION—Continued 

ET date Trans No. ET req 

status Party name 

G Airvana, Inc. 

G Airvana, Inc. 

20100018 G Coventry Health Care, Inc. 

G Marian Health System, Inc. 

G Preferred Health Systems, Inc. 

20100019 G Coventry Health Care, Inc. 

G Ascension Health. 

G Preferred Health Systems, Inc. 

20100317 G Novartis Pharma AG. 

G Corthera, Inc. 

G Corthera, Inc. 

20100340 G Pattern Energy Group Holdings LP. 

G Babcock & Brown Limited (Liquidators Appointed). 

G Texas Gulf Wind LLC. 

20100344 G China National Petroleum Corporation. 

G ION Geophysical Corporation. 

G ION Geophysical Corporation. 

29–JAN–10 ............................................................... 20100329 G EMC Corporation. 

G Yahoo! Inc. 

G Zimbra, Inc. 

20100350 G Shenandoah Valley Electric Cooperative. 

G Allegheny Energy, Inc. 

G The Potomac Edison Company. 

20100352 G Rappahannock Electric Cooperative. 

G Allegheny Energy, Inc. 

G The Potomac Edison Company. 

20100356 G GridPoint, Inc. 

G David Gelbaum and Monica Chavez Gelbaum. 

G Standard Renewable Energy, LP. 

20100362 G Molina Healthcare, Inc. 

G Unisys Corporation. 

G Unisys Corporation. 

20100363 G Elevation Partners, L.P. 

G Yelp!, Inc. 

G Yelp!, Inc. 

20100368 G Limelight Networks, Inc. 

G EyeWonder, Inc. 

G EyeWonder, Inc. 

20100372 G Liberty Media Corporation. 

G Live Nation Entertainment, Inc. 

G Live Nation Entertainment, Inc. 

FOR FURTHER INFORMATION CONTACT: 

Sandra M. Peay, Contact Representative 

or Renee Hallman, Contact 

Representative. Federal Trade 

Commission, Premerger Notification 

Office, Bureau of Competition, Room H– 

303 Washington, DC 20580, (202) 326– 

3100. 

By Direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2010–3590 Filed 2–25–10; 8:45 am] 

BILLING CODE 6750–01–M 

FEDERAL TRADE COMMISSION 

[File No. 051 0252] 

M. Catherine Higgins; Analysis of the 

Agreement Containing Consent Order 

to Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed Consent Agreement. 

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 March 8, 2010. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form. 

Comments should refer to ‘‘M. Catherine 

Higgins, File No. 051 0252’’ to facilitate 

the organization of comments. Please 

note that your comment — including 

your name and your state — will be 

placed on the public record of this 

proceeding, including on the publicly 

accessible FTC website, at (http:// 

www.ftc.gov/os/publiccomments.shtm). 

Because comments will be made 

public, they should not include any 

sensitive personal information, such as 


sroberts on DSKD5P82C1PROD with NOTICES
8948 Federal Register / Vol. 75, No. 38 / Friday, February 26, 2010 / Notices 

1The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See FTC 

Rule 4.9(c), 16 CFR 4.9(c). 

2The U.S. Supreme Court has clearly held that it 

is appropriate for the Commission to name 

individuals, as well as organizations, where 

evidence exists that an individual otherwise would 

be likely to ‘‘evade orders by the Commission.’’ Fed. 

Trade Comm’n v. Standard Education Soc., 302 U.S. 

112, 119 (1937). 

an individual’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. Comments 

also should not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, comments should not 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 Commission Rule 4.10(a)(2), 

16 CFR 4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

FTC Rule 4.9(c), 16 CFR 4.9(c).1

Because paper mail addressed to the 

FTC is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (http:// 

www.ftc.gov/opa/2008/12/allcare.shtm) 

and following the instructions on the 

web-based form. To ensure that the 

Commission considers an electronic 

comment, you must file it on the webbased form at the weblink: (http:// 

www.ftc.gov/opa/2008/12/allcare.shtm). 

If this Notice appears at (http:// 

www.regulations.gov/search/index.jsp), 

you may also file an electronic comment 

through that website. The Commission 

will consider all comments that 

regulations.gov forwards to it. You may 

also visit the FTC website at (http:// 

www.ftc.gov/) to read the Notice and the 

news release describing it. 

A comment filed in paper form 

should include the ‘‘M. Catherine 

Higgins, File No. 051 0252’’ reference 

both in the text and on the envelope, 

and should be mailed or delivered to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Room H-135 (Annex D), 600 

Pennsylvania Avenue, NW, Washington, 

DC 20580. The FTC is requesting that 

any comment filed in paper form be sent 

by courier or overnight service, if 

possible, because U.S. postal mail in the 

Washington area and at the Commission 

is subject to delay due to heightened 

security precautions. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws 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, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy, at (http://www.ftc.gov/ftc/ 

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: Gary 

H. Schorr (202-326-3063), Bureau of 

Competition, 600 Pennsylvania Avenue, 

NW, Washington, D.C. 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 38 Stat. 721, 15 U.S.C. 

