74950 Federal Register / Vol. 89, No. 178 / Friday, September 13, 2024 / Notices 

request.htm. Interested persons may 

express their views in writing on 

whether the proposed transaction 

complies with the standards 

enumerated in the HOLA (12 U.S.C. 

1467a(e)). 

Comments received are subject to 

public disclosure. In general, comments 

received will be made available without 

change and will not be modified to 

remove personal or business 

information including confidential, 

contact, or other identifying 

information. Comments should not 

include any information such as 

confidential information that would not 

be appropriate for public disclosure. 

Comments regarding each of these 

applications must be received at the 

Reserve Bank indicated or the offices of 

the Board of Governors, Ann E. 

Misback, Secretary of the Board, 20th 

Street and Constitution Avenue NW, 

Washington, DC 20551–0001, not later 

than October 15, 2024. 

A. Federal Reserve Bank of Atlanta

(Erien O. Terry, Assistant Vice 

President) 1000 Peachtree Street NE, 

Atlanta, Georgia 30309. Comments can 

also be sent electronically to 

Applications.Comments@atl.frb.org: 

1. Magnolia Bancorp, Inc., Metairie,

Louisiana; to become a savings and loan 

holding company by acquiring Mutual 

Savings and Loan Association, also of 

Metairie, Louisiana, in connection with 

the mutual-to-stock conversion of 

Mutual Savings and Loan Association. 

Board of Governors of the Federal Reserve 

System. 

Michele Taylor Fennell, 

Associate Secretary of the Board. 

[FR Doc. 2024–20892 Filed 9–12–24; 8:45 am] 

BILLING CODE P 

FEDERAL RESERVE SYSTEM 

Change in Bank Control Notices; 

Acquisitions of Shares of a Bank or 

Bank Holding Company 

The notificants listed below have 

applied under the Change in Bank 

Control Act (Act) (12 U.S.C. 1817(j)) and 

225.41 of the Board’s Regulation Y (12 

CFR 225.41) to acquire shares of a bank 

or bank holding company. The factors 

that are considered in acting on the 

applications are set forth in paragraph 7 

of the Act (12 U.S.C. 1817(j)(7)). 

The public portions of the 

applications listed below, as well as 

other related filings required by the 

Board, if any, are available for 

immediate inspection at the Federal 

Reserve Bank(s) indicated below and at 

the offices of the Board of Governors. 

This information may also be obtained 

on an expedited basis, upon request, by 

contacting the appropriate Federal 

Reserve Bank and from the Board’s 

Freedom of Information Office at 

https://www.federalreserve.gov/foia/ 

request.htm. Interested persons may 

express their views in writing on the 

standards enumerated in paragraph 7 of 

the Act. 

Comments received are subject to 

public disclosure. In general, comments 

received will be made available without 

change and will not be modified to 

remove personal or business 

information including confidential, 

contact, or other identifying 

information. Comments should not 

include any information such as 

confidential information that would not 

be appropriate for public disclosure. 

Comments regarding each of these 

applications must be received at the 

Reserve Bank indicated or the offices of 

the Board of Governors, Ann E. 

Misback, Secretary of the Board, 20th 

Street and Constitution Avenue NW, 

Washington, DC 20551–0001, not later 

than September 30, 2024. 

A. Federal Reserve Bank of Atlanta

(Erien O. Terry, Assistant Vice 

President) 1000 Peachtree Street NE, 

Atlanta, Georgia 30309. Comments can 

also be sent electronically to 

Applications.Comments@atl.frb.org: 

1. Oliver Beaman Triplett, IV, George

Beaman Triplett, and Olivia Triplett 

Harrell, all of Forest, Mississippi; as a 

group acting in concert, to retain voting 

shares of First Forest Corporation, and 

thereby indirectly retain voting shares of 

Bank of Forest, both of Forest, 

Mississippi. 

B. Federal Reserve Bank of Kansas

City (Jeffrey Imgarten, Assistant Vice 

President) 1 Memorial Drive, Kansas 

City, Missouri 64198–0001. Comments 

can also be sent electronically to 

KCApplicationComments@kc.frb.org: 

1. Danielle M. Wheeler, Pine Island,

Minnesota; Parker C. Ayres, Olathe, 

Kansas; and Madisyn L. Matthews, 

Lincoln, Nebraska; to become members 

of the Ayres Family Control Group, a 

group acting in concert, to acquire 

voting shares of First of Minden 

Financial Corporation, and thereby 

indirectly acquire voting shares of First 

Bank and Trust Company, both of 

Minden, Nebraska. 

Board of Governors of the Federal Reserve 

System. 

Michele Taylor Fennell, 

Associate Secretary of the Board. 

[FR Doc. 2024–20863 Filed 9–12–24; 8:45 am] 

BILLING CODE P 

FEDERAL TRADE COMMISSION 

[Docket No. C–4374] 

Petition of Coopharma To Reopen and 

Set Aside or Modify Order 

AGENCY: Federal Trade Commission. 

ACTION: Announcement of petition; 

request for comment. 

SUMMARY: Cooperativa de Farmacias 

Puertorriquen ̃ as (‘‘Coopharma’’ or ‘‘the 

company’’) has requested that the 

Federal Trade Commission (‘‘FTC’’ or 

‘‘Commission’’) reopen and set aside or 

modify the Commission’s Decision and 

Order entered on November 6, 2012 (the 

‘‘Order’’), concerning allegations of 

agreements among Coopharma’s 

member pharmacies to fix prices with 

insurers and PBMs. The company 

requests that the FTC either modify or 

rescind the order given changes in both 

the applicable law as well as 

competitive conditions in the relevant 

marketplace. Publication of the petition 

from Coopharma is not intended to 

affect the legal status of the petition or 

its final disposition. 

DATES: Comments must be received on 

or before October 15, 2024. 

ADDRESSES: Interested parties may file 

comments online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Please write: ‘‘Coopharma 

Petition to Reopen; Docket No. C–4374’’ 

on your comment and file your 

comment online at www.regulations.gov 

by following the instructions on the 

web-based form. If you prefer to file 

your comment on paper, please mail 

your comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Mail Stop H–144 (Annex P), 

Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

Maribeth Petrizzi (202–326–2564), 

Bureau of Competition, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(g) of the Federal Trade 

Commission Act, 15 U.S.C. 46(g), and 

FTC Rule 2.51, 16 CFR 2.51, notice is 

hereby given that the above-captioned 

petition has been filed with the 

Secretary of the Commission and is 

being placed on the public record for a 

period of 30 days. After the period for 

public comments has expired and no 

later than one hundred and twenty (120) 

days after the date of the filing of the 

request, the Commission shall 

determine whether to reopen the 

proceeding and modify or set aside the 


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Order as requested. In making its 

determination, the Commission will 

consider, among other information, all 

timely and responsive comments 

submitted in connection with this 

notice. 

The text of petition is provided below. 

An electronic copy of the filed petition 

and the exhibits attached to it can be 

obtained from the FTC website at this 

web address: https://www.ftc.gov/ 

system/files/ftc_gov/pdf/c4374petitionto

reopenmodify.pdf. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before October 15, 2024. Write 

‘‘Coopharma Petition to Reopen; Docket 

No. C–4374’’ on your comment. Your 

comment—including your name and 

your State—will be placed on the public 

record of this proceeding, including, to 

the extent practicable, on the 

www.regulations.gov website. 

Because of the agency’s heightened 

security screening, postal mail 

addressed to the Commission will be 

subject to delay. We strongly encourage 

you to submit your comments online 

through the www.regulations.gov 

website. If you prefer to file your 

comment on paper, write ‘‘Coopharma 

Petition to Reopen; Docket No. C–4374’’ 

on your comment and on the envelope, 

and mail your comment to the following 

address: Federal Trade Commission, 

Office of the Secretary, 600 

Pennsylvania Avenue NW, Mail Stop 

H–144 (Annex P), Washington, DC 

20580. If possible, submit your paper 

comment to the Commission by 

overnight service. 

Because your comment will be placed 

on the publicly accessible website at 

www.regulations.gov, you are solely 

responsible for making sure that your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment should not 

include any sensitive personal 

information, such as your or anyone 

else’s Social Security number; date of 

birth; driver’s license number or other 

State identification number, or foreign 

country equivalent; passport number; 

financial account number; or credit or 

debit card number. You are also solely 

responsible for making sure your 

comment does not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, your comment should not 

include any ‘‘trade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided by section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— 

including in particular competitively 

sensitive information such as costs, 

sales statistics, inventories, formulas, 

patterns, devices, manufacturing 

processes, or customer names. 

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). 

In particular, the written request for 

confidential treatment that accompanies 

the comment must include the factual 

and legal basis for the request and must 

identify the specific portions of the 

comment to be withheld from the public 

record. See FTC Rule 4.9(c). Your 

comment will be kept confidential only 

if the General Counsel grants your 

request in accordance with the law and 

the public interest. Once your comment 

has been posted on 

www.regulations.gov—as legally 

required by FTC Rule 4.9(b)—we cannot 

redact or remove your comment from 

that website, unless you submit a 

confidentiality request that meets the 

requirements for such treatment under 

FTC Rule 4.9(c), and the General 

Counsel grants that request. 

Visit the FTC website at https://

www.ftc.gov to read this document and 

the news release describing this matter. 

The FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding, as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before October 15, 2024. For 

information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/ 

privacy-policy. 

Authority: 15 U.S.C. 46, 5 U.S.C. 552. 

April J. Tabor, 

Secretary. 

Text of Petition of Coopharma To 

Reopen and Set Aside or Modify the 

Decision and Order 

Concise Statement of the Case 

I. Introduction 

Cooperativa de Farmacias 

Puertorriquen ̃ as (‘‘Coopharma’’) is 

currently a party to a Decision and 

Order, dated November 6, 2012 (the 

‘‘Order’’). We write to petition the 

Commission to reopen and set aside or 

modify the Order. As set forth below, 

there has been a significant change in 

the law. The Puerto Rico Legislature 

passed Act 228, which was signed into 

law by the Governor on December 15, 

2015. Act 228 directly impacts the 

underlying conduct on which the 

Federal Trade Commission (‘‘the 

Commission’’) based its Complaint 

against, and Order directed to, 

Coopharma. The Commission has 

previously recognized that Act 228 is 

the appropriate vehicle pursuant to 

which health care provider cooperatives 

can conduct collective negotiations with 

third party payors, and there is now 

State oversight of such negotiations in 

place by a designated government body 

that has issued relevant regulations. 

