Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Notices 25223

1Copies of the Complaint and Decision and Order

are available from the Commission’s Public

Reference Branch, H–130, 6th Street & Pennsylvania

Avenue, NW., Washington, DC. 20580.

support any performance, benefits,

efficacy, or safety claims they make for

any weight loss or weight control

product or program or any acupressure

device they market in the future.

DATES: Complaint and Order issued

April 7, 1995.1

FOR FURTHER INFORMATION CONTACT:

Richard Cleland, FTC/S–4002,

Washington, DC. 20580. (202) 326–3088.

SUPPLEMENTARY INFORMATION: On

Tuesday, January 31, 1995, there was

published in the Federal Register, 60 FR

5932, a proposed consent agreement

with analysis In the Matter of Ninzu,

Inc., et al., for the purpose of soliciting

public comment. Interested parties were

given sixty (60) days in which to submit

comments, suggestions or objections

regarding the proposed form of the

order.

No comments having been received,

the Commission has ordered the

issuance of the complaint in the form

contemplated by the agreement, made

its jurisdictional findings and entered

an order to cease and desist, as set forth

in the proposed consent agreement, in

disposition of this proceeding.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets

or applies sec. 5, 38 Stat. 719, as amended;

15 U.S.C. 45, 52)

Donald S. Clark,

Secretary.

[FR Doc. 95–11550 Filed 5–10–95; 8:45 am]

BILLING CODE 6750–01–M

[File No. 931–0083]

Physicians Group, Inc., et al.;

Proposed Consent Agreement With

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair acts and practices and unfair

methods of competition, this consent

agreement, accepted subject to final

Commission approval, would prohibit,

among other things, the respondent, a

Danville physicians’ group, and its

seven board members from attempting

to engage in an agreement or agreeing

with other physicians to negotiate or

refuse to negotiate with a third party

payor. In addition, it would require

dissolution of the respondent within

120 days.

DATES: Comments must be received on

or before July 10, 1995.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th St. and Pa. Ave., NW.,

Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Mark Horoschak or Rendell Davis, FTC/

S–3115, Washington, DC 20580. (202)

326–2756 or (202) 326–2894.

SUPPLEMENTARY INFORMATION: Pursuant

to section 6(f) of the Federal Trade

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

46 and § 2.34 of the Commission’s rules

of practice (16 CFR 2.34, notice is

hereby given that the following 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 sixty

(60) days. Public comment is invited.

Such comments or views will be

considered by the Commission and will

be available for inspection and copying

at its principal office in accordance with

§ 4.9(b)(6)(ii) of the Commission’s rules

of practice (16 CFR 4.9(b)(6)(ii)).

Before Federal Trade Commission

In the matter of Physicians Group, Inc., a

corporation, Edwin J. Harvie, Jr., M.D., Eric

N. Davidson, M.D., Milton Greenberg, M.D.,

Noah F. Gibson, IV, M.D., William W.

Henderson, IV, M.D., Douglas W. Shiflett,

M.D., and Lawrence G. Fehrenbaker, M.D.,

individually. File No. 931 0083.

Agreement Containing Consent Order

To Cease and Desist

The Federal Trade Commission

having initiated an investigation of

certain acts and practices of the

respondents named in the caption

hereof, hereinafter sometimes referred to

as proposed respondents, and it now

appearing that the proposed

respondents are willing to enter into an

agreement containing an order to cease

and desist from the use of the acts and

practices being investigated,

It is hereby agreed by and between the

proposed respondents and counsel for

respondent Physicians Group, Inc., and

counsel for the Federal Trade

Commission that:

1. Proposed Respondent Physicians

Group, Inc. is a nonstock corporation

organized, existing, and doing business

under and by virtue of the laws of the

Commonwealth of Virginia, with its

principal place of business in Danville,

Virginia. For purposes of this agreement

and order, its address is Physicians

Group, Inc., c/o Dr. Edwin J. Harvie, Jr.,

101 Holbrook Street, Danville, Virginia

24541.

