Phoebe Putney Health System, Inc., Phoebe Putney Memorial

ORIGINAL
UNITED STATES OF AMERICA
FEDERAL TRADE COMMlSSION
In the Matter of
Phoebe Putney Health System. lnc.,
Phoebe Putney Memorial Hospital, Inc.,
Phoebe North, Inc.,
HCA, Inc. ,
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Docket No. 9348
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Palmyra Park Hospital, lnc., and
Hospital Authority of Albany-Dougherty County.
Respondents.
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______________________________)
MOTION TO QUASH SUBPOENA DUCES TECUM
Pursuant to 16 C.P.R. § 3.34 and Rule 3.34(c) of the Rules of Practice for Adj udicative
Proceedings before the United States Federal Trade Commission (''PTC Rules of Practice"),
Peach State Health Plan ("Peach State''), a non-party to this proceeding, fil es the foJiowing
Motion to Quash the Subpoena Duces Tecum issued to Peach State by Respondents Phoebe
Putney Health System, Inc., Phoebe Putney Memorial Hospital, Inc., and the Hospita l Authority
o f Albany-Dougherty County (the "Phoebe Respondents").
I. INTRODUCTION
On April. 29, 20 13, the Phoebe Respondents served a Subpoena Duces Tecum (the
"S ubpoena'') on Peach State. 1 A copy of the Subpoena is attached hereto as Exhibit 1.
1
Peach
Any motion to limit or quash a subpoena must be filed within the earlier often days after service or the time of
compliance. 16 C.F.R. § 3.34 and FTC Rule of Practice 3.34(c). The subpoena was served on Peach State by
registered mail on Apri l 29, 20J 3. Pursuant to the terms of the subpoena, compliance is required on or before May
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State moves to quash or limit the Subpoena on tluee grounds. First, the Subpoena is overly
broad and undul y burdensome. Second, the timing of the Subpoena and the short time frame for
response make compliance with the Subpoena impossible. Third, some of the documents
requested to be produced are confidential and proprietary in nature and must be protected from
discovery.
II. PROCEDURAL IUSTORY
The investigation at issue in this matter concerns an agreement entered into in December
2010 for the acquisibon of the Palmyra Medical Center by the Hospital Authority of AlbanyDougherty County. The FTC, believing that this acquisition created a "virtual monopoly for
inpatient general acute care services sold to commercial health plans and their customers in
Albany, Georgia and its surrounding area'' opened a preliminary investigation of the acquisition
in December 2010. [Compl. at 2.] That investigation was converted to a formal investigation in
February 201 1. [lQ_J
On July 15, 2011, the Commission granted an unopposed motion by the Respondents to
stay these proceedings. That stay remained in effect until March 14, 2013, whereupon the
investigation recommenced and the Commission directed the issuance of a Revised Scheduling
Order. Pursuant to the Revised Scheduling Order, discovery in this proceeding closes on May
29, 2013.
Now, with one month left in the discovery period, the Phoebe Respondents have issued
sweeping and extensive subpoenas to a number of providers and hospitals in Georgia, including
Peach State. Counsel for Peach State conferred with counsel for the Phoebe Respondents in an
21, 2013. As such, Peach State' s motion to quash or limit must be tiled on or before May 9, 2013 and this motion is
therefore ti mely.
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effort to limit the scope of the subject subpoena by agreement of the parties. That effort was
ultimately unsuccessful.
III.
ARGUMENT AND CITATION OF AUTHORJTY
A. Overview
Administrative Law Judges in FTC proceedings should quash or limit any subpoena that
is unduly burdensome or requires the disclosure of privileged or confidential and proprietary
information. L6 C.F.R. §3.3 L(c)(2)(iii) (use of subpoena and other discovery methods "shall be
limited by the Administrative Law Judge" where the " burden and expense of the proposed
discovery outweigh its likely
benefit")~ 16 C.F.R.
§3.3 l (d) (authorizing Administrative Law
Judges to "deny discovery or make any other order which justice requires to protect a party or
other person from annoyance. embarrassment, oppress.ion, or undue burden or expense, or to
prevent undue delay in the proceeding."): see also Fed. R. Civ. P. 45(c)(3) (a cotut ·'must quash
or modify the subpoena that... requires disclosure of privileged or other protected matter ... [or]
subjects a person to undue burden"). Moreover, Administrative Law Judges have the power to
modify subpoenas and limit the scope of permissible d iscovery. 16 C.P.R. §3.3 1(d); see also Fed.
R. Civ. P. 26(c) (court may grant a protective order to protect a party from annoyance,
embarrassment, oppression, or undue burden or expense).
Information is not discoverable if it is not relevant. Fed. R. Civ. P. 26(b)( l ).
AdditionaUy, discovery requests are overbroad, even if some responsive information is
conceivably relevant, when only a fraction of the documents requested are relevant. Nugget
Hydroelectric, L.P. v. Pac(fic Gas & Elec. Co, 981 F.2d 429, 438-39 (9111 Cir. 1992). The
Subpoena in this case calls for a non-party to produce what is likely to amount to hundreds of
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thousands of pages of documents, none of which the Phoebe Respondents have shown to be
relevant.
