UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION
In the Matter of
Colegio de Cirujanos Dentistas de Puerto Rico, a professional
association.
File No. 9710038
Agreement Containing Consent Order to Cease and Desist
The Federal Trade Commission ("Commission"), having initiated an
investigation of certain acts and practices of the Colegio de Cirujanos Dentistas de
Puerto Rico ("Colegio"), hereinafter sometimes referred to as "proposed
respondent," or "respondent Colegio," and it now appearing that proposed
respondent is 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 respondent and its counsel, and counsel for
the Commission that:
1. Proposed respondent Colegio is an incorporated professional association of almost
all dentists practicing dentistry in Puerto Rico, and is organized, existing, and doing
business under and by virtue of the laws of the Commonwealth of Puerto Rico, with its
principal place of business located at Calle Manuel V. Domenech #200, Hato Rey, Puerto
Rico, 00918.
2. Proposed respondent admits all the jurisdictional facts set forth in the draft of
complaint here attached.
3. Proposed 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.
4. This agreement shall not become part of the public record of the proceeding unless
and until it is accepted by the Commission. If this agreement is accepted by the
Commission it, together with the draft of complaint contemplated thereby, will be placed
on the public record for a period of sixty (60) days and information in respect thereto
publicly released. The Commission thereafter may either withdraw its acceptance of this
agreement and so notify proposed respondent, 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.
5. This agreement is for settlement purposes only and does not constitute an admission
by proposed respondent 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.
6. This agreement contemplates that, if it is accepted by the Commission, and if such
acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of
§ 2.34 of the Commission's Rules, the Commission may, without further notice to
proposed respondent, (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 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 United States Postal Service of the complaint and decision containing the
agreed-to order to proposed respondent's address as stated in this agreement shall
constitute service. Proposed 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.
7. By signing this agreement containing consent order, proposed respondent represents
that the full relief contemplated by this agreement can be accomplished. Proposed
respondent has read the proposed complaint and order contemplated hereby. Proposed
respondent understands that once the order has been issued, it will be required to file
one or more compliance reports showing that it has fully complied with the order. Proposed
respondent agrees to comply with the terms of the proposed order from the date it signs
this agreement. Proposed 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. "Respondent" or "Colegio" means Colegio de Cirujanos Dentistas
de Puerto Rico, its directors, officers, employees, agents, representatives, predecessors,
successors, and assigns; its subsidiaries, divisions, groups, chapters, and affiliates
controlled by Colegio de Cirujanos Dentistas de Puerto Rico, and the respective directors,
officers, employees, agents, representatives, successors, and assigns of each.
B. "Dentist" means a provider of dental services as defined by the laws of
Puerto Rico, with a degree of D.M.D. or D.D.S..
C. "Person" means both natural persons and artificial persons, including, but
not limited to, corporations, unincorporated entities, and governments.
D. "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
or dental services for themselves.
E. "Provider" means any person, including but not limited to any dentist,
physician, hospital, or clinic, that supplies health care services to any other person.
F. "Reimbursement" means any payment, whether cash or non-cash, or other
benefit received for the provision of dental services.
II.
IT IS FURTHER ORDERED that respondent, directly or indirectly, or through any corporate
or other device, in connection with the provision of dental services in or affecting
commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission
Act, 15 U.S.C. § 44, cease and desist from:
A. Endorsing or approving, refusing to endorse or approve, or prohibiting or declaring
unethical participation in, any health plan based on the amount of, manner of calculating,
or other terms relating to reimbursement for dental services, or on whether the plan is
open to participation by all Colegio members.
B. Entering into, adhering to, participating in, maintaining, organizing, implementing,
enforcing, or otherwise facilitating any combination, conspiracy, agreement, or
understanding:
- 1. To negotiate on behalf of any dentists with any payer or provider;
- 2. To deal, refuse to deal, or threaten to refuse to deal with any payer or provider;
- 3. Regarding any term, condition, or requirement upon which any dentists deal, or are
willing to deal, with any payer or provider, including, but not limited to, terms of
reimbursement and whether the health plan is open to participation by all Colegio members.