46(f), and § 2.34 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 February 5, 2010), 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, D.C. 20580, either in 

person or by calling (202) 326-2222. 

Public comments are invited, and may 

be filed with the Commission in either 

paper or electronic form. All comments 

should be filed as prescribed in the 

ADDRESSES section above, and must be 

received on or before the date specified 

in the DATES section. 

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 M. Catherine Higgins 

(‘‘Ms. Higgins’’), the executive director of 

the Boulder Valley Individual Practice 

Association (‘‘BVIPA’’). The agreement 

settles charges that Ms. Higgins violated 

Section 5 of the Federal Trade 

Commission Act, 15 U.S.C. § 45, by, 

among other things, orchestrating and 

implementing agreements among 

competing physician members of BVIPA 

to fix the prices at which BVIPA 

physicians contract with health plans. 

This matter relates to the 

Commission’s prior action against 

BVIPA. In December 2008, the 

Commission accepted for public 

comment a proposed consent order to 

settle charges that BVIPA orchestrated 

and carried out illegal agreements to set 

prices and other terms that BVIPA 

physicians would accept from health 

plans. The accompanying complaint 

against BVIPA alleged that the IPA’s 

executive director, Ms. Higgins, played 

a key role in the challenged conduct; the 

complaint did not, however, name her 

as a respondent. The order against 

BVIPA, by its terms, applies to Ms. 

Higgins’ conduct as the executive 

director of BVIPA but does not apply to 

her actions in her individual capacity. 

Based on Ms. Higgins’ conduct after 

BVIPA signed its consent order, the 

Commission has reason to believe that 

Ms. Higgins may attempt to evade the 

order’s prohibitions by acting in her 

individual capacity. There is evidence 

that, shortly after BVIPA signed the 

consent agreement, Ms. Higgins 

represented physicians in her 

individual capacity. As alleged in 

today’s complaint (‘‘Complaint’’), Ms. 

Higgins told an insurer that she could 

continue to negotiate fees on behalf of 

BVIPA physicians, declaring: 

I could do this as an individual, not 

with my BVIPA hat, but as an 

individual. I’m not named in the 

settlement. There’s nothing that 

precludes me from doing my own 

work. I could just do it outside. 

Absent an order against Ms. Higgins in 

her individual capacity, there is a 

substantial danger that she will 

continue to orchestrate unlawful price 

fixing agreements among physicians in 

the Boulder County area and that 

consumers will continue to suffer the 

adverse effects of her conduct.2


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Federal Register / Vol. 75, No. 38 / Friday, February 26, 2010 / Notices 8949 

The proposed consent order 

(‘‘Proposed 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 decide whether to 

withdraw from the agreement or make 

the Proposed Order final. 

The purpose of this analysis is to 

facilitate public comment on the 

Proposed Order. The analysis is not 

intended to constitute an official 

interpretation of the agreement and 

Proposed Order or to modify their terms 

in any way. Further, the Proposed Order 

has been entered into for settlement 

purposes only and does not constitute 

an admission by Ms. Higgins that she 

violated the law or that the facts alleged 

in the Complaint (other than 

jurisdictional facts) are true. 

The Complaint 

The allegations of the Complaint are 

summarized below. 

Ms. Higgins is the executive director 

of BVIPA, an association of 

approximately 365 independent primary 

care and specialist physicians in solo or 

small group practices in the Boulder 

County area that contracts with payers 

on behalf of its physician members. As 

part of Ms. Higgins’ duties, BVIPA’s 

Board granted her blanket authority to 

negotiate contracts with payers on 

behalf of BVIPA and its physician 

members, including the authority to 

enter into contracts without obtaining 

approval from the BVIPA Board, 

Finance Committee, or any of its 

members. 

The Complaint challenges Ms. 

Higgins’ conduct starting in 2001, when 

she began negotiating the prices and 

other terms at which BVIPA’s otherwise 

competing physicians would deal with 

payers. From approximately 2001 

through 2006, Ms. Higgins negotiated 

with numerous payers on behalf of 

BVIPA physicians and successfully 

extracted higher fees from them. In 

order to maximize BVIPA’s bargaining 

leverage, Ms. Higgins exhorted BVIPA 

members to contract jointly through 

BVIPA, rather than individually. For 

example, in a 2002 BVIPA newsletter, 

Ms. Higgins reminded BVIPA members 

that ‘‘our strength will lie in contracting 

together, not separately.’’ In reporting 

that BVIPA had signed a new contract 

at a favorable rate, Ms. Higgins noted 

that ‘‘[t]his is due to your support of our 

efforts and [the payer’s] inability to get 

providers to sign individual contracts. 