B. Objections to Scope of Subpoena
Fi rst, and importantly, Peach State is not a party to this proceeding. The Subpoena would be
burdensome even if it was issued against a party. The fact that it was issued against a non-party
renders it even more unreasonably burdensome.
The Subpoena demands production of documents from January 1, 2008 to the present - a
period of over 5 years. [Subpoena at p. 3, «JB.] Moreover, the specific requests are drafted so
broadly as to require the production of nearly all of Peach State' s records and claims history for
the past five years.
For example, Request No. 1 requires the production of all contracts,
including amendments, appendices and "related documents;' between Peach State and any health
care facility in the state of Georgia. Request No . 9 requires the production of "all proposals by
[Peach State] or any other payor to employers, sponsors, employer groups, unions, agencies,
counties, or municipalities that discuss any health care facility or hospital located in the
Geographic Area." Request No. 11, which has twelve sub-parts, requires the production of all
electronic inpatient files for •·each inpatient discharge at all hospitals in the state of Georgia.'· To
emphasize, this one request calls for Peach State to produce records re]ated to aJl inpatient
discharges at aU hospitals in the state of Georgia for the past five years. It is no exaggeration to
say that it would take Peach State weeks (i f not months) to locate, review and produce
documents responsive to this single request. ln short, responding to these requests would be a
massive task that would disrupt Peach State's business operations and, in any event, could not
possibly be completed within the cun-ent period pem1itted for discovery.
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Further, the Subpoena also requests production of documents containing privileged or
confidential and commercially sensitive information, including competitive sensitive pricing
infom1ation and Peach State trade secrets, disclosure of which should not be required. For
example, Request No. 2 requires the p roduction of '·all documents relatjng to the criteria or
factors used by [Peach State] in selecting which health care facility to contract with in the State
of Georgia, and all documents that apply those criteria." Similarly, Request No. 3 demands the
production of ''documents relating to ... the desirability or necessity of entering into contracts
with any individual health care facility or hospital system." These two requests essentially call
for Peach State to produce all documents and information pertaining to how and why it chooses
to enter into competitive business contracts. This information is proprietary to Peach State and
the Phoebe Respondents have given no legitimate justification as to w hy they should be entitled
to receive it.
Based on the above, it is clear that the undue burden and expense to Peach State of
complying with the subpoena certainly outweighs any benefit that the Phoebe Respondents could
hope to obtain from the production of the requested documents.
As such, the Phoebe
Respondents' Subpoena should be quashed in its entirety pursuant to 16 C.F.R. §§ 3.31 (c)(2)(iii)
and 3.3 1(d).
IV. CONCLUSION
For these reasons, Peach State respectfully requests that the Phoebe Respondents' Subpoena
be quashed in its entirety.
V. CERTIFICATE OF CONFERENCE
Pursuant to FTC Rule of Practice 3.34(c) and 16 C.F.R. § 3.34(c), counsel for Peach State
hereby certify that they have conferred with counsel for the Phoebe Respondents by phone and
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by e-mail in a good faith attempt to resolve by agreement the issues raised herein.
On
Wednesday, May 8, 2013, Erin Graham, counsel for Peach State, and John Fedele, counsel for
Respondents, conferred by telephone in an attempt to resolve Peach State's objections to the
Phoebe Respondents' Subpoena. Despite these efforts, counsel have been unable to reach
agreement on the disputed issues.
Respectfully submitted, this 91h day of May, 2013.
/s/ Erin E. Graham
Erin E. Graham
Georgia Bar No. 857364
Martin M. Wilson
Georgia Bar No. 768862
TROUTMAN SAN DERS LLP
Bank of America Plaza
Suite 5200
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
(404) 885-3979
(404) 962-6751 (facsimile)
eri n. [email protected]
Counsel for Peach State
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Docket No. 9348
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CERTIFICATE OF SERVICE
1 hereby certify that J have this date filed the foregoing document electronically using the
FTC" s E-Filing System, which will send notification of such filing to:
Donald S . Clark
Secretary
Federal Trade Commission
600 Pennsylvania Ave., NW, Rm. H- 113
Washington, DC 20580
I also certify that 1 delivered via electronic mail a copy of the foregoing document to:
The Honorable D. Michael Chappell
Administrative Law Judge
Federal Trade Commission
600 Pennsylvania Ave., NW, Rm. H-110
Washington, DC 20580
[further certify that I delivered via electronic mail a copy of the foregoing document to:
LeeK. Van Voorhis, Esq.
Katherine 1. Funk, Esq.
Teisha C. Johnson, Esq.
Brian RatKin, Esq.
Jeremy Cline, Esq.
Brian Burke, Esq.
Jennifer Semko, Esq.
John Fedele, Esq.
Baker & McKenzie, LLP
815 Connecticut Avenue, NW
Washington, DC 20006
(202) 835-6162
[email protected]
[email protected]
[email protected]
[email protected]
brian.burke@ bakermckenzie.com
[email protected]
[email protected]
Counsel for Respondent
Phoebe Putney Memorial Hospital, Inc., Phoebe
Putney Health Syslem, inc., and Phoebe Nor!h, inc.