Accordingly, in light of the change of 

law, factual and market changes and 

their impact on the public interest, and 

the Commission’s own rescission of 

prior guidance as to Pharmacy Benefit 

Managers (‘‘PBMs’’), the Order is 

unnecessary and inequitable. We, thus 

hereby, request that the Commission 

grant this Petition and reopen and set 

aside the Coopharma Order. 

II. Statement of Facts 

A. Cooperatives in Puerto Rico and the 

Legal Framework 

It is important to understand the 

backdrop in which Coopharma operates, 

which is unique from other pharmacy 

groups or associations in the United 

States. Because Puerto Rico is a small 

economy, the Commonwealth 

encourages the development of nonprofit business cooperatives. The Puerto 

Rican Cooperative Movement is a 

‘‘socioeconomic system which pursues 

the enfranchisement of human beings 

and their integrated betterment through 

economic justice and social cooperation. 

A cooperative is an autonomous 

association of persons who have united 

voluntarily to address their common 

economic, social and cultural needs and 

aspirations through a jointly-owned and 

democratically controlled enterprise.’’ 1

Cooperatives are vital to fostering 

economic opportunity and the 

availability of services to consumers.2

Since the first adoption of legislation 

governing the cooperative movement in 

1946 in Puerto Rico, there have been 

hundreds of cooperatives created across 

the Island in almost every sector of the 

economy.3 And more recently, 

‘‘[b]etween 2018 and 2022, the number 

of members in the Puerto Rican 

cooperative system increased by roughly 

12 percent to more than 1.1 million 

individuals, and total assets, capital, 

deposits, and loans have risen by an 

even greater pace during that same 

period.’’ 4

Puerto Rico has a rich history of 

creating small business cooperatives 

and the government has taken numerous 

actions to foster their development. In 

1994, Puerto Rico enacted Act No. 50 


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(‘‘Act 50’’) known as the ‘‘General 

Cooperative Associations Act,’’ which 

the Legislature promulgated ‘‘to 

stimulate activities such as production 

and services through the cooperative 

structure and to govern . . . 

cooperatives.’’ 5 Subsequently, in 2004, 

the Legislature enacted the 2004 General 

Cooperative Associations Act of Puerto 

Rico, 5 L.P.R.A. § 4381 et seq. (‘‘Act 

239’’) repealing and replacing Act 50. 

Act 239 articulates an unambiguous 

legislative intent to create and improve 

the legal framework in support of 

continued development of Puerto Rican 

cooperatives: ‘‘the Cooperative 

Movement constitutes an integral piece 

and a stronghold for the economic and 

social development of the Island, for 

which reason, the growth and the 

strengthening of the cooperative 

movement in Puerto Rico is highly 

invested with public interest.’’ 6 In its 

efforts to further the growth of 

cooperative businesses, Act 239 allows 

for substantial contracting freedom and 

provides immunity from business 

conduct being viewed as restraints of 

trade.7

Puerto Rican law also provides a 

comprehensive framework for the 

regulation and oversight of cooperatives 

in Puerto Rico. Act 239, as amended by 

Act 247,8 provides the Corporacio ́n para 

la Supervisio ́n y Seguro de Cooperativas 

de Puerto Rico (‘‘COSSEC’’),9 a 

regulatory body, with the authority to 

oversee, supervise and otherwise 

regulate the creation and operations of 

cooperatives. COSSEC is the main 

governmental entity created by the 

Legislature to regulate Puerto Rican 

cooperatives. COSSEC’s mission is to 

ensure ‘‘the integrity and financial 

strength of the Cooperative Movement 

of Puerto Rico, through monitoring and 

oversight . . . of all Cooperatives’’ 10

and to ‘‘promote the safety, soundness 

and global competitiveness addressed to 

the socio-economic development of 

[Puerto Rico], through . . . ensuring 

balance and fairness . . . [in] the 

development of cooperation.’’ 11

B. Coopharma Background 

Coopharma was formed in 2002 as a 

cooperative regulated under Act 239.12

Coopharma was created for the purpose 

of fostering the growth of independent 

pharmacies.13 It enables small 

independent pharmacies to compete 

more effectively by achieving economies 

of scale and scope that the large chain 

pharmacies enjoy.14 Coopharma’s 

collaborative efforts provide for very 

efficient group purchasing, joint 

advertising, negotiation for goods and 

services, and provision of education 

services to members in order to improve 

pharmacy services to patients.15

Coopharma’s membership consists of 

approximately 500 independent 

pharmacies/independent pharmacy 

owners who typically employ 

approximately 5–10 individuals in their 

stores.16 Coopharma members are 

dispersed throughout 75 different towns 

across Puerto Rico. In most of these 

towns, large or chain pharmacies are not 

present, thus, the independent, local 

pharmacy is the only alternative for 

patients to be able to obtain their 

prescription medication and receive 

proper and timely counsel as to their 

medications.17

Coopharma is a cooperative in every 

sense of the word. It is a non-profit 

organization whose membership is 

entirely composed of community 

pharmacy owners.18 Unlike private 

entities in other Commission 

enforcement actions, Coopharma’s 

concern is for the collective good, 

providing pharmacy access and 

lowering prices to patients.19

Coopharma was formed to address 

systemic problems in the Puerto Rican 

health care system, including expanding 

ready access to pharmaceutical care to 

thousands of individual across the 

Island, through collaboration and 

collective commitment, and pronounces 

this stated goal publically: ‘‘This 

Cooperative is organized with the 

following aims and purposes . . . 

Promote, use and maintain positive 

attitudes conducive to resolving 

together adverse situations that may 

arise in the purchase-sale of medicines, 

products, articles and services in the 

market.’’ 20 Coopharma’s activities have 

streamlined pharmacy integration 

services and provided collective vendor 

purchasing opportunities, thereby 

lowering operating and purchasing 

costs, which translates to more choice, 

more services and lower prices for 

consumers.21

C. Coopharma’s Role in Helping To 

Alleviate Oppressive Conduct by 

Pharmacy Benefit Managers 

The Consent Order has limited the 

ability of many independent pharmacies 

across the Island to obtain favorable 

contracting terms, leading to many 

pharmacies being forced out of 

business.22 There are only a few 

pharmacy providers left.23 As the 

Commission has recently recognized, 

PBMs often employ an arsenal of unfair 

tactics toward independent 

pharmacies.24 See also, U.S. Federal 

Trade Commission, Pharmacy Benefit 

Managers: The Powerful Middlemen 

Inflating Drug Costs and Squeezing 

Main Street Pharmacies, Interim Staff 

Report at 1 (July 2024) (the ‘‘Interim 

FTC Report’’) (‘‘PBMs also exert 

substantial influence over independent 

pharmacies, who struggle to navigate 

contractual terms imposed by PBMs that 

they find confusing, unfair, arbitrary, 

and harmful to their businesses.’’). 

PBMs are much larger, more 

sophisticated business entities, which 

can overpower much smaller, 

independent pharmacies.25 PBMs 

unfairly diminish reimbursement rates, 

reimburse below agreed upon rates, 

steer patients to affiliated pharmacies or 

mail order pharmacies located outside 

of Puerto Rico, marginalize the impact 

of pharmacy services, and impose 

onerous terms outside the context of 

negotiated contracts.26 The Puerto Rican 

pharmacists who comprise Coopharma’s 

membership are working pharmacists 

and not sophisticated businessmen/ 

women.27 Often their knowledge of 

English is limited or rudimentary.28

PBM contracts are long—often 50–60 

pages (with accompanying provider 

manuals continuing over 100 page of 

additional requirements for pharmacies 

to adhere to for participation in the 

PBM’s network)—and are presented on 

a take it or leave it basis (as classic 

contracts of adhesion).29 PBMs also 

often impose amendments on the same 

unilateral basis.30 See also, Interim FTC 

Report at 3–4 (‘‘Independent pharmacies 

generally lack the leverage to negotiate 

terms and rates when enrolling in 

PBMs’ pharmacy networks, and 

subsequently may face effectively 

unilateral changes in contract terms 

without meaningful choice and 

alternatives. The proliferation of 

complex and opaque contract terms and 

adjustments has increased uncertainty 

in pharmacy reimbursements, which 

can make it difficult for smaller 

pharmacies to manage basic business 

operations. For instance, the rates in 

PBM contracts with independent 

pharmacies often do not clearly reflect 

the amount the pharmacy will 

ultimately be paid.’’) 

The majority of Puerto Rican 

pharmacies, including Coopharma 

members, are set in rural locations with 

relatively unsophisticated sole 

proprietors who lack the knowledge and 

time to decipher these complex 

agreements.31 This makes Coopharma 

members, as independent pharmacies 

primarily located in rural areas of 

Puerto Rico, particularly vulnerable to 

PBMs’ deceptive conduct and attempts 

to drive reimbursement rates below 

competitive levels.32

Unfortunately, the Order has limited 

the ability of many of Coopharma’s 

independent pharmacy members across 

the Island to obtain just contracting 

terms, leading to many pharmacies 


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being forced out of business and the 

artificial inflation of prices for 

consumers.33 Between 2016 and 2022, 

the approximate number of pharmacies 

in Puerto Rico decreased from 1,250 to 

approximately 900, a decrease of 28%.34

As independent pharmacies located in 

rural areas make up the majority of 

Coopharma members, this should be 

quite alarming to the Commission, 

which recognizes that ‘‘[c]losures of 

local pharmacies affect not only small 

business owners and their employees, 

but also their patients. In some rural and 

medically underserved areas, local 

community pharmacies are the main 

healthcare option for Americans, who 

depend on them to get a flu shot, an 

EpiPen, or other lifesaving medicines.’’ 

Interim FTC Report at 1. Setting aside 

the Order would allow pro-competitive 

activity by Coopharma in the form of 

negotiations with PBMs overseen by 

COSSEC, pursuant to regulations that 

that body issues.35

Moreover, the Commission is very 

familiar with the tactics that PBMs use 

to undermine the competitiveness of 

independent pharmacies. The 

Commission’s on-going 6(b) study of 

PBMs explicitly recognizes that: 

The largest PBMs are now vertically 

integrated with the largest health insurance 

companies and wholly owned mail order and 

specialty pharmacies. Those who own 

competing pharmacies have complained that 

PBMs impose unfair fees and clawbacks, 

impose byzantine contracts that often 

reimburse pharmacies less than their costs of 

acquisition, and steer patients to PBM-owned 

pharmacies. PBMs have also been accused of 

harming patients by extracting rebates and 

fees in exchange for refusing to cover generic 

and biosimilar drug products, ultimately 

raising the price that consumers pay for 

medicines. Doctors have also complained 

that PBMs impose unnecessary and 

burdensome prior authorization and other 

administrative requirements.36

The Complaint in this matter was 

based on assertions that the Commission 

believed to be true at the time that, 

because Coopharma described itself as 

the ‘‘biggest chain of pharmacies in all 

of Puerto Rico,’’ it therefore had 

significant market power to ‘‘force 

Humana to maintain rates.’’ 37 These 

market forces, whether true at the time 

of the Complaint or not, have since 

shifted with the significant vertical 

consolidation of the PBM industry. 

