II. Conduct Involving Health Care Services and Products

A. Agreements Not to Compete

1. FTC v. Schering Plough Corporation, et. al.,
   D. 9297 (complaint issued March 30, 2001) (FTC Commission Actions: April 2, 2001 (www.ftc.gov)). The complaint alleges that Schering-Plough Corporation, Upsher-Smith Laboratories and American Home Products Corporation entered into anticompetitive agreements in which Schering paid Upsher and American Home Products millions of dollars to delay launching a competitive generic alternative to K-Dur 20, an extended-release potassium chloride supplement manufactured by Schering. Schering sued Upsher, a generic drug manufacturer, for patent infringement after Upsher sought FDA approval to manufacture and distribute Klor Con M20, a generic version of K-Dur 20. The complaint alleges that Schering and Upsher reached an agreement in 1997 to settle the patent infringement lawsuit, whereby Schering paid Upsher $60 million dollars not to market any generic version of K-Dur 20 until September, 2001. Under the agreement, Schering received licenses to market five of Upsher's products but, the complaint charges, the value of the licenses had little relation to the $60 million dollar payment, and the effect of the agreement was to ensure that no other company's generic K-Dur 20 could obtain FDA approval and enter the market during the term of the agreement. The complaint further alleges that Schering agreed to pay ESI Lederle, Inc., a division of American Home Products, up to $30 million to delay marketing its generic version of K-Dur 20. As part of the agreement, ESI also granted Schering a license to two of its generic products. Schering sued ESI for patent infringement after ESI sought FDA approval to manufacture and distribute its generic version of K-Dur 20. As part of the patent infringement litigation settlement, ESI agreed, in exchange for the payments, not to market any generic version of K-Dur 20, until January 2004, and to market only one generic version between January 2004 and September 2006 when Schering's patent expired. ESI also agreed not to prepare, or help any other firm prepare, bioequivalence studies necessary for FDA approval of an application for a generic version of K-Dur 20 until September 2006. The complaint alleges that the payment was designed to delay the entry of a generic version of K-Dur 20, and was not based on the value of the licenses. The The administrative trial is scheduled to commence December 10, 2001 before Judge Chappell.
2. FTC v. Hoechst Marion Roussel, Inc., Carderm Capital L.P., and Andrx Corp.,
   D. 9293 (consent order issued May 8, 2001) (FTC Commission Actions: May 11, 2001 (www.ftc.gov)) The complaint alleged that Hoechst and Andrx entered into an agreement in which Andrx was paid millions of dollars to delay bringing to market a competitive generic alternative to Cardizem CD. Andrx, a generic drug manufacturer, was the first to file for FDA approval to market its generic version of Hoechst's brand name hypertension and angina drug, Cardizem CD, but was sued by Hoechst for patent infringement. Because of Hatch-Waxman provisions that grant the initial generic manufacturer a 180 day market exclusivity period, the complaint alleged the effect of the agreement was to ensure that no other company's generic drug could obtain FDA approval and enter the market during the term of the agreement. Under the agreement, according to the complaint, Andrx agreed not to market its product when it received FDA approval, not to give up or relinquish its 180-day exclusivity right, and not to market a non-infringing generic version of Cardizem CD during the ongoing patent litigation. The order prohibits respondents from entering into agreements in which the first generic company to file an ANDA agrees: 1) not to relinquish its rights to the 180-day exclusivity period; and 2) not to develop or market a non-infringing generic drug product. The order also requires Hoechst and Andrx to notify the Commission, and obtain court approval, before entering into any agreements involving payments to a generic company in which the generic company temporarily refrains from bringing a generic drug to market.
3. Abbott Laboratories and Geneva Pharmaceuticals, Inc.
   C-3945, C-3946 (consent orders issued May 22, 2000) (FTC Commission Actions: May 26, 2000 (www.ftc.gov)). The complaint alleged that Abbott paid Geneva $4.5 million per month to delay bringing to market a generic alternative to Abbott's brand-name hypertension and prostate drug, Hytrin. Geneva, a generic drug manufacturer, sought and received FDA approval to market its generic capsule version. After Geneva received FDA approval, Abbott and Geneva reached an agreement whereby Geneva would not bring a generic version of Hytrin to market during the ongoing patent litigation on Geneva's tablet version of Hytrin in exchange for the $4.5 million monthly payment, an amount which exceeded the amount Abbott estimated Geneva would have received if it actually marketed the generic drug. Because of Hatch-Waxman provisions that grant the initial generic manufacturer a 180-day market exclusivity period, the complaint alleged the effect of the agreement was to ensure that no other company's generic Hytrin could obtain FDA approval and enter the market during the term of the agreement. The consent orders prohibit Abbott and Geneva from entering into agreements in which a generic company agrees with the brand drug manufacturer to 1) give up or transfer its Hatch-Waxman 180-day exclusivity rights, or 2) not enter the market with a non-infringing product. In addition, the orders require that agreements involving payments to a generic company to stay off the market during the pendency of patent litigation be approved by the court with notice to the Commission. Geneva was also required to waive its right to a 180-day exclusivity period for its generic tablet, so other generic tablets could immediately enter the market. In a statement accompanying the consent orders, the Commission warned that in the future it will consider its entire range of remedies in enforcement actions against similar arrangements, including seeking disgorgement of illegally obtained profits.