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Docket No . 9348
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Emmet J. Bondurant, Esq.
Frank M. Lowrey, Esq.
Ronan P. Doherty, Esq.
Michael A Caplan, Esq.
Bondurant, Mixson & Elmore LLP
1201 Peachtree Street, Suite 3900
Atlanta, GA 30309
(404) 881-4126
bondurant@ bmelaw.com
[email protected]
capJan@ bmelaw.com
Counsel f or Respondent
Hospilal Authority ofAlbany-Dougherty County
Kevin J. Arquit, Esq.
Aimee H. Goldstein, Esq.
Jennifer Rie, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington A venue
New York, NY 10017-3954
(212) 455-7680
[email protected]
[email protected] .com
j [email protected]
Counsel for Respondenr
HCA Inc. and Palmyra Park Hospital, Inc.
111
This 9 day of May, 2013.
TROUTMANSANDERSLLP
Is/ Erin E . Graham
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Docket No. 9348
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EXHIBIT 1
204767221•1
UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
In the Matter of
Phoebe Putney Health System, Inc.
a corporation, and
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Phoebe Putney Memorial Hospital, Inc.
a corporation, and
HCAinc.
a corporation, and
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Docket No. 9348
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Palmyra Park Hospital, Inc.
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a corporation, and
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Hospital Authority of Albany-Dougherty
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C_o un
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y ___________________________ )
RFSPONDENTS' SUBPOENA DUCES TECUM TO
Peach State Health Plan
Pursuant to the Federal Trade Commission's Rules of Practice, 16 C.F.R. §§ 3.31 and
3.34, and the Scheduling Order entered by Chief Administrative Law Judge Chappell on April4,
2013, Respondents, Phoebe Putney Health System, Inc., Phoebe Putney Memorial Hospital, Inc.,
and Hospital Authority of Albany-Dougherty County (''Phoebe") hereby request that Peach State
Health Plan produce the documents set forth below in accordance with the Definitions and
Instructions set forth below:
DEFINITIONS
A.
The term "computer files" includes information stored in, or accessible through,
computer or other information retrieval systems. Thus, you should produce documents
that exist in machine-readable fonn, including documents stored in personal computers,
portable computers, workstations, minicomputers, mainframes, servers, backup disks and
tapes, archive disks and tapes, and other forms of offline storage.
B.
The words "and" and ..or" shall be construed conjunctively or disjunctively as necessary
to make the request inclusive rather than exclusive.
C.
The term "communication" means any transfer of information, written, oral, or by any
other means.
Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
D.
The terms "constitute," "contain," "discuss," "analyze," or "relate to" mean constituting,
reflecting, respecting, regarding, concerning, pertaining to, referring to, relating to,
stating, describing, recording, noting, embodying, memorializing, containing,
mentioning, studying, assessing, analyzing, or discussing.
E.
The term ''documents" means all computer flles and written, recorded, and graphic
materials of every kind in your possession, custody, or control. The term documents
includes, without limitation: electronic mail messages; electronic correspondence and
drafts of documents; rnetadata and other bibHographic or historical data describing or
relating to documents created, revised, or distributed on computer systems; copies of
documents that are not identical duplicates of the originals in that person's files; and
copies of documents the originals of which are not in your possession, custody, or
control.
F.
The terms "each," "any," and "all" mean "each and every."
G.
The term "Geographic Area" means the geographic area including the following counties
in Alabama, Florida, and Georgia: Alabama: Barbour, Henry, Houston, Lee, and Russell;
Florida: Gadsen, Jackson, Jefferson, Hamilton, Leon, and Madison; Georgia: Bibb,
Bleckley, Brooks, Calhoun, Chattahoochee, Clay, Clinch, Coffee, Colquitt, Cook,
Crawford, Crisp, Decatur, Dodge, Dooly, Dougherty, Early. Echols, Grady, Harris,
Houston, Irwin, Jeff Davis, Lanier, Lee, Lowndes, Macon, Marion, Miller, Mitchell,
Muscogee, Peach, Pulaski, Quitman, Randolph, Schley, Seminole, Stewart, Sumter,
Talbot, Taylor, Telfair, Terrell, Thomas, Tift, Turner, Twiggs, Upson, Webster, Wilcox,
and Worth.
H.
The term ..hospital" means a health care facility providing care through specialized staff
and equipment on either an in-patient or out-patient basis.
I.
The term "health care facility" means a hospital, health maintenance organization facility,
ambulatory care center, first aid or other clinic, urgent care center, free-standing
emergency care center, imaging center, ambulatory surgery center and all other entities
that provide health care services.
J.
The term "health plan" means any health maintenance organization, preferred provider
arrangement or organization, managed health care plan of any kind, self-insured health
benefit plan, other employer or union health benefit plan, Medicare, Medicaid,
TRICARE, or private or governmental health care plan or insurat)ce of any kind.
K.
The term "including" shall mean "including without limitation.''
L.
The term "insurance premiums" means the fees paid for coverage of medical benefits for
a defined benefit period.
M.
