28246 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 

1 The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See FTC 

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

help affected consumers uninstall the 

Application. 

Part III of the proposed order requires 

that Respondent, to the extent it has not 

already done so, cease collecting any 

data transmitted by any previously 

installed Tracking Application and to 

destroy any previously collected data. 

Parts IV through VII of the proposed 

order require Respondent: to keep 

copies of relevant consumer complaints 

and inquiries, documents demonstrating 

order compliance, and advertisements 

and other documents relating to 

dissemination of any Tracking 

Application; to provide copies of the 

order to certain of their personnel; to 

notify the Commission of changes in 

corporate structure that might affect 

compliance obligations under the order; 

and to file compliance reports with the 

Commission. Part VIII provides that the 

order will terminate after twenty (20) 

years, with certain exceptions. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order, and it is not intended 

to constitute an official interpretation of 

the agreement and proposed order or to 

modify in any way their terms. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. E9–13955 Filed 6–12–09: 8:45 am] 

BILLING CODE: 6750–01–S 

FEDERAL TRADE COMMISSION 

[File No. 051 0260] 

Alta Bates Medical Group; Analysis of 

Proposed Consent Order to Aid Public 

Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed Consent Agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices or unfair 

methods of competition. The attached 

Analysis to Aid Public Comment 

describes both the allegations in the 

complaint and the terms of the consent 

order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before July 6, 2009. 

ADDRESSES: Interested parties are 

invited to submit written comments 

electronically or in paper form. 

Comments should refer to‘‘Alta Bates, 

File No. 051 0260’’ to facilitate the 

organization of comments. Please note 

that your comment—including your 

name and your state—will be placed on 

the public record of this proceeding, 

including on the publicly accessible 

FTC website, at (http://www.ftc.gov/os/ 

publiccomments.shtm). 

Because comments will be made 

public, they should not include any 

sensitive personal information, such as 

an individual’s Social Security Number; 

date of birth; driver’s license number or 

other state identification number, or 

foreign country equivalent; passport 

number; financial account number; or 

credit or debit card number. Comments 

also should not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, comments should not include 

any ‘‘[t]rade secret or any commercial or 

financial information which is obtained 

from any person and which is privileged 

or confidential. . . .,’’ as provided in 

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

46(f), and Commission Rule 4.10(a)(2), 

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

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

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

Because paper mail addressed to the 

FTC is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (https:// 

secure.commentworks.com/ftcaltabates) (and following the 

instructions on the web-based form). To 

ensure that the Commission considers 

an electronic comment, you must file it 

on the web-based form at the weblink: 

(https://secure.commentworks.com/ftcaltabates). If this Notice appears at 

(http://www.regulations.gov/search/ 

index.jsp), you may also file an 

electronic comment through that 

website. The Commission will consider 

all comments that regulations.gov 

forwards to it. You may also visit the 

FTC website at http://www.ftc.gov/ to 

read the Notice and the news release 

describing it. 

A comment filed in paper form 

should include the ‘‘Alta Bates, File No. 

051 0260‘‘ reference both in the text and 

on the envelope, and should be mailed 

or delivered to the following address: 

Federal Trade Commission, Office of the 

Secretary, Room H–135 (Annex D), 600 

Pennsylvania Avenue, NW, Washington, 

DC 20580. The FTC is requesting that 

any comment filed in paper form be sent 

by courier or overnight service, if 

possible, because U.S. postal mail in the 

Washington area and at the Commission 

is subject to delay due to heightened 

security precautions. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

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

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

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

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: 

Sylvai Kundig or Linda Badger, FTC 

Western Region, San Francisco, 600 

Pennsylvania Avenue, NW, Washington, 

D.C. 20580, (415) 848–5100. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

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

46(f), and § 2.34 the Commission Rules 

of Practice, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for June 4, 2009), on the 

World Wide Web, at (http:// 

www.ftc.gov/os/actions.shtm). A paper 

copy can be obtained from the FTC 

Public Reference Room, Room 130-H, 

600 Pennsylvania Avenue, NW, 

Washington, D.C. 20580, either in 

person or by calling (202) 326—2222. 