B. Agreements on Price or Price-Related Terms

1. Alaska Healthcare Network, Inc.,
   C-4007 (consent order issued April 25, 2001) (FTC Commission Actions: April 27, 2001 (www.ftc.gov)). The complaint alleged that the Alaska Healthcare Network, Inc., an association of 86 physicians practicing in the Fairbanks, Alaska area, restrained competition among physicians, and blocked or delayed the entry of health care plans into the Fairbanks area. The AHN included approximately 63% of all physicians in full-time, year-round private practice in Fairbanks. The complaint further alleged that, acting as the de facto collective bargaining agent for its members, AHN fixed prices and other terms when contracting with HMOs and other healthcare payers, refused to deal with payers except on collectively agreed-upon terms, and encouraged its members not to deal with any health plan in any manner except through AHN. The consent order prohibits AHN from: 1) negotiating or refusing to deal with health plans; 2) determining the terms upon which physicians deal with health plans; and, 3) restricting the ability of physicians to deal with any health plan, whether on an individual basis or through any other arrangement. The order also imposes a structural remedy for a period of five years, which requires that if AHN operates a qualified risk-sharing or clinically-integrated joint arrangement, AHN participating physicians can constitute no more than 30% of Fairbanks physicians in five medical specialties. Also, when offering the services of its physicians through any other arrangement permitted by the order, AHN's participating physicians may constitute no more than 50% of Fairbanks physicians in those specialties. In a separate statement, Commissioners Swindle and Leary disagreed with the need for the structural remedy requirement because of the small size of the Fairbanks market.
2. Texas Surgeons, P.A.,
   C-3944 (consent order issued May 18, 2000) (FTC Commission Actions: May 23, 2000 (www.ftc.gov)). The complaint alleged that Texas Surgeons, P.A., an independent physician association, restrained competition among general surgeons in the Austin, Texas area, resulting in more than $1,000,000 in increased costs for surgical services in 1998 and 1999. According to the complaint, the IPA collectively refused to deal with two health plans, terminated contracts with Blue Cross of Texas, and threatened to terminate contracts with United HealthCare of Texas if the payer did not comply with the association's demand for rate increases. Both plans increased their rates in response to the IPA's demands. The order prohibits the IPA from 1) negotiating on behalf of any physician with health plans, 2) refusing to deal or threatening to refuse to deal with health plans, 3) determining the terms on which its members deal with health plans, and 4) restricting the ability of any physicians to deal with any payer or provider individually or through any other arrangement. The order also prohibits the respondent from exchanging information among Austin area physicians concerning negotiations with any health plan regarding reimbursement terms, or any physician's intent to refuse to deal with any health plan. The order does allow the IPA to operate any "qualified risk-sharing joint arrangement" or any "qualified clinically integrated joint arrangement" as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care. In 1999 the Texas legislature enacted a statue that permits the Texas Attorney General to approve, under certain conditions, joint negotiations between health plans and groups of competing physicians. Because it is unclear whether the IPA's conduct in this matter would be approved by the Texas Attorney General, the order allows the IPA to engage in future conduct that is approved and supervised by the State of Texas, if that conduct is protected from liability under the federal antitrust laws under the "state action" doctrine.
3. Colegio de Cirujanos Dentistas de Puerto Rico,
   C-3953 (consent order issued June 12, 2000) (FTC Commission Actions: June 16, 2000 (www.ftc.gov)). The complaint charged that an association of approximately 1800 dentists, acting as the collective bargaining agent for its members, fixed prices, boycotted payers to obtain higher reimbursement rates, and restrained truthful advertising by its members. The association, comprising almost all dentists practicing in Puerto Rico, negotiated with numerous payers about fees and set the terms its members would accept from the payers. The complaint also alleged that the association used its Code of Ethics to ban truthful advertising by dentists who advertised their willingness to accept patients from neighboring areas where dentists were conducting a boycott of the Reform, a government program to provide medical services to the indigent. The order prohibits the association from negotiating on behalf of any dentists with payers or providers, refusing to deal with or boycotting payers, determining the terms upon which dentists will deal with providers, and restricting or interfering with truthful advertising or solicitation concerning dental services.
4. Wisconsin Chiropractic Association
   C-3943 (consent order issued May 18, 2000) (FTC Commission Actions: May 23, 2000 (www.ftc.gov)). The complaint alleged that the Wisconsin Chiropractic Association and its executive director conspired to boycott third-party payers to obtain higher reimbursement rates, thereby increasing prices for chiropractic services. The Wisconsin Chiropractic Association has 900 members, and represents about 90% of the chiropractors licensed in the state. According to the complaint, the association, in response to the introduction of new billing codes by private insurers and the federal government, advised its members to collectively raise their prices to specific levels, circulated fee schedules to coordinate pricing among its members, advised members to discuss contract offers to improve their bargaining position with payers, and assisted in boycotts of two payers to obtain higher reimbursement rates. The order prohibits the association from fixing prices or encouraging others to fix prices for chiropractic services, boycotting any payer, or negotiating on behalf of any chiropractor or group of chiropractors. The order also prohibits the association from initiating, conducting, or distributing any fee surveys for healthcare goods or services prior to December 31, 2001. In addition, for five years thereafter, the WCA may conduct or distribute fee surveys only if the surveys conform to the safe harbor provisions regarding fee surveys contained in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
5. Michael T. Berkley, D.C. and Mark A. Cassellius, D.C.,
   C-3936, (consent order issued April 11, 2000) (FTC Commission Actions: April 18, 2000 (www.ftc.gov)). The complaint alleged that two chiropractors conspired to fix prices for chiropractic services in the La Crosse, Wisconsin area, and boycotted the Gundersen Lutheran Health Plan to obtain higher reimbursement for chiropractic services. As a result of the boycott, Gundersen increased its reimbursement rates by 20%. The proposed order is similar to the Wisconsin Chiropractic Association order (discussed above), and prohibits Drs. Berkley and Cassellius from fixing prices for chiropractic services, engaging in collective negotiations on behalf of other chiropractors, and orchestrating concerted refusals to deal. The order does allow the chiropractors to engage in conduct, including collectively determining reimbursement and other terms of contracts with payers, that is reasonably necessary to operate a "qualified risk-sharing joint arrangement," or a "qualified clinically integrated joint arrangement," as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
6. North Lake Tahoe Medical Group, Inc.,
   C-3885 (consent order issued July 21, 1999) (FTC Commission Actions: August 2, 1999 (www.ftc.gov)). The complaint alleged that North Lake Tahoe Medical Group, Inc. (Tahoe IPA), an independent physician association, restrained competition among physicians and delayed the entry of managed care in the Lake Tahoe Basin in California. Tahoe IPA, based in Truckee, California, is composed of ninety-one physicians comprising 70% of the physicians practicing in the Lake Tahoe area. The complaint further alleged that the IPA conspired to fix prices, engaged in collective negotiations over prices with payers, and refused to deal with Blue Shield of California and other third party payers when it did not comply with the Tahoe IPA's plans. The order prohibits the IPA from 1) engaging in collective negotiations on behalf of its members, 2) orchestrating concerted refusals to deal, 3) fixing prices, or any other terms, on which its members deal, and 4) restricting the ability of any physician to deal with any payer or provider individually or through any arrangement outside of Tahoe IPA. The order also requires Tahoe IPA to terminate the membership of physicians who refused to deal (or gave notice of their intent to refuse to deal) with Blue Shield, unless the physicians make a good faith effort to reparticipate and continue to participate in Blue Shield for a period of six months. In a separate statement, Commissioner Swindle disagreed with the need for the termination requirement because market incentives should result in reparticipation by the physicians in Blue Shield. The order does allow the IPA to operate any "qualified risk-sharing joint arrangement," or, upon prior notice to the Commission, any "qualified clinically integrated joint arrangement," as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
7. Mesa County Physicians Independent Practice Association, Inc.,
   D-9284 (consent order issued May 4, 1999) (FTC Commission Actions: May 20, 1999 (www.ftc.gov)). The Commission issued a revised complaint and final order against the Mesa County Physicians Independent Practice Association, Inc., an organization whose members comprise 85% of all physicians and 90% of the primary care physicians in Mesa County, Colorado. According to the complaint, the IPA acted to restrain trade by combining to fix prices and other competitively significant terms of dealing with payers, and collectively refused to deal with third party payers, thereby hindering the development of alternative health care financing and delivery systems in Mesa County. The complaint alleged that the IPA, through its alliance with the Rocky Mountain Health Maintenance Organization, created a substantial obstacle to the ability of other payers to contract with a physician panel in Mesa County. The complaint also alleged that the IPA's Contract Review Committee negotiated collectively on behalf of the IPA's members with several third party payers, using an IPA Board-approved set of guidelines and fee schedule, and that a similar organization formed after the proposed consent order was issued in 1998 engaged in the same conduct. The order prohibits the Mesa County IPA from: 1) engaging in collective negotiations on behalf of its members; 2) collectively refusing to contract with third party payers; 3) acting as the exclusive bargaining agent for its members; 4) restricting its members from dealing with third party payers through an entity other than the IPA; 5) coordinating the terms of contracts with third-party payers with other physician groups in Mesa County or in any county contiguous to Mesa County; 6) exchanging information among physicians about the terms upon which physicians are willing to deal with third-party payers; and, 7) encouraging other physicians to engage in activities prohibited by the order. The order also requires the Mesa IPA to abolish its Contract Review Committee, and prohibits the IPA from employing any person or participating physician who is conducting payer contract review. The order, however, allows the respondent to engage in 1) any "qualified clinically integrated joint arrangement" (with prior notice to the Commission), and 2) conduct that is reasonably necessary to operate any "qualified risk-sharing joint arrangement" as set forth in the 1996 DOJ/FTC Statements of Antitrust Enforcement Policy in Health Care.
8. Asociacion de Farmacias Region de Arecibo,