PBM’s consolidation and increase in 

market power has been very publicly 

noted by the Commission and is 

described herein. 

A 2023 health market study 

commissioned by the Office of the 

Insurance Commissioner of Puerto Rico 

showed that the Herfindahl–Hirschman 

index (HHI) 38 for private insurance 

companies was deemed highly 

concentrated in Puerto Rico and ranged 

from 6,207 to 9,201 based on the 

different types of companies in that 

market.39 It is important to note that 

over ninety percent (approximately 

94.9%) 40 of the population of Puerto 

Rico is insured. The Island also has the 

highest Medicare Advantage plan 

penetration of U.S. and its jurisdictions, 

with 60% of Puerto Rican Medicare 

beneficiaries enrolled in Medicare 

Advantage plans.41

Since October 2022, only one PBM, 

Abarca Health (‘‘Abarca’’), provides 

services to the majority of this vast 

insured population in the Island under 

the Medicare health insurance plan 

called Plan Vital, which is managed by 

the Puerto Rico Health Insurance 

Administration ((‘‘PRHIA’’), commonly 

referred to as Administracio ́n de 

Seguros de Salud (‘‘ASES’’) in 

Spanish).42 43 This means that Abarca is 

the middleman between pharmacies, 

insurers, and customers/beneficiaries 

for the entire Puerto Rican Medicaid 

market, which is comprised of over 1.6 

million of beneficiaries, or about 50% of 

the insured population in the Island.44

Through Plan Vital, the same PBM 

provides management services for the 

second largest Medicare Advantage 

Organization (‘‘MAO’’).45 Separately, 

Abarca has contracted with the largest 

private health insurance company 46 47

and manages the commercial plans for 

a third health insurer to the Island.48

The Office of Monopolistic Affairs of the 

Puerto Rico Department of Justice is 

currently investigating Abarca for 

deceptive practices in its contract 

negotiations with independent 

pharmacies in Puerto Rico.49

D. Consent Order 

By way of brief background, in August 

2012, the Commission, via a Complaint 

against Coopharma, alleged a violation 

of section 5 of the Federal Trade 

Commission Act, as amended 15 U.S.C. 

45. More specifically, the Commission 

alleged that Coopharma acted to fix 

prices in negotiations with certain thirdparty payors, including collectively 

negotiating contracts and contracting 

jointly. In order to save the time, 

expense and burden of an Adjudicative 

Proceeding, Coopharma elected to enter 

into the Order.50

The Order, in pertinent part, requires 

Coopharma to refrain from engaging in 

the following activities: 

A. Entering into, adhering to, participating 

in, maintaining, organizing, implementing, 

enforcing, or otherwise facilitating any 

combination, conspiracy, agreement, or 

understanding between or among any 

Pharmacies with respect to the provision of 

Pharmacy services: 

1. To negotiate on behalf of any Pharmacy 

with any Payer; 

2. To refuse to deal or threaten to refuse 

to deal with any Payer, in furtherance of any 

conduct or agreement that is prohibited by 

any other provision of Paragraph II of this 

Order; 

3. Regarding any term, condition, or 

requirement upon which any Pharmacy 

deals, or is willing to deal, with any Payer, 

including, but not limited to, price terms; or 

4. Not to deal individually with any Payer, 

or not to deal with any Payer other than 

through Respondent; 

B. Exchanging or facilitating in any manner 

the exchange or transfer of information 

among Pharmacies concerning any 

Pharmacy’s willingness to deal with a Payer, 

or the terms or conditions, including price 

terms, on which the Pharmacy is willing to 

deal with a Payer; 

C. Attempting to engage in any action 

prohibited by Paragraphs II.A through II.B 

above; and 

D. Encouraging, suggesting, advising, 

pressuring, inducing, or attempting to induce 

any Person to engage in any action that 

would be prohibited by Paragraphs II.A 

through II.C above.51

The provisions of this Order prevent 

the above-listed actions for twenty (20) 

years, terminating on November 6, 

2032.52

III. Overview 

Relief Requested 

For the reasons described below, 

Coopharma requests the following relief: 

1. That the Order be set aside in its 

entirety; 

2. Or, in the alternative, that the Order 

be amended to permit Coopharma to 

collectively negotiate contracts with 

PBMs and other third party payors 

consistent with Act 228. 

If the preceding relief is not granted, 

Coopharma requests in the alternative 

such relief as the Commission may 

deem fitting and just. 

Commission Standard of Review 

According to the FTC Act section 5(b), 

15 U.S.C. 45(b), the Commission may at 

any time ‘‘reopen and alter, modify, or 

set aside, in whole or in part any report 

or order made or issued by it under this 

section, whenever in the opinion of the 

Commission conditions of fact or of law 

have so changed as to require such 

action or if the public interest shall so 

require.’’ Id. In other words, under the 

FTC Act, the standard is that there must 

be a ‘‘significant change in law or fact’’ 

that makes the order ‘‘unnecessary, 

inequitable, or harmful to the 

competition.’’ 53 Upon a petition or by 

the Commission’s own action, an order 

can be reopened and modified or set 

aside for: (1) changes in fact that matter 


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to competition; (2) changes in law; and 

(3) the public interest.54 Pursuant to 

FTC Rule 2.51(b), the necessary showing 

must include affidavits or declarations 

setting forth admissible facts.55

To show that public interest requires 

a change to an existing Order, ‘‘the 

burden is on the petitioner to make a 

‘satisfactory showing’ of a prima facie 

case that modification is in the public 

interest.’’ 56 Like modifications based on 

changed conditions, ‘‘this showing must 

be supported by evidence that is 

credible and reliable.’’ 57

Argument 

I. The Consent Order Should Be Set 

Aside 

A. Change in the Law Warrants 

Reopening and Setting Aside the Order 

1. Act 228—State Action Doctrine 

In 2015, three (3) years after the entry 

of the Order, the Puerto Rico Legislature 

passed Act 228, which became law on 

December 15, 2015, and is codified at 26 

P.R. Laws §§ 3101–3108 (‘‘Act 228’’). 

The Legislature’s desire to pass Act 228 

was heightened by its recognition that it 

was becoming increasingly more 

difficult for Health Care Provider 

Cooperatives across Puerto Rico, such as 

Coopharma, to obtain fair contracting 

terms with, often much larger, and more 

sophisticated payors.58 Prior to the 

enactment of Act 228, certain activity 

conducted by Health Care Provider 

Cooperatives, such as Coopharma, was 

interpreted to fall under the jurisdiction 

of the Puerto Rico Insurance Code (‘‘Act 

203’’).59 Act 203 prohibits groups of 

health care competitors representing 

greater than 20% of said competitors 

across Puerto Rico from jointly 

negotiating for health care service 

contracts.60 It is important to stress that 

Coopharma believed that it was acting 

under then-Article 20.5 of Act 239 when 

it engaged in conduct that allegedly 

violated section 5 of the FTC Act and 

which activity is subject to the Order.61

Act 228 was enacted to clarify this and 

other issues of misinterpretation of 

existing laws regulating both health care 

providers and Health Service Provider 

Cooperatives and to set the record 

straight that the Puerto Rican 

Legislature intended for Act 239 to 

control negotiations by Health Service 

Provider Cooperatives.62

According to the Preamble of Act 228, 

Health Service Provider Cooperatives, 

which include cooperatives of 

pharmacies, such as Coopharma, were 

never meant to be ‘‘considered as an 

organized instrument to reduce 

competition of any kind, but rather to 

carry out lawful activities for the benefit 

of customers and other entities in the 

market.’’ 63 Thus, Act 228 explicitly 

called for such cooperatives to no longer 

be interpreted to be ‘‘included under the 

term of person in [Law 203], so [Health 

Service Provider Cooperatives] are 

specifically excluded from’’ Act 203.64

Act 228 specifically recognized the 

need to amend Act 239 to implement 

additional language to ‘‘fully comply 

with the Doctrine of State Immunity’’ 

(also referred to as the State Action 

Doctrine), established in Parker v. 

Brown, 317 US 341 (1943) and its 

progeny.65 Accordingly, Act 228 creates 

a specific State Action Doctrine 

framework that: (1) ‘‘allows health 

services providers to bargain 

collectively with [third-party payors]’’ 

by expressly articulating the antitrust 

exemption for Health Service Provider 

Cooperatives to collectively negotiate 

and (2) provides active supervision by 

Puerto Rico’s government agency in 

charge of cooperatives, COSSEC.66

2. The COSSEC Letter 

As explained above, Act 239, as 

amended by Act 247, provides the 

Corporacio ́n para la Supervisio ́n y 

Seguro de Cooperativas de Puerto Rico 

(‘‘COSSEC’’), a regulatory body, with the 

authority to oversee, supervise and 

otherwise regulate the creation and 

operations of cooperatives.67 COSSEC is 

the main governmental entity created by 

the Legislature to regulate Puerto Rican 

cooperatives.68 COSSEC’s mission is to 

ensure ‘‘the integrity and financial 

strength of the Cooperative Movement 

of Puerto Rico, through monitoring and 

oversight . . . of all Cooperatives’’ and 

to ‘‘promote the safety, soundness and 

global competitiveness addressed to the 

socio-economic development of [Puerto 

Rico], through . . . ensuring balance 

and fairness . . . [in] the development 

of cooperation.’’ 69

In support of its role in setting 

regulations and engaging in oversight of 

Coopharma and all other cooperatives in 

Puerto Rico, in particular after the 

change in law, COSSEC Executive 

President, Mabel Jime ́nez Miranda, 

signed an affidavit, dated April 4, 2024, 

which explains the role of COSSEC 

(referred to internally as the 

Corporation).70 It states in pertinent 

part: 

For the purpose of complying with the 

public policy of the Government of Puerto 

Rico, striking a balance in the negotiations 

between the HPCs, TAs and HSOs, and 

improving access and the quality of health 

care services to the patients of the 

Government of Puerto Rico, as well as 

exercising the oversight and supervision 

powers granted by Act No. 239, on February 

5, 2020, the Board of Directors of THE 

CORPORATION approved the Regulation for 

the Supervision and Oversight of Collective 

Negotiations between Health Care Provider 

Cooperatives (HPCs) Third-party 

Administrators (TAs) and Health Care 

Services Organizations (HSOs), Regulation 

No. 9161, in order to establish the 

supervision and oversight procedures of THE 

CORPORATION on the activities and actions 

of HPCs during any negotiation process with 

HSOs and TAs.71

As shown by this affidavit, COSSEC’s 

oversight over Coopharma is established 

and it has issued Regulation No. 9161 

for the governance of the cooperative’s 

actions in negotiating with PBMs. This 

change in law is a significant deviation 

from the legal scheme under which the 

Order was issued, and warrants 

reopening and review of the Order. 