2. The individual respondents named

in the caption above are the members of

the board of directors of proposed

respondent Physicians Group, Inc., are

physicians licensed to practice

medicine in the Commonwealth of

Virginia, and are engaged in the

business of providing physician services

to patients for a fee in Pittsylvania

County and Danville, Virginia. Their

respective business addresses are as

follows:

Edwin J. Harvie, Jr., M.D., Internal

Medicine Associates, Ltd., 101

Holbrook Street, Danville, Virginia

24541;

Eric N. Davidson, M.D., Piedmont

Internal Medicine, Inc., 125 Executive

Drive, Suite H, Danville, Virginia

24541;

Milton Greenberg, M.D., 171 South

Main Street, Danville, Virginia 24541;

Noah F. Gibson, IV, M.D., 181 North

Main Street, Danville, Virginia 24541;

William W. Henderson, IV, M.D.,

Danville Pulmonary Clinic, Inc., 110

Exchange Street, Suite G, Danville,

Virginia 24541;

Douglas W. Shiflett, M.D., Internal

Medicine Associates, Ltd., 101

Holbrook Street, Danville, Virginia

24541; and

Lawrence G. Fehrenbaker, M.D.,

Danville Urologic Clinic, P.O. Box

1360, Danville, Virginia 24543.

3. Proposed respondents admit all the

jurisdictional facts set forth in the draft

of complaint.

4. Proposed respondents waive:

(a) Any further procedural steps;

(b) The requirement that the

Commission’s decision contain a

statement of findings of fact and

conclusions of law;

(c) All rights to seek judicial review

or otherwise to challenge or contest the

validity of the order entered pursuant to

this agreement; and

(d) Any claim under the Equal Access

to Justice Act.

5. This agreement shall not become

part of the public record of the

proceeding unless and until it is

accepted by the Commission. If this

agreement is accepted by the

Commission it, together with the draft of

complaint contemplated thereby, will be

placed on the public record for a period

of sixty (60) days and information with

respect thereto will be publicly released.

The Commission thereafter may either

withdraw its acceptance of this

agreement and so notify the proposed

respondents, in which event it will take

such action as it may consider

appropriate, or issue and serve its

complaint (in such form as the

circumstances may require) and

decision, in disposition of the

proceeding.

6. This agreement is for settlement

purposes only and does not constitute
25224 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Notices

an admission by proposed respondents

that the law has been violated as alleged

in the draft of complaint here attached,

or that the facts as alleged in the draft

complaint, other than jurisdictional

facts, are true.

7. This agreement contemplates that,

if it is accepted by the Commission, and

if such acceptance is not subsequently

withdrawn by the Commission pursuant

to the provisions of § 2.34 of the

Commission’s rules, the Commission

may, without further notice to proposed

respondents, (1) issue its complaint

corresponding in form and substance

with the draft of complaint here

attached and its decision containing the

following order to cease and desist in

disposition of the proceeding and (2)

make information public in respect

thereto. When so entered, the order

shall have the same force and effect and

may be altered, modified, or set aside in

the same manner and within the same

time provided by statute for other order.

The order shall become final upon

service. Delivery by the U.S. Postal

Service of the complaint and decision

containing the agreed-to order to

proposed respondents’ addresses as

stated in this agreement shall constitute

service. Proposed respondents waive

any right they may have to any other

manner of service. The complaint may

be used in construing the terms of the

order, and no agreement, understanding,

representation, or interpretation not

contained in the order or the agreement

may be used to vary or contradict the

terms of the order.

8. Proposed respondents have read

the proposed complaint and order

contemplated hereby. Proposed

respondents understand that once the

order has been issued, they will be

required to file one or more compliance

reports showing that they have fully

complied with the order. Proposed

respondents further understand that

they may be liable for civil penalties in

the amount provided by law for each

violation of the order after the order

becomes final.

Order

I

It is ordered that, for purposes of this

order, the following definitions shall

apply:

A. ‘‘PGI’’ means Physicians Group,

Inc., its subsidiaries, divisions,

committees, and groups and affiliates

controlled by PGI; their directors,

officers, representatives, agents, and

employees; and their successors and

assigns.