   C-3855 (consent order issued March 2, 1999) (FTC Commission Actions: March 15, 1999 (www.ftc.gov)). The complaint alleged that an association, composed of approximately 125 pharmacies in northern Puerto Rico, fixed the terms and conditions, including fixing prices, of dealing with third party payers, and threatened to withhold services from a government program to provide health care services for indigent patients. The association was formed in 1994 as a vehicle to negotiate with health plans. According to the complaint, in January 1995, the association refused to contract with Triple-S, the payer for the reform program in northern Puerto Rico, until Triple-S raised the fees paid to the association's members. Furthermore, in March 1996, the association threatened to withhold its members' services unless Triple-S rescinded a new fee schedule calling for lower reimbursement fees for the pharmacies. Triple-S acceded to the association's demands and increased fees by 22%. The order prohibits the association from negotiating on behalf of any pharmacies with any payer or provider, jointly boycotting or refusing to deal with third party payers, restricting the ability of pharmacies to deal with payers individually, or determining the terms or conditions for dealing with third party payers. The order does allow the association to operate any "qualified risk-sharing joint arrangement" or, upon prior notice to the Commission, any "qualified clinically integrated joint arrangement," as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
9. Ernesto L. Ramirez Torres, D.M.D., et al.,
   C-3851 (consent order issued February 5, 1999) (FTC Commission Actions: February 12, 1999 (www.ftc.gov)). The complaint alleged that a group of dentists, comprising a majority of the dentists in Juan Diaz, Coamo, and Santa Isabel, Puerto Rico, fixed prices and engaged in an illegal boycott of a government program to provide dental care for indigent patients. According to the complaint, the dentists threatened a boycott of the reform program if they were not reimbursed at certain prices, and then boycotted the program. After several months, the dentists' price demands were met and they agreed to participate in the program. The order prohibits the dentists from jointly boycotting or refusing to deal with third party payers, or collectively determining any terms or conditions for dealing with third party payers. The order does allow the dentists to operate any "qualified risk-sharing joint arrangement" or, upon notice to the Commission, any "qualified clinically integrated joint arrangement," as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
10. FTC v. Mylan Laboratories et al.,
    62 F. Supp. 2d 25 (D.D.C. 1999) (FTC Commission Actions: November 29, 2000 (www.ftc.gov)). In a complaint seeking injunctive and other relief filed in U.S. District Court for the District of Columbia, the Commission charged Mylan Laboratories and three other companies, Profarmaco S.R.L., Cambrex Corporation, and Gyma Laboratories, with restraint of trade and conspiracy to monopolize the markets for two generic anti-anxiety drugs, lorazepam and clorazepate. The complaint also charged Mylan with monopolization and attempted monopolization of those markets. Thirty four state Attorneys General filed a similar complaint in U.S. District Court. According to the FTC's complaint, Mylan, the nation's second largest generic drug manufacturer, sought to restrain competition through exclusive licensing arrangements for the supply of the raw material necessary to produce the lorazepam and clorazepate tablets, thereby allowing Mylan to dramatically increase the price of lorazepam and clorazepate tablets. On July 7, 1999, the court denied defendants' motions to dismiss the FTC complaint, finding that § 13(b) of the FTC Act allows the Commission to seek permanent injunctive relief for violations of "any provision of law" enforced by the FTC, and allows the Commission to seek monetary remedies such as the disgorgement of profits. On November 29, 2000, the Commission approved a proposed settlement, subject to approval by the federal district court, under which Mylan agreed to pay $100 million for distribution to injured consumers and state agencies. The defendants each agreed to an injunction barring them from entering into similar unlawful conduct in the future. Fifty states and the District of Columbia also approved the agreement. In a separate statement, Commissioner Leary dissented regarding the financial aspects of the settlement because of his concern that it sets an undesirable precedent for use of the Section 13(b) remedy in federal and state antitrust enforcement, and conflicts with the holding in Illinois Brick concerning the ability of indirect purchasers to claim damages. In a separate statement, Commissioners Pitofsky, Anthony, and Thompson agreed with the need to use discretion in seeking disgorgement in future antitrust cases, but stated that the decision to seek disgorgement in this case was appropriate and consistent with policy considerations towards indirect purchasers raised by Illinois Brick. On February 9, 2001, the court entered the Stipulated Permanent Injunction agreed to by the parties. On April 27, 2001, the court granted preliminary approval of a distribution plan for the $100 million that Mylan was required to place in an escrow account for distribution to purchasers of lorazepam and/or clorazepate during the time period covered by the settlement.
11. M.D. Physicians of Southwest Louisiana Inc.,
    C-3824 (consent order issued August 31, 1998) (FTC Commission Actions: September 4, 1998 (www.ftc.gov)). The complaint charged that M.D. Physicians of Southwest Louisiana, Inc., a physician group comprising a majority of the physicians in the Lake Charles area of Louisiana, fixed the prices and other terms on which it would deal with third party payers, collectively refused to deal with third party payers, and conspired to obstruct the entry of managed care. According to the complaint, the group was formed in 1987 as a vehicle for its members to deal concertedly with the entry of managed care, and until 1994, the members of MDP dealt with third party payers only through the group. As a result of this conduct, the complaint alleged, MDP restrained competition among physicians, increased the prices that consumers pay for physician services and medical insurance coverage, and deprived consumers of the benefits of managed care. The consent order prohibits MDP from engaging in collective negotiations on behalf of its members, orchestrating concerted refusals to deal, fixing prices or terms on which its members deal, or encouraging or pressuring others to engage in any activities prohibited by the order. The order does allow MDP to operate any "qualified risk-sharing joint arrangement" or, upon prior notice to the Commission, any "qualified clinically integrated joint arrangement," as reflected in the 1996 FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care.
12. Institutional Pharmacy Network,
    C-3822 (consent order issued August 11, 1998) (FTC Commission Actions: August 20, 1998 (www.ftc.gov)). The complaint alleged that five institutional pharmacies unlawfully fixed prices and restrained competition among institutional pharmacies in Oregon, leading to higher reimbursement levels for serving Medicaid patients in Oregon long-term care institutions. The five pharmacies, Evergreen Pharmaceutical, Inc., NCS Healthcare of Oregon, Inc., NCS Healthcare of Washington, Inc., United Professional Companies, Inc., and White, Mack and Wart, Inc. (which provide institutional pharmacy services for 80% of those patients in Oregon receiving such services) competed to provide prescription drugs and services to long term care institutions. According to the complaint, the pharmacies formed IPN to offer their services collectively and maximize their leverage in bargaining over reimbursement rates, but did not share risk or provide new or efficient services. The order prohibits IPN and the institutional pharmacy respondents from entering into similar price fixing arrangements. The order, however, allows the respondents to engage in 1) any "qualified clinically integrated joint arrangement" (with prior notice to the Commission), and 2) conduct that is reasonable necessary to operate any "qualified risk-sharing joint arrangement" as set forth in the DOJ/FTC Statements of Antitrust Enforcement Policy in Health Care.
13. Urological Stone Surgeons, Inc.,
    125 F.T.C. 513 (1998) (consent order). The complaint charged that three companies (Urological Stone Surgeons, Inc., Stone Centers of America, L.L.C., and Urological Services, Ltd.) and two doctors providing lithotripsy services at Parkside Kidney Stone Centers illegally fixed prices for professional urologist services for lithotripsy procedures in the Chicago metropolitan area. Urologists using the Parkside facility account for approximately 65% of urologists in the area. The complaint alleged that the respondents agreed to use a common billing agent (Urological Services, Ltd.), established a uniform fee for lithotripsy professional services, prepared and distributed fee schedules for lithotripsy professional services at Parkside, and billed a uniform amount either from the fee schedule or an amount negotiated on behalf of all urologists at Parkside. The complaint also alleged that the billing agent contracted with third party payers based on a uniform percentage discount off the urologist's charge for professional services, or a uniform global fee that included professional services, charges for the lithotripsy machine, and anesthesiology services. According to the complaint, the collective setting of fees for lithotripsy services was not reasonably necessary to achieve efficiencies from the legitimate joint ownership and operation of the lithotripsy machines, nor were the urologists sufficiently integrated so as to justify the agreement to fix prices for lithotripsy professional services. The consent order prohibits the respondents from fixing prices, discounts, or other terms of sale or contract for lithotripsy professional services, requires the respondents to terminate third-party payer contracts that include the challenged fees at contract-renewal time or upon written request of the payer, and requires the respondents to notify the FTC at least 45 days before forming or participating in an integrated joint venture to provide lithotripsy professional services.
14. College of Physicians-Surgeons of Puerto Rico,
    FTC File No. 9710011, Civil No. 97-2466-HL (District of Puerto Rico) (October 2, 1997). The Federal Trade Commission and the Commonwealth of Puerto Rico filed a final order, stipulated permanent injunction, and complaint in the U.S. District Court in Puerto Rico against the College of Physician-Surgeons of Puerto Rico (comprised of 8,000 physicians in Puerto Rico), and three physician independent practice associations. The complaint charged that the defendants attempted to coerce the Puerto Rican government into recognizing the College as the exclusive bargaining agent for all physicians in Puerto Rico, with the public corporation responsible for administering a health insurance system that provides medical and hospital care to indigent residents. The complaint also charged that to achieve their goals, members of the College called for an eight-day strike during which they ceased providing non-emergency services to patients. The order prohibits the defendants from boycotting or refusing to deal with any third-party payer, refusing to provide medical services to patients of any third-party payer, or jointly negotiating prices or other more favorable economic terms. The order also calls for the College to pay $300,000 to the catastrophic fund administered by the Puerto Rico Department of Health. The order does not prevent the defendants from participating in joint ventures that involve financial risk-sharing or which receive the prior approval of the Commission, from petitioning the government, or from communicating purely factual information about health plans.
15. Montana Associated Physicians, Inc./Billing Physician Hospital Alliance, Inc.,