Public comments are invited, and may 

be filed with the Commission in either 

paper or electronic form. All comments 

should be filed as prescribed in the 


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Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 28247 

2 Kaiser is a trade name for an association of three 

entities: Kaiser Foundation Health Plan, Inc.; Kaiser 

Foundation Hospitals; and the Permanente Medical 

Groups. 

ADDRESSES section above, and must be 

received on or before the date specified 

in the DATES section. 

Analysis of Agreement Containing 

Consent Order to Aid Public Comment 

The Federal Trade Commission has 

accepted, subject to final approval, an 

agreement containing a proposed 

Consent Order with Alta Bates Medical 

Group, Inc., (‘‘ABMG’’ or 

‘‘Respondent’’). The agreement settles 

charges that ABMG violated Section 5 of 

the Federal Trade Commission Act, 15 

U.S.C. § 45, by fixing prices charged to 

those offering coverage for health care 

services (‘‘payors’’) in the Berkeley and 

Oakland, California, area and refusing to 

deal with payors except on a 

collectively determined basis. The 

proposed Consent Order has been 

placed on the public record for 30 days 

to receive comments from interested 

persons. Comments received during this 

period will become part of the public 

record. After 30 days, the Commission 

will review the agreement and the 

comments received, and will decide 

whether it should withdraw from the 

agreement or make the proposed 

Consent Order final. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed Consent Order. The analysis is 

not intended to constitute an official 

interpretation of the agreement and 

proposed Consent Order or to modify 

their terms in any way. Further, the 

proposed Consent Order has been 

entered into for settlement purposes 

only and does not constitute an 

admission by Respondent that it 

violated the law or that the facts alleged 

in the Complaint (other than 

jurisdictional facts) are true. 

Alta Bates Medical Group, Inc. 

ABMG is a multi-specialty 

independent practice association 

(‘‘IPA’’) comprised of multiple, 

independent medical practices serving 

the Berkeley and Oakland, California 

area. It has a total of approximately 600 

physician members, of which 

approximately 200 are devoted to 

primary care. Since its formation, 

ABMG has negotiated group contracts 

with payors under which it receives 

capitated (per member per month) 

payments. These contracts shift the risk 

of patient illness to the IPA by 

specifying that the health plan will pay 

the IPA a flat monthly fee for each 

enrollee, with almost no regard for 

patient utilization. This type of 

contracting is a form of financial 

integration, so for anititrust purposes, 

the IPA is treated as a single entity for 

purposes of these contract negotiations, 

and not as a group of competing 

physicians. The complaint does not 

challenge ABMG’s activities concerning 

these contracts. 

ABMG, however, also contracts on 

behalf of its member physicians with 

health plans to provide fee-for-service 

medical care. Under these arrangements, 

the payor compensates physicians or 

group practices for services actually 

rendered pursuant to agreed-upon fee 

schedules. In the absence of financial 

risk-sharing or clinical integration on 

the part of providers, the IPA members 

are competitors for purposes of antitrust 

analysis. It is ABMG’s negotiation of feefor-service contracts that is the subject 

of the allegations in the Commission’s 

Complaint. 

The Complaint 

Since at least 2001, ABMG, acting as 

a combination of its physician members, 

and in conspiracy with its members, has 

acted to restrain competition with 

respect to fee-for-service contracts by, 

among other things, facilitating, entering 

into, and implementing agreements, 

express or implied, to fix the prices and 

other terms at which they would 

contract with payors; to engage in 

collective negotiations over terms and 

conditions of dealing with payors; and 

to have ABMG members refrain from 

negotiating individually with payors or 

contracting on terms other than those 

approved by ABMG. This type of 

collective conduct by competitors is 

inherently suspect under the antitrust 

laws. 

At times, however, IPAs will act as a 

conduit between physician members 

and health plans regarding fee-forservice contracts to facilitate the 

contracting process. Under this model, 

the IPA merely acts as a messenger and 

does not negotiate the terms of the 

contract. 