Thank you for your support!!’’ 

Beginning in late in 2007 and 

continuing until early 2009, Ms. 

Higgins, as BVIPA’s executive director, 

negotiated and consulted for some of 

BVIPA’s physician members who sought 

to contract individually with a payer, 

thereby facilitating the exchange of rate 

information among them, and 

facilitating the coordination of rates 

during the individual negotiations. 

As a result of Ms. Higgins’ collective 

negotiations of physician fees for BVIPA 

members, payers contracted with and 

reimbursed BVIPA members for 

physician services in Boulder County at 

rates approximately 15 to 27 percentage 

points higher than those paid in 

individual contracts with non-member 

physicians in Boulder County. 

In 2004, Ms. Higgins drafted and gave 

a ‘‘white paper’’ to payers at the start of 

a negotiation, which purported to offer 

three options for contracting with 

BVIPA members: a single-signature 

contract that ‘‘delivered the entire 

BVIPA network’’; a ‘‘modified messenger 

model’’ that ‘‘may or may not deliver our 

entire network’’; and direct contracting 

with individual members outside the 

IPA. BVIPA’s contracting practices and 

Ms. Higgins’ conduct, however, did not 

change. BVIPA still sent proposals to 

BVIPA’s individual members for review 

only after Ms. Higgins deemed the 

prices acceptable. Further, many BVIPA 

physicians refused to discuss 

contracting on an individual basis, 

instead, referring the payers to BVIPA, 

and others offered to negotiate 

individual contracts with Ms. Higgins 

representing them in their individual 

capacity. 

Ms. Higgins’ conduct had the effect of 

unreasonably restraining trade and 

hindering competition in the provision 

of physician services by unreasonably 

restraining price and other forms of 

competition among physicians; 

increasing prices for physician services; 

and depriving health plans, employers, 

and individual consumers of the 

benefits of competition among 

physicians. BVIPA members did not 

engage in any efficiency-enhancing 

integration of their practices sufficient 

to justify Ms. Higgins’ challenged 

conduct. Accordingly, the Complaint 

alleges that Ms. Higgins violated Section 

5 of the FTC Act. 

The Proposed Consent Order 

The Proposed Order is designed to 

remedy the illegal conduct charged in 

the Complaint and to prevent its 

recurrence. To preserve the ability to 

engage in potentially procompetitive 

conduct while ensuring that physicians 

reach contracting decisions 

independently, the Proposed Order also 

includes certain ‘‘fencing-in’’ limitations 

on Ms. Higgins’ activities. The Proposed 

Order is otherwise similar to prior 

consent orders the Commission has 

issued to settle charges that individuals, 

as well as physician groups, engaged in 

unlawful agreements to raise the fees 

that physician groups receive from 

health plans. 

The Proposed Order’s specific 

provisions are as follows: 

Paragraph II.A prohibits Ms. Higgins 

from entering into or facilitating any 

agreement between or among any 

physicians: (1) to negotiate with payers 

on any physician’s behalf; (2) to refuse 

to deal, or threaten to refuse to deal, 

with payers in furtherance of any 

conduct or agreement prohibited by any 

other provision of Paragraph II; (3) on 

any terms on which a physician is 

willing to deal with any payer; or, (4) 

not to deal individually with any payer, 

or not to deal with any payer other than 

through BVIPA. 

Other parts of Paragraph II reinforce 

these general prohibitions. Paragraph 

II.B prohibits Ms. Higgins from 

facilitating exchanges of information 

between physicians concerning any 

physician’s willingness to deal with a 

payer or the terms or conditions, 

including price terms, on which the 

physician is willing to deal 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 Ms. Higgins from 

inducing anyone to engage in any action 

prohibited by Paragraphs II.A through 

II.C. 

As in other Commission orders 

addressing collective bargaining on 

behalf of providers with health care 

purchasers, Paragraph II excludes 

certain kinds of agreements from its 

prohibitions. Thus, Ms. Higgins is not 

precluded from engaging in conduct 

that is reasonably necessary to form or 

participate in legitimate joint 

contracting arrangements among 

competing physicians, such as a 

‘‘Qualified Risk-Sharing Joint 

Arrangement’’ or a ‘‘Qualified ClinicallyIntegrated Joint Arrangement.’’ The 

arrangement, however, must not restrict 

the ability of, or facilitate the refusal of, 

physicians who participate in it to 

contract with payers outside of the 

arrangement. 