3. Regulation No. 9161 Demonstrates 

That There Is a Regulatory Scheme in 

Place for COSSEC’s Active Oversight of 

Coopharma 

The Order was based in part on the 

Commission’s concerns that there was a 

lack of oversight such that the State 

Action Doctrine could not apply.72 The 

Order states that ‘‘[u]nder Law 73 203, 

Puerto Rico has not clearly articulated a 

policy to displace competition with 

respect to Coopharma’s challenged 

conduct. Moreover, Puerto Rico has not 

actively supervised that conduct under 

the state action doctrine.’’ 74

The ‘‘Purpose and Scope’’ of 

Regulation 9161 now in place provides 

that: 

In the exercise of its functions, COSSEC 

will ensure that, in and during the 

negotiation process, a balance permeates the 

negotiations between the parties, in such a 

way as to improve access and quality of 

health services to patients in the Government 

of Puerto Rico. Specifically, that the 

[Cooperatives of Health Service Providers] 

fully comply with all the requirements of the 

cooperative order and that promote the 

public policy of the Government of Puerto 

Rico for the benefit of the orderly 

development of cooperativism as a business 

model.75

Moreover, the regulation provides for 

‘‘controls and procedures to avoid’’ and 

provides COSSEC with the authority to 

‘‘investigate and prosecute illicit 

practices under collective bargaining 

authorized by the Subchapter 20A of 

Act No. 239–2004, as amended.’’ 76 This 

language demonstrates the ways in 

which the promulgation of the 

regulation has shifted the analysis of the 

Commission when it initially brought 

the Complaint against Coopharma, and 

more recently, the analysis in which the 

Commission engaged in regard to a 

previous matter, In the Matter of 

Cooperativa de Me ́dicos Oftalmo ́logos 

de Puerto Rico, File No. 141–014. In that 


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‘‘Analysis of Agreement Containing 

Consent Order to Aid Public Comment,’’ 

the Commission acknowledged the 

passage of Act 228 in Puerto Rico, but 

stated that ‘‘Puerto Rico has neither 

issued any regulations nor do we have 

any record to evaluate how Puerto Rico 

will supervise negotiations. Therefore, 

the Commission is unable to assess to 

whether Act 228 complies with state 

action requirements.’’ 77

Here, it is clear from the language of 

the regulation that, not only is there a 

specific scheme and procedures in place 

for COSSEC to actively monitor and be 

engaged in the process of collective 

negotiations between Health Care 

Provider Cooperatives and third party 

payors, but also that COSSEC is actively 

overseeing such negotiations—namely, 

the type of negotiations in which 

Coopharma would engage with PBMs 

and third party payors. This comports 

with the standard set forth by the 

Supreme Court in Federal Trade 

Commission v. Ticor Title Insurance 

Company, to meet the active 

supervision prong (and, indeed, both 

prongs) of the Midcal test to qualify for 

State immunity from the Antitrust Act 

under the State Action Doctrine.78 There 

is sufficient, active oversight because ‘‘a 

detailed structure governs the 

challenged anticompetitive conduct 

here.’’ 79

That detailed structure of COSSEC’s 

active oversight of all negotiations by 

healthcare cooperatives is clear from the 

language of Regulation No. 9161. Under 

the regulation, healthcare cooperatives 

must follow strict procedures and notify 

COSSEC of their intention to negotiate. 

See Reg. No. 9161 § 8.04. There are 

certain criteria for negotiations, 

including specific terms and conditions 

which may be negotiated and those 

which may not. Id. § 8.01. Just as in 

Morgan v. Div. of Liquor Control, Dep’t 

of Bus. Regul., State of Conn. and Ports 

Auth. of Puerto Rico v. Compania 

Panamena de Aviacion (Copa), S.A., see 

notes 77 and 78, supra, this mandatory 

fee is set between $3000.00 and 

$10,000.00 and funds the State 

supervisory process, thereby promoting 

State public policy goals. Id. § 8.02. 

In addition to laying out this formula 

for fees, which alone could satisfy the 

active supervision prong of the Midcal 

test, the regulation creates a sevenmember Supervisory Committee, which 

is comprised of representatives from the 

Department of Health, the Patient 

Ombudsman, health insurance 

companies, third-party administrators, 

cooperatives, an economist who is a 

certified actuary, and a COSSEC 

representative. Id. § 6.03. The committee 

is ‘‘activated’’ as soon as the healthcare 

cooperative notifies it that it intends to 

collectively negotiate. Id. The 

Supervisory Committee then oversees 

every single negotiation by being 

present when any negotiation is held 

and requiring the negotiating parties to 

write a detailed initial report, progress 

reports, and a final report. Id. § 8.07. 

The Supervisory Committee must 

approve each report at all stages before 

the next meeting to negotiate may be 

held. Id. § 8.08. 

The regulation also outlines how the 

Supervisory Committee must evaluate 

the reports and how it should assess the 

final report to accept, deny, or request 

amendments to it. Id. § 8.08–8.09. The 

parties may be referred to COSSEC or 

the Department of Justice’s Office of 

Monopolistic Affairs if they violate the 

regulation or engage in an unreasonable 

restriction on trade, to be prosecuted 

under Puerto Rico’s Antitrust law, Act 

No. 77–1964. Id. § 6.01, 9.01–9.02. The 

regulation outlines the sanctions and 

penalties that a cooperative which is 

prosecuted could suffer for violations of 

the regulation. Id. § 9.04. 

It is clear from the foregoing that the 

change in the law has altered the 

analysis of Coopharma’s collective 

negotiation activity in a substantial and 

legally significant way. Any concerns 

that the Commission had about a lack of 

oversight are clearly addressed by Act 

228 and Regulation No. 9161. Moreover, 

absent the relief requested, Coopharma 

will be left in the proverbial 

‘‘competitive dust’’ of other similar 

entities across Puerto Rico. Those 

entities unaffiliated with Coopharma 

and, therefore, unbound by the 

Commission Order, can take advantage 

of the ability to collectively negotiate 

contracts with the same payors that 

Coopharma cannot. This inequity 

should now be rectified by further 

Commission action to set aside the 

Order. 

4. Change to Commission Policy— 

Withdrawal of Previous Guidance on 

PBMs 

In addition to the change in law 

described above, the market dynamics 

concerning PBMs have shifted 

significantly since twelve (12) years ago 

when the Order was imposed. In 2012, 

there was a host of guidance, reports, 

studies and letters authored by the 

Commission in support of the supposed 

‘‘procompetitive’’ impact of PBMs. The 

policy of such support for PBMs has 

since been overturned.80 In her 

statement on the matter, Chair Khan 

said the following: 

The FTC is now pursuing an inquiry into 

the PBM industry, one that is designed to 

capture and detail the current realities on the 

ground in this complex marketplace. While 

we finalize our market study, we urge the 

public not to continue to cite or rely on these 

outdated comments, reports, and studies. It is 

important that the FTC’s work reflect current 

market dynamics. I am pleased that the FTC 

is alerting the public to the risks of relying 

on earlier work based on outdated market 

conditions and assumptions.81

This inquiry into the PBM industry by 

the Commission is in conjunction with 

increased State and Federal government 

investigation into PBMs, spurred by 

independent reporting on the fact that 

there has been a substantial change in 

the healthcare/pharmaceutical and 

health insurance marketplace in the last 

10 years.82 Such inquiries into the role 

of PBMs focus on PBM price-fixing 

schemes and their domineering position 

over independent pharmacies, which 

allow PBMs to force independent 

pharmacies into take-it-or-leave it 

contracts designed to depress the 

competitive ability of independent 

pharmacies in comparison to PBMaffiliated pharmacies.83 84

B. The Order Should Be Modified or Set 

Aside in the Public Interest 

The ‘‘public interest’’ presumptively 

favors competition, and restraints on 

competition harm the public interest by 

depriving consumers of the benefits of 

competition including for example, 

lower prices, better products and 

increased innovation. A Commission 

order that restrains competition will be 

in the public interest only if, and to the 

extent that, the benefits of preventing or 

deterring relevant anticompetitive 

activity outweigh the losses to 

competition and consumers cause by 

the restraint.85 The Commission will set 

aside orders which ‘‘unnecessarily 

inhibit[ ] respondent[s] from engaging in 

conduct which, in and of itself . . . . 

may, in certain circumstances, be 

procompetitive.’’ 86 For example, in 

Nestle ́ Holdings, the Commission 

granted a petition to modify an order, 

explaining: 

holding [the petitioner] to the [strict terms of 

the order, as issued], with the resulting 

disruption to its operations and ability to 

compete, would likely diminish [its] 

competitive effectiveness. It is therefore in 

the public interest to make the change to 

enable [the petitioner] to continue to compete 

in the market without disruption of its 

operations.87

And in Readers’ Digest Association, 

the Commission eliminated an order 

provision when ‘‘the costs that the 

[provision] imposes on respondent 

appear to outweigh any consumer 

benefits [that it] may confer.’’ 88 Similar 

logic compels modifying or setting aside 

the Order in this matter. 


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1. Puerto Rico’s Historical/Ubiquitous 

Use of Cooperatives Renders the Setting 

Aside or Modifying of the Order a 

Matter of Public Interest 

The public interest dictates that the 

Order be reopened and set aside. The 

Preamble to Act 228 states that its 

purpose is to authorize Health Service 

Provider Cooperatives to negotiate 

collectively with [third-party payors] to 

prevent the current system of 

imbalanced negotiations, resulting in 

contracts of adhesion. The Legislature 

stated that this was intended to 

‘‘improve access and quality of health 

services to patients in the 

Commonwealth of Puerto Rico.’’ 89

Puerto Rico suffers from poor health 

care infrastructure and a rapidly 

declining health care workforce, 

rendering the delivery of health care in 

Puerto Rico severely compromised.90

Between 2014 and 2015, approximately 

900 physicians left the Island, reducing 

the number of critical care providers by 

nearly 36%.91 And, as a result, Puerto 

Ricans have fewer physicians than ever 

before and long wait-times when access 

health care.92 In fact, the Health 

Resources and Services Administration 

has deemed 72 of Puerto Rico’s 78 

municipalities as medically 

underserved areas.93 Clearly, the ability 

to negotiate fair contracts ‘‘to improve 

access and quality of health services to’’ 

Puerto Rico patients is vital to the 

Commonwealth of Puerto Rico. The 

current Order prevents Coopharma from 

negotiating lower costs for consumers 

with PBMs as well being able to provide 

improved quality pharmacy services 

desperately needed by the residents of 

Puerto Rico, which can only be gained 

through equitable reimbursement and 

fair treatment under contracts with 

PBMs. 