    123 F.T.C. 62 (1997) (consent order). The complaint charged that a physician association (MAPI) blocked the entry of an HMO into Billings, Montana, obstructed a PPO that was seeking to enter, recommended physician fee increases, and later acted through a physician-hospital organization (BPHA) to maintain fee levels. The order prohibits MAPI and BPHA from agreeing, for a 20 year period, to 1) boycott or refuse to deal with third-party payers; 2) determining the terms upon which physicians deal with such payers; and 3) fixing the fees charged for any physician services. MAPI also is prohibited from advising physicians to raise, maintain, or adjust the fees charged for their medical services, or creating or encouraging adherence to any fee schedule. The order does not prevent these associations from entering into legitimate joint ventures that are non-exclusive and involve the sharing of substantial financial risk. Other types of joint ventures are subject to prior approval of the Commission.
16. RxCare of Tennessee, Inc. et al.,
    121 F.T.C. 762 (1996) (consent order). The complaint charged that RxCare of Tennessee, a leading provider of pharmacy network services in that state, used a "most favored nation" clause (MFN) in order to discourage pharmacies from discounting, and to limit price competition among pharmacies in their dealings with pharmacy benefits managers and third-party payers. The MFN clause at issue required that if a pharmacy in the RxCare network accepted a reimbursement rate from any other third-party payer that is lower than the RxCare rate, the pharmacy must accept that lower rate for all RxCare business in which it participates. Combined with RxCare's market power (the network included 95% of all chain and independent pharmacies in Tennessee), the complaint alleged that the MFN clause forced some pharmacies in the network to reject lower reimbursement rates for prescriptions they fill for patients covered by other health plans. The order bars RxCare from including the MFN clause in its pharmacy agreements.
17. La Asociacion Medica de Puerto Rico,
    119 F.T.C. 772 (1995) (consent order). The complaint charged that the Medical Association of Puerto Rico, its Physiatry Section, and two of its physiatrist members illegally conspired to boycott a government insurance program in order to obtain exclusive referral powers from insurers and to increase reimbursement rates. The order prohibits the respondents from agreeing to boycott or refuse to deal with any third-party payer, or refusing to provide services to patients covered by any third-party payer. For a five-year period, the order also: 1) places restrictions on meetings of physiatrists to discuss refusals to deal with any third-party payer, or the provision of services covered by any third-party payer; and 2) prohibits the respondents from soliciting information from physiatrists about their decisions to participate in agreements with insurers and provide service to patients, passing such information along to other doctors, and giving physiatrists advice about making those decisions.
18. Trauma Associates of North Broward, Inc.,
    118 F.T.C. 1130 (1994) (consent order). The complaint charged that ten surgeons in Broward County, Florida, through Trauma Associates of North Broward, Inc., conspired to fix the fees they were paid for their services at trauma centers at two area hospitals, and threatened and carried out a concerted refusal to deal, forcing one trauma center to close. Under the consent order, the surgeons agreed to dissolve Trauma Associates of North Broward, Inc., a corporation which allegedly served as a vehicle for the surgeons to engage in collective negotiations with the North Broward Hospital District on fees and other contract terms. The order also prohibited the surgeons from dealing with any provider of health care services on collectively-determined terms unless the surgeons are partners or employees in a corporation, or are acting through an "integrated" joint venture and remain free to deal individually with entities that decline to deal with the joint venture.
19. McLean County Chiropractic Association,
    117 F.T.C. 396 (1994) (consent order). The complaint charged that an association of chiropractors set maximum fees for its members and attempted to negotiate collectively on behalf of those members the terms and conditions of agreements with third-party payers. The order prohibits the respondents from agreeing to determine their fees collectively or dealing with payers on collectively determined terms.
20. Baltimore Metropolitan Pharmaceutical Association, Inc. and Maryland Pharmacists Association,
    117 F.T.C. 95 (1994) (consent order). The complaint alleged that the Maryland Pharmacists Association (MPhA) and the Baltimore Metropolitan Pharmaceutical Association (BMPA), in response to cost-containment measures initiated by the Baltimore city government employees' prescription-drug plan, illegally conspired to boycott the plan in order to force higher reimbursement rates for prescriptions. According to the complaint, the associations' actions increased the cost of obtaining drugs through prescription drug plans, and reduced price competition between the firms providing these prescriptions. Under the consent order, MPhA and BMPA are prohibited from entering into, organizing, or encouraging any agreement between or among pharmacy firms to refuse to enter into, or to withdraw from, any participation agreement offered by a third-party payer. In addition, for five years, the associations are prohibited from providing comments or advice to any pharmacist or pharmacy concerning participation in any existing or proposed participation agreement, or the intention of other pharmacists or pharmacies to withdraw from or join a participation agreement. The associations are also prohibited from continuing meetings if two persons make statements concerning their firms' intentions to join a participation agreement.
21. Southeast Colorado Pharmacal Association,
    116 F.T.C. 51 (1993) (consent order). The complaint alleged that the Southeast Colorado Pharmacal Association (SCPhA) illegally conspired to boycott a prescription drug program offered through a state-retirees health plan in an attempt to force the program to increase its reimbursement rate for prescriptions filled by its pharmacy members. The order prohibits the association from entering into or threatening to enter into any agreement with pharmacies to withdraw or refuse to participate in similar reimbursement programs in the future. In addition, for five years, SCPhA is prohibited from providing comments or advice to any pharmacist or pharmacy concerning participation in any existing or proposed participation agreement, communicating the intention of other pharmacists or pharmacies to withdraw from or join a participation agreement, or soliciting other pharmacy firms' intentions about entering into a participation agreement. The association is also prohibited from continuing meetings of pharmacy representatives if members make statements concerning their firms' intentions to join a participation agreement.
22. Roberto Fojo, M.D.,
    115 F.T.C. 336 (1992) (consent order). The complaint charged that the former chairman of the ob/gyn department at a hospital in Miami, Florida, along with other department members, coerced the hospital into paying ob/gyns and other physicians for emergency room call services by threatening to refuse to take emergency room call duty. The order prohibits Dr. Fojo from conspiring with other physicians to boycott or threaten to boycott the emergency room at any hospital.
23. Debes Corporation,
    115 F.T.C. 701 (1992) (consent order). The complaint charged that six nursing homes in the Rockford, Illinois area stopped using temporary nurse registries, following an increase in prices charged by the registries for nursing assistants, in order to eliminate competition among the nursing homes for the purchase of nursing services provided by the registries. The order prohibits the nursing homes from agreeing to boycott the registries, which supplied temporary nursing services to the nursing homes, or to interfere with prices charged by such registries.
24. Southbank IPA, Inc.,
    114 F.T.C. 783 (1991) (consent order). The complaint charged that twenty three obstetrician/gynecologists in Jacksonville, Florida, illegally conspired to fix the fees they charged to third-party payers, boycotted or threatened to boycott third-party payers, and restrained competition among ob/gyns in the Jacksonville, Florida area. Under the order, the physicians agreed: 1) to dissolve their independent practice association and its parent corporation; 2) not to enter into or attempt to enter into any agreement or understanding with any competing physician to fix, stabilize, or tamper with any fee, price, or any other aspect of the fees charged for any physician's services; and 3) not to deal with any third-party payer on collectively-determined terms unless they are participating in an "integrated" joint venture as defined by the order, or in a partnership or professional corporation. The consent agreement marked the first time dissolution of a health care organization was required as a term of settlement.
25. Chain Pharmacy Association of New York State, Inc.,
    114 F.T.C. 327 (1991) (consent order). The complaint charged that the Chain Pharmacy Association (Chain) and its members conspired to boycott the New York State Employees Prescription Plan, in order to force an increase in reimbursement rates for plan participants who provide prescriptions to state employees. The complaint alleged that the collective refusal to participate in the program injured consumers in New York by reducing competition among pharmacy firms with respect to third-party prescription plans. The order prohibits Chain from organizing or entering into any agreement among pharmacy firms to withdraw from or refuse to enter into third-party payer prescription drug plans. Also, for a period of ten years, the order prohibits Chain from communicating to any pharmacist or pharmacy firm information regarding any other pharmacy firm's intentions to enter or refuse to enter into such a participation agreement, or from continuing meetings of pharmacy firm representatives if two persons make statements concerning their firms' intentions to join a participation agreement. For a period of eight years, the order prohibits Chain from advising another pharmacy firm on whether to enter into any payer participation agreement. See Pharmaceutical Society of the State of New York, Inc. (discussed below).
26. Peterson Drug Company of North Chili, New York, Inc.,
    115 F.T.C. 492 (1992) (consent order). As a member firm of Chain Pharmacy Association, Peterson Drug Company of North Chili, New York, Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
27. Fay's Drug Company, Inc.,
    114 F.T.C. 171 (1991) (consent order). As a member firm of Chain Pharmacy Association, Fay's Drug Company, Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
28. Kinney Drugs, Inc.,
    114 F.T.C. 367 (1991) (consent order). As a member firm of Chain Pharmacy Association, Kinney Drugs, Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
29. Melville Corporation,
    114 F.T.C. 171 (1991) (consent order). As a member firm of Chain Pharmacy Association, Melville Corporation was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
30. Rite Aid Corporation,
    114 F.T.C. 182 (1991) (consent order). As a member firm of Chain Pharmacy Association, Rite Aid Corporation was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
31. James E. Krahulec,
    114 F.T.C. 372 (1991) (consent order). As a member firm of Chain Pharmacy Association, James E. Krahulec, along with Rite Aid and the members of Chain Pharmacy Association, was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
32. Pharmaceutical Society of the State of New York, Inc.,
    113 F.T.C. 661 (1990) (consent order). The complaint charged that the Pharmaceutical Society of the State of New York, Inc. (PSSNY) conspired to boycott the New York State Employees Prescription Plan, in order to force an increase in reimbursement rates for plan participants who provide prescription drugs to state employees. According to the complaint, the society's actions reduced price competition, forced the state to pay substantial additional sums for prescription drugs, and coerced the state into raising the prices paid to pharmacies under the state plan. Under the consent order, the society agreed not to enter into any agreement between pharmacy firms to withdraw from or refuse to enter into any participation agreement. Also, for a period of ten years, the order prohibits PSSNY from continuing meetings if two persons make statements concerning their firms' intentions to join a participation agreement; and requires PSSNY to refrain from communicating to any pharmacist or pharmacy firm any information regarding any other pharmacy firm's intentions to enter or refuse to enter into such a participation agreement. For a period of eight years, the order prohibits PSSNY from providing comments or advice to any pharmacist or pharmacy on the desirability of participating in any existing or proposed participation agreement. See Chain Pharmacy Association (discussed above).