As defined in the Proposed Order, a 

‘‘Qualified Risk-Sharing Joint 

Arrangement’’ possesses two 

characteristics. First, all physician 

participants must share substantial 

financial risks through the arrangement, 

such that the arrangement creates 

incentives for the physician participants 

jointly to control costs and improve 


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8950 Federal Register / Vol. 75, No. 38 / Friday, February 26, 2010 / Notices 

3 In the Matter of Boulder Valley Individual 

Practice Ass’n, FTC File No. 051-0252, Analysis of 

Agreement Containing Consent Order to Aid Public 

Comment (Dec. 24, 2008), available at (http:// 

www2.ftc.gov/os/caselist/0510252/ 

081224boulderanal.pdf). 

4See In the Matter of Boulder Valley Individual 

Practice Ass’n, supra note 1 (draft Decision and 

Order issued Dec. 24, 2008), ¶ I.A, available at 

(http://www2.ftc.gov/os/caselist/0510252/ 

081224bouldedo.pdf) [hereinafter BVIPA Order]. 

5 In the Matter of M. Catherine Higgins, FTC File 

No. 051-0252 (draft complaint issued Feb. 5, 2010), 

¶ 3, available at (www.ftc.gov) [hereinafter Higgins 

Complaint]. 

6Higgins Complaint ¶ 19. 

7 Id. ¶¶ 20, 21, 34-36. 

8 Id. ¶ 25. 

9BVIPA Order ¶ I.A. 

quality by managing the provision of 

services. Second, any agreement 

concerning reimbursement or other 

terms or conditions of dealing must be 

reasonably necessary to obtain 

significant efficiencies through the joint 

arrangement. 

A ‘‘Qualified Clinically-Integrated 

Joint Arrangement,’’ on the other hand, 

need not involve any sharing of 

financial risk. Instead, as defined in the 

Proposed Order, physician participants 

must participate in active and ongoing 

programs to evaluate and modify their 

clinical practice patterns in order to 

control costs and ensure the quality of 

services provided, and the arrangement 

must create a high degree of 

interdependence and cooperation 

among physicians. As with qualified 

risk-sharing arrangements, any 

agreement concerning prices or other 

terms of dealing must be reasonably 

necessary to achieve the efficiency goals 

of the joint arrangement. 

Paragraph III, one of the fencing-in 

prohibitions, limits for one year Ms. 

Higgins’ activities as an agent or 

messenger with regard to payer 

contracts. Subject to the notification 

requirement of Paragraph V, Ms. Higgins 

may only receive and transmit offers 

and responses to those offers between 

payers and physicians. Paragraph VI 

sets out the information necessary to 

make the notification complete. 

Paragraph IV, another fencing-in 

provision, prohibits Ms. Higgins for two 

years from negotiating on behalf of or 

advising any physician member of 

BVIPA with regard to any payer contract 

offer or term. Both Paragraphs III and 

Paragraph IV exclude from their 

prohibitions, however, information Ms. 

Higgins may provide regarding whether 

any contract for proposed physician 

services includes terms required by 

Colorado state law. Paragraph IV further 

excludes from its prohibition certain 

negotiations should Ms. Higgins cease to 

be employed by BVIPA. 

Paragraph V requires Ms. Higgins to 

notify the Commission, for one year 

before acting as a limited messenger, 

and for an additional two years before 

acting as a messenger or agent, with 

payers regarding contracts. Paragraph VI 

sets out the information necessary to 

make the notification complete. 

Paragraph VII requires Ms. Higgins for 

three years to notify the Commission 

before contracting with health plans on 

behalf of either a Qualified Risk-Sharing 

or a Qualified Clinically-Integrated Joint 

Arrangement. Paragraph VIII sets out the 

information necessary to satisfy the 

notification requirement. 

Paragraphs IX, X, and XI impose 

various obligations on Ms. Higgins to 

report or provide access to information 

to the Commission to facilitate the 

monitoring of compliance with the 

Order. Finally, Paragraph XII provides 

that the Proposed Order will expire in 

20 years. 

By direction of the Commission, 

Commissioner Rosch dissenting. 

Donald S. Clark 

Secretary. 

Statement of the Commission 

Today, the Commission issues for 

public comment a consent agreement 

and proposed Decision and Order 

against M. Catherine Higgins, the 

executive director of Boulder Valley 

Individual Practice Association 

(BVIPA). The Commission previously 

accepted for public comment a consent 

agreement and proposed Decision and 

Order against BVIPA, resolving charges 

that BVIPA orchestrated and carried out 

illegal agreements to set prices and 

other terms that BVIPA physician 

members would accept from health 

plans.3 Based on events that occurred 

during the BVIPA public comment 

period, the Commission has reason to 

believe that an order naming Ms. 

Higgins is necessary. When an employee 

of an association, especially a senior one 

like Ms. Higgins, tries to evade an order 

against the association by acting in her 

individual capacity, the Commission 

has little choice but to seek additional 

relief to protect competition and health 

care consumers. 

