Columbia Hospital Corporation; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[Docket 9256]

Columbia Hospital Corporation; Proposed Consent Agreement With

Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of Federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

prohibit, among other things, any hospital combination in the Charlotte

County, Florida, area involving Columbia that would threaten

competition. The proposed consent agreement would require the

respondent to seek prior Commission approval, for ten years, before

consummating any partial or total merger of a hospital in the

designated area with any other hospital in that area.

DATES: Comments must be received on or before April 25, 1994.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary,

room 159, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Oscar Voss, FTC/S-3115, Washington, DC 20580. (202) 326-2750.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 3.25(f) of

the Commission's Rules of Practice (16 CFR 3.25(f)), notice is hereby

given that the following consent agreement containing a consent order

to cease and desist, having been filed with and accepted, subject to

final approval, by the Commission, has been placed on the public record

for a period of sixty (60) days. Public comment is invited. Such

comments or views will be considered by the Commission and will be

available for inspection and copying at its principal office in

accordance with Sec. 4.9(b)(6)(ii) of the Commission's Rules of

Practice (16 CFR 4.9(b)(6)(ii)).

Agreement Containing Consent Order

The agreement herein, by and between Columbia Healthcare

Corporation (a corporation into which Columbia Hospital Corporation was

merged after the issuance of the complaint in this matter), hereinafter

sometimes referred to as ``respondent,'' by its duly designated officer

and attorney, and counsel for the Federal Trade Commission, is entered

into in accordance with the Commission's Rule governing consent order

procedures. In accordance therewith the parties hereby agree that:

1. Respondent Columbia Healthcare Corporation is a corporation

organized, existing and doing business under the laws of Delaware, with

its principal place of business at 201 West Main Street, Louisville,

Kentucky.

2. Respondent's predecessor Columbia Hospital Corporation has been

served with a copy of the complaint issued by the Federal Trade

Commission charging it with violation of section 7 of the Clayton Act

and section 5 of the Federal Trade Commission Act, and has filed an

answer to said complaint denying said charges.

3. Respondent admits all the jurisdictional facts set forth in the

Commission's complaint in this proceeding.

4. Respondent waives:

(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 will be placed on the public

record for a record of sixty (60) days and information in respect

thereto publicly released. The Commission thereafter may either

withdraw its acceptance of this agreement and so notify respondent, in

which event it will take such action as it may consider appropriate, or

issue and serve its decision, in disposition of the proceeding.

6. This agreement is for settlement purposes only and does not

constitute an admission by respondent that the law has been violated as

alleged in the complaint issued by the Commission.

7. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 3.25(f) of the

Commission's Rules, the Commission may, without further notice to

respondent, (1) issue 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 to

cease and desist 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 decision

containing the agreed-to order to respondent's address as stated in

this agreement shall constitute service. Respondent waives any right it

may have to any other manner of service. The complaint may be used in

construing the terms of the order, and no agreement, understanding,

representation or interpretation not contained in the order or the

agreement may be used to vary or contradict the terms of the order.

8. Respondent has read the complaint and the order contemplated

hereby. Respondent understands that once the order has become final, it

will be required to file one or more compliance reports showing that it

has fully complied with the order. Respondent further understands that

it 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. ``Columbia'' means Columbia Healthcare Corporation, a

corporation organized, existing and doing business under the laws of

Delaware, with its principal place of business at 201 West Main Street,

Louisville, Kentucky, as well as its officers, employees, agents,

parents, divisions, subsidiaries, affiliates, successors and assigns,

and the officers, employees, or agents of Columbia's divisions,

subsidiaries, affiliates, successors and assigns.

B. ``Acute care hospital'' means a health facility, other than a

federally owned facility, having a duly organized governing body with

overall administrative and professional responsibility, and an

organized medical staff, that provides 24-hour inpatient care, as well

as outpatient services, and having as a primary function the provision

of inpatient services for medical diagnosis, treatment, and care of

physically injured or sick persons with short-term or episodic health

problems or infirmities. For purposes of this Order, health facilities

whose inpatient services are limited to mental health care,

rehabilitation or substance abuse are not ``acute care hospitals.''