2. The Existence of Independent 

Pharmacies Is Threatened as PBMs Have 

Become More Dominant in the Last 10 

Years 

Pharmacy advocacy groups such as 

the National Community Pharmacists 

Association (‘‘NCPA’’) are sounding the 

alarm about the changing 

pharmaceutical market and the market 

power associated with independent 

pharmacists.94 NCPA conducted a 

survey of 10,000 independent pharmacy 

owners and managers over 10 days in 

February 2024 and received 815 

responses.95 The conclusion NCPA has 

drawn from this survey, which was 

focused on negotiations with PBMs over 

rates for Medicare Part D, is that 

‘‘[n]early a third of independent 

pharmacy owners may close their stores 

this year under pressure from plunging 

prescription reimbursements by big 

insurance plans and their pharmacy 

benefit managers.’’ 96 The CEO of the 

organization, B. Douglas Hoey, 

pharmacist, MBA, made clear that 

‘‘[t]his is an emergency.’’ 97 Moreover, 

his conclusion was that ‘‘if Congress 

fails to act again, thousands of local 

pharmacies could be closed within 

months and millions of patients could 

be stranded without a pharmacy.’’ 98

In locations where there are very few 

providers, such as Puerto Rico, the 

impact of the profit margin growth for 

PBMs and significantly smaller profits 

for pharmacies is a dire issue indeed. 

Although Puerto Rico has a unique 

infrastructure, as described above, it is 

also akin to a rural location in the 

mainland United States. As early as 

2016, the then-President and Executive 

Director of the Puerto Rico Community 

Pharmacies Association, Idalia Bonilla 

and Marylis Gavilla ́n Cruz, respectively, 

drafted a letter to Senator Orrin Hatch, 

Member of the United States Senate’s 

Economic Development Task Force and 

Jose B. Carrio ́n III, President of Puerto 

Rico’s Financial Oversight and 

Management Board, to express interest 

in providing assistance to the Task 

Force in identifying ‘‘ways and means of 

providing Puerto Rico equitable access 

to federal health care programs.’’ 99

Bonilla and Cruz stated that community 

pharmacies, which are ‘‘characterized 

by mainly and efficiently serving the 

beneficiaries of the public health 

programs,’’ have seen their ability to 

continue operations ‘‘greatly affected’’ 

by, among other causes, ‘‘the unjust 

practices’’ of PBMs.100 They articulated 

that ‘‘PBMs’ unjust practices have 

created local and global concerns, as 

they directly and significantly increase 

the cost of medications.’’ 101

An analysis by the Rural Policy 

Research Institute (‘‘RUPRI’’) Center for 

Rural Health Policy analysis of data 

collected by the National Council for 

Prescription Drug Programs on 

pharmacies in the United States from 

2003 to 2021 supports the conclusion 

that PBMs have been harmful to 

independent, and particularly rural, 

pharmacies.102 RUPRI concluded that 

‘‘[b]etween 2003 and 2021, the number 

of independently owned retail 

pharmacies declined in noncore areas 

by 16.1 percent, and in micropolitan 

areas by 9.1 percent, while the number 

in metropolitan areas increased by 28.2 

percent during the same period.’’ 103

Moreover, government entities at both 

the State and Federal levels, including 

the Commission, the Centers for 

Medicare and Medicaid, and Congress, 

have recognized the shift in market 

status/market share for PBMs and the 

oversized impact and bargaining power 

they wield, as well as recognizing the 

increases in consumer pricing resulting 

from it.104 Absent the relief requested 

herein, the inability of Coopharma to 

negotiate for fair and reasonable 

contract terms on behalf of its small, 

independent pharmacy members will 

lead to the very real possibility of more 

independent pharmacy closures. This 

will further diminish the ability of 

Coopharma’s customers to readily 

access needed health care services. 

3. The Commission Has Previously 

Recognized That Absent the Ability To 

Negotiate, an Entity Without Market 

Power Cannot Compete 

The Commission’s own precedent 

supports taking action to reopen and set 

aside the Order in this case. In In Re 

Toys ‘R Us, the Commission amended 

an Order based on recognizing a shift in 

market circumstances and bargaining 

power for the toy seller.105 In pertinent 

part, the Commission found that: 

TRU had market power as a buyer and 

distributor of toys. TRU has demonstrated 

that it no longer has market power as a buyer 

of toys. Walmart and Target have overtaken 

TRU in competitive strength and market 

share. TRU has submitted data showing that 

TRU’s loss of competitive position is 

consistent across product categories.106

Moreover, it changed the record 

keeping requirements based on a 

recognition of the ‘‘changes in market 

conditions.’’ 107 As with that matter, the 

prohibited conduct here ‘‘unnecessarily 

inhibits respondent from engaging in 

conduct which, in and of itself, is 

innocuous and may, in certain 

circumstances, be procompetitive.’’ 108

Further, the Commission has granted 

petitions to set aside or modify orders 

where such orders impose a competitive 

disadvantages on firms that impairs 

their ability to offer full, vigorous 

competition. For example, in the matter 

regarding Pendleton Woolen Mills, Inc., 

the Commission reopened and modified 

an order that put the respondent at a ‘‘at 

a substantial disadvantage’’ with respect 

to its competitors who were not subject 

to the prohibitions on otherwise lawful 

conduct that was proscribed by the 

order.109 And, in the Onkyo U.S.A. 

Corp. matter, the Commission modified 

an order when, as a result of the 

objectionable provisions, the respondent 

was unable to operate its business as 

effectively as its competitors and was 

‘‘thus competitively disadvantaged in a 

manner that was not contemplated 

when the order was issued by the 

Commission.’’ 110

Additionally, the Commission has 

modified and set aside orders where the 

order imposes restrictions to that party 


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that are not imposed on other members 

of the industry, creating a competitive 

disadvantage. For example, in the Nat’l 

Fire Hose Corp. matter, the Commission 

recognized that ‘‘an order should be 

modified or vacated if changed 

circumstances of fact or law place a 

party to the order under restrictions not 

applicable to other members of the 

industry. Fairness and the public 

interest require that the Commission 

apply its policies consistently and 

uniformly among all the members of the 

industry.’’ 111 Where every other Health 

Care Provider Cooperative in Puerto 

Rico can take advantage of collective 

negations with third party payors 

pursuant to Act 228, including 

Cooperativa de Me ́dicos Oftalmo ́logos 

de Puerto Rico, which is still under a 

separate Commission Order, 

Coopharma’s inability to do so is at a 

competitive disadvantage, both in terms 

of its position with other Health Care 

Provider Cooperatives and with its 

bargaining position with third party 

payors. This is directly in line with 

Commission precedent for reopening 

and setting aside an Order. Third party 

payors are currently able to take 

advantage of Coopharma and its 

members through low reimbursement 

rates and other conduct that 

Coopharma, at the moment, is unable to 

renegotiate to establish fairer terms for 

its independent pharmacy members. If 

allowed, these negotiations would, in 

turn, translate to benefits to consumers. 

Thus, the Order should be set aside. 

Conclusion 

The legal, factual, and market changes 

described herein are sufficient to meet 

the Commission’s standard to reopen 

and modify or set aside the Order. First, 

as stated above, the significant change 

in law with the enactment of Act 228, 

in and of itself warrants a modification 

of the Order. While the Commission 

recognized, at the time of the 

Complaint, the applicability of the State 

Action Doctrine, which Coopharma 

whole-heartedly believed applied to its 

conduct given the regulatory scheme of 

Act 239 and the oversight of cooperative 

activities by COSSEC,112 the 

Commission ultimately concluded that 

Coopharma’s activities did not qualify 

for State Action immunity.113 However, 

the Commission cannot now deny the 

clear establishment of State Action 

immunity imposed by Act 228, which 

allows Health Care Provider 

Cooperatives the benefit of engaging in 

collective negotiations with third-party 

payors, coupled with a specific 

regulatory scheme and COSSEC’s direct, 

active oversight over the exact conduct 

which underlies the Order. The State 

Action Doctrine provides that with this 

State oversight and the regulations that 

are currently in place, Health Care 

Provider Cooperative negotiations in 

Puerto Rico are State-sanctioned and, 

therefore, shielded from the 

Commission’s scrutiny that they are 

anticompetitive. 

Second, the public interest also 

dictates that the Commission reopen 

and set aside the Order as a result of the 

changes in the pharmaceutical market 

and PBMs’ increased market share, 

which has led to multiple government 

investigations. Federal and State 

government entities are currently 

investigating PBMs’ vertical integration 

and market share consolidation as well 

as their heavy handed policies and 

contract terms, which have already 

forced many independent pharmacies 

out of business entirely. 

In the foregoing paragraphs, 

Coopharma has provided verified 

information, which shows PBMs’ and 

individual health insurance companies’ 

unprecedented and outsized 

accumulation and concentration of 

market power. This market imbalance 

has placed Coopharma’s members, 

primarily small, rural businesses, in a 

unique and precarious position given 

that the Order’s restrictions on 

negotiations are still in place. 

Without the ability to negotiate with 

PBMs due to the Order, Coopharma also 

stands at a direct competitive 

disadvantage to all other entities within 

Puerto Rico that can, and have, taken 

advantage of Act 228 to ‘‘improve access 

and quality of health services to patients 

in the Commonwealth of Puerto Rico. 

The ability of Puerto Rican independent 

pharmacies to continue to provide lifesustaining care depends on their ability 

to collectively negotiate as a 

cooperative—negotiations which are 

now regulated and overseen by a State 

government agency. 

For the foregoing reasons, the 

Commission should reopen and set 

aside the Consent Order and enter an 

order in the form attached dismissing 

the Complaint with prejudice. In the 

alternative, to the extent the 

Commission determines that only 

modification is required, it should 

amend the order to permit Coopharma 

to engage in negotiations on behalf of its 

members with third party payors 

consistent with Act 228. 