B. ‘‘Physician respondents’’ means

Edwin J. Harvie, Jr., M.D., Eric N.

Davidson, M.D., Milton Greenberg,

M.D., Noah F. Gibson, IV, M.D., William

W. Henderson, IV, M.D., Douglas W.

Shiftlett, M.D., and Lawrence G.

Fehrenbaker, M.D.

C. ‘‘Person’’ refers to both natural

persons and artificial persons,

including, but not limited to,

corporations, unincorporated entities,

and governments.

D. ‘‘Payor’’ means any person that

purchases, reimburses for, or otherwise

pays for all or part of the health care

services for itself or for any other

person—including, but not limited to,

health insurance companies; preferred

provider organizations; prepaid

hospital, medical, or other health

service plans; health maintenance

organizations; government health

benefits programs; employers or other

persons providing or administering selfinsured health benefits programs; and

patients who purchase health care for

themselves.

E. ‘‘Reimbursement’’ means any and

all cash or non-cash compensation or

other benefits received for the rendering

of physician services.

F. ‘‘Cost containment’’ means

methods used by payors to lower health

care costs, including, but not limited to,

procedures under which payors review

utilization by participating physicians

to determine whether a physician

service is covered by insurance and

whether such service is appropriate, and

procedures under which payors deal

with physicians who provide services

that are determined not to be

appropriate.

G. ‘‘Integrated joint venture’’ means a

joint arrangement to provide health care

services in which all physicians

participating in the venture who would

otherwise be competitors (1) pool their

capital to finance the venture, by

themselves or together with others, and

(2) share a substantial risk of loss from

their participation in the venture.

H. ‘‘Professional business entity’’

means professional corporation,

professional partnership, and

professional limited liability company.

II

It is further ordered that PGI and each

physician respondent, directly or

indirectly, or through any corporate or

other device, in connection with the

provision of physician services in or

affecting commerce, as ‘‘commerce’’ is

defined in the Federal Trade

Commission Act, forthwith shall cease

and desist from:

A. Entering into, attempting to enter

into, organizing, attempting to organize,

implementing, attempting to implement,

continuing, attempting to continue,

facilitating, attempting to facilitate,

ratifying, or attempting to ratify any

combination, conspiracy, agreement, or

understanding, with or among any

physician(s) to:

1. Negotiate, deal, or refuse to deal

with a payor, or

2. Determine any terms, conditions, or

requirements upon which physicians

deal with a payor, including, but not

limited to, terms of reimbursement or of

cost containment; and

B. Encouraging, advising, pressuring,

inducing, or attempting to induce any

physician to:

1. Refuse to deal with a payor, or

2. Deal with a payor on terms

collectively determined by physicians,

including such terms as terms of

reimbursement or terms of cost

containment.

Provided that, nothing in this order

shall prevent physicians who practice

together as partners or employees in the

same professional business entity from

collectively determining the fees to be

charged for services rendered by that

professional business entity or from

collectively determining other terms on

which that professional business entity

deals with payors.

Further provided that, nothing in this

order shall prevent physicians who

participate in the same integrated joint

venture from collectively determining

the fees to be charged for services

rendered by that integrated joint venture

or from collectively determining other

terms on which that integrated joint

venture deals with payors.

Further provided that, nothing in this

order shall prevent the exercise of rights

permitted under the First Amendment

to the United States Constitution to

petition any federal or state government

executive agency or legislative body

concerning legislation, rules, or

procedures, or to participate in any

federal or state administrative or

judicial proceeding.

Further provided that, nothing in this

order shall prevent physicians from

participating at the request of a payor in

utilization review activities organized

and controlled by the payor insofar as

such participation continues only at the

sufferance of the payor.