33. Empire State Pharmaceutical Society, Inc.,
    114 F.T.C. 152 (1991) (consent order). An affiliate of Long Island Pharmaceutical Society, Empire State Pharmaceutical Society was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
34. Capital Area Pharmaceutical Society,
    114 F.T.C. 159 (1991) (consent order). An affiliate of PSSNY, Capital Area Pharmaceutical Society was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
35. Alan Kadish,
    114 F.T.C. 167 (1991) (consent order). As president of PSSNY, Alan Kadish was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
36. Long Island Pharmaceutical Society, Inc.,
    113 F.T.C. 669 (1990) (consent order). An affiliate of PSSNY, Long Island Pharmaceutical Society, Inc. was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
37. Pharmaceutical Society of Orange County, Inc.,
    113 F.T.C. 645 (1990) (consent order). An affiliate of PSSNY, Pharmaceutical Society of Orange County, Inc. was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
38. Westchester County Pharmaceutical Society, Inc.,
    113 F.T.C. 159 (1990) (consent order). An affiliate of PSSNY, Westchester County Pharmaceutical Society, Inc. was charged with conspiracy to boycott the New York State Employees Prescription Plan along with PSSNY. A separate order similar to the PSSNY order (discussed above) was entered.
39. Brooks Drug, Inc.,
    112 F.T.C. 28 (1989) (consent order). As a member firm of Chain Pharmacy Association, Brooks Drug Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
40. Carl's Drug Co., Inc.,
    112 F.T.C. 15 (1989) (consent order). As a member firm of Chain Pharmacy Association, Carl's Drug Co., Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
41. Genovese Drug Stores, Inc.,
    112 F.T.C. 23 (1989) (consent order). As a member firm of Chain Pharmacy Association, Genovese Drug Stores, Inc. was charged with conspiracy to restrain trade in its refusal to participate in the New York State Employees Prescription Plan. A separate order similar to the Chain Pharmacy order (discussed above) was entered.
42. Preferred Physicians, Inc.,
    110 F.T.C. 157 (1988) (consent order). The complaint charged that two hundred and fifty physicians in Tulsa, Oklahoma, effectively controlled patient access to the leading hospital in the area, and formed a stock corporation to conduct joint negotiations with third-party payers on the members' behalf. According to the complaint, the corporation had been formed as an exclusive negotiating agent of the otherwise competing members for the purpose of resisting pressure to provide discounts to HMOs and other third-party payers who might seek contracts with members of the corporation. Under the consent order, the corporation agreed not to enter into agreements with its members to deal with third-party payers on collectively determined terms, not to communicate to third-party payers that its members would not participate in plans on terms unacceptable to the corporation, and for five years not to advise its members on the desirability of prices paid for physicians' services by third-party payers.
43. Rochester Anesthesiologists, et al.,
    110 F.T.C. 175 (1988) (consent order). The complaint charged that thirty-one anesthesiologists in Rochester, New York conspired to increase their fees by negotiating collectively with third-party payers over reimbursement terms, and by threatening not to participate in certain health plans. The complaint further alleged that the anesthesiologists jointly departicipated from Blue Shield when it refused to accede to their demand for higher reimbursement rates. The order prohibits the anesthesiologists from agreeing to conspire to deal with third-party payers on collectively determined terms or to coerce third-party payers.
44. New York State Chiropractic Association,
    111 F.T.C. 331 (1988) (consent order). The complaint charged that a chiropractic association conspired with its members to increase the level of reimbursement paid for chiropractic services by collectively threatening not to participate, and by departicipating from a program of a third-party payer. The order prohibits the association from agreeing to conspire to deal with third-party payers on collectively determined terms, act on behalf of its members to negotiate with third-party payers, or coerce third-party payers.
45. Patrick S. O'Halloran, M.D. (Formerly Newport Rhode Island Obstetricians)
    111 F.T.C. 35 (1988) (consent order). The complaint charged that five obstetricians in the Newport, Rhode Island area concertedly forced the state to raise Medicaid payments to obstetricians by threatening to refuse to accept new Medicaid patients if the state did not raise Medicaid payments. The order prohibits the physicians from agreeing to conspire to deal with any governmental health care program on collectively determined terms, or to coerce any governmental health care program.
46. Oklahoma Optometric Association,
    106 F.T.C. 556 (1985) (consent order). The complaint charged that a state optometric association, through its ethical guidelines, unreasonably restricted its members from truthful advertising and soliciting business. By virtue of these guidelines, members were prohibited from, among other things, associating with lay practices, making superiority claims, offering specific guarantees (e.g., to refund the cost of optical goods), and criticizing other optometrists. Under the order, the association agreed to cease restricting its members from truthful advertising and soliciting business, from meeting competitors' prices, and from offering special guarantees, such as refunds to consumers for the cost of optical goods.
47. Michigan State Medical Society,
    101 F.T.C. 191 (1983). The complaint charged that an East Lansing, Michigan medical society illegally obstructed insurers' cost containment programs, by orchestrating a group boycott by its physician members for the purpose of obtaining higher reimbursement. According to the complaint, the medical society organized a proxy campaign which would have allowed the society to collectively terminate its members' participation in third-party payer and Medicaid insurance programs. The Commission decision held that the medical society illegally conspired to obtain its members' permission to collectively terminate participation in third-party payer and Medicaid insurance programs if these payers did not alter cost containment procedures and adopt reimbursement policies acceptable to the society. The order prohibited the medical society from, among other things, entering into agreements with its members to affect the amount, terms of reimbursement, or decision to accept or reject an agreement; acting on behalf of its members through proxy power; influencing its members to refuse to enter into any participation agreement not acceptable to the society; and entering into any agreement with third party payers concerning the amount, manner of calculation, or terms of reimbursement.
48. Association of Independent Dentists,
    100 F.T.C. 518 (1982) (consent order). The complaint charged that an association of dentists in Pueblo County, Colorado, illegally restrained competition among its members by adopting and enforcing a bylaw that prevented or hindered its members from truthfully advertising any aspect of their practices without the prior approval of the association's Board of Directors. According to the complaint the association threatened to refuse to sign participating dentist agreements with third-party payers, in order to pressure these payers to increase or maintain the level of reimbursement paid for dental services. Under the order, the medical society agreed to cease restricting truthful advertising by its members, and not to act in any way to coerce third-party payers to accept its positions about reimbursement in dental care coverage plans.
49. American Medical Association,
    94 F.T.C. 701 (1979), aff'd as modified, 638 F.2D 443 (2d Cir. 1980), aff'd by an equally divided Court, 455 U.S. 676 (1982) (order modified 99 F.T.C. 440 (1982), 100 F.T.C. 572 (1982) and 114 F.T.C. 575 (1991)). The complaint charged the AMA with violations of Section 5 of the FTC Act by agreeing to restrict its members' ability to advertise and solicit patients, and engage in price competition and other competitive practices. The Commission decision held that the AMA had illegally engaged in concerted action to restrain competition among its members. The Commission found, among other things, that the AMA, through its ethical guidelines, unreasonably prevented or hindered its members from soliciting business by truthful advertising or other forms of solicitation of patients. In addition the Commission found that the AMA had illegally restrained its members from offering services on a salaried basis or at below-usual rates for hospitals, HMOs, and other lay institutions. Under the order, the association is prohibited from restraining truthful advertising. The order also prohibits the AMA from placing restrictions on the operation of physician practices that limit a patient's choice of physician services.
50. California Medical Association,
    93 F.T.C. 519 (1979) (consent order) (modified 105 F.T.C. 277 (1985)) (set aside order, 120 F.T.C. 858 (1995)). The complaint charged that a medical association's preparation, publication, and circulation of RVSs, which included instructions for the computation and use of conversion factors, had the effect of establishing, maintaining, or otherwise influencing the fees which physicians charged for their services. The order prohibits the respondent from developing, publishing, or circulating RVSs, or suggesting that monetary conversion factors be applied to RVSs.
51. Minnesota Medical Association,
    90 F.T.C. 337 (1977) (consent order). The complaint charged that a medical association's preparation, publication, and circulation of RVSs had the effect of establishing, maintaining, or otherwise influencing the fees which physicians charged for their services. The complaint also charged that the association's component societies had adopted, published, circulated, and recommended to their members conversion factors applicable to the RVSs. The order prohibits the association from developing, publishing, or circulating RVSs and monetary conversion factors applicable to RVSs.
52. American College of Radiology,
    89 F.T.C. 144 (1977) (consent order) (modified 113 F.T.C. 280 (1990)). The complaint charged that a medical association's preparation, publication, and circulation of RVSs had the effect of establishing, maintaining, or otherwise influencing the fees which physicians charged for their services. The order prohibits the association from developing, publishing, or circulating RVSs.
53. American Academy of Orthopaedic Surgeons,
    88 F.T.C. 968 (1976) (consent order) (modified 105 F.T.C. 248 (1985)) (set aside order, 119 F.T.C. 609 (1995)). The complaint charged that a medical association's preparation, publication, and circulation of RVSs had the effect of establishing, maintaining, or otherwise influencing the fees which physicians charged for their services. The order prohibits the association from developing, publishing, or circulating RVSs.
54. American College of Obstetricians & Gynecologists,
    88 F.T.C. 955 (1976) (consent order) (modified 104 F.T.C. 524 (1984)). The complaint charged that a medical association's preparation, publication, and circulation of RVSs had the effect of establishing, maintaining, or otherwise influencing the fees which physicians charged for their services. The order prohibits the association from developing, publishing, or circulating RVSs.