The term "Palmyra" means RCA/Palmyra, Palmyra Medical Center, and Palmyra Park
Hospital doing business as Palmyra Medical Center and its domestic and foreign parents,
predecessors, divisions, subsidiaries, affiliates, partnerShips and joint ventures, and all
directors, officers, employees, agents, and representatives of the foregoing.
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Subpoena Duces Tecum Issued to Peach State Health Plan (FfC Docket 9348)
N.
The term "payor'' means a person other than a natural person that pays any health care
expenses of any other person, and all of its directors, officers, employees, agents and
representatives. This payor includes, but is not limited to: Blue Cross and Blue Shield,
commercial insurance companies, health maintenance organizations, preferred provider
organizations, competitive medical plans, union trust funds, multiple employer trusts,
corporate or governmental self-insured health benefits plans, Mecticare, or Medicaid.
0.
The term "person" or "persons" means natural persons, groups of natural persons acting
as individuals, groups of natural persons acting in a collegial capacity (e.g., as a
committee, board, pane], etc.), associations, representative bodies, government bodies,
agencies, or any other commercial entity, incorporated business, social or government
entity.
P.
The term ''Phoebe" means Phoebe Putney Health System, Inc., Phoebe Putney Memorial
Hospital, Inc., Phoebe Health Partners.
Q.
The tenn "reimbursement rate" means the rate paid to a health care provider for
performing a certain procedure.
R.
The term "relating to" means in whole or in part constituting, containing, concerning,
discussing, reflecting, describing. analyzing, identifying, or stating.
S.
The term "Transaction" means the Hospital Authority of Albany-Dougherty County's
acquisition of Palmyra Park Hospital, which was consummated in December 2011.
T.
The term "You'' and 11Your" mean Peach State Health Plan and all of its subsidiaries,
affiliates or predecessors.
U.
Unless otherwise defined, all words and phrases used in this First Request for the
Production of Documents shall be accorded their usual meaning as defmed by Webster' s
New Universal Unabridged Dictionary, Fully Revised and Updated (2003).
INSTRUCTIONS
A.
All responsive documents should be produced by May 21,2013.
B.
All references to year refer to calendar year. Unless otherwise specified, each of the
specifications calls for documents and/or information for each of the years from January
l, 2008 to the present.
C.
Un1ess modified by agreement with Respondents, this Subpoena requires a complete
search of all Your files. You shall produce all responsive documents, wherever located,
that are in the actual or constructive possession, custody, or control of Your Company
and its representatives, attomeys, and other agents, including, but not limited to,
consultants, accountants, lawyers, or any other person retained by, consulted by, or
working on behalf or under the direction of You.
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Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
D.
This subpoena is governed by the terms of the attached Protective Order Governing
Discovery Material issued on April21, 2011.
E.
To protect patient privacy, You shall mask any Sensitive Personally Identifiable
Information ("PII'') or Sensitive Health Information ("SHf'). For purposes of this
Subpoena, PIT means an individual's Social Security Number alone; or an .individual's
name or address or phone number in combination with one or more of the following: date
of birth, Social Security Number, driver's Hcense number or other state identification
number or a foreign country equivalent, passport number, financial account numbers,
credit or debit card numbers. For pwposes of this Subpoena, SHI includes medical
records or other individually identifiable health information. Where required by a
particular request, You shall substitute for the masked infonnation a unique patient
identifier that is different from that for other patients and the same as that for different
admissions, discharges, or other treatment episodes for the same patient. Otherwise, You
shall redact the PIT or SID but is not required to replace it with an alternate identifier.
F.
Forms of Production: Your Company shall submit documents as instructed below absent
written consent signed by Respondents.
(1)
(2)
Documents stored in electronic or hard copy format in the ordinary course of
business shall be submitted in electronic format provided that such copies are
true, correct, and complete copies of the original documents:
(a)
Submit Microsoft Access, Excel, and PowerPoint in native format with
extracted text and metadata;
(b)
Submit all other documents other than those identified in subpart (I)(a) in
image format with extracted text and metadata; and
(c)
Submit all hard copy documents in image format accompanied by OCR.
For each document submitted in electronic format, include the following metadata
fields and information:
(a)
For documents stored in electronic format other than email: beginning
Bates or document identification number, ending Bates or document
identification number, page count, custodian, creation date and time,
modification date and time, last accessed date and time, size, location or
path me name, and MD5 or SHA Hash value;
(b)
For emails: beginning Bates or document identification number, ending
Bates or document identification number, page count, custodian, to, from,
CC, BCC, subject, date and time sent, Outlook Message ID (if applicable),
child records (the beginning Bates or document identification number of
attachments delimited by a semicolon);
(c)
For email attachments: beginning Bates or document identification
number, ending Bates or document identification number, page count,
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Subpoena Duces Tecum Issued to Peach State Health Plan (FI'C Docket 9348)
custodian, creation date and time, modification date and time, last
accessed date and time, size, locatio.n or path file name, parent record
(beginning Bates or document identification number of parent email), and
MDS or SHA Hash value; and
(d)
(3)
(4)
For hard copy documents: beginning Bates or document identification
number, ending Bates or document identification number, page count, and
custodian.