III

It is further ordered that PGI shall:

A. Within ten (10) days after the date

on which this order becomes final, cease

and desist all business and all other

activities of any nature whatsoever,

except those activities that are required

in order to comply with the terms of this

order or that are necessary to effect a

winding up of PGI’s affairs and its

dissolution;
Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Notices 25225

B. Within sixty (60) days after the date

on which this order becomes final, and

prior to the dissolution provided for in

Paragraph III.C. below, distribute by

first-class mail a copy of this order and

the accompanying complaint to each

past and present member of PGI and to

each payor who, at any time since

February 18, 1986, has communicated

any desire, willingness, or interest in

contracting for physician services with

PGI or with any of the physician

respondents; and

C. Dissolve itself within one hundred

twenty (120) days after the date on

which this order becomes final.

IV

It is further ordered that each

physician respondent shall:

A. Within thirty (30) days after the

date this order becomes final, prepare a

list of the names, addresses, and

telephone numbers of all payors who, at

any time since February 18, 1986, have

communicated any desire, willingness,

or interest in contracting with him for

physician services, and deliver a copy of

that list to PGI; and

B. Take all action necessary to effect

dissolution of PGI as required by this

order.

V

It is further ordered that PGI shall:

A. Within ninety (90) days after the

date on which this order becomes final,

and prior to the dissolution provided for

in Paragraph III.C. above, file with the

Commission a verified written report

demonstrating how it has complied and

is complying with this order; and

B. Notify the Commission at least

thirty (30) days prior to any proposed

change in PGI, such as change of

address, assignment, sale resulting in

the emergence of a successor, or any

other change in PGI that may affect

compliance obligations arising out of

this order.

VI

It is further ordered that each

physician respondent shall:

A. Within sixty (60) days after the

date this order becomes final, every

sixty (60) days thereafter in which PGI

is not dissolved, and within the thirty

(30) days following dissolution of PGI,

file with the Commission a verified

written report setting forth in detail the

manner and form in which he intends

to comply, is complying, and has

complied with this order, including, but

not limited to, a full description of his

efforts to comply with Paragraph IV.B.

above;

B. Beginning on January 15, 1996, and

continuing annually for three (3) years,

on each succeeding January 15, through

and including January 15, 1999, and at

such other times as the Commission or

its staff may by written notice require,

file with the Commission a verified

written report setting forth in detail the

manner and form in which he has

complied with the order; and

C. For ten (10) years, notify the

Commission at least thirty (30) days

prior to any proposed change in his

address or in his medical practice, such

as dissolution, assignment, sale

resulting in the emergence of a

successor, or any other change in his

medical practice that may affect

compliance obligations arising out of

this order.

VII

It is further ordered that, for the

purpose of determining or securing

compliance with this order and subject

to any recognizable privilege, PGI and

each physician respondent shall permit

any duly authorized representative of

the Commission:

A. Access, during office hours and in

the presence of counsel, to inspect and

copy all books, ledgers, accounts,

correspondence, memoranda, calendars,

and other records and documents in the

possession or under the control of PGI

or a physician respondent relating to

any matters contained in this order;

B. Upon five business days’ notice to

PGI and without restraint or interference

from it, to interview the officers,

directors, or employees of PGI; and

C. Upon five business days’ notice to

a physician respondent and without

restraint or interference from him, to

interview the physician respondent or

the employees of the physician

respondent.

VIII

It is further ordered that this order

shall terminate twenty (20) years from

the date of issuance.

Physicians Group, Inc., Analysis of

Proposed Consent Order to Aid Public

Comment

The Federal Trade Commission has

accepted, subject to final approval, the

agreement to a proposed consent order

from Physicians Group, Inc. (‘‘PGI’’) and

from the seven members of the board of

directors of PGI (‘‘PGI Directors’’). The

agreement settles charges by the Federal

Trade Commission that PGI and the PGI

Directors restrained competition among

physicians practicing in the area of

Danville, Virginia, by, among other

things, combining or conspiring to fix

the terms under which they would deal

with third-party payors, including (1)

terms of reimbursement and (2) the

terms by which third-party payors

attempt to contain health care costs.

The proposed consent order has been

placed on the public record for sixty

(60) days for reception of comments by

interested persons. Comments received

during this period will become part of

the public record. After sixty (60) days,

the Commission will again review the

agreement and the comments received

and will decide whether it should

withdraw from the agreement or make

final the agreement’s proposed order.

