UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
In the Matter of
MICHAEL T. BERKLEY, D.C., and
MARK A. CASSELLIUS, D.C.
File No. 991-0278
AGREEMENT CONTAINING CONSENT ORDER TO CEASE AND DESIST
The Federal Trade Commission ("Commission"), having initiated an
investigation of certain acts and practices of the proposed respondents, named above, and
it now appearing that proposed respondents are willing to enter into an agreement
containing an order to cease and desist from those acts and practices, and providing for
other relief:
IT IS HEREBY AGREED by and between proposed respondents and counsel
for the Commission that:
1. Proposed respondent Michael T. Berkley, D.C., is a chiropractor licensed and doing
business under and by virtue of the laws of the State of Wisconsin, with his principal
places of business located at 322 Cameron Avenue, La Crosse, Wisconsin 54601.
2. Proposed respondent Mark A. Cassellius, D.C., is a chiropractor licensed and doing
business under and by virtue of the laws of the State of Wisconsin, with his principal
places of business located at 2045 32nd Street South, La Crosse, Wisconsin 54601.
3. Proposed respondents admit all the jurisdictional facts set forth in the draft of
complaint here attached.
4. Proposed respondents waive:
(a) any further procedural steps;
(b) the requirement that the Commission's decision contain a statement of findings of
fact and conclusions of law;
(c) all rights to seek judicial review or otherwise to challenge or contest the
validity of the order entered pursuant to this agreement; and
(d) any claim under the Equal Access to Justice Act.
5. This agreement shall not become part of the public record of the proceeding unless
and until it is accepted by the Commission. If this agreement is accepted by the
Commission it, together with the draft of complaint contemplated thereby, will be placed
on the public record for a period of thirty (30) days and information with respect thereto
publicly released. The Commission thereafter may either withdraw its acceptance of this
agreement and so notify proposed respondents, in which event it will take such action as
it may consider appropriate, or issue and serve its complaint (in such form as the
circumstances may require) and decision, in disposition of the proceeding.
6. Within thirty (30) days after this agreement is signed by the proposed respondents,
proposed respondents shall submit an initial report, pursuant to Section 2.33 of the
Commission's Rules, signed by the proposed respondents and setting forth in detail the
manner in which the proposed respondents have complied and will comply with Paragraphs II
and III of the proposed order, including, but not limited to, all steps taken by the
proposed respondents to create and implement an antitrust compliance program. Such report
shall not become part of the public record unless and until the accompanying agreement and
order are accepted by the Commission for public comment.
7. This agreement is for settlement purposes only and does not constitute an admission
by proposed respondents that the law has been violated as alleged in the draft of
complaint here attached, or that the facts as alleged in the draft complaint, other than
jurisdictional facts, are true.
8. This agreement contemplates that, if it is accepted by the Commission, and if such
acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of
Section 2.34 of the Commission's Rules, the Commission may, without further notice to
proposed respondents, (1) issue its complaint corresponding in form and substance with the
draft of complaint here attached and its decision containing the following order to cease
and desist in disposition of the proceeding and (2) make information public in respect
thereto. When so entered, the order shall have the same force and effect and may be
altered, modified or set aside in the same manner and within the same time provided by
statute for other orders. The order shall become final upon service. Delivery by the U.S.
Postal Service of the complaint and decision containing the agreed-to order to proposed
respondents' addresses or their attorneys' addresses as stated in this agreement shall
constitute service. Proposed respondents waive any right they may have to any other manner
of service. The complaint may be used in construing the terms of the order, and no
agreement, understanding, representation, or interpretation not contained in the order or
the agreement may be used to vary or contradict the terms of the order.
9. By signing this agreement containing consent order, proposed respondents represent
that the full relief contemplated by this agreement can be accomplished. Proposed
respondents have read the proposed complaint and order contemplated hereby. Proposed
respondents understand that once the order has been issued, they will be required to file
one or more compliance reports showing that they have fully complied with the order.
Proposed respondents agree to comply with Paragraph II of the proposed order from the date
they sign this agreement. Proposed respondents further understand that they may be liable
for civil penalties in the amount provided by law for each violation of the order after it
becomes final.
ORDER
I.
IT IS ORDERED that, for the purposes of this order, the following
definitions shall apply:
A. "Payer" means any person that purchases, reimburses for, or otherwise pays
for all or part of any health care services for itself or for any other person.