C. Agreements to Obstruct Innovative Forms of Health Care Delivery or Financing

1. Asociacion de Farmacias Region de Arecibo
   (See Section II B for citation and annotation.)
2. Ernesto L. Ramirez Torres, D.M.D., et al.
   (See Section II B for citation and annotation.)
3. M.D. Physicians of Southwest Louisiana Inc.
   (See Section II B for citation and annotation.)
4. Montana Associated Physicians, Inc./Billings Physicians Hospital Alliance, Inc.
   (See Section II B for citation and annotation.)
5. La Asociacion Medica de Puerto Rico
   (See Section II B for citation and annotation.)
6. Medical Staff of Good Samaritan Regional Medical Center,
   119 F.T.C. 106 (1995) (consent order). The complaint charged that members of the medical staff of Good Samaritan Regional Medical Center, in Phoenix, Arizona, consisting of more than 500 physicians, conspired to prevent the hospital from opening a multi-specialty clinic that would have competed with the physicians, by threatening to stop admitting patients to the hospital if it proceeded with plans to open the clinic. The order prohibits members of the medical staff from agreeing, or attempting to enter into an agreement, to prevent or restrict the services offered by Good Samaritan, the clinic, or any other health care provider. The order also prohibits the physicians from conspiring to use coercive tactics to prevent competition from other physicians or health care providers.
7. Physician Group, Inc.,
   120 F.T.C. 567 (1995) (consent order). The complaint charged that Physicians Group Inc., and seven physicians on the board of directors of that organization, conspired to prevent or delay the entry of third-party payers into Pittsylvania County and Danville, Virginia. The complaint also charged that the respondents fixed the terms on which they would deal with third-party payers, including not only price terms but also terms and conditions of cost containment. The order prohibits such conduct, and requires the dissolution of Physicians Group Inc.
8. Southbank IPA, Inc.
   (See Section II B for citation and annotation.)
9. Diran Seropian, M.D.,
   115 F.T.C. 891 (1992) (consent order). Dr. Seropian was charged along with physicians and other health practitioners in Medical Staff of Broward General Medical Center (discussed below). He entered a separate consent agreement after litigation against him had commenced.
10. Medical Staff of Holy Cross Hospital,
    114 F.T.C. 555 (1991) (consent order). The complaint charged that physicians and other health practitioners with privileges to practice at a Fort Lauderdale, Florida hospital conspired with its members to threaten to boycott the hospital, in order to coerce the hospital not to enter a business relationship with the Cleveland Clinic or grant privileges to Clinic physicians. The medical staff entered into a consent order under which it will not, among other things, 1) refuse to deal or threaten to refuse to deal with the hospital or any other provider of health care services; 2) refuse or threaten to refuse to provide, or delay unreasonably in providing, an application for medical staff privileges to any Cleveland Clinic physician; 3) deny, impede, or refuse to consider any application for hospital changes or for changes in hospital privileges by any person solely because of his or her affiliation with the Cleveland Clinic; and 4) (i) deny or recommend to deny, limit, or otherwise restrict hospital privileges for any Cleveland Clinic physician, or (ii) close or recommend to close the medical staff, without a reasonable basis for concluding that the denial, limitation, or restriction serves the interests of the hospital in providing for the efficient and competent delivery of health care services.
11. Medical Staff of Broward General Medical Center,
    114 F.T.C. 542 (1991) (consent order). The complaint charged that the medical staff of physicians and other health practitioners with privileges to practice at a Fort Lauderdale, Florida hospital conspired with its members to threaten to boycott the hospital, in order to coerce the hospital not to enter a business relationship with the Cleveland Clinic or grant privileges to Clinic physicians. The medical staff entered into a consent order under which it will not, among other things, 1) refuse to deal or threaten to refuse to deal with the hospital or any other provider of health care services; 2) deny, impede, or refuse to consider any application for hospital changes or for changes in hospital privileges by any person solely because of his or her affiliation with the Cleveland Clinic; and 3) deny or recommend to deny, limit, or otherwise restrict hospital privileges for any Cleveland Clinic physician without a reasonable basis for concluding that the denial, limitation, or restriction serves the interests of the hospital in providing for the efficient and competent delivery of health care services.
12. Medical Staff of Dickinson County Memorial Hospital,
    112 F.T.C. 33 (1989) (consent order). The complaint charged that twelve physicians practicing in Dickinson County, Michigan, two medical societies, and a hospital medical staff conspired to prevent a hospital from opening a clinic that would have competed with the doctors, by threatening not to refer patients to specialists at the hospital. The order prohibits the respondents from conspiring to use coercive tactics to prevent competition from other physicians or health care providers. The order provides that legitimate peer review activities are not prohibited.
13. Lee M. Mabee, M.D.,
    112 F.T.C. 517 (1989) (consent order). Dr. Mabee was charged along with 11 other obstetricians in Certain Sioux Falls Obstetricians (discussed below). He entered a separate consent agreement after the litigation against him had commenced.
14. Eugene M. Addison, M.D. (formerly Huntsville Physicians)
    111 F.T.C. 339 (1988) (consent order). The complaint charged that fourteen physicians in the Huntsville, Texas area collectively sought to obtain from HMOs more advantageous terms of participation and, when those efforts proved unsuccessful, collectively refused to deal with the HMOs and attempted to restrict the hospital privileges of physicians associated with the HMOs. Under the order, the physicians agreed not to deal collectively with HMOs or health plans, not to deny hospital staff privileges solely because the applicant was associated with an HMO or health plan, and not to change the hospital's rules or medical staff bylaws in order to limit the participation of any physician in governance of the hospital or medical staff because of affiliation with an HMO or health plan.
15. Iowa Chapter of American Physical Therapy Association,
    111 F.T.C. 199 (1988) (consent order). The complaint charged that a physical therapy association unreasonably restrained competition by adopting a resolution declaring it illegal and unethical for therapists to work for physicians. The order prohibits the association from restricting member therapists from being employed by physicians.
16. New York State Chiropractic Association
    (See Section II B for citation and annotation.)
17. Rochester Anesthesiologists et al.
    (See Section II B for citation and annotation.)
18. Medical Staff of Doctors' Hospital of Prince George's County,
    110 F.T.C. 476 (1988) (consent order). The complaint charged that the medical staff of a Maryland hospital conspired to coerce the owner of the hospital to abandon plans to open an HMO facility in the area, through threats of concerted action to "close" the hospital. Under the order, the medical staff agreed not to organize or encourage any agreement among physicians for the purpose of preventing delivery of health care services by HMOs or other health care facilities.
19. Medical Staff of Memorial Medical Center,
    110 F.T.C. 541 (1988) (consent order). The complaint charged that the medical staff of a hospital in Savanna, Georgia, acting through its credentials committee, conspired to suppress competition by denying a certified nurse-midwife's application for hospital privileges without a reasonable basis. The order prohibits the medical staff from agreeing to deny or restrict hospital privileges to certified nurse-midwives, unless the staff has a reasonable basis for believing that the restriction would serve the interest of the hospital in providing for the efficient and competent delivery of health care services.
20. Robert E. Harvey, M.D.,
    111 F.T.C. 57 (1988) (consent order). The complaint charged that allergists and a clinic in the Victoria, Texas area organized a boycott of manufacturers of new allergy testing products which were being marketed to non-allergist physicians. The order prohibits the allergists from agreeing to conspire to use coercive tactics to prevent competition from doctors who were not allergists.
21. Certain Sioux Falls Obstetricians,
    111 F.T.C. 122 (1988) (consent order). The complaint charged that eleven obstetricians in the Sioux Falls, South Dakota area, who served as the part-time OB faculty of the medical school, illegally attempted to limit competition from the medical school full-time faculty members by threatening a boycott of the obstetrician/gynecologist residency program. The order prohibits the physicians from agreeing to engage in collective coercive activities that interfere with the residency program of the University of South Dakota School of Medicine.
22. Brief of the Federal Trade Commission as Amicus Curiae on Appeal from United States District Court, Nurse Midwifery Associates v. Hibbett,
    918 F.2d 605 (6th Cir. 1990), appealing 689 F. Supp. 799 (M.D. Tenn. 1988). In an antitrust case by two self-employed nurse midwives against a physician-owned malpractice insurance company, which had canceled the malpractice insurance of an obstetrician who had agreed to collaborate with the nurse midwives, the Commission filed an amicus brief arguing that the District Court erred in holding that the physician-controlled corporation must be viewed as a single entity and that its conduct therefore could not be deemed to be concerted action cognizable under the antitrust laws. The Sixth Circuit reversed the District Court on this issue.
23. Preferred Physicians, Inc.
    (See Section II B for citation and annotation.)
24. Physicians of Meadville,
    109 F.T.C. 61 (1987) (consent order). The complaint charged that sixty-one physicians combined to restrict competition among physicians, by threatening not to refer patients to physician specialists practicing on the medical staff of a hospital in Erie, Pennsylvania, if a group of specialists associated with that hospital opened a satellite office that would compete with the local doctors. The order prohibits the physicians from agreeing to concertedly withhold or threaten to withhold patient referrals from any physician or other health care provider, or to refuse to deal with or withhold patient admissions from any hospital.
25. American Academy of Optometry,
    108 F.T.C. 25 (1986) (consent order). The complaint charged that an Academy of optometrists engaged in unlawful concerted action to restrain competition among its members by adopting and enforcing ethical guidelines that unreasonably prevented or hindered its members from soliciting business through truthful advertising and similar means. By virtue of these guidelines, members had been restricted from advertising prices, fees, types of treatment, professional training and experience, special expertise, and products offered for sale, such as contact lenses. The order prohibits the Academy from restricting its members from truthfully advertising and soliciting business. Under the order, the association also agreed to cease restricting its members in their choice of office location.
26. Health Care Management Corp.,
    107 F.T.C. 285 (1986) (consent order) (formerly Medical Staff of North Mobile Community Hospital). The complaint charged that a corporation that owns a hospital near Mobile, Alabama, and the hospital's medical staff conspired to restrain competition from podiatrists, by pressuring individual physicians not to co-admit the patients of a podiatrist already on the staff, and by imposing unreasonable conditions on podiatrists seeking to practice at the hospital. The hospital and its medical staff agreed not to unreasonably restrict podiatrists from practicing at the hospital.
27. North Carolina Orthopaedic Association,
    108 F.T.C. 116 (1986) (consent order). The agreement settled complaint charges that an orthopaedic association orchestrated an agreement among its members to exclude or unreasonably discriminate against podiatrists who sought hospital privileges or access to hospitals. The order prohibits the association from unreasonably restricting podiatrists from gaining surgical privileges or access to hospitals in North Carolina.
28. Hawaii Dental Service Corp.,
    106 F.T.C. 25 (1985) (consent order). The complaint charged that a corporation that offered a dental insurance plan, which provided dental services for a prepaid premium and was operated by the dentists who provided the services, limited competition among dentists in the state by enacting bylaws that prohibited the corporation from recruiting and sending dentists to certain counties without the approval of the majority of its members residing in the affected counties. The order prohibits the corporation from conditioning its decisions to send new dentists to certain counties in Hawaii on the approval of member dentists already practicing in those counties.
29. Medical Staff of John C. Lincoln Hospital & Health Center,
    106 F.T.C. 291 (1985) (consent order). The complaint charged that physicians and other practitioners with privileges to practice at a Phoenix, Arizona hospital and health center conspired to coerce and threaten to boycott the hospital, so that the hospital would cancel its involvement with an urgent care facility that competed with medical staff members. The order prohibits the medical staff from agreeing to make, or join in plans to make, any threats of unreasonably discriminatory action against any health care facility or professional, or to undertake coercive action to influence reimbursement or insurance determinations, including a refusal to refer, admit, or treat patients.
30. Michigan Optometric Association,
    106 F.T.C. 342 (1985) (consent order). The complaint charged that an optometric association conspired with its members to place unreasonable restraints upon member optometrists' "corporate practices." According to the complaint the optometric association engaged in illegal concerted action to restrain competition among its members by adopting and enforcing ethical guidelines that unreasonably prevented or hindered its members from truthfully advertising. The ethical guidelines had prohibited members from displaying their names in any manner that stood out from a listing of other occupants of a building; from using professional cards, billboards, letterheads, or stationery containing any information other than certain limited items; from using large signs or any representations of eyes, eyeglasses, or the human head; and from using lettering that was larger than a specified size on windows or doors. The order prohibits the association from restricting its members from truthfully advertising and otherwise soliciting business, providing services or selling optical goods in a retail location, or from providing optometric services or optical goods through corporate practice (i.e., in association with any business corporations other than hospital clinics, HMOs, or professional corporations).
31. State Volunteer Mutual Insurance Corp.,
    102 F.T.C. 1232 (1983) (consent order). The complaint charged that a Tennessee physician-owned insurance company providing malpractice insurance terminated the insurance of a physician because he had agreed to serve as a back-up physician to certified nurse-midwives who were in independent practice. The order prohibits the insurance company from unreasonably discriminating against physicians who work with independent nurse midwives.
32. Indiana Federation of Dentists,
    101 F.T.C. 57 (1983), rev'd, 745 F.2d 1124 (7th Cir. 1984), rev'd, 476 U.S. 447 (1986). The complaint charged that an organization conspired to restrain competition among Indiana dentists by promulgating guidelines to prevent dentists from turning over patients' x-rays to dental care insurers. The Supreme Court reversed the Seventh Circuit and affirmed the Commission's holding that the organization of dentists illegally conspired to obstruct third-party payers' cost containment programs through the concerted withholding of patients' x-rays. The order prohibits the dental association from agreeing to obstruct third-party payers use of x-rays or other materials for dental benefit determinations, from compelling a third-party payer to deal with dental health care plans in a certain manner, or influencing a patient's choice of dentists based on the dentist's degree of cooperation with the third-party payer.
33. Michigan State Medical Society,
    (See Section II B for citation and annotation.)
34. Texas Dental Association,
    100 F.T.C. 536 (1982) (consent order). The complaint charged that a state dental association orchestrated member dentists' withholding of x-rays from insurers who needed them to make benefit determinations. The order prohibits the association from obstructing third-party payers from the predetermination and limitation of dental coverage to the least expensive form of treatment, and from coercing payers to modify dental care coverage plans.
35. Sherman A. Hope, M.D.,
    98 F.T.C. 58 (1981) (consent order). The complaint charged that five physicians discontinued emergency room coverage to force a Texas hospital to halt its plans to recruit a new physician under financial terms that the physicians opposed. The order prohibits the physicians from undertaking any course of conduct to interfere with the hospital's recruitment of physicians or the hospital's efforts to grant hospital privileges to physicians.
36. American Medical Association,
    (See Section II B for citation and annotation.)
37. Forbes Health System Medical Staff,
    94 F.T.C. 1042 (1979) (consent order). The complaint charged that the medical staff of a Pennsylvania hospital system, consisting of physicians, dentists, and podiatrists, which was starting its own HMO, had abused the hospital privilege system to hamper competition from a competing HMO. In particular, the group allegedly denied applications by the HMO-affiliated physicians. The order prohibits the group from discriminating against medical staff members who were associated with HMOs, and from excluding applicants for hospital privileges simply because they provided services on other than a fee-for-service basis.
38. Indiana Dental Association,
    93 F.T.C. 392 (1979) (consent order). The complaint charged that a state dental association restrained competition among dentists by engaging in concerted action to withhold x-rays from insurers who needed them to make benefit determinations. The order prohibits the dental association from obstructing third-party payers from predetermination of benefits and limitation of dental coverage to the least expensive course of treatment.
39. American Society of Anesthesiologists,
    93 F.T.C. 101 (1979) (consent order). The complaint charged that a medical society, through its ethical guidelines and membership requirements, restrained member anesthesiologists from being paid on other than a fee-for-service basis or from becoming salaried employees at hospitals. The order prohibits the association from restricting its members from rendering services other than on a fee-for-service basis.
40. Medical Service Corp. of Spokane County,
    88 F.T.C. 906 (1976) (consent order). The complaint charged that a Blue Shield health payment plan and an affiliated physicians' association in the state of Washington deterred the development of HMOs by denying reimbursement to physicians who provided services to HMOs. The order prohibits the plan and association from pursuing any course of conduct that discriminates against HMOs, or against any physician who practices medicine with an HMO or in any manner other than on a fee-for-service basis.