Submit electronic fLies and images as follows:
(a)
For productions over 10 gigabytes, use SATA, IDE, and EIDE bard disk
drives, formatted in Microsoft Windows-compatible, uncompressed data
in USB 2.0 extemaJ enclosure;
(b)
For productions under 10 gigabytes, CD-R CD-ROM and DVD-ROM for
Windows-compatible personal computers, USB 2.0 Flash Drives are also
acceptable storage formats; and
(c)
All documents produced in electronic format shall be scanned for and free
of viruses.
All documents responsive to this request, regardless of format or form and
regardless of whether submitted in hard copy or electronic format:
(a)
ShaJl be produced in complete fortll, un-redacted unless privileged, and in
the order in which they appear in Your Company' s files and shall not be
shuffled or otherwise rearranged;
(b)
Shall be produced in color where necessary to interpret the document (if
the coloring of any document communicates any substantive information,
or if black-and-white photocopying or conversion to TIFF format of any
document (e.g., a chart or graph), makes any substantive information
contained in the document unintelligible, Your Company must submit the
originaJ document, a like-colored photocopy, or a JPEG format image);
(c)
If written in a language other than English, shall be translated into English,
with the English translation attached to the foreign language document;
(d)
Shall be marked on each page with corporate identification and
consecutive document control numbers; and
(e)
Shall be accompanied by an index that identifies: (i) the name of each
person from whom responsive documents are submitted; and (ii) the
conesponding consecutive document control number(s) used to identify
that person's documents, and if submitted jn paper form, the box number
containing such documents. If the index exists as a computer file(s),
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Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
provide the index both as a printed hard copy and in machine-readable
form.
G.
If you object to responding fully to any of the below requests for documents based on a
claim of privilege, You shall provide pursuant to 16 C.F.R. § 3.38A, for each such
interrogatory, a schedule containing the following information: (a) the date of all
responsive documents, (b) the sender of the document, (c) the addressee, (d) the number
of pages, (e) the subject matter, (f) the basis on which the privilege is claimed, (g) the
names of all persons to whom copies of any part of the document were furnished,
together with an identification of their employer and their job titles, (h) the present
location of the document and all copies thereof, and (i) each person who has ever had
possession, custody, or control of the documents.
H.
lf documents responsive to a particular specification no longer exist for reasons other
than the ordinary course of business but Your Company bas reason to believe have been
in existence, state the circumstances under which they were lost or destroyed, describe
the documents to the fullest extent possible, state the specification(s) to which they are
responsive, and identify persons having knowledge of the content of such documents.
I.
Any questions you have relating to the scope or meaning of anything in this request or
suggestions for possible modifications thereto should be directed to John Fedele at
(202) 835-6144. The response to the request shall be addressed to the attention of John
Fedele, Baker & McKenzie LLP, 815 Connecticut Ave. NW, Washington, D.C. 20006,
and delivered between 8:30a.m. and 5:00p.m. on any business day to Baker &
McKenzie.
DOCUMENTS TO BE PRODUCED
1.
All contracts between Your Company and any health care facility in the State of Georgia,
including all amendments, appendices, and related documents reflecting any contract
terms including any analyses, reports, or correspondence relating to any contract,
proposed contract, or contract negotiations.
2.
All documents relating to the criteria or factors used by Your Company in selecting
which health care facility to contract with in the State of Georgia, and all documents that
apply those criteria.
3.
All documents relating to competition between and among payors in the State of Georgia.
including but not limited to, the desirability or necessity of entering into contracts with
any individual health care facility or hospital system.
4.
All documents relating to the Transaction, including but not limited to, all documents
sent to or received from the Federal Trade Commission and all documents relating to any
communications between You and the Federal Trade Commission or any existing or
potential customer regarding the Transaction.
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Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
5.
All documents relating to competition between health care facilities in the State of
Georgia, including but not limited to, market studies, quality assessments, forecasts, and
surveys.
6.
All documents describing, discussing, summarizing, or analyzing the utilization of
hospitals in the Geographic Area by enrollees in any health plan that You sponsor or
administer.
7.
All documents relating to the shift, diversion, or referral, or impediments to the shift,
diversion, or referral, of patients or any category of patients to or from any hospital or
any health care facility in the Geographic Area by any payor, including but not limited to,
Your Company.
8.
All documents relating to any complaints by Your Company or any other payor that any
heath care facility in the Geographic Area is raising the rates on its charge master.
9.
All proposals by Your Company or any other payor to employers, sponsors, employer
groups, unions, agencies, counties, or municipalities that discuss any health care facility
or hospital located in the Geographic Area.
10.
All documents relating to the basis upon which (i) employers select or are perceived to
select among payers or health plans, (ii) enrollees select or are perceived to select among
payers or health plans, or (iii) Your Company or any other payor offers different
reimbursement rates to health care facilities based on the quality of care provided at that
facility.
11 .