Dated: August 7, 2024 

Respectfully submitted, 

s/Bradley A. Wasser 

Bradley A. Wasser, 

Eliese R. Herzl-Betz, 

Duane Morris LLP, 

30 S. 17th Street, 

Philadelphia, PA 19103. 

Counsel for Petitioner. 

Endnotes 

1 Statement of Motives, General 

Cooperative Associations Act of 2004, Act 

No. 239 at 2 (Sept. 1, 2004) (‘‘Act 239’’). ‘‘The 

members of such cooperatives exercise the 

decision-making power in equal standing, 

regardless of the amount of capital they have 

contributed.’’ Id. at 2. 2 Affidavit of Heriberto Ortiz (‘‘Ortiz 

Affidavit’’), ¶ 5. 3 Id. ¶ 6. 4 NCUA–COSSEC Partnership Will 

Strengthen Supervision of Cooperativas, 

https://ncua.gov/newsroom/pressrelease/ 

2023/ncua-cossec-partnership-willstrengthen-supervision-cooperativas (Apr. 

2023). 5 Statement of Motives, Act No. 239 at 3 

(Sept. 1, 2004). 6 Id. 

7 5 L.P.R.A. § 4516. 

8 COSSEC replaced the functions of the 

Inspector of Cooperatives. See Puerto Rico 

Pharmacy Law, Act No. 247- 2004, as 

amended. 9 For example, Act 239 requires regulation 

over the contents of cooperatives’ articles of 

incorporation and bylaw (§§ 4403 and 4404); 

the CDA must forward bylaws and articles of 

cooperatives to the Inspector of Cooperatives 

for review and approval (§§ 4415 and 4422); 

the Inspector of Cooperatives retains the right 

to reject creation of a cooperative (§ 4422); 

CDA has the right to dissolve cooperatives 

(§ 4555); the Inspector of Cooperatives is 

required to ensure that all cooperatives 

comply with the provisions of Act 239 

(§ 4646); and, the Inspector must annually 

audit the operations of all cooperatives 

(§ 4647). Moreover, Act 239 allows for the 

direct transfer of goods and services between 

the government and Cooperatives, without a 

bidding process required for other third 

parties (§ 4528); and cooperatives are not 

required to pay rent for use of facilities in 

government offices or public corporations 

(§ 4528). See generally §§ 4645–4662, Office 

of the Inspector of Cooperatives. 10 See ‘‘About Us’’ section of COSSEC’s 

website, http://www.cossec.com/cossec/det_

content.asp?cn_id=802 (as translated to 

English). 11 Id. 12 Ortiz Affidavit ¶ 7. 13 Id. ¶ 8. 14 Id. 15 Id. ¶ 9. 16 Id. ¶ 10. 17 Ortiz Affidavit ¶ 10. 18 Id. 19 Id. 20 Id.¶ 12 (citing and appending Ex. 1, 

Coopharma Clauses of Incorporation, Art. II, 

§ 3). 21 Id. ¶ 13. 22 Ortiz Affidavit ¶ 16. 23 Id. ¶ 17. 24 Id. ¶ 18. 25 Id. 26 Id. 27 Ortiz Affidavit ¶ 19. 28 Id. 29 Id. (citing Rumbin v. Utica Mutual Ins. 

Co., 254 Conn. 259, 264 n. 6, 757 A.2d 526 


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(2000) (‘‘Standardized contracts of insurance 

continue to be prime examples of contracts 

of adhesion, whose most salient feature is 

that they are not subject to the normal 

bargaining processes of ordinary contracts.’’) 

(Internal quotation marks omitted)). 30 Id. 31 Id. ¶ 20. 32 Ortiz Affidavit ¶ 20. 33 Id. ¶ 21. 34See Pharmacies—Puerto Rico, 

STATISTA, https://www.statista.com/ 

outlook/hmo/pharmacies/puertorico#volume (last accessed November 7, 

2023). 35Ortiz Affidavit ¶ 25. 36Statement of Chair Lina M. Kahn 

Regarding 6(b) Study of Pharmacy Benefit 

Managers, Commission File No. P221200 

(June 8, 2022). 37Complaint, Docket C–4374 ¶¶ 22, 34. 38 DEP’T OF JUSTICE, HerfindahlHirschman Index, https://www.justice.gov/ 

atr/herfindahl-hirschmanindex#:∼:text=

The%20term%20%E2%80%9CHHI%

E2%80%9D%20

means%20the,then%20summing

%20the%20resulting%20numbers (last 

accessed June 20, 2024) (defining HHI as a 

commonly accepted measure of market 

concentration). 39See NOTICEL, Insurance Commissioner 

Favors Collective Bargaining with Health 

Providers, https://www.noticel.com/ahora/

gobierno/top-stories/20230307/comisionadode-seguros-favorece-negociacioncolectivacon-proveedores-de-salud/ (Mar. 7, 2023) (as 

translated to English) (citing Ramo ́n J. Cao 

Garcı ́a, Ph.D. & Jose ́ J. Cao Alvira, Ph.D., Un 

Estudio Econo ́mico de las Compan ̃ı ́as de 

Seguros de Salud y sus Proveedores de 

Servicios para Identificar Posibles Enmiendas 

a la Regla Nu ́m. 91 de la Oficina del 

Comisionado de Seguros de Puerto Rico, 

Estudio Comisionado por la Oficina del 

Comisionado de Seguros de Puerto Rico, at 

16 (2023)). 40UNITED STATES CENSUS BUREAU, 

Result: Without Health Care Coverage in 

Puerto Rico (2022) is 5.1% (+/¥ 3%), https:// 

data.census.gov/all?q=health+insurance+

puerto+rico (last accessed June 20, 2024). 41See KFF, Nancy Ochieng et al., Medicare 

Advantage in 2023: Enrollment Update and 

Key Trends, https://www.kff.org/medicare/ 

issue-brief/medicare-advantage-in-2023- 

enrollment-update-and-key-trends/ (Aug. 9, 

2023) (interpreting data from CMS Medicare 

Advantage Enrollment Files and March 

Medicare Enrollment Dashboard, 2013 and 

2023). 42ABARCA, Abarca selected as PBM for 

Vital—an ASES Medicaid program in Puerto 

Rico, https://www.abarcahealth.com/abarcaselected-as-pbm-for-vital-an-ases-medicaidprogram-in-puerto-rico/ (Oct. 20, 2022). See 

also ASES, Vital Beneficiary Manual, https:// 

www.sssvital.com/wp-content/uploads/ 

beneficiarymanual.pdf (last accessed June 20, 

2024); CMS, Managed Care in Puerto Rico, 

https://www.medicaid.gov/medicaid-chipprogram-information/by-topics/deliverysystems/managedcare/downloads/puertorico-mcp.pdf (last accessed June 20, 2024). 43Per its own admission, in an interview 

of Jason Borschow, CEO of Abarca Health, 

the largest PBM in Puerto Rico, on the 

HealthBiz Podcast with David E. Williams, 

dated March 17, 2022, Abarca controls 

approximately 70% of the PBM market and 

100% of the State Medicaid Program market 

in Puerto Rico. See Interview of Jason 

Borshow (March 17, 2022), available at 

https://www.youtube.com/ 

watch?v=iQD1fER3QgA. 44ASES, October 2023 Annual Report to 

Congress, https://www.asespr.org/wpcontent/uploads/2023/12/PuertoRico-2023-

Annual-Report-to-Congress_Final.pdf at 7 

(Oct. 2023). 45CMS, Managed Care in Puerto Rico at 2, 

https://www.medicaid.gov/medicaid-chipprogram-information/bytopics/deliverysystems/managed-care/downloads/puertorico-mcp.pdf (stating, as of 2021, Plan Vital 

includes insurers Triple S, First Medical, 

MMM, and Plan de Salud Menonita). See 

also MMM, MMM celebrates 20 years taking 

care of the health of more than 720,000 

members, https://www.mmm-pr.com/mmmcelebra (stating that it is the ‘‘leading health 

services plan in the Medicare Advantage 

sector in Puerto Rico’’ with 720,000 insureds) 

(last accessed June 20, 2024); FAEGRE 

DRINKER, Anthem Acquires Puerto RicoBased MMM Holdings and Affiliates, https:// 

www.faegredrinker.com/en/services/ 

experience/2021/6/anthem-acquires-puertoricobased-mmm-holdingsand-affiliates (June 

2021) (‘‘MMM is the largest MA plan and the 

second-largest Medicaid plan in Puerto Rico, 

with a network that includes over a dozen 

offices and more than 10,000 health care 

providers across the island.’’). 46 Insurance Commissioner Favors 

Collective Bargaining with Health Providers, 

https://www.noticel.com/ahora/gobierno/topstories/20230307/comisionado-de-segurosfavorece-negociacioncolectiva-conproveedores-de-salud/ (as translated to 

English). The Commissioner said: [The 

Study] found that the concentration of the 

market in Puerto Rico—both from the point 

of view of distribution of written premiums 

and distribution of subscribers—is not only 

high, but has been increasing over the past 

years. In the segment of medical plans in the 

commercial sector, it was found that a single 

company currently has 49.2% of the 

subscribers and two others make up 64.8% 

of the subscribers in Puerto Rico. See also 

Garcı ́a & Alvira, Un Estudio Econo ́mico de 

las Compan ̃ı ́as de Seguros de Salud y sus 

Proveedores de Servicios. 47TRIPLE–S MANAGEMENT, https://

management.grupotriples.com/en/ 

ourcompanies/#:∼:text=With%20more

%20than%2060%20years,

%2C%20commercial%2C%20and

%20Medicaid%20markets (stating company 

has ‘‘approximately 1,000,000 insured in 

their individual, commercial and Medicare 

markets’’) (last accessed June 20, 2024). See 

also ABARCA, Abarca renews, expands 

partnerships for pharmacy benefit services 

with Triple-S, CareFirst, https://www.abarca

health.com/abarca-expands-two-bcbsaplans/ (Sept. 30, 2021). 48PR NEWSWIRE, First Medical Renews, 

Expands Partnership With Abarca For 

Pharmacy Benefit Services, https://

www.prnewswire.com/news-releases/firstmedical-renews-expands-partnership-withabarca-for-pharmacybenefit-services301400686.html (Oct. 14, 2021). 49See Department of Consumer Affairs 