"Payer" includes, but is not limited to, any health insurance company; preferred
provider organization; prepaid hospital, medical, or other health service plan; health
maintenance organization; government health benefits program; employer or other person
providing or administering self-insured health benefits programs; and patients who
purchase health care for themselves.
B "Person" means both natural persons and artificial persons, including, but
not limited to, corporations, unincorporated entities, partnerships, and governments.
C. "Provider" means any person that supplies health care services to any
other person, including, but not limited to, chiropractors, physicians, hospitals, and
clinics.
D. "Reimbursement" means any payment, whether cash or non-cash, or other
benefit received for the provision of chiropractic goods and services.
E. "Qualified risk-sharing joint arrangement" means an arrangement to provide
physician services in which: (1) all physicians participating in the arrangement share
substantial financial risk from their participation in the arrangement through: (a) the
provision of services to payers at a capitated rate, (b) the provision of services for a
predetermined percentage of premium or revenue from payers, (c) the use of significant
financial incentives (e.g., substantial withholds) for its participating physicians, as a
group, to achieve specified cost-containment goals, or (d) the provision of a complex or
extended course of treatment that requires the substantial coordination of care by
physicians in different specialties offering a complementary mix of services, for a fixed,
predetermined payment, where the costs of that course of treatment for any individual
patient can vary greatly due to the individual patient's condition, the choice,
complexity, or length of treatment, or other factors; (2) any agreement on prices or terms
of reimbursement entered into by the arrangement is reasonably necessary to obtain
significant efficiencies through the joint arrangement; and (3) the arrangement does not
restrict the ability, or facilitate the refusal, of physicians participating in the
arrangement to deal with payers individually or through any other arrangement.
F. "Qualified clinically integrated joint
arrangement" means an arrangement to provide physician services in which: (1) all
physicians participating in the arrangement participate in active and ongoing programs of
the arrangement to evaluate and modify the practice patterns of, and create a high degree
of interdependence and cooperation among, the physicians participating in the arrangement,
in order to control costs and ensure quality of the services provided through the
arrangement; (2) any agreement on prices or terms of reimbursement entered into by the
arrangement is reasonably necessary to obtain significant efficiencies through the joint
arrangement; and (3) the arrangement does not restrict the ability, or facilitate the
refusal, of physicians participating in the arrangement to deal with payers individually
or through any other arrangement.
II.
IT IS FURTHER ORDERED that each
respondent, directly or indirectly, or through any corporate or other device, in
connection with the provision of chiropractic goods and services in or affecting commerce,
as "commerce" is defined in Section 4 of the Federal Trade Commission Act, 15
U.S.C. § 44, forthwith cease and desist from:
A. Entering into, adhering to, participating in,
maintaining, organizing, implementing, enforcing, or otherwise facilitating any
combination, conspiracy, agreement, or understanding, express or implied, with any person
or among any persons, to fix, establish, raise, stabilize, maintain, adjust, or tamper
with any fee, fee schedule, price, pricing formula, discount, or other aspect or term of
the fees charged or to be charged for any chiropractic goods or services.
B. Entering into, adhering to, participating in,
maintaining, organizing, implementing, enforcing, or otherwise facilitating any
combination, conspiracy, agreement, or understanding to:
1. Negotiate on behalf of any other chiropractor with any
payer or provider;
2. Deal or refuse to deal with, boycott or threaten to
boycott, any payer or provider; or
3. Determine any terms, conditions, or requirements upon
which chiropractors deal with any payer or provider, including, but not limited to, terms
of reimbursement.
C. Encouraging, advising, pressuring, inducing, or
attempting to induce any person to engage in any action that would be prohibited if the
person were subject to this order.