C. To ``acquire an acute care hospital'' means to directly or

indirectly acquire the whole or any part of the assets of an acute care

hospital; to acquire the whole or any part of the stock or share

capital of, the right to designate directly or indirectly directors or

trustees of, or any equity or other interest in, any person which

operates an acute care hospital; or to enter into any other arrangement

to obtain direct or indirect ownership, management or control of an

acute care hospital or any part thereof, including but not limited to a

lease of or management contract for an acute care hospital.

D. To ``operate an acute care hospital'' means to own, lease,

manage, or otherwise control or direct the operations of an acute care

hospital, directly or indirectly.

E. ``Affiliate'' means an entity whose management and policies are

controlled or directed in any way, directly or indirectly, by the

persons with which it is affiliated.

F. The ``Charlotte County area'' means the combined area consisting

of Charlotte County, Florida, together with those portions of Sarasota

and DeSoto Counties, Florida within twelve (12) miles of the present

site of Columbia's Fawcett Memorial Hospital in Port Charlotte,

Florida, excluding the part of that combined area which is west of the

Myakka River.

G. ``Person'' means any natural person, partnership, corporation,

company, association, trust, joint venture or other business or legal

entity, including any governmental agency.

H. The ``Commission'' means the Federal Trade Commission.

II

It is further ordered That, for a period of ten (10) years from the

date this Order becomes final, Columbia shall not, without the prior

approval of the Commission:

A. Acquire any acute care hospital in the Charlotte County area; or

B. Permit any acute care hospital it operates in the Charlotte

County area to be acquired by any person that operates, or will operate

immediately following such acquisition, any other acute care hospital

in the Charlotte County area.

Provided, however, that such prior approval shall not be required

for:

(1) The establishment of a new hospital service or facility (other

than as a replacement for a hospital service or facility, not operated

by Columbia, in the Charlotte County area, pursuant to an agreement or

understanding between Columbia and the person operating the replaced

service of facility); or

(2) Any transaction subject to this Paragraph II of this Order if

the fair market value of (or, in case of a purchase acquisition, the

consideration to be paid for) the hospital, part thereof or interest

therein to be acquired does not exceed one million dollars

($1,000,000).

III

It is further ordered That, for a period of ten (10) years from the

date this Order becomes final, Columbia shall not, without providing

advance notification to the Commission, consummate any joint venture or

other arrangement with any other acute care hospital in the Charlotte

County area for the joint establishment or operation of any new acute

care hospital, hospital medical or surgical diagnostic or treatment

service or facility, or part thereof in the Charlotte County area. Such

advance notification shall be filed immediately upon Columbia's

issuance of a letter of intent for, or execution of an agreement to

enter into, such a transaction, whichever is earlier.

The notification required by this Paragraph III of this Order shall

be given on the Notification and Report Form set forth in the appendix

to part 803 of title 16 of the Code of Federal Regulations (as

amended), and shall be prepared and transmitted in accordance with the

requirements of that part, except that no filing fee will be required

for any such notification, notification need not be made to the United

States Department of Justice, and notification is required only of

Columbia and not of any other party to the transaction. If the

transaction for which notification is required by this Paragraph III of

this Order requires state regulatory approval under a health facilities

certificate of need law, Columbia may, in lieu of the foregoing

notification, submit to the Commission a copy of the application for

such state approval.

Columbia shall comply with reasonable requests by the Commission

staff for additional information concerning any transaction subject to

this Paragraph III of this Order, within fifteen (15) days of service

of such requests.