D. Restraints on Advertising and Other Forms of Solicitation

1. Private Association Restraints

1. Colegio de Cirujanos Dentistas de Puerto Rico,
   (See Section II B for citation and annotation.)
2. California Dental Association,
   121 F.T.C. 190 (1996) (final order), aff'd 128 F.3d 720 (9th Cir. 1997); vacated, remanded 526 U.S. 756 (1999); rev'd, remanded 224 F.3d 942 (9th Cir. 2000); Order Returning Matter to Adjudication and Dismissing Complaint (FTC Commission Actions: February 15, 2001 (www.ftc.gov)). The Commission's opinion affirmed an ALJ's decision finding that the California Dental Association violated Section 5 of the FTC Act by unreasonably restricting truthful, nondeceptive advertising. The Commission found that CDA's restrictions on price advertising were per se illegal, and analyzed CDA's non-price advertising restraints under an abbreviated rule of reason. On 10/22/97, the Ninth Circuit affirmed the Commission's order in a 2-1 decision, holding that the Commission has jurisdiction over CDA, and that the agreement unreasonably restrained trade under a "quick look" rule of reason analysis. The appeals court found a per se analysis inappropriate for the price advertising restrictions. The Supreme Court granted CDA's petition for certiorari and on 5/24/99 vacated and remanded the Ninth Circuit opinion. The Court upheld the appeals court's decision regarding the Commission's jurisdiction over non-profit entities that engage in activities for the economic benefit of their members, but remanded the case to the Ninth Circuit for a fuller consideration of the rule of reason analysis. The Ninth Circuit held that the FTC had failed to prove that CDA's advertising restrictions were anticompetitive under a rule of reason analysis, and then vacated and remanded the judgment of the FTC on September 5, 2000, and instructed the FTC to dismiss its case against CDA. The Ninth Circuit denied a Commission petition for rehearing en banc on November 17, 2000. The Commission issued an order on February 15, 2001 dismissing the case. In a separate statement, Commissioners Pitofsky, Anthony and Thompson stated that although they had concerns about some aspects of the Ninth Circuit's final ruling, other considerations such as CDA's compliance with the 1996 order and the outdated nature of the factual record, made seeking review at the Supreme Court impractical.
3. National Association of Social Workers,
   116 F.T.C. 140 (1993) (consent order). The complaint charged that a professional association of social workers engaged in unlawful concerted action by adopting rules to restrain competition among social workers, by prohibiting association members from 1) using testimonials and other forms of truthful advertising; 2) soliciting the clients of other social workers, even where the clients are not vulnerable to abusive solicitation practices; and 3) prohibiting social workers from paying a fee for receiving a referral. The order prohibits the association from restricting its members from truthful advertising or solicitation, or participation in patient referral services. The order allows the association to adopt reasonable rules to restrict false or deceptive advertising, regulate solicitation of business or testimonials from persons vulnerable to undue influence, and ban solicitation of testimonials from current psychotherapy patients. The association is also permitted to require disclosure of fees that social workers pay to patient referral services.
4. American Psychological Association,
   115 F.T.C. 993 (1992) (consent order). The complaint charged that a professional association of psychologists engaged in unlawful concerted action by adopting and enforcing rules to restrain competition among psychologists by prohibiting association members from 1) truthfully advertising comparative statements on services, testimonials, or direct solicitation; and 2) banning participation in certain patient referral services. The order prohibits the association from restricting its members from truthful advertising, solicitation, or participation in patient-referral services. Under the order, the association may adopt reasonable rules to restrict false or deceptive advertising, regulate solicitations of business or testimonials from persons vulnerable to undue influence, and ban solicitation of testimonials from current psychotherapy patients. The association is permitted to require disclosure of fees that psychologists pay to patient referral services.
5. Connecticut Chiropractic Association,
   114 F.T.C. 708 (1991) (consent order). The complaint charged that an association of chiropractors unreasonably restrained competition by prohibiting its members from offering free services, or services at discounted fees; advertising in a manner that the association considers to be "undignified" and not in "good taste;" and implying that they possess "unusual expertise." The order prohibits the association from prohibiting, regulating, or interfering with truthful, nondeceptive advertising, including offers of free services, services at discounted fees, and claims of unusual expertise, except that the association may restrict claims of specialization under certain circumstances.
6. Tarrant County Medical Society,
   110 F.T.C. 119 (1987) (consent order). The complaint charged that a county medical society in Texas illegally conspired to restrain competition among its members through its Board of Censors, which restricted the amount, duration, and size of advertising announcements in newspapers, and the size and number of telephone directory listings by its members. The order prohibits the society from restricting its members from engaging in truthful advertising.
7. Michigan Optometric Association,
   (See Section II C for citation and annotation.)
8. Oklahoma Optometric Association,
   (See Section II B for citation and annotation.)
9. American Academy of Optometry, Inc.,
   (See Section II C for citation and citation.)
10. Michigan Association of Osteopathic Physicians & Surgeons,
    102 F.T.C. 1092 (1983) (consent order). The complaint charged that a medical society engaged in unlawful concerted action to restrain competition among its members by adopting and enforcing ethical guidelines that unreasonably prevented or hindered its members from soliciting business by truthful advertising or similar means. By virtue of these restraints, members were prohibited from advertising, among other things, fees, acceptance of Medicare or credit cards, professional training and experience, hours and office locations, and knowledge of languages. The order prohibits the medical association from restricting its members from truthfully advertising or soliciting business.
11. Washington, D.C. Dermatological Society,
    102 F.T.C. 1292 (1983) (consent order). The complaint charged that a medical society engaged in unlawful concerted action to restrain competition among its members by adopting and enforcing ethical guidelines that unreasonably prevented or hindered its members from soliciting business by truthful advertising. By virtue of these restraints, members had been prohibited from advertising, among other things, prices, fees, types or methods of treatment, professional training, experience, special expertise, and the identity, fees, or services of physicians associated with HMOs. The order prohibits the medical society from restricting its members from truthfully advertising or soliciting business.
12. Broward County Medical Association,
    99 F.T.C. 622 (1982) (consent order). The complaint charged that a medical association in Florida engaged in unlawful concerted action to restrain competition among its members by adopting and enforcing ethical guidelines that unreasonably prevented or hindered its members from soliciting business by truthful advertising of fees or services. By virtue of these restraints, members had been prohibited from advertising, among other things, their fees, acceptance of Medicare or credit cards, professional training and experience, hours and office locations, and knowledge of foreign languages. The order prohibits the medical association from restricting its members from truthfully advertising or soliciting business.
13. Association of Independent Dentists,
    (See Section II B for citation and annotation.)
14. American Dental Association,
    94 F.T.C. 403 (1979) (consent order) (modified 100 F.T.C. 448 (1982) and 101 F.T.C. 34 (1983)). The complaint charged that the ADA illegally engaged in concerted action to restrain competition among its members by adopting and enforcing provisions in its code of ethics that unreasonably prevented or hindered its members from soliciting business by truthful advertising or similar means. The order prohibits the ADA from restricting its members from truthfully advertising or soliciting business.
15. American Medical Association,
    (See Section II B for citation and annotation.)