C. Communicating to any payer or provider any term, condition, or requirement, on which
Colegio members are willing or unwilling to deal with any payer or provider, including,
but not limited to, terms of reimbursement and whether the health plan is open to
participation by all Colegio members.
D. Communicating with any member regarding the desirability or appropriateness of any
term or condition of dealing with any payer or provider that relates to the amount of,
manner of calculating, or other terms relating to reimbursement for dental services, or to
whether the plan is open to participation by all Colegio members.
E. Exchanging, transferring, or facilitating in any manner the exchange or transfer
among dentists of information (including, but not limited to, any actual or possible
views, intentions, or positions) concerning any dentist's intention or decision with
respect to:
- 1. entering into, refusing to enter into, threatening to refuse to enter into, or
withdrawing from any existing or proposed agreement with any payer; or
- 2. agreeing to, or refusing to agree to, any term, condition, or requirement upon which
any dentist deals, or is likely willing to deal, with any payer or provider.
F. Encouraging, urging, suggesting, requesting, advising, pressuring, inducing, or
attempting to induce any nongovernmental person or organization to engage in any action
that would be prohibited if the person were subject to Part II. of this Order.
PROVIDED, HOWEVER, that nothing contained in this Order shall be construed to prevent
respondent from petitioning any federal, state, or Commonwealth government executive
agency or legislative body concerning legislation, rules, or procedures, or to participate
in any federal, state, or Commonwealth administrative or judicial proceeding, in so far as
such activity is protected by the Noerr-Pennington doctrine.
III.
IT IS FURTHER ORDERED that respondent, directly or indirectly, or through any corporate
or other device, in connection with the provision of dental services in or affecting
commerce, as "commerce" is defined in Section 4 of the Federal Trade Commission
Act, 15 U.S.C. § 44, cease and desist from:
A Prohibiting, restricting, regulating, impeding, declaring unethical, or interfering
with the advertising or publishing by any person of the prices, terms or conditions of
sale of dentists' services, or of information about dentists' services, facilities or
equipment which are offered for sale or made available by dentists or by any organization
with which dentists are affiliated.
B. Prohibiting, restricting, regulating, impeding, declaring unethical, or interfering
with the solicitation of patients, patronage, or contracts to supply dentists' services by
any dentist or by any organization with which dentists are affiliated, through advertising
or by any other means.
C. Encouraging, urging, suggesting, requesting, advising, pressuring, inducing, or
attempting to induce any nongovernmental person or organization to engage in any action
that would be prohibited if the person were subject to Part III. of this Order.
PROVIDED, HOWEVER, that nothing contained in this Order shall prohibit respondent from
formulating, adopting, disseminating, and enforcing, reasonable ethical guidelines
governing the conduct of its members with respect to representations that respondent
reasonably believes would be false or deceptive within the meaning of Section 5 of the
Federal Trade Commission Act, 15 U.S.C. § 45, or with respect to uninvited in-person
solicitation of actual or potential patients who, because of their particular
circumstances, are vulnerable to undue influence.
IV.
IT IS FURTHER ORDERED that respondent shall:
A. 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, as well as
certified Spanish translations thereof, to:
- 1. Each person who, at the time this Order becomes final, is an employee or member of
the Colegio;
- 2. Each payer or provider with whom, at any time since January 1, 1995, the Colegio has
had communications regarding a possible or executed contract for the provision of dental
services.