Provided, however, that no transaction shall be subject to this

Paragraph III of this Order if:

(1) The fair market value of the assets to be contributed to the

joint venture or other arrangement by acute care hospitals not operated

by Columbia does not exceed one million dollars ($1,000,000);

(2) The service, facility or part thereof to be established or

operated in a transaction subject to this Order is to engage in no

activities other than the provision of the following services: Laundry;

data processing; purchasing; materials management; billing and

collection; dietary; industrial engineering; maintenance; printing;

security; records management; laboratory testing; personnel education,

testing, or training; or health care financing (such as through a

health maintenance organization or preferred provider organization); or

(3) Notification is required to be made, and has been made,

pursuant to section 7A of the Clayton Act, 15 U.S.C. 18a, or prior

approval by the Commission is required, and has been requested,

pursuant to Paragraph II of this order.

IV

It is further ordered, That, for a period of ten (10) years from

the date this Order becomes final, Columbia shall not permit all or any

substantial part of any acute care hospital it operates in the

Charlotte County area to be acquired by any other person unless the

acquiring person files with the Commission, prior to the closing of

such acquisition, a written agreement to be bound by the provisions of

this order, which agreement Columbia shall require as a condition

precedent to the acquisition.

V

It is further ordered, That Columbia shall, one year after the date

this Order becomes final and annually for nine (9) years thereafter,

file with the Commission a verified written report setting forth in

detail the manner and form in which it has complied and intends to

comply with this Order.

VI

It is further ordered That, for the purposes of determining or

securing compliance with this Order, and subject to any legally

recognized privilege, upon written request and on reasonable notice to

Columbia made at its principal offices, Columbia shall permit any duly

authorized representatives of the Commission:

1. Access, during office hours and in the presence of counsel, to

inspect and copy all books, ledgers, accounts, correspondence,

memoranda and all other records and documents in Columbia's possession

or control relating to any matter contained in this Order; and

2. Upon five days' notice to Columbia and without restraint or

interference from Columbia, to interview its officers or employees, who

may have counsel present, regarding such matters.

VII

It is further ordered, That Columbia shall notify the Commission at

least thirty (30) days prior to any proposed change, such as

dissolution, assignment, sale resulting in the emergence of a successor

corporation or association, or the creation or dissolution of

subsidiaries or affiliates, which may affect compliance obligations

arising out of this order.

Analysis of Proposed Consent Order To Aid Public Comment

Columbia Hospital Corp. (Docket No. 9256)

The Federal Trade Commission has accepted, subject to final

approval, an agreement to a proposed consent order from Columbia

Healthcare Corporation, successor to respondent Columbia Hospital

Corporation (hereinafter collectively ``Columbia''). The agreement

would settle charges by the Federal Trade Commission that Columbia's

proposed acquisition of Medical Center Hospital, in Punta Gorda,

Florida, violated section 5 of the Federal Trade Commission Act, and

would also have violated section 7 of the Clayton Act if it had been

carried out.

The proposed consent order has been placed on the public record for

sixty (60) days for reception of comments by interested persons.

Comments received during this period will become part of the public

record. After sixty (60) days, the Commission will again review the

agreement and the comments received and will decide whether it should

withdraw from the agreement or issue and serve the agreement's proposed

order.

The Complaint

The Commission issued an administrative complaint against Columbia

Hospital Corp. on February 18, 1993. According to the complaint,

Columbia operates Fawcett Memorial Hospital, a general acute care

hospital in Port Charlotte, Florida, and related health care

facilities. Columbia agreed to acquire Medical Center Hospital, a

general acute care hospital in Punta Gorda, Florida, about five miles

south of Port Charlotte. The complaint alleges that Fawcett and Medical

Center were competitors in the market for acute care inpatient hospital

services in an area including all but the westernmost portions of

Charlotte County, Florida, plus adjacent portions of DeSoto and

Sarasota Counties in Florida. That market, according to the complaint,

was already highly concentrated, and entry by new competitors would be

difficult. The complaint charged that if Columbia carried out its

agreement to acquire Medical Center, the effect of that acquisition

would be substantially to lessen competition in the Charlotte County

area hospital market, in violation of section 5 of the Federal Trade

Commission Act and section 7 of the Clayton Act.