The purpose of this analysis is to

facilitate public comment on the

agreement. The analysis is not intended

to constitute an official interpretation of

either the proposed complaint or the

proposed consent order or to modify

their terms in any way.

The Complaint

Under the terms of the agreement, a

proposed complaint would be issued by

the Commission along with the

proposed consent order. The proposed

complaint alleges that PGI is a nonstock

corporation with its principal place of

business in Danville, Virginia, and that

all the members of respondent PGI,

including the PGI Directors, are

physicians practicing in Pittsylvania

County and Danville, Virginia.

The proposed complaint further

alleges that, beginning in 1986, PGI and

the PGI Directors conspired with each

other and with other PGI members to (1)

prevent or delay the entry into

Pittsylvania County and Danville,

Virginia, of third-party payors, (2) deal

concertedly with third-party payors, and

(3) resist the cost containment measures

of third-party payors. In 1988 and 1989,

PGI Directors conspired to fix the rate of

reimbursement they were willing to

accept from the Virginia Health

Network, a managed care organization.

As a result, the Virginia Health Network

was not able to establish a network of

health care providers in Pittsylvania

County and Danville, Virginia. In 1992

and 1993, PGI and the PGI Directors

conspired to fix the terms and

conditions of cost containment they

were willing to accept from the Key

Advantage Plan, a managed care

insurance plan for employees of the

Commonwealth of Virginia. As a result,

the Commonwealth of Virginia was not

able until 1994 to fully implement the

Key Advantage Plan in Pittsylvania

County and Danville, Virginia. In

addition, PGI and the PGI Directors

conspired to refuse to deal with, and to

fix the terms and conditions of dealing

with, other third-party payors

attempting to do business in

Pittsylvania County and Danville,

Virgina.
25226 Federal Register / Vol. 60, No. 91 / Thursday, May 11, 1995 / Notices

The proposed complaint alleges that

this conduct had the following purpose,

tendency, and capacity to result in the

following effects:

A. Restraining competition among

physicians in Pittsylvania County and

Danville, Virginia;

B. Depriving consumers in

Pittsylvania County and Danville,

Virginia, of the benefits of competition

among physicians;

C. Fixing or increasing the prices that

are paid for physician services in

Pittsylvania County and Danville,

Virginia;

D. Fixing the terms and conditions

upon which physicians in Pittsylvania

County and Danville, Virginia, would

deal with third-party payors, including,

but not limited to, terms and conditions

of cost containment, and thereby raising

the price to consumers of insurance

coverage issued by third-party payors;

and

E. Depriving consumers in

Pittsylvania County and Danville,

Virginia, of the benefits of managed

care.

Finally, the proposed complaint

alleges that the above actions of PGI and

the PGI Directors constitute unfair

methods of competition, in violation of

section 5 of the Federal Trade

Commission Act, 15 U.S.C. 45.

The Proposed Consent Order

The proposed consent order would

prohibit PGI and the PGI Directors from

engaging in, or attempting to engage in,

any combination, conspiracy,

agreement, or understanding, with or

among any physician(s) to negotiate,

deal, or refuse to deal with a payor, or

to determine any terms, conditions, or

requirements upon which physicians

deal with a payor, including, but not

limited to, terms of reimbursement or of

cost containment.

The proposed consent order would

also prohibit PGI and the PGI Directors

from encouraging, advising, pressuring,

inducing, or attempting to induce any

physician to (1) refuse to deal with a

payor, or (2) deal with a payor on terms

collectively determined by physicians,

including such terms as terms of

reimbursement or terms of cost

containment.

The proposed consent order

specifically permits the following:

1. Physicians who practice together as

partners or employees in the same

professional business entity collectively

determining the fees to be charged for

services rendered by that professional

business entity, or collectively

determining other terms on which that

professional business entity deals with

payors. (For purposes of this consent

order, ‘‘professional business entity’’

means professional corporation,

professional partnership, and

professional limited liability company.)