The proposed order against BVIPA, by 

its terms, covers Ms. Higgins’ conduct as 

the executive director of BVIPA,4 but 

does not apply to Ms. Higgins’ actions 

in her individual capacity. There is 

evidence, however, that Ms. Higgins 

attempted to evade the BVIPA consent 

order shortly after it was signed by 

representing physicians in her 

individual capacity. As alleged in the 

draft complaint that accompanies the 

settlement announced today, Ms. 

Higgins told an insurer that she could 

continue to negotiate fees on behalf of 

BVIPA physicians, declaring: 

‘‘I could do this as an individual, not 

with my BVIPA hat, but as an 

individual. I’m not named in the 

settlement. There’s nothing that 

precludes me from doing my own 

work. I could just do it outside.’’5

Based on this and other evidence 

discussed more fully below, we find 

reason to believe that, absent the 

Commission’s order, Ms. Higgins is 

likely to continue to negotiate 

potentially unlawful agreements in her 

individual capacity, thus skirting an 

order prohibiting the same conduct by 

BVIPA. This alleged conduct, which 

likely would harm consumers and 

competition, requires the Commission 

to issue a complaint against Ms. 

Higgins, and also provides a sound basis 

for the Commission to accept a consent 

order against her. 

In light of Commissioner Rosch’s 

dissenting statement, we write to further 

explain the basis for today’s 

Commission action. 

The Commission’s Decision to Issue a 

Complaint Against Ms. Higgins is 

Necessary 

We respectfully disagree with 

Commissioner Rosch’s view that the 

acts alleged do not justify a complaint 

against Ms. Higgins. 

Ms. Higgins played a central role in 

BVIPA’s negotiations with insurers. As 

alleged in the complaint, Ms. Higgins 

had ‘‘blanket authority’’ to negotiate and 

enter contracts on behalf of BVIPA’s 

members.6 For a period of five years, 

according to the complaint, she 

‘‘successfully extracted higher fees’’ from 

payers on behalf of individual 

competing physicians, often threatening 

to terminate contracts unless the insurer 

accepted a price increase, while 

reminding BVIPA members that ‘‘our 

strength will lie in contracting together, 

not separately.’’7 That conduct allegedly 

increased fees by 15 to 27 percentage 

points above the prices paid to other 

area doctors who negotiated 

individually.8

In December 2008, the Commission 

chose not to name Ms. Higgins in the 

BVIPA order because the order would, 

by its terms, cover conduct by officers, 

employees, and other representatives of 

BVIPA, including her actions as 

executive director.9 Based on Ms. 

Higgins’ actions after the BVIPA 

proposed consent agreement was 

signed, however, the Commission has 

reason to believe that, absent injunctive 

relief against her in her individual 


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10The U.S. Supreme Court has clearly held that 

it is appropriate for the Commission to name 

individuals, as well as organizations, where 

evidence exists that an individual otherwise would 

be likely to ‘‘evade orders of the Commission.’’ Fed. 

Trade Comm’n v. Standard Education Soc., 302 U.S. 

112, 119 (1937). Nor is today’s action 

unprecedented. The Commission previously has 

named individuals and secured relief against them, 

including non-physician contracting agents in IPA 

consent orders. See, e.g., White Sands Health Care 

System, LLC, FTC Dkt. No. C-4130 (consent order 

issued Jan. 11, 2005); Southeastern New Mexico 

Physicians IPA, Inc., FTC Dkt. No. C-4113 (consent 

order issued Aug. 5, 2004); The Maine Health 

Alliance, FTC Dkt. No. C-4095 (consent order 

issued Aug. 27, 2003). 

11Piedmont Health Alliance, Inc., FTC Dkt. No. 

9314 (consent order issued Oct. 1, 2004). 

12New Century Health Quality Alliance, Inc., 

FTC Dkt. No. C-4169 (consent order issued Sep. 29, 

2006); White Sands Health Care System, LLC, FTC 

Dkt. No. C-4130 (consent order issued Jan. 11, 

2005); Physician Network Consulting, LLC, FTC 

Dkt. No. C-4094 (consent order issued Aug. 27, 

2003). 

13Commissioner Rosch’s dissenting statement 

implies that the Commission’s decision not to name 

Ms. Higgins back in December 2008 was a quid pro 

quo for BVIPA’s acceptance of the proposed consent 

agreement. In the Matter of M. Catherine Higgins, 

supra note 3, Dissenting Statement of 

Commissioner J. Thomas Rosch, at 2, available at 

(www.ftc.gov) [hereinafter Rosch Dissent]. We 

disagree with Commissioner Rosch’s interpretation 

of the facts. Moreover, BVIPA has not suggested that 

such an agreement ever existed. Nor has BVIPA 

argued that the Commission should not finalize the 

BVIPA consent order. 