Complaint No. SAN–2022–0012881, Oficina 

de Asuntos Monopolı ́sticos del Dept. de 

Justicia v. Abarca Health LLC, https://

www.justicia.pr.gov/departamento-dejusticia-presenta-querella-porpracticasenganosas-contra-administrador-debeneficios-de-farmacia/ (Jan. 26, 2023). At 

this time, the parties are litigating some 

procedural matters before the Supreme Court 

of Puerto Rico and Coopharma is an Amici 

Curiae in said matter, see Docket No. CC– 

2023–0773. 50See In the Matter of Cooperativa de 

Farmacias Puertorriquen ̃ as (‘‘Coopharma’’), 

Docket No. C–4374 (Decision and Order, 

November 6, 2012). 51 Id. at Section II. 52 Id. at 6. 53FED. TRADE COMM’N, Putting the Mod 

in Order Modification, https://www.ftc.gov/ 

enforcement/competitionmatters/2014/07/ 

putting-mod-order-modification (2014). 54See In the Matter of: Toys R Us, Inc., 

2014 WL 187460, at *11–12 (F.T.C. Jan. 13, 

2014). 55 16 CFR 2.51(b). 56 Id. at *12. 57 Id. (citation omitted). 58Statement of Motives, P. de la C. 2440 

(‘‘Act 228’’) (as translated) at 2 (stating the 

Legislature passed the law ‘‘with the purpose 

of authorizing [Health Service Provider 

Cooperatives] . . . to negotiate collectively 

with Health Service Organizations (HSO) and 

Third Party Administrators (AT), so that 

there is a balance in the negotiations of these 

parties, since currently the contractual terms 

between these parties are imposed through 

adhesion contracts.’’). 59See id. at 1–2 (as translated) (stating that 

it was ‘‘not envisaged’’ that Health Service 

Provider Cooperatives would be part of Law 

203 because all cooperatives ‘‘were already 

regulated and supervised by specialized 

cooperative laws, such as Law 239–2004, as 

amended . . . .’’). 60See Analysis of Agreement Containing 

Consent Order To Aid Public Comment to In 

the Matter of Coopharma, File No. 101–0079 

at 3–4 (Aug. 21, 2012) (explaining Law 203). 61See id. at 4 n.5 (August 21, 2012) (The 

Commission is aware that Law 239, which 

regulates cooperatives generally, declared 

that cooperatives ‘‘shall not be considered 

conspiracies or cartels to restrict business.’’ 

5 L.P.R.A. § 4516 (Law 239, § 20.5). The 

Commission and the Puerto Rico Department 

of Justice interpret Law 203 (which was 

passed after Law 239) to supersede Law 

239.’’). 62See Statement of Motives, Act 228 (as 

translated) at 2. 63Statement of Motives, Act 228 (as 

translated) at 2. 64 Id. 65 Id. 66See id.; see also California Retail Liquor 

Dealers Ass’n v. Midcal Aluminum, Inc., 445 

US 97 (1980) (court established a two-prong 

standard test for a party to satisfy the State 

Action Doctrine: ‘‘the challenged restraint 

must be one ‘clearly articulated and 


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Federal Register / Vol. 89, No. 178 / Friday, September 13, 2024 / Notices 74959 

affirmatively expressed as state policy’’’ and 

‘‘the policy must be ‘actively supervised’ by 

the State itself’’) (internal citation omitted). 67COSSEC replaced the functions of the 

Inspector of Cooperatives. See Puerto Rico 

Pharmacy Law, Act No. 247–2004 (‘‘Act 

247’’), as amended. 68See Ortiz Affidavit, ¶ 24, appending Ex. 

2, Certification of Mabel Jime ́nez Miranda 

(explaining the role of COSSEC as its 

Executive President). 69See ‘‘About Us’’ section of COSSEC’s 

website, http://www.cossec.com/cossec/det_

content.asp?cn_id=802 (as translated). 70See Ex. 2 to Ortiz Affidavit, Cert. of 

Mabel Jime ́nez Miranda, Executive President 

of COSSEC. 71See Ex. 2 to Ortiz Affidavit at ¶ 5 

(emphasis added). 72Analysis of Agreement Containing 

Consent Order to Aid Public Comment to In 

the Matter of Coopharma, File No. 101–0079 

at 3–4 (Aug. 21, 2012). 73Puerto Rican statutes may be referred to 

as Act or Law interchangeably. 74 In the Matter of Coopharma, Docket C– 

4374, Complaint ¶ 47 (Nov. 7, 2012). 75See ‘‘Regulations for the Supervision and 

Supervision of Collective Negotiations of the 

Cooperatives of Health Service Providers 

(CPSS) with Third Party Administrators (AT) 

and Health Service Organizations (HSO)’’. 

No. 9161 at Art. IV (Feb. 13, 2020) (as 

translated to English). 76 Id. 77See Analysis of Agreement Containing 

Consent Order To Aid Public Comment to In 

the Matter of Cooperativa de Me ́dicos 

Oftalmo ́logos de Puerto Rico, File No. 141– 

0194 at 4 (Jan. 19, 2017). 78See Federal Trade Commission v. Ticor 

Title Insurance Company, 504 U.S. 621, 634 

(1992) (stating that the active supervision 

prong of the Midcal test is met if State 

officials ‘‘have and exercise power to review 

particular anticompetitive acts of private 

parties and disapprove those that fail to 

accord with state policy’’) (citation omitted). 

See also Morgan v. Div. of Liquor Control, 

Dep’t of Bus. Regul., State of Conn., 664 F.2d 

353, 356 (2d Cir. 1981) (finding 

anticompetitive conduct immune from the 

Antitrust Act under the State Action Doctrine 

because the State of Connecticut structured 

‘‘a detailed mechanism for determining 

prices for alcoholic beverages’’ which 

satisfied the active supervision requirement); 

Destec Energy, Inc. v. S. California Gas Co., 

5 F. Supp. 2d 433, 456 (S.D. Tex. 1997), aff’d 

sub nom. Destec Energy v. S. California Gas 

Co., 172 F.3d 866 (5th Cir. 1999) (finding that 

a State entity which ‘‘agreed to modify longterm individually negotiated EOR contracts 

only upon a finding that the modification 

was necessitated by the ‘public interest’ ’’ 

satisfied the active supervision prong of the 

Midcal test because there is no requirement 

that a regulatory agency ‘‘must retain 

unfettered discretion’’ in order to meet the 

requirement). The court in Destec cited Ticor 

to explain that ‘‘the active supervision 

inquiry is intended to determine whether ‘the 

State has exercised sufficient independent 

judgment and control so that the details of 

the rates or prices have been established as 

a product of deliberate state intervention, not 

simply by agreement among private 

parties.’ ’’ Destec, 5 F. Supp. 2d at 457–58 

(citing Ticor, 504 U.S. at 634–35). Here, 

COSSEC’s broad and explicit authority to 

monitor negotiations and, therefore, 

pharmaceutical reimbursement prices and 

contracts, between healthcare cooperatives, 

third party administrators, and health service 

organizations and to identify illicit practices 

which do not comply with the law and State 

policy, as laid out in Regulation No. 9161, 

satisfies the Midcal requirement for active 

supervision. COSSEC explains that in order 

to promote the public policy of having 

functional healthcare cooperatives, it will 

ensure balance by overseeing negotiations 

between those cooperatives, third-party 

administrators, and health care services 

organizations, to improve the public’s access 

to quality healthcare services. See Ex. 2 to 

Ortiz Affidavit (COSSEC letter explaining its 

role as established by Act 239 and Regulation 

No. 9161). Compliance with the active 

supervision prong of the Midcal test is 

further shown because the regulation allows 

COSSEC to ‘‘investigate and prosecute illicit 

practices under collective bargaining 

authorized by the Subchapter 20A of Act No. 

239–2004, as amended.’’ See Regulation No. 

9161 at Art. IV (as translated to English). 79Ports Auth. of Puerto Rico v. Compania 

Panamena de Aviacion (Copa), S.A., 77 F. 

Supp. 2d 227, 236 (D.P.R. 1999) (finding that 

a ‘‘detailed formula for annually adjusting’’ a 

Federal Inspection Service Facility fee 

satisfied the active supervision prong of the 

Midcal test). Here, Puerto Rico’s Regulation 

No. 9161 provides for direct oversight by 

COSSEC over negotiations between 

healthcare players. This is arguably more 

stringent than issuing a formula annually, as 

a court nonetheless found sufficient to satisfy 

the active supervision prong under 

Compania Panamena. 80Statement of Chair Lina M. Khan 

Regarding the Policy Statement Concerning 

Reliance on Prior PBM-Related Advocacy 

Statements and Reports, https://www.ftc.gov/ 

legal-library/browse/cases-proceedings/

publicstatements/statement-chair-lina-mkhan-regarding-policy-statement-concerningreliance-prior-pbm-related (July 20, 2023). 81 Id. at 2 (emphasis added). 82See, e.g., NYS Committee on 

Investigations and Gov’t Operations, Final 

Investigative Report: Pharmacy Benefit 

Managers in New York, https://

www.nysenate.gov/sites/default/files/article/ 

attachment/final_investigatory_report_

pharmacy_benefit_managers_in_new_

york.pdf (May 31, 2019). The Committee 

determined that: PBMs often employ 

controversial utilization and management 

tools to generate revenue for themselves in a 

way that is detrimental to health plan 

sponsors, patients, and pharmacies. Such 

practices include maximum allowable cost 

lists, direct and indirect remuneration fees, 

rebates, formularies, and most 

controversially, spread pricing. The 

Committee also found evidence that PBMs 

are undermining patient choice by forcing 

consumers to use their preferred distributors, 

which are predominantly their own retail 

and mail order operations. Id. at 4–5 (internal 

citations omitted). See also Nat’l Assoc’n of 

Attys General, A Bipartisan Coalition of 39 

State Attorneys General Urge Congressional 

Action on Pharmacy Benefit Manager 

Reform, https://www.naag.org/pressreleases/ 

a-bipartisan-coalition-of-39-state-attorneysgeneral-urge-congressional-action-onpharmacy-benefit-manager-reform/ (Feb. 21, 

2024); Erin Trish, Ph.D., Karen Van Nuys, 

Ph.D. & Robert Popovian, PharmD, U.S. 

Consumers Overpay for Generic Drugs, 

https://healthpolicy.usc.edu/research/u-sconsumers-overpay-for-genericdrugs/ (White 

Paper abstract states that ‘‘PBMs’ current 

practices—coupled with market distortions 

within the pharmaceutical supply chain— 

have inflated retail generic prices’’); 

JACOBIN, H. Santoro, Middlemen Are 

Profiting off the Broken US Pharma System, 

https://jacobin.com/2024/03/pharmacybenefit-managers-drug-prices-congress (Mar. 