PROVIDED that nothing in this order shall be construed to
prohibit any agreement or conduct by any respondent that is reasonably necessary to form,
facilitate, manage, operate, or participate in:
(a) A qualified risk-sharing joint arrangement; or
(b) A qualified clinically integrated joint arrangement,
if the applicable respondent has provided the prior notification(s) as required by this
paragraph (b). Such prior notification must be filed with the Secretary of the Commission
at least thirty (30) days prior to forming; facilitating; managing; operating;
participating in; or taking any action, other than planning, in furtherance of any joint
arrangement requiring such notice ("first waiting period"), and shall include
for such arrangement the identity of each participant, the location or area of operation,
a copy of the agreement and any supporting organizational documents, a description of its
purpose or function, a description of the nature and extent of the integration expected to
be achieved and the anticipated resulting efficiencies, an explanation of the relationship
of any agreement on reimbursement to furthering the integration and achieving the expected
efficiencies, and a description of any procedures proposed to be implemented to limit
possible anticompetitive effects resulting from such agreement(s). If, within the first
waiting period, a representative of the Commission makes a written request for additional
information, the applicable respondent shall not form; facilitate; manage; operate;
participate in; or take any action, other than planning, in furtherance of such joint
arrangement until thirty (30) days after substantially complying with such request for
additional information or shorter waiting period as may be granted by letter from the
Bureau of Competition.
III.
IT IS FURTHER ORDERED that each
respondent shall:
A. Within thirty (30) days after the date this order
becomes final, distribute a dated and signed notification letter in the form set forth in
Appendix A to this order along with a copy of the complaint and order in this matter to
each current agent, representative, or employee of the respondent whose activities are
affected by this order, or who has responsibilities with respect to the subject matter of
this order.
B. For a period of five (5) years after the date this
order becomes final, and within thirty (30) days of the date the person assumes such
position, distribute a dated and signed notification letter in the form set forth in
Appendix A to this order along with a copy of the of the complaint and order in this
matter to each new agent, representative, or employee of the respondent whose activities
are affected by this order, or who has responsibilities with respect to the subject matter
of this order.
IV.
IT IS FURTHER ORDERED that each
respondent shall, for a period of ten (10) years after the date this order becomes final:
A. Notify the Commission within thirty (30) days of the
discontinuance of his present business or employment and of each affiliation with a new
business or employment. Each notice of affiliation with any new business or employment
shall include his new business address and telephone number, current home address, and a
statement describing the nature of the business or employment and the duties and
responsibilities.
B. Provide a copy of the complaint and order in this
matter to each new employer within seven (7) days of his employment where the duties and
responsibilities of such employment are subject to the provisions of this order.
V.
IT IS FURTHER ORDERED that each
respondent shall, within thirty (30) days after the date on which this order becomes
final, distribute by first-class mail a copy of this order and the accompanying complaint
to each payer or provider who, at any time since January 1, 1997, has communicated any
desire, willingness, or interest in contracting for chiropractic goods and services with
the respondent.
VI.
IT IS FURTHER ORDERED that:
A. Within sixty (60) days after the date this order
becomes final, each respondent shall submit to the Commission a verified written report
setting forth in detail the manner and form in which he intends to comply, is complying,
and has complied with Paragraphs II, III and V of this order.
B. One (1) year from the date this order becomes final,
annually for the next five (5) years on the anniversary of the date this order becomes
final, and at other times as the Commission may require, each respondent shall file a
verified written report with the Commission setting forth in detail the manner and form in
which he has complied and is complying with Paragraphs II through IV of this order.
VII.
IT IS FURTHER ORDERED that, for the
purpose of determining or securing compliance with this order, upon written request, each
respondent shall permit any duly authorized representative of the Commission:
A. Access, during normal office hours and in the presence
of counsel, to inspect and copy all books, ledgers, accounts, correspondence, memoranda,
calendars, and other records and documents in the possession or under the control of
respondent relating to any matter contained in this order.
B. Upon five business days' notice to a respondent, and
without restraint or interference from that respondent, to interview that respondent or
any employee or representative of that respondent.
VIII.
IT IS FURTHER ORDERED that this order
shall terminate twenty (20) years from the date this order becomes final.
Signed this day of , .
Michael T. Berkley, D.C.
Beth J. Kushner
von Briesen Purtell & Roper, S.C.
735 North Water Street, 10th Floor
Milwaukee, Wisconsin 53202
Counsel for Respondent Berkley
Mark A. Cassellius, D.C.
Joseph J. Connell
Park O'Flaherty, Ltd.
201 Main Street
La Crosse, Wisconsin 54602
Counsel for Respondent Cassellius
FEDERAL TRADE COMMISSION
BY:
Nicholas J. Franczyk,
David A. O'Toole, and
Evan Siegel, Attorneys
Alan E. Krause, Investigator
APPROVED:
C. Steven Baker
Director
Midwest Region
Willard K. Tom
Deputy Director
Bureau of Competition
Richard G. Parker
Director
Bureau of Competition |