14Commissioner Rosch’s dissenting statement 

suggests that Ms. Higgins may not have understood 

that the proposed consent agreement required 

immediate compliance from the time it was signed. 

Rosch Dissent at 2. Our decision is not based on 

whether Ms. Higgins thought the order was 

effective. Rather, the order against Ms. Higgins is 

justified by her belief that acting in her individual 

capacity would put her beyond the order’s reach, 

even once the order was effective. Moreover, she 

knew or should have known, based on the action 

against BVIPA, that jointly negotiating on behalf of 

physicians was illegal. 

15Rosch Dissent at 1. 

16See especially Independent Physician 

Associates Medical Group, Inc., d/b/a AllCare IPA, 

FTC Dkt. No. C-4245, (consent order issued Feb. 2, 

2009) (unanimous Commission vote, including 

Commissioner Rosch); Colegio de Optometras, FTC 

Dkt. No. C-4199 (consent order issued Sept. 6, 2007) 

(same); Advocate Health Partners, FTC Dkt. No. C4184 (consent order issued Dec. 29, 2007) (same); 

New Century Health Quality Alliance, Inc., FTC 

Dkt. No. C-4169 (consent order issued Sept. 29, 

2006) (same). 

17Because this matter relates to the matter against 

BVIPA, the Commission will defer a decision to 

make final the order against BVIPA until after the 

close of the comment period for the proposed order 

against Ms. Higgins. 

capacity, Ms. Higgins is likely to engage 

in conduct that is prohibited by the 

BVIPA order.10

There is no support for Commissioner 

Rosch’s assertion that the Commission’s 

decision to issue a separate complaint 

against Ms. Higgins is punitive. The 

order provisions are similar to those in 

other orders naming individuals. For a 

period of time, the respondent may act 

only as a limited messenger;11 in 

addition, the respondent may not 

represent both the IPA and, separately, 

individual doctors or practices.12

Especially given the evidence of Ms. 

Higgins’ efforts to circumvent the order 

against BVIPA, the order against Ms. 

Higgins is a reasonable way to prevent 

future price fixing. 

Nor is the Commission reneging on 

any ‘‘deal’’ it made with BVIPA.13

Rather, the proposed order announced 

today is a natural consequence of 

actions Ms. Higgins took after the 

BVIPA consent agreement was signed.14

The Commission cannot – and did not 

– bargain away its right to secure 

adequate relief to protect consumers. 

The BVIPA Enforcement Action is 

Consistent with the Commission’s Prior 

IPA Cases 

Although Commissioner Rosch 

continues to support entering a final 

Decision and Order against BVIPA, he 

states that the BVIPA order is ‘‘not just 

a logical successor to other finalized 

decrees the Commission entered 

against’’ IPAs.15 We disagree; the order 

the Commission proposes to enter 

against BVIPA is no different than 

numerous orders the Commission has 

entered against other IPAs. As in a 

number of other cases, the Commission 

has alleged that BVIPA jointly 

negotiated prices with insurers. And, 

the BVIPA order, like all of the orders 

in those cases, bans joint negotiations 

except where reasonably necessary to 

the formation or operation of a clinically 

or financially integrated arrangement.16

Finally, we note three areas where we 

disagree, on factual and legal grounds, 

with the views expressed by 

Commissioner Rosch in his dissent. 

First, we disagree with Commissioner 

Rosch’s interpretations of International 

Healthcare Management and Tunica 

Web Advertising. Neither the inclusion 

of non-price terms in negotiations 

among competitors, nor customer 

acquiescence to a per se illegal 

agreement among competitors, insulates 

such an agreement among competitors 

from per se treatment. 

Second, we do not think this situation 

raises any legal issues surrounding nonprice negotiations because BVIPA’s 

negotiations were primarily focused on 

raising prices. At most, any discussion 

of non-price terms was tangential to 

joint negotiations of price terms. 

Third, we reject any implication that 

if conduct is not a per se violation of the 

antitrust laws, it can be prohibited only 

by virtue of ‘‘fencing-in’’ relief. 

Irrespective of whether facts such as 

those presented in this case ultimately 

could support a per se violation of the 

antitrust laws, we have reason to believe 

that the conduct in which BVIPA 

allegedly engaged would violate Section 

5 of the Federal Trade Commission Act 

if allowed to continue. Further, in light 

of Ms. Higgins’ alleged attempts to 

evade the order against BVIPA, we 

believe an order against her is proper 

and necessary.17

Dissenting Statement of Commissioner 

J. Thomas Rosch 

Today’s events represent a sad 

conclusion to an unnecessarily sordid 

tale. Four years ago, in October 2005, 

the Commission opened an 

investigation into whether the Boulder 

Valley Individual Practice Association 

(‘‘Boulder Valley’’ or ‘‘BVIPA’’) and Mary 

Catherine Higgins (Boulder Valley’s 

Executive Director) violated the 

antitrust laws by allowing competing 

physicians to jointly negotiate terms 

with payors. Boulder Valley ultimately 

agreed to enter into a consent decree. 