B. For a period of five (5) years after the date this Order becomes final:
- 1. Within thirty (30) days of the date the person assumes such position, distribute by
first-class mail a copy of this Order and the accompanying complaint, as well as certified
Spanish translations thereof, to each new officer, director, manager, agent,
representative, employee, committee member, or member of the Colegio;
- 2. Annually publish, in an official annual report, newsletter, or memorandum sent to all
members of the Colegio, a copy of this Order and the accompanying complaint, as well as
certified Spanish translations thereof, with such prominence as is given to official
communications or regularly featured articles;
- 3. Annually provide a briefing, class, or seminar for members of the Colegio, available
and open to all members of the Colegio and in conjunction with a meeting open to the full
Colegio membership, on the meaning and requirements of this Order and the antitrust laws,
including penalties for the violation of this Order.
C. For a period of ten (10) years after the date this Order becomes final:
- 1. Maintain complete files and records of all correspondence and other communications
concerning advertising and solicitation by dentists;
- 2. Create and maintain records of nonwritten communications, in which the Colegio
participates, concerning advertising and solicitation by dentists, including in such
records the names and positions of all participants, the dates and locations of the
meetings or other communications, a summary or description of any advice or information
given or stated by the Colegio, and the nature of such information or advice;
- 3. Maintain complete files and records of all ethical codes, bylaws, rules, and
regulations of the Colegio, or amendments or proposed amendments thereto, which concern
advertising or solicitation by dentists;
- 4. Retain and make available to any authorized representative of the Commission on
request the complete files and records required by subparagraphs 1, 2, and 3 of IV. C of
this Order.
PROVIDED, HOWEVER, that nothing contained in the requirements of IV.C. of this Order
shall require respondent to retain any individual document or record responsive to IV.C.
that is over five years old.
V.
IT IS FURTHER ORDERED that the Colegio shall file a verified written report with the
Commission within sixty (60) days after this Order becomes final, annually thereafter for
five (5) years on the anniversary of the date the Order becomes final, and at such other
times as the Commission may by written notice require, setting forth in detail the manner
and form in which the respondent intends to comply, is complying, and has complied, with
this Order. In addition to any other information that may be necessary to demonstrate
compliance, the Colegio shall include in such reports information identifying each payer
and provider that has communicated with the Colegio concerning a possible contract for
dental services, the proposed terms and conditions of any such contract, and the Colegio's
response to such payer or provider.
VI.
IT IS FURTHER ORDERED that the Colegio shall notify the Commission at least thirty (30)
days prior to any proposed change in the Colegio, such as dissolution, assignment, sale,
or other event resulting in the emergence of a successor corporation or association, the
creation or dissolution of subsidiaries or constituent societies or associations, changes
in the requirements for membership in the Colegio, or any other change in the Colegio that
may affect compliance obligations arising out of this Order.
VII.
IT IS FURTHER ORDERED that, for the purpose of determining or securing compliance with
this Order, the Colegio shall permit any duly authorized representative of the Commission:
A. Access, during office hours and in the presence of counsel, to inspect and copy all
books, ledgers, accounts, correspondence, memoranda, calendars, and other records and
documents in the possession or under the control of the Colegio relating to any matter
contained in this Order; and
B. Upon five (5) business days' notice to the respondent, and without restraint or
interference from it, to interview the Colegio's officers, directors, employees, agents,
and other representatives.
VIII.
IT IS FURTHER ORDERED that this Order shall terminate twenty (20) years from the date
this Order was issued by the Commission.
Signed this ____________ day of _____________ 2000.
COLEGIO DE CIRUJANOS DENTISTAS
DE PUERTO RICO |
COUNSEL FOR
FEDERAL TRADE COMMISSION |
BY: Dr. Carlos Justiniano, President
Colegio de Cirujanos Dentistas de Puerto Rico
Rebeca Rojas
Reichard & Escalera
Counsel for Colegio de Cirujanos Dentistas de Puerto Rico |
Steven J. Osnowitz
Gary H. Schorr
|
APPROVED: David R. Pender
Deputy Assistant Director
Willard K. Tom
Deputy Director
Bureau of Competition |
Richard A. Feinstein
Assistant Director
Richard G. Parker
Director
Bureau of Competition |
|