For each year during the relevant period, provide individual claim level, annual electronic
inpatient ftles in delimited text format that include the following indivjdual data elements
for each inpatient discharge at all hospitals in the State of Georgia:
(a)
a numerical patient identifier that masks the true identity (name) of the patient~
(b)
a unique claim number for that inpatient episode;
(c)
all submitted data elements included on the UB-92 or UB-04 depending on which
form of the claim was submitted to You by the hospital, with alJ data elements
identified by name and a full and complete definition for each data element;
(d)
the Diagnosis Related Group ("DRG'') version and number assigned;
(e)
the allowed amount of the claim as determined by You, the amount You paid the
hospital for that claim, and whether the hospital was paid under a per-diem, DRG,
capitation, percentage of charges, or some other type of reimbursement
methodology;
(f)
the amount of patient capay, deductible, and any other out-of-pocket
responsibility;
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Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
(g)
the commercial name of the health plan product in which the patient was enrolled,
including whether that product is an HMO, PPO, or POS product, the number of
tiers used to identify in-network facilities to the extent any such product contained
tiers, whether that product is a commercial product sold to employers or whether
it is a product sold to beneficiaries of Government insurance programs such as
Medicare or Medicaid, and if so, which Government program;
(b)
whether the hospital was paid as an "in-network" or "out-of-network facility," and
if paid as an "in-network facility," the "tier" in which the hospital was assigned;
(i)
the identity of the patient's admitting physician and, if different, the identity of
the patient's primary treating physician;
(j)
all crosswalk or lookup files necessary to translate encoded or numeric data fields
to their English meaning, as well as an English description ofthe possible values
for any encoded data element;
(k.)
the name(s) of the employee(s) at the health plan responsible for compiling and
maintaining this data file during the relevant period; and
(1)
the name(s) of the employee(s) at the managed care plan principally responsible
for analyzing the data over the relevant period and who made comparisons of
different hospitals' reimbursement rates or prices.
12.
All documents relating to studies, analyses, or comparisons of hospital reimbursement
rates in the Geographic Area, including any studies, analyses, or comparisons of the
reimbursement rates of hospitals in the Geographic Area to hospitals outside the
Geographic Area.
13.
All documents relating to whether Your Company passes on, would pass on, or has
passed on, increases or reductions in hospital reimbursement rates, including by Phoebe
or Palmyra, to health plan members and/or subscribers.
14.
All documents relating to bow Your Company sets pricing (insurance premiums) to its
health plan subscribers and/or members, including but not limited to, whether it
separately sets prices on a local. regional, statewide, or national basis.
15.
For any of Your health plans where Palmyra was "in-network" and Phoebe was "out-ofnetwork" and any of Your health plans where both Phoebe and Palmyra were "in
network," all documents relating to or comparing health plan member and/or subscriber
usage of Palmyra versus Phoebe, including all documents discussing the difference in
cost, if any, to both the health plan. and to the health plan members and/or subscribers in
utilizing Phoebe in Heu of Palmyra or Palmyra in lieu of Phoebe.
-8-
Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
16.
AJl documents relating to most-favored-nation agreements, including Your Company's
efforts to obtain most-favored-nation agreements with any hospital in the State of
Georgia, and the extent to which Your Company has been affected by other payors'
most-favored-nation agreements with hospitals in the State of Georgia.
17.
All documents relating to cost-shifting by any hospital in the State of Georgia
18.
All documents relating to competition to You from the Phoebe Health Plan.
19.
Documents sufficient to show the number of Your members and/or subscribers residing
in the State of Georgia for each health plan product offered by You, organized by
County.
-9-
Subpoena Duces Tecum Issued to Peach State Health Plan (FfC Docket 9348)
CERTIFICATION
Pursuant to 28 U.S .C. § 1746, I hereby certify under penalty of perjury that this response
to the Subpoena Duces Tecum has been prepared by me or under my personal supervision from
the records of Peach State Health Plan and is complete and correct to the best of my knowledge
and belief.
Where copies rather than original documents have been submitted, the copies are true,
correct, and complete copies of the original documents. If Respondents use such copies
in any court or administrative proceeding, Peach State Health Plan will not object based upon
Respondents not offering the original document.
(Signature of Official)
(Title/Company)
(Typed Name of Above Official)
(Office Telephone)
-10-
Subpoena Duces Tecum Issued to Peach State Health Plan (FTC Docket 9348)
Dated: April26. 2013
Respectfully submitted,
By lsi LeeK. Van Voorhis
LeeK. Van Voorhis, Esq.
Katherine I. Funk, Esq.
Brian F. Burke, Esq.
Jennifer A. Semko, Esq.
John J. Fedele, Esq.
Teisha C. Johnson, Esq.
Brian Ra.fldn, Esq.
Jeremy W. Cline, Esq.
Baker & McKenzie LLP
815 Connecticut Avenue, NW
Washington, DC 20006
Counsel For Phoebe Putney Memorial
Hospital, Inc. and Phoebe Putney Health
System, Inc.
Emmet J. Bondurant, Esq.
Frank M. Lowrey, Esq.
Michael A. Caplan, Esq.
Bondurant, Mixson & Elmore LLP
1201 W. Peachtree Street, Suite 3900
Atlanta, Georgia 30309
Counsel for Respondent Hospital
Authority ofAlbany-Dougherty County
- 11-
Subpoena Duces Tecum Issued to Peach State Health Plan (FfC Docket 9348)
CERTIFICATE OF SERVICE
I hereby certify that this 26th day of April, 2013, I delivered via FEDEX this Subpoena
Duces Tecum to:
Peach State Health Plan
C/0 Patrick M. Healy, CEO, Or Person Authorized to Receive Service
3200 Highlands Parkway, Suite 300, Smyrna, GA 30082
I also certify that I delivered via electronic mail a copy of the foregoing document to;
Jeff K. Perry, Esq.