The proposed acquisition challenged in the administrative complaint

was never completed. After the Commission issued the complaint, the

proposed acquisition was preliminarily enjoined by a Federal court,

pursuant to section 13(b) of the FTC Act. Federal Trade Commission v.

Columbia Hospital Corp., 93-30-Civ-FTM-23D (M.D. Fla., injunction

issued May 21, 1993). The court's injunction prohibiting the

acquisition will remain in effect until the Commission gives final

approval to the proposed consent order, or until the Commission's

administrative proceeding against Columbia is otherwise concluded.

The Proposed Consent Order

The first paragraph of the proposed order defines certain other

terms used in the order.

Paragraph II would prohibit Columbia from acquiring, without the

prior approval of the Federal Trade Commission, all or any significant

part of a general acute care hospital in the ``Charlotte Country area''

(an area including most of Charlotte County, Florida, and some adjacent

portions of DeSoto and Sarasota Counties in Florida). It would also

prohibit Columbia from transferring, without prior Commission approval,

any general hospital or significant part thereof it operates in that

area to another person operating (or simultaneously acquiring) a

general hospital in the area. These provisions would give the

Commission authority to prohibit any substantial combination of the

general acute care hospital operations of Columbia with those of any

non-Columbia general hospital in the Charlotte County area, unless

Columbia convinced the Commission that a particular transaction would

not endanger competition in the Charlotte County area hospital market.

Paragraph III would require Columbia to provide advance notice to

the Commission of joint ventures with non-Columbia hospitals for the

establishment of new hospital facilities or services in the Charlotte

County area. This Paragraph would not apply to transactions subject to

the prior approval requirement of Paragraph II, or to the Clayton Act's

premerger notification requirements.

Both Paragraph II and Paragraph III would not cover acquisitions

and joint ventures where the value of the acquired assets, or the

assets contributed to a joint venture by participants other than

Columbia, is $1 million or less. Nor would Paragraph III apply to joint

ventures between Columbia and non-Columbia hospitals that are limited

to the provision of certain specified hospital support services (such

as laundry or laboratory testing) or the establishment of new health

plans (such as health maintenance organizations). In addition,

Paragraphs II and III would both expire ten years after the order

becomes final.

Paragraph IV of the proposed order would prohibit, for ten years,

Columbia from transferring any hospital in the Charlotte County area to

any other person without first filing with the Commission an agreement

by the transferee to be bound by the order. Paragraphs V and VI of the

proposed order would require Columbia to make annual reports to the

Federal Trade Commission, and to make certain documents and personnel

available to the Commission upon request, so the Commission may verify

compliance with the order. Finally, Paragraph VII of the proposed order

would require Columbia to notify the Commission at least thirty days

before any proposed change in corporate structure that may affect

compliance with the order.

The purpose of this analysis is to invite public comment concerning

the proposed order, in order to assist the Commission in its

determination whether to make the order final. This analysis is not

intended to constitute an official interpretation of the agreement and

order or to modify their terms in any way.

The agreement is for settlement purposes only and does not

constitute an admission by the respondent that its proposed acquisition

violated or would have violated the law, as alleged in the Commission's

complaint.

Donald S. Clark,

Secretary.

Separate Statement of Commissioner Mary L. Azcuenaga Concurring in Part

and Dissenting in Part in Columbia Hospital Corporation, Docket 9256

I concur in the decision to publish the proposed consent agreement

for comment, but I would have preferred that the proposed order require

Columbia to provide notice of acquisitions outside the relevant market.

Prior notice can be useful, the Commission has required such relief in

other litigated hospital merger cases, see, e.g., Hospital Corporation

of America, 106 F.T.C. 361, 524 (1985), aff'd, 807 F.2d 1381 (7th Cir.

1986), cert. denied, 107 S. Ct. 1975 (1987), and there is no apparent

reason for granting more favorable treatment to this respondent.

[FR Doc. 94-4043 Filed 2-22-94; 8:45 am]

BILLING CODE 6750-01-M