10, 2024) (Title excerpt: ‘‘Pharmacy benefit 

managers push expensive medications and 

slash drug reimbursement rates, pocketing 

the profits for themselves. Congress looked 

set to regulate these shadowy middlemen— 

but $50 million in industry lobbying later, 

the effort has stalled.’’). 83See, e.g., DEP’T OF JUSTICE, Assistant 

Attorney General Jonathan Kanter 

Announces Task Force on Health Care 

Monopolies and Collusion, https://

www.justice.gov/opa/pr/assistant-attorneygeneral-jonathan-kanter-announcestaskforce-health-care-monopolies-and (May 9, 

2024); U.S. GOV’T ACCOUNTABILITY 

OFFICE REPORT TO CONGRESSIONAL 

REQUESTERS, Selected States’ Regulation of 

Pharmacy Benefit Managers, https://

www.gao.gov/assets/d24106898.pdf (Mar. 

2024) (stating that GAO conducted the study 

to review the legislation enacted by states in 

response to ‘‘certain PBM practices, such as 

PBMs retaining a share of the rebates and use 

of spread pricing,’’ because every U.S. State 

has ‘‘enacted at least one PBM-related law 

between 2017 and 2023’’); NYS DEP’T OF 

FINANCIAL SERVS., DFS Superintendent 

Adrienne A. Harris Proposes Pharmacy 

Benefit Manager Regulations to Strengthen 

Consumer Protections and Address AntiCompetitive Conduct, https://

www.dfs.ny.gov/reports_and_publications/ 

press_releases/pr202402061 (Feb. 6, 2024). 84See also, Interim FTC Report at 53 (‘‘our 

initial review of documents received thus far 

reveals that PBMs can have the ability and 

incentive to put downward pressure on 

reimbursement rates for rival, unaffiliated 

pharmacies—including to a degree that may 

be unsustainable for small, independent 

pharmacies.’’). 85FED. TRADE COMM’N, Putting the Mod 

in Order Modification, https://www.ftc.gov/ 

enforcement/competitionmatters/2014/07/ 

putting-mod-order-modification (2014) (‘‘The 

modification process helps keep Commission 

orders from doing more harm than good 

when conditions change, and as the public 

interest requires.’’). 86 In the matter of Occidental Petroleum 

Corp., 101 F.T.C. 373, 1974 WL 175259, at 

*1. FTC Docket C–2492 (F.T.C. Mar, 9, 1983); 

see also, e.g., In the matter of Removatron 

Int’l Corp., et al., 114 F.T.C. 715, 719, FTC 

Docket No. 9200 (F.T.C. 1991) (setting aside 

order provision when ‘‘continued application 


khammond on DSKJM1Z7X2PROD with NOTICES
74960 Federal Register / Vol. 89, No. 178 / Friday, September 13, 2024 / Notices 

would be inequitable or harmful to 

competition’’). 87 In the matter of Nestle ́ Holdings, Inc., et 

al., C–4082, 2005 WL 1786402, at *3 (F.T.C. 

July 15, 2005). 88 In the matter of the Readers’ Digest 

Ass’n. No. C–2075, 102 F.T.C. 1268, 1971 WL 

128725, at *2 (Sept. 30, 1983). 89Statement of Motives, P. de la C. 2440 

(‘‘Act 228’’) (as translated) at 2. 90See Ximena Benavides, Disparate Health 

Care In Puerto Rico: A Battle Beyond 

Statehood, 23 Univ. of Penn. J. of Law and 

Social Change 163, 175 (2020). 91 Id. 92 Id. 93 Id. 94NCPA, Local Pharmacies on the Brink, 

New Survey Reveals, https://ncpa.org/ 

newsroom/newsreleases/2024/02/27/localpharmacies-brink-new-survey-reveals (Feb. 

27, 2024). 95NCPA, NCPA Report for February 2024 

Survey of Independent Pharmacy Owners/ 

Managers, https://ncpa.org/sites/default/ 

files/2024-02/Feb2024- 

DIRsurvey.Exec%20Summary.pdf (Feb. 

2024). 96NCPA, Local Pharmacies on the Brink, 

New Survey Reveals, at 1 https://ncpa.org/ 

newsroom/newsreleases/2024/02/27/localpharmacies-brink-new-survey-reveals (Feb. 

27, 2024). 97 Id. 98 Id. 99Oct. 24, 2016 Letter to Sen. Orrin Hatch 

and Jose B. Carrio ́n III, https://

www.finance.senate.gov/imo/media/doc/ 

Puerto%20Rico%20Community

%20Pharmacies%20Association%20 

(Late%20-%20Submission%201).pdf (Oct. 

24, 2016). 100 Id. at 2. 101 Id. 102RURAL HEALTH RESEARCH 

GATEWAY, Research Alert: Sept. 1, 2022, 

https://www.ruralhealthresearch.org/alerts/ 

504#:∼:text=Between%202003%20

and%202021%2C%20the,percent%20

during%20the%20same%20period (last 

accessed June 19, 2024). 103RUPRI CENTER FOR RURAL HEALTH 

POLICY ANALYSIS, Update on Rural 

Independently Owned Pharmacy Closures in 

the United States, 2003–2021, https://rupri.

publichealth.uiowa.edu/publications/ 

policybriefs/2022/Independent%20Pharmacy

%20Closures.pdf (last accessed June 19, 

2024). 104See notes 78 and 79, supra. See also 

‘‘Letter to Pharmacy Benefit Managers, 

Medicare Part D Plans, Medicaid Managed 

Care Plans, and Private Insurance Plans,’’ 

https://www.cms.gov/newsroom/fact-sheets/ 

cms-letter-plansand-pharmacy-benefitmanagers (Dec. 13, 2023); see also, Sens. 

Wyden, Crapo Call for Swift Passage of 

Bipartisan PBM Reforms, https://

www.finance.senate.gov/chairmans-news/ 

wyden-crapo-call-for-swift-passageofbipartisan-pbm-reforms (Mar. 14, 2024). 105 In Re Toys ‘R Us, Petition to Modify 

Order, FTC File No. 131–0052, Docket C– 

4405, at 4, located at https://www.ftc.gov/ 

sites/default/files/documents/cases/ 

140109toysruspetition.pdf (Jan. 3, 2014). 

106 In Re Toys ‘R Us, Modified Order, FTC 

File No. 131–0052, Docket C–4405, at 4, 

located at https://www.ftc.gov/system/files/ 

documents/cases/140415toysrusorder.pdf 

(Apr. 11, 2014). 107 Id. at 4. 108See In the Matter of Occidental 

Petroleum Corp., 101 F.T.C. 373, 1974 WL 

175259, at *1. 109 In the Matter of Pendleton Woolen 

Mills, Inc., 122 F.T.C. 267, 270, FTC Docket 

No. C–2985 (1996). 110 In the Matter of Onkyo U.S.A. Corp., 

122 F.T.C. 325, 326. FTC Docket No. C–3092 

(1996). 111 In the Matter of Nat’l Fire Hose Corp., 

No. C–2935, 1978 WL 206076, at *10 (F.T.C. 

Nov. 1, 1978). 112See n. 8, supra. 113See Analysis of Agreement Containing 

Consent Order To Aid Public Comment to In 

the Matter of Coopharma, File No. 101–0079 

at 4 (August 21, 2012). It should also be 

noted that the Commission has recognized 

the enactment of and applicable of Act 228 

‘‘when negotiating with any Payor in 

compliance with Act 228.’’ See In the Matter 

of Cooperativa de Me ́dicos Oftalmo ́logos de 

Puerto Rico, No. C–4603 at 4 (Decision and 

Order, Mar. 3, 2017). Moreover, Act 228 

covers all of the conduct which is addressed 

in the Order, and, in fact goes further than 

the Order in prohibiting specific conduct. By 

way of specific example, 26 P.R. Laws § 3107 

explicitly states that any ‘‘threats to boycott, 

go on strike or other coordinated action by 

the providers shall be subject to oversight by 

the Antitrust Affairs Office of the Department 

of Justice, in order to determine whether the 

same is in violation of the provisions of this 

chapter or the Antitrust Act.’’ The section 

further authorizes the imposition of civil 

and/or criminal liability on any Health Care 

Cooperative engaged in such conduct. 

[FR Doc. 2024–20811 Filed 9–12–24; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

[Docket No. CDC–2024–0065, NIOSH–352– 

A] 

Request for Public Comment on the 

Draft Hazard Review: Wildland Fire 

Smoke Exposure Among Farmworkers 

and Other Outdoor Workers 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Request for comment. 

SUMMARY: The National Institute for 

Occupational Safety and Health 

(NIOSH) in the Centers for Disease 

Control and Prevention (CDC), an 

Operating Division of the Department of 

Health and Human Services (HHS), 

requests public comment and technical 

review on the draft Hazard Review: 

Wildland Fire Smoke Exposure Among 

Farmworkers and Other Outdoor 

Workers. 

DATES: Electronic or written comments 

must be received by November 12, 2024. 

ADDRESSES: You may submit comments, 

identified by docket number CDC– 

2024–0065 and docket number NIOSH– 

352–A, by either of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: National Institute for 

Occupational Safety and Health, NIOSH 

Docket Office, 1090 Tusculum Avenue, 

MS C–34, Cincinnati, Ohio 45226–1998. 

Instructions: All information received 

in response to this notice must include 

the agency name and docket number 

(CDC–2024–0065; NIOSH–352–A). All 

relevant comments, including any 

personal information provided, will be 

posted without change to https://

www.regulations.gov. Do not submit 

comments by email. CDC does not 

accept comments by email. For access to 

the docket to read the draft Hazard 

Review document or comments 

received, go to https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: R. 

Todd Niemeier, Ph.D., National Institute 

for Occupational Safety and Health, 

MS–C15, 1090 Tusculum Avenue, 

Cincinnati, OH 45226. Telephone: (513) 

533–8166. 

SUPPLEMENTARY INFORMATION: NIOSH is 

requesting public comment and 

technical review of the draft Hazard 

Review: Wildland Fire Smoke Exposure 

Among Farmworkers and Other Outdoor 

Workers, which is accessible in the 

docket (CDC–2024–0065; NIOSH–352– 

A). The final document will be edited, 

so comments that focus on the technical 

content are requested. The final 

document will be used as the scientific 

evidence base to inform the 

development of supplementary 

educational materials for workers, 

employers, and other relevant audiences 

to support the implementation of the 

recommendations. Therefore, comments 

that focus on the understandability, 

accessibility, and feasibility of the 

recommendations are requested. To 

facilitate the review of this document, 

NIOSH requests that responses to the 

following specific questions be 

considered: 

1. How could the outdoor worker 

populations who may be exposed to 

wildland fire smoke be more completely 

characterized in Chapter 2? Please 

provide supporting references. 


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