Edward D. Hassi, Esq.
Trial Counsel
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
Washington, DC 20580
ehassi @ftc. gov
Assistant Director
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
Washington, DC 20580
[email protected]
Maria M. DiMoscato, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
Washington, DC 20580
[email protected]
Sara Y. Razi, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania A venue, NW
Washington, DC 20580
srazi @ftc. gov
Christopher Abbott, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
Washington, DC 20580
[email protected]
Lucas Ballet, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania A venue, NW
Washington, DC 20580
[email protected]
Amanda Lewis, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
Washington, DC 20580
alewis [email protected]
Douglas Litvack, Esq.
Federal Trade Commission
Bureau of Competition
600 Pennsylvania Avenue, NW
W ashlngton, DC 20580
[email protected]
- 12-
Subpoena Duces Tecum Issued to Peach State Health Plan (FfC Docket 9348)
Emmet J. Bondurant, Esq.
[email protected]
Michael A. Caplan, Esq.
[email protected] .com
Ronan A. Doherty, Esq.
[email protected]
Frank M . Lowrey, Esq.
[email protected] .com
Bondurant, Mixson & Elmore, LLP
1201 West Peachtree St. N .W., Suite 3900
Atlanta, GA 30309
Kevin J. Arquit, Esq.
[email protected]
Jennifer Rie, Esq
[email protected] .com
Aimee H. Goldstein, Esq.
[email protected] .com
425 Lexington A venue
New York, NY 1001703954
(212) 455-7680
This 26th day of April, 2013.
By:
Is/ Jeremy Cline
Jeremy W. Cline, E sq.
Counsel for Phoebe Putney Memorial
Hospital, Inc. and Phoebe Putney Health
System, Inc.
- J3 -
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
ORIGINAl
)
In the Matter of
)
)
)
)
)
PHOEBE PUTNEY HEALTH
SYSTEM, INC., and
PHOEBE PUTNEY MEMORIAL
HOS~ITAL, INC.,
and
DOCKET NO. 9348
)
)
PHOEBE NORTH, INC., and
HCA INC., and
PALMYRAPARK.HOSPIT~,
)
)
INC., and
HOSPITAL AUTIIORITY OF,
ALBANY-DOUGHERTY COUNTY,
)
)
)·
)
)
)
)
)
Respondents.
____________________________
)
PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL
Commission Rule 3.3l(d) states: ''In order to protect the parties and third parties
against improper use and disclosure of confidential information, the Administrative Law
Judge shall issue a protective order as set forth in the appendix to this section.'' 16 C . F.R.
§ 3.3l(d). Pursuant to Commission Rule 3.3I(d), the protective order set forth in the
appendix to that section is attached verbatim as Attachment A and is hereby issued.
ORDERED:
Date: April21, 2011
ATTACHMENT A
For the purpose of protecting the interests of the parties and third parties in the
above-captioned matter against improper use and disclosure of confidential information
submitted or produced in connection with this matter;
IT IS HEREBY ORDERED THAT this Protective Order Governing
Confidential Material ("Protective Order'') shall govern the handling of all Discovery
Material, as hereafter defined.
I. & used in this Order, "confidential material" shall refer to any document or portion
thereof that contains privileged, competitively sensitive information, or sensitive personal
information. "Sensitive personal information" shall refer to, but shall not be limited to,
an individual's Social Security number, taxpayer identification number, financial account
number, credit card or debit card number, driver's license number, state-issued
identification nmnber, passport number, date ofbirth (other than year), and any sensitive
health information identifiable by individual, such as an individual's medical records.
"Docmnenf' shall refer to any discoverable writing, recording, transcript of oral
testimony, or electronically stored information in the possession of a party or a third
party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of
its employees, agents, attorneys, and all other persons acting on its behalf, excluding
persons retained as consultants or experts for purposes of this proceeding.
·
2. Any docwnent or portion thereof submitted by a respondent or a third party during a
Federal Trade Commission investigation or during the COlli'SC of this proceeding that is
entitled to confidentiality under the Federal Trade Commission Act, or any regulation,
interpretation,. or precedent concerning documents in the possession of the Commission.
as well as any information taken from any portion ofsuch document, shall be tr~ed as
confidential material for purposes of this Order. The identity of a third party submitting
such confidential material shall also be treated as confidential material for the pUipOses of
this Order where the submitter has requested such confidential treatment
3. The parties and any third parties, in complying with informal discovery requests,
disclosure requirements, or discovery demands in this proceeding may designate any
responsive document or portion thereof as confidential material, including documents
obtained by them from third parties pursuant to discovery or as otherwise obtained.
4. The parties, in conducting discovery from third parties, shall provide to each third
party a copy of this Order so as to infonn each such third party ofhis, her, or its rights
herein.