Although claiming to employ a lawful 

messenger arrangement, ABMG, on 

behalf of its physician members, instead 

orchestrated collective negotiations for 

fee-for-service contracts. Specific acts by 

ABMG that are alleged in the complaint 

are: making proposals and counterproposals, as well as accepting or 

rejecting offers, without consulting with 

its individual physician members 

regarding the prices they unilaterally 

would accept, and without transmitting 

the payors’ offers to its individual 

physician members until ABMG had 

approved the negotiated prices. 

The complaint also alleged a 

concerted refusal to deal intended to 

impede competition by one of ABMG’s 

major competitors, the Permanente 

Medical Group, which provides 

physician services exclusively to Kaiser 

Foundation Health Plan, Inc. In 2006, 

Kaiser2 was expanding a fee-for-service 

product, under which covered 

individuals could access physician 

services through a national third-party 

network that included ABMG 

physicians. This expansion by Kaiser 

threatened ultimately to reduce ABMG’s 

business under its capitated contracts, 

by giving Kaiser the ability to offer 

employers both a capitated and fee-forservice health plan option. To impede 

this expansion, ABMG attempted a 

concerted refusal to serve Kaiser fee-forservice enrollees. Although ABMG’s 

refusal to deal was ultimately 

unsuccessful, the sole purpose of this 

action was to impede competition in the 

provision of physician services in and 

around Berkeley and Oakland, 

California. 

ABMG did not engage in any activity 

that might justify collective agreements 

on the prices its members would accept 

for their services. For example, the 

physicians in ABMG have not clinically 

or financially integrated their practices 

to create efficiencies sufficient to justify 

their acts and practices. As a 

consequence, the Respondent’s actions 

have restrained price and other forms of 

competition among physicians in the 

Berkeley and Oakland, California, area 

and thereby harmed consumers 

(including health plans, employers, and 

individual consumers) by increasing the 

prices for physician services. 

The Proposed Consent Order 

The proposed Consent Order is 

designed to prevent the continuance 

and recurrence of the illegal conduct 

alleged in the complaint while it allows 

ABMG to engage in legitimate, joint 

conduct. The proposed Consent Order 

does not affect ABMG’s activities in 

contracting with the payors on a 

capitated basis. 

Paragraph II.A prohibits Respondent 

from entering into or facilitating any 

agreement between or among any health 

care providers: (1) to negotiate on behalf 

of any physician with any payor; (2) to 

refuse to deal, or threaten to refuse to 

deal with any payor; (3) regarding any 

term, condition, or requirement upon 

which any physician deals, or is willing 

to deal, with any payor, including, but 

not limited to price terms; or (4) not to 

deal individually with any payor, or not 

to deal with any payor other than 

through ABMG. 

The other parts of Paragraph II 

reinforce these general prohibitions. 


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28248 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Notices 

Paragraph II.B prohibits the Respondent 

from facilitating exchanges of 

information between health care 

providers concerning whether, or on 

what terms, to contract with a payor. 

Paragraph II.C bars attempts to engage in 

any action prohibited by Paragraph II.A 

or II.B, and Paragraph II.D proscribes 

encouraging, suggesting, advising, 

pressuring, inducing, or attempting to 

induce any person to engage in any 

action that would be prohibited by 

Paragraphs II.A through II.C. 

As in other Commission orders 

addressing health care providers’ 

collective bargaining with health care 

payors, certain kinds of agreements are 

excluded from the general bar on joint 

negotiations. Paragraph II does not 

preclude ABMG from engaging in 

conduct that is reasonably necessary to 

form or participate in legitimate 

‘‘qualified risk-sharing’’ or ‘‘qualified 

clinically-integrated’’ joint 

arrangements, as defined in the 

proposed Consent Order. Also, 

Paragraph II would not bar agreements 

that only involve physicians who are 

part of the same medical group practice, 

defined in Paragraph I.B, because it is 

intended to reach agreements between 

and among independent competitors. 

Paragraphs III through VI require 

ABMG to notify the Commission before 

it initiates certain contacts regarding 

contracts with payors. Paragraphs III 

and IV apply to arrangements under 

which ABMG would be acting as a 

messenger on behalf of its member 

physicians. Paragraphs V and VI discuss 

arrangements under which ABMG plans 

to achieve financial or clinical 

integration. 