That consent decree, however, was not 

just a logical successor to other finalized 

decrees the Commission has entered 

against Individual Practice Associations 

(‘‘IPAs’’) composed of competing 

physicians who have jointly negotiated 

rates with payors. The underlying 

conduct in those cases was horizontal 

price-fixing – which is per se illegal, or, 

to be charitable, conduct that violates 

the rule of reason. See In re N. Tex. 

Specialty Physicians, 140 F.T.C. 715 

(2005), aff’d, 528 F.3d 346 (5th Cir. 

2008). Boulder Valley’s underlying 

conduct, however, consisted at least in 

part of joint negotiation of non-price 

terms – conduct that is not a per se 

violation. See Internat’l Healthcare 

Mgmt. v. Haw. Coal. for Health, 332 

F.3d 600, 605 (9th Cir. 2003). Moreover, 

insofar as Boulder Valley’s underlying 

conduct did consist of joint negotiation 

of rates, it consisted, in part, of alleged 

horizontal price-fixing in which some of 

the alleged ‘‘victims’’ were payors who 

agreed to the conduct, apparently 

believing joint negotiation of rates to be 

efficient and in the payors’ self-interest. 

Joint negotiations by horizontal 

competitors with those who invite those 

joint negotiations are not a per se 

antitrust violation either. Tunica Web 

Adver. v. Tunica Casino Operators 

Ass’n, 496 F.3d 403, 410 (5th Cir. 2007). 

Thus, insofar as the consent decree 

against Boulder Valley bars either of 

these kinds of conduct, it can 

legitimately do so only by way of 

‘‘fencing-in’’ or not at all. 

Boulder Valley chose not to litigate 

these issues, instead electing to enter 

into a consent decree that names 

Boulder Valley alone and not Ms. 

Higgins as a respondent. This was 


sroberts on DSKD5P82C1PROD with NOTICES
8952 Federal Register / Vol. 75, No. 38 / Friday, February 26, 2010 / Notices 

1Complaint, In the Matter of Boulder Valley 

Individual Practice Assoc., FTC File No. 051-0252 

(Dec. 24, 2008), available at (http://www.ftc.gov/os/ 

caselist/0510252/081224bouldercmpt.pdf). 2See, e.g., John Aguilar, Doctors Settle with FTC; 

Boulder County Physicians’ Group: Feds Wrong 

with price-fixing claims, DAILY CAMERA, Dec. 30, 

2008, at A1; Greg Blesch, FTC’s Not Done Yet; 

Calif., Colo. Doc partnerships latest to be 

scrutinized, 39 MODERN HEALTHCARE 10 (Jan. 5, 

2009). 3Comment submitted by Wellpoint, Inc., In re 

Boulder Valley Independent Practice Assoc., FTC 

File No. 051-0252 (Jan. 22, 2009), available at 

(http://www.ftc.gov/os/comments/ 

bouldervalley%20ipa/539810-00002.pdf). 

consistent with Commission practice: 

when an individual is just an employee 

of the organizational respondent (as 

opposed to an owner of the organization 

or someone who is shown to control the 

organization’s decisions), the 

Commission has rarely named the 

individual as a separate respondent; it 

has instead simply provided that the 

order will apply to the directors of the 

organizational respondent, its officers, 

and employees. Despite my doubts 

about whether liability based on the two 

species of conduct discussed above 

could be found, I found that there was 

‘‘reason to believe’’ that Boulder Valley 

could be fenced-in in this fashion, and 

I voted for the decree.1 One of the 

factors I considered, however, was that 

Ms. Higgins was not joined as a 

respondent. 

Thereafter, it is undisputed that the 

following events occurred. First, Ms. 

Higgins denounced the consent decree 

in the press, asserting, among other 

things, that Boulder Valley had agreed 

to the consent decree only to avoid the 

substantial expense that litigation 

would entail.2 Second, in response to 

the notice for public comment on 

Boulder Valley’s proposed consent, 

Anthem Blue Cross Blue Shield 

complained that ‘‘the terms of the 

Consent Order may be interpreted to 

allow individuals associated with 

. . . BVIPA’’ to continue to attempt to 

facilitate collusive pricing.3 Third, 

following those complaints and 

conversations with Anthem, staff 

notified Ms. Higgins that it was 

evaluating whether to add her to the 

Boulder Valley complaint or name her 

separately. Fourth, Ms. Higgins then 

separately met with the Commissioners 

(with the exception of the undersigned) 

in an effort to persuade them not to 

pursue her individually. Fifth, following 

those meetings, staff offered Ms. Higgins 

a consent decree that restricts Ms. 