5. A designation of confidentiality shall constitute a representation in good faith and after
careful determination that the material is not ~onably believed to be already in the
public domain and that counsel believes the material so designated constitutes
confidential material as defined in Paragraph 1 of this Order.
2
6. Material may be designated as confidential by placing on or affixing to the document
containing such material (in such manner as will not interfere with the legibility thereof),
or if an entire folder or box of documents is confidential by placing or affixing to that
folder or box, the designation "CONFIDENTIAL-FTC Docket No. 9348'' or any other
appropriate notice that identifies this proceeding, together with an indication of the
portion or portions ofthe document considered to be confidential material. Confidential
information contained in electronic documents may also be designated as confidential by
placing the designation "CONFIDENTIAL-FfC Docket No. 9348" or any other
appropriate notice that identifies this proceeding, on the face of the CD or DVD or other
medium on which the document is produced. Masked or otherwise redacted copies of
documents may be produced where the portions deleted contain privileged matter,
provided that the copy produced shall indicate at the appropriate point tbat portions have
been deleted and the reasons therefor.
7. Confidential material shall be disclosed oruyto: (a) the Administrative Law Judge
presiding over this proceedin& personnel assisting the Administrative Law Judge, the
Commission and its employees, and personnel retained by the CoD1lllission as experts or
consultants for this proceeding; (b) judges and other court personnel of any court having
jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of
record for any respondent, their associated attorneys and other employees of their law
finn(s), provided they are not employees of a respondent; (d) anyone retained to assist
outside counsel in the preparation or hearing of this proceeding including consultants,
provided they are not affiliated in any way with a respondent and have signed an
agreement to abide by the terms of the protective order; and (e) any witness or deponent
who may have authored or received the information in question.
8. Disclosure of confidential material to any person described in Paragraph 7 of this
Order shall be oruy for the purposes of the preparation and hearing of this proceeding, or
any appeal therefrom, and for no other purpose whatsoever, provided, however, that the
Commission may, subject to taking appropriate steps to preserve the confidentiality of
such material, use or disclose confidential material as provided by its Rules of Practice;
sections 6(f) and 21 ofthe Federal Trade Commission Act; or any other legal obligation
imposed upon the Commission.
9. In the event that any confidential material is contained in any pleading, motion, exhibit
or other paper filed or to be tiled with the Secretary of the Commission, the Secretary
shall be so :infonned by the Party filing such papers, and such papers shall be filed in
camera. To the extent that such material was originally submitted by a third party, the
party including the materials in its papers shall immediately notify the submitter of such
inclusion. Confidential material contained in the papers shall continue to have in camera
treab:nent until further order of the Administrative Law Judge, provided, however, that
such papers may be furnished to persons or entities who may receive confidential
material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing
confidential material, the filing party shall file on the public record a duplicate copy of
the paper that does not reveal confidential material. Further, if the protection for any
such material expires, a party may file on the publjc record a duplicate copy which also
contains the formerly protected material.
3
10. lf counsel plans to introduce into evidence at the hearing any document or transcript
containing confidential material produced by another party or by a third party, they shall
provide advance notice to the other party or third party for purposes of allowing that
party to seek an order that the docmnent or transcript be granted tn camera treatment. If
that party wishes in camera treatment for the document or transcript, the party shall file
an appropriate motion with the Administrative Law Judge within S days after it receives
such notice. Except where such an order is granted, all documents and transcripts shall
be part of the public record. Where in camera treatment is granted, a duplicate copy of
such docwnent or transcript with the confidential material deleted therefrom may be
placed on the public record.
11 . If any party receives a discovery request in any investigation or in any other
proceeding or matter that may require the disclosure of confidential material submitted by
another party or third party, the recipient of the discovery request shall promptly notify
the submitter of receipt of such request. Unless a shorter time is mandated by an order of
a court, such notification shall be in vvriting and be received by the submitter at least 10
business days before production, and shall include a copy of this Protective Order and a
cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be
construed as requiring the recipient of the discovery request or anyone else covered by
this Order to challenge or appeal any order requiring production of confidential material,
to subject itself to any penalties for non-compliance with any such order, or to seek any
relief from the Administrative Law Judge or the Commission. The recipient shall not
oppose the submitter's efforts to challenge the disclosure ofconfidential material. In
addition, nothing herein shall limit the applicability ofRule 4.1l(e) of the Commission's
Rules of Practice, 16 CFR 4.1l(e), to discovery requests in another proceeding that are
directed to the Commission.
12. At the time that any consultant or other person retained to assist cowtSel in the
preparation of this action concludes participation in the action, such person shall return to
counsel all oopies of documents or portions thereof designated confidential that are in the
possession of such person, together with all notes, n1emoranda or other papers containing
confidential information. At the conclusion of this proceeding, including the exhaustion
of judicial review, the parties shall return documents obtained in this action to their
submitters, provided,. however, that the Commission's obligation to return documents
shall be governed by the provisions ofRule 4.12 oftheRules of Practice, 16 CFR4.12.
13: The proVisions of this Protective Order, insofar as they restrict the communication
and use of confidential discovery material, shal~ without written permission of the
submitter or further order of the Commission, continue to be binding after the conclusion
of this proceeding.
4