On the heels of this week’s decree against a Colorado physician group, the Federal Trade Commission announced another order today against the executive director of another Colorado-based physician group. The Commission voted 3-1 to sanction Mary Catherine Higgins, the executive director of Boulder Valley IPA, over remarks she made criticizing the agency’s prior order against the group.
In 2005, the FTC targeted Boulder Valley and forced the IPA to sign a “consent order,” similar to the one I discussed the other day. Although sometimes the Commission targets individual employees in these cases, it did not prosecute Ms. Higgins individually. But the story didn’t end there, according to a dissenting statement issued by Commissioner J. Thomas Rosch:
First, Ms. Higgins denounced the consent decree in the press, asserting, among other things, that Boulder Valley had agreed to the consent decree only to avoid the substantial expense that litigation would entail. Second, in response to the notice for public comment on Boulder Valley’s proposed consent, Anthem Blue Cross Blue Shield complained that “the terms of the Consent Order may be interpreted to allow individuals associated with . . . BVIPA” to continue to attempt to facilitate collusive pricing. Third, following those complaints and conversations with Anthem, staff notified Ms. Higgins that it was evaluating whether to add her to the Boulder Valley complaint or name her separately. Fourth, Ms. Higgins then separately met with the Commissioners (with the exception of the undersigned) in an effort to persuade them not to pursue her individually. Fifth, following those meetings, staff offered Ms. Higgins a consent decree that restricts Ms. Higgins’s ability to participate in a pure “messenger system” in obtaining rates for those physicians that Boulder Valley represents. Sixth, Ms. Higgins rejected that consent decree, but rather than litigate, the Commission has since agree to a consent decree that (unlike the Commission’s consent decree with Boulder Valley) (1) restricts Ms. Higgins to a limited messenger model for one year and (2) prevents Ms. Higgins from negotiating with any payor on behalf of any physician that participates in the BVIPA for two years.
In other words, Ms. Higgins publicly criticized the FTC, upset a major insurance company, and the Commission retaliated. That was too much even for Commissioner Rosch — who is hardly shy about abusing his power — to swallow:
[I]n my view, the Commission’s decision today is unnecessarily punitive: Ms. Higgins cannot possibly do her job to the fullest extent for Boulder Valley if she is limited in her conduct as described. Moreover, I am gravely concerned that the Commission’s abrupt decision to change its tune can be viewed as retaliation for Ms. Higgins’s decision to exercise her First Amendment rights when she publicly criticized the Commission’s initial decision against Boulder Valley and for her ensuing decision to meet individual Commissioners in an effort to persuade them not to pursue her separately.
…I believe that by separately naming Ms. Higgins, the Commission has reneged on its deal. Such actions will inevitably undermine the Commission’s ability to effectively negotiate consent decrees in the future.
Well that last part would be a good thing. As Ayn Rand said, “”In any compromise between food and poison, it is only death that can win.”