Higgins’s ability to participate in a pure 

‘‘messenger system’’ in obtaining rates 

for those physicians that Boulder Valley 

represents. Sixth, Ms. Higgins rejected 

that consent decree, but rather than 

litigate, the Commission has since 

agreed to a consent decree that (unlike 

the Commission’s consent decree with 

Boulder Valley) (1) restricts Ms. Higgins 

to a limited messenger model for one 

year and (2) prevents Ms. Higgins from 

negotiating with any payor on behalf of 

any physician that participates in the 

BVIPA for two years. 

Under these circumstances, I cannot 

vote in support of the consent decree 

against Ms. Higgins. First, I do not 

believe that the Commission has 

adduced evidence that warrants 

switching its stance from not naming 

Ms. Higgins at all to requiring her to 

enter into a consent decree that restricts 

her ability to participate in a pure 

‘‘messenger system.’’ There is a factual 

dispute as to whether when Ms. Higgins 

made her post-consent statements to 

Anthem, Ms. Higgins understood that 

she (or Boulder Valley) was subject to 

the binding consent decree in Boulder 

Valley, which had not yet been made 

final. I do not believe that such disputed 

facts supply a sufficient basis for the 

Commission to now proceed against Ms. 

Higgins separately and require that she 

engage in more restrictive conduct as a 

condition of settlement. 

Second, in my view, the 

Commission’s decision today is 

unnecessarily punitive: Ms. Higgins 

cannot possibly do her job to the fullest 

extent for Boulder Valley if she is 

limited in her conduct as described. 

Moreover, I am gravely concerned that 

the Commission’s abrupt decision to 

change its tune can be viewed as 

retaliation for Ms. Higgins’s decision to 

exercise her First Amendment rights 

when she publicly criticized the 

Commission’s initial decision against 

Boulder Valley and for her ensuing 

decision to meet individual 

Commissioners in an effort to persuade 

them not to pursue her separately. 

Third, I believe that by separately 

naming Ms. Higgins, the Commission 

has reneged on its deal. Such actions 

will inevitably undermine the 

Commission’s ability to effectively 

negotiate consent decrees in the future. 

I greatly regret this chain of events, 

and I hope that it does not happen 

again. 

[FR Doc. 2010–4045 Filed 2–25–10; 8:45 am] 

BILLING CODE 6750–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

[Document Identifier: OS–0937–0025] 

Agency Information Collection 

Request; 60-Day Public Comment 

Request 

AGENCY: Office of the Secretary, HHS. 

Agency Information Collection Request; 

60-Day Public Comment Request 

In compliance with the requirement 

of section 3506(c)(2)(A) of the 

Paperwork Reduction Act of 1995, the 

Office of the Secretary (OS), Department 

of Health and Human Services, is 

publishing the following summary of a 

proposed information collection request 

for public comment. Interested persons 

are invited to send comments regarding 

this burden estimate or any other aspect 

of this collection of information, 

including any of the following subjects: 

(1) The necessity and utility of the 

proposed information collection for the 

proper performance of the agency’s 

functions; (2) the accuracy of the 

estimated burden; (3) ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and (4) the 

use of automated collection techniques 

or other forms of information 

technology to minimize the information 

collection burden. 

To obtain copies of the supporting 

statement and any related forms for the 

proposed paperwork collections 

referenced above, e-mail your request, 

including your address, phone number, 

OMB number, and OS document 

identifier, to 

Sherette.funncoleman@hhs.gov, or call 

the Reports Clearance Office on (202) 

690–6162. Written comments and 

recommendations for the proposed 

information collections must be directed 

to the OS Paperwork Clearance Officer 

at the above e-mail address within 60 

days. 

Proposed Project: Application for 

Appointment as a Commissioned 

Officer in the United States Public 

Health Service Commissioned Corps, 

OMB No. 0937–0025 Revision, Office of 

Commissioned Corps Force 

Management, Office of Public Health 

and Science. 

Abstract: Pursuant to the Paperwork 

Reduction Act of 1995, the Office of 

Commissioned Corps Force 

Management (OCCFM), Office of Public 

Health and Science (OPHS), requests 

that the Office of Management and 

Budget (OMB) approve form PHS–50, 

‘‘Application for Appointment as a 

Commissioned Officer in the United 

States Public Health Service 

Commissioned Corps,’’ (OMB No. 0937– 

0025) and form PHS–1813, ‘‘Reference 

Request for Applicants to the United 

States Public Health Service 

Commissioned Corps’’ (OMB No. 0937– 

0025). 

The principal purpose for collecting 

the information is to permit HHS to 

determine eligibility for appointment of 

applicants into the Commissioned Corps 


sroberts on DSKD5P82C1PROD with NOTICES