2. State Board Restraints

1. Texas Board of Chiropractic Examiners,
   115 F.T.C. 470 (1992) (consent order). The complaint charged that a state chiropractic board illegally conspired to restrain competition among chiropractors through its rules that unreasonably restricted chiropractors from engaging in various forms of nondeceptive advertising and solicitation. The order prohibits the board from restricting truthful advertising. The Board may adopt and enforce reasonable advertising rules to prohibit advertising that the Board reasonably believes to be false, misleading or deceptive within the meaning of state law, and to prohibit oppressive in-person solicitation.
2. Massachusetts Board of Registration in Optometry,
   110 F.T.C. 549 (1988). The Commission decision held that a state optometric board illegally conspired to restrain competition among optometrists, by promulgating and enforcing regulations that prohibited optometrists from truthfully advertising price discounts, that prohibited optical and other commercial establishments from advertising the names of optometrists or the availability of their services, and that prohibited the use of testimonial or sensational advertisements. The Commission found that the regulations were not protected by the state action doctrine because state law did not embody a clearly articulated policy to prohibit optometrists from truthfully advertising discounts, fees, or other information. Under the order, the Board is prohibited from restraining truthful advertising but may adopt and enforce reasonable rules to restrict fraudulent, false, deceptive, or misleading advertising within the meaning of state law.
3. Wyoming State Board of Chiropractic Examiners,
   110 F.T.C. 145 (1988) (consent order). The complaint charged that a state chiropractic board engaged in unlawful concerted action to restrain competition among chiropractors by adopting rules that prohibited virtually all telephone directory advertising (with the exception of a practitioner's name, address and two additional descriptive lines of information), and other forms of truthful advertising, including advertising about fees or free consultations or examinations. The challenged rules also encouraged chiropractors to agree on the methods of advertising in their areas. The order prohibits the Board from restricting truthful advertising. Under the order, the Board may adopt and enforce reasonable rules to restrict false or deceptive advertising within the meaning of state law.
4. Brief of the Federal Trade Commission as Amicus Curiae in Parker v. Kentucky Board of Dentistry,
   818 F.2d 504 (6th Cir. 1987). In a case where a dentist challenged the constitutionality of the Kentucky Board of Dentistry's advertising restrictions, which allowed the Board to prohibit the use of terms such as "orthodontics," "braces," and "brackets" in advertisements by general dentists, the Commission filed an amicus brief arguing that such advertisements were not misleading and, therefore, could not be prohibited by the state under the First Amendment. The Commission also argued that there are strong public policy reasons for allowing truthful advertising by professionals, and that unnecessary restrictions on such advertising hinder competition as well as the flow of useful consumer education. The court ruled that the board's outright ban was unconstitutional.
5. Wyoming State Board of Registration in Podiatry,
   107 F.T.C. 19 (1986) (consent order). The complaint charged that a state podiatric board engaged in unlawful concerted action to restrain competition among podiatrists by restricting most forms of truthful advertising (permitting advertising of little more than name, address, and phone number), and the use of certain advertising media. State law authorized the Board only to regulate the use of untruthful or improbable statements in advertisements. The order prohibits the Board from restricting truthful advertising.
6. Montana Board of Optometrists,
   106 F.T.C. 80 (1985) (consent order). The complaint charged that a state optometric board engaged in unlawful concerted action to restrain competition among optometrists by restricting optometrists from truthfully advertising prices, terms of credit, down payments, periodic payments, professional superiority, or from using the expression "Contact Lens Clinic" or "Vision Center". State law authorized the Board to regulate only the use of untruthful or ambiguous advertising, and prohibited only the use in advertisements of the expression "eye specialist" or "specialist in eye" in connection with the name of an optometrist. The order prohibits the Board from restricting truthful advertising. Under the order, the Board may adopt and enforce reasonable rules to implement state law.
7. Louisiana State Board of Dentistry,
   106 F.T.C. 65 (1985) (consent order). The complaint charged that a state dental board engaged in unlawful concerted action to restrain competition by restricting dentists from truthfully advertising the prices of their services, particularly discounts. After litigation commenced, the Board entered a consent agreement. Under the order, the Board cannot restrict truthful advertising, but may adopt and enforce reasonable rules, including affirmative disclosure requirements, to restrict false, deceptive, or misleading advertising within the meaning of state law.

E. Illegal Tying and Other Arrangements

1. Home Oxygen and Medical Equipment Co.,
   118 F.T.C. 661 (1994) order set aside for John E. Sailor (retirement from medical practice) 122 F.T.C. 278 (1996), Home Oxygen Pulmonologists, 118 F.T.C. 685 (1994), and Homecare Oxygen and Medical Equipment Co., 118 F.T.C. 706 (1994) (consent orders). The complaint charged that a group of physician-investors, who created joint ventures to provide home oxygen delivery services that are ancillary to the physicians' professional practices, obtained market power, created barriers to entry, and restrained competition in the market for home oxygen systems in Alameda and Contra Costa counties in California. The home oxygen systems are almost invariably prescribed by, or under the direction of, a lung specialist, or pulmonologist and, according to the complaint, approximately 60 percent of the pulmonologists in the relevant geographic markets were recruited as investors in the joint ventures, which were set up as partnerships. The complaint also alleged that by bringing together so many of the physicians who could influence patient choice, the partnerships had market power in the market for pulmonary services, and had the ability to influence patients' choice of oxygen suppliers, through a variety of means. The order prohibits the physicians from acquiring or granting an ownership interest in a firm that sells or leases home oxygen systems in the relevant geographic markets if more than 25 percent of the pulmonologists in the market are affiliated with the firm.
2. Sandoz Pharmaceuticals Corporation,
   115 F.T.C. 625 (1992) (consent order). The complaint charged that Sandoz unlawfully required those who purchased its schizophrenia drug, clozapine (the first new drug for the treatment of schizophrenia in more than 20 years), to also purchase distribution and patient-monitoring services from Sandoz. Blood monitoring of patients taking clozapine is required to detect a serious blood disorder caused by the drug in a small percentage of patients. The complaint alleged that this illegal "tying" arrangement raised the price of clozapine treatment and prevented others - such as private laboratories, the Veterans Administration, and state and local hospitals - from providing the related blood tests and necessary patient monitoring. The order prohibits Sandoz from requiring any purchaser of clozapine, or a patient taking clozapine, to buy other goods or services from Sandoz. The order guards against the possibility that Sandoz might restrict other firms that want to market generic clozapine in the United States after Sandoz's exclusive selling right expires in 1994, by requiring Sandoz to provide information on reasonable terms if any company is in need of information about patients who have had adverse reactions to the drug. The order also requires Sandoz to not unreasonably withhold information from researchers studying the medical aspects of clozapine use.
3. Gerald S. Friedman, M.D.,
   113 F.T.C. 625 (1990) (consent order). The complaint charges that a physician who owned and operated dialysis services in Upland and Pomona, California engaged in an illegal tying arrangement, requiring physicians who used his outpatient dialysis facilities to use his inpatient dialysis services when their patients were hospitalized. The complaint alleged that Dr. Friedman had market power in outpatient services, but could not exploit it because Medicare (the dominant purchaser of chronic dialysis services) limits the amount of reimbursement available for outpatient services. Medicare does not, however, set reimbursement amounts for inpatient dialysis. Consequently, the complaint alleges, Dr. Friedman used the tying arrangements to circumvent Medicare's price regulation and charge higher than competitive prices for the tied inpatient services. Under the order, Dr. Friedman agreed 1) not to require any physician to use his inpatient dialysis service for the physician's patients as a condition for using Dr. Friedman's outpatient dialysis facilities; 2) not to bar physicians who want to treat their patients at Dr. Friedman's outpatient dialysis facilities from owning or operating a competing inpatient dialysis service; and 3) not to deny or otherwise impair a physician's staff privileges at one of his outpatient dialysis facilities because that physician has used or operated an inpatient dialysis service other than Dr. Friedman's.

F. Restrictions on Access to Hospitals

1. Diran Seropian, M.D.
   (See Section II C for citation and annotation.)
2. Medical Staff of Broward General Medical Center
   (See Section II C for citation and annotation.)
3. Medical Staff of Holy Cross Hospital
   (See Section II C for citation and annotation.)
4. North Carolina Orthopaedic Association
   (See Section II C for citation and annotation.)
5. Eugene M. Addison, M.D.
   (See Section II C for citation and annotation.)
6. Medical Staff of Memorial Medical Center
   (See Section II C for citation and annotation.)
7. Health Care Management Corp.
   (See Section II C for citation and annotation.)
8. Sherman A. Hope, M.D.
   (See Section II C for citation and annotation.)
9. Forbes Health System Medical Staff
   (See Section II C for citation and annotation.)
10. Brief of the United States and Federal Trade Commission as Amicus Curiae on Petition for Writ of Certiorari, Jefferson Parish Hospital District No. 2 v. Hyde,
    466 U.S. 2 (1984). Hyde concerned whether a contract for a single group of anesthesiologists to provide exclusive anesthesia services to a Louisiana hospital was per se illegal under the Sherman Act, as a "tie in" of surgical and anesthesia services. The Department of Justice and the Commission filed an amicus brief arguing that exclusive contracts should be judged under the rule of reason rather than under the per se standard, because such contracts may enhance competition among hospitals and among anesthesiologists, and because the allegedly tied products are normally used as a unit. The Supreme Court ruled that the answer to the question whether one or two products are involved turns not on the functional relationship between them (i.e., not on whether it is a functionally integrated package of services), but rather on the character of the demand for the two items. Per se condemnation is appropriate only if the seller is able to "force" the tied product onto buyers by virtue of its market power. The Court ruled that because the record did not contain evidence that the hospital forced anesthesiology services on unwilling patients, there was no basis for applying the per se rule against tying to the exclusive contract arrangement at issue.