Paragraph VII.A requires ABMG to 

send a copy of the Complaint and 

Consent Order to its physician 

members, its management and staff, and 

any payors who communicated with 

ABMG, or with whom ABMG 

communicated, with regard to any 

interest in contracting for physician 

services, at any time since January 1, 

2001. 

Paragraph VII.B requires ABMG to 

terminate, without penalty, pre-existing 

payer contracts that it had entered into 

since 2001, at the earlier of (1) receipt 

by ABMG of a written request for 

termination by the payer; or (2) the 

termination date, renewal date, or 

anniversary date of the contract. This 

provision is intended to eliminate the 

effects of ABMG’s illegal collective 

behavior. The payer can delay the 

termination for up to one year by 

making a written request to ABMG. 

Paragraph VII.D contains three-year 

notification provisions relating to future 

contact with physicians, payors, 

management and staff. This provision 

requires ABMG to distribute a copy of 

the Complaint and Consent Order to 

each physician who begins participating 

in ABMG; each payor who contacts 

ABMG regarding the provision of 

physician services; and each person 

who becomes an officer, director, 

manager, or employee for five years after 

the date on which the Consent Order 

becomes final. In addition, Paragraph 

VII.D requires ABMG to publish a copy 

of the Complaint and Consent Order, 

annually, in any official publication that 

it sends to its participating physicians. 

Paragraphs VII.E and VIII–IX impose 

various obligations on ABMG to report 

or to provide access to information to 

the Commission to facilitate monitoring 

its compliance with the Consent Order. 

Pursuant to Paragraph X, the 

proposed Consent Order will expire in 

20 years from the date it is issued. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. E9–13956 Filed 6–12–09: 8:45 am] 

BILLING CODE: 6750–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

Submission for OMB Review; 

Comment Request 

Title: Low Income Home Energy 

Assistance Program LIHEAP Leveraging 

Report. 

OMB No.: 0970–0121. 

Description: The LIHEAP leveraging 

incentive program rewards LIHEAP 

grantees that have leveraged non-federal 

home energy resources for low-income 

households. The LIHEAP leveraging 

report is the application for leveraging 

incentive funds that these LIHEAP 

grantees submit to the Department of 

Health and Human Services for each 

fiscal year in which they leverage 

countable resources. Participation in the 

leveraging incentive program is 

voluntary and is described at 45 CFR 

96.87. The LIHEAP leveraging report 

obtains information on the resources 

leveraged by LIHEAP grantees each 

fiscal year (as cash, discounts, waivers, 

and in-kind); the benefits provided to 

low-income households by these 

resources (for example, as fuel and 

payments for fuel, as home heating and 

cooling equipment, and as 

weatherization materials and 

installation); and the fair market value 

of these resources/benefits. 

HHS needs this information in order 

to carry out statutory requirements for 

administering the LIHEAP leveraging 

incentive program, to determine 

countability and valuation of grantees 

leveraged non-federal home energy 

resources, and to determine grantees 

shares of leveraging incentive funds. 

HHS proposes to request a three-year 

extension of OMB approval for the 

currently approved LIHEAP leveraging 

report information collection. 

Respondents: State, Local or Tribal 

Governments. 

ANNUAL BURDEN ESTIMATES

Instrument Number of 

respondents 

Number of 

responses per 

respondent 

Average 

burden hours 

per response 

Total 

burden hours 

LIHEAP Leveraging Report ..................................................................... 70 1 38 2,660 

Estimated Total Annual Burden 

Hours: 2,660 

Additional Information: Copies of the 

proposed collection may be obtained by 

writing to the Administration for 

Children and Families, Office of 

Administration, Office of Information 

Services, 370 L’Enfant Promenade, SW., 

Washington, DC 20447, Attn: ACF 

Reports Clearance Officer. All requests 

should be identified by the title of the 

information collection. E-mail address: 

infocollection@acf.hhs.gov. 

OMB Comment: OMB is required to 

make a decision concerning the 

collection of information between 30 

and 60 days after publication of this 

document in the Federal Register. 

Therefore, a comment is best assured of 

having its full effect if OMB receives it 


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