2. Physicians who participate in the

same integrated joint venture

collectively determining the fees to be

charged for services rendered by that

integrated joint venture or collectively

determining other terms on which that

integrated joint venture deals with

payors. (For purposes of the proposed

consent order, ‘‘integrated joint

venture’’ means a joint arrangement to

provide health care services in which all

physicians participating in the venture

who would otherwise be competitors (1)

pool their capital to finance the venture,

by themselves or together with others,

and (2) share a substantial risk of loss

from their participation in the venture.)

3. The exercise of rights permitted

under the First Amendment to the

United States Constitution to petition

any federal or state government

executive agency or legislative body

concerning legislation, rules, or

procedures, or to participate in any

federal or state administrative or

judicial proceeding.

4. Physicians participating at the

request of a payor in utilization review

activities organized and controlled by

the payor insofar as such participation

continues only at the sufferance of the

payor.

The proposed consent order would

require PGI to dissolve itself within 120

days after the date on which the

proposed order becomes final. PGI

Directors are to take all actions

necessary to effect dissolution of PGI as

required by the proposed consent order.

The proposed consent order would

also require PGI to distribute copies of

the proposed complaint and proposed

order to past and present members of

PGI and each payor who, at any time

since February 18, 1986, has

communicated any desire, willingness,

or interest in contracting for physician

services with PGI or with any of the PGI

Directors. Each of the PGI Directors is to

deliver to PGI a list of payors from

whom he has received such a

communication.

The order would require PGI and the

PGI Directors to (1) file compliance

reports with the Commission, (2) notify

the Commission of certain proposed

changes in PGI or the PGI Directors that

may affect their compliance with the

order, and (3) permit representatives of

the Commission to have access to

documents in the possession or under

the control of PGI or the PGI Directors

relating to any matters contained in the

order and to interview the officers,

directors, or employees of PGI and the

employees of the PGI Directors.

The proposed consent order would

terminate 20 years after the date it is

issued.

PGI and the PGI Directors agreed to

the proposed consent order for

settlement purposes only, and their

agreement to the order does not

constitute an admission by them that

the law has been violated as alleged in

the proposed complaint.

Donald S. Clark,

Secretary.

[FR Doc. 95–11553 Filed 5–10–95; 8:45 am]

BILLING CODE 6750–01–M

[Dkt. 6699]

Pittsburgh Plate Glass Co., Prohibited

Trade Practices and Affirmative

Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Set aside order.

SUMMARY: This order reopens a 1957

consent order—which prohibited the

respondent from discriminating in price

between competing purchasers by

charging auto manufacturers less for

automotive safety glass than it charged

glass distributors and glass dealers—and

sets aside the consent order pursuant to

the Commission’s Sunset Policy

Statement, under which the

Commission presumes that the public

interest requires terminating

competition orders that are more than

20 years old.

DATES: Consent order issued April 19,

1957. Set aside order issued April 4,

1995.

FOR FURTHER INFORMATION CONTACT:

Daniel Ducore, FTC/S–2115,

Washington, DC 20580. (202) 326–2526.

SUPPLEMENTARY INFORMATION: In the

Matter of Pittsburgh Plate Glass

Company. The prohibited trade

practices and/or corrective actions are

removed as indicated.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets

or applies sec. 2, 49 Stat. 1526; 15 U.S.C. 13)

In the matter of Pittsburgh Plate Glass

Company, a corporation. Docket No. 6699.

Order Reopening Proceeding and Setting

Aside Order

On December 9, 1994, PPG Industries, Inc.,

the successor to Pittsburgh Plate Glass

Company, (‘‘PPG’’), filed a Petition to Reopen

and Set Aside Consent Order (‘‘Petition’’) in

this matter. PPG requests that the

Commission set aside the 1957 consent order

in this matter pursuant to Rule 2.51 of the

Commission’s Rules of Practice, 16 CFR 2.51,

and the Statement of Policy With Respect to

Duration of Competition Orders and

Statement of Intention to Solicit Public