Collective bargaining for doctors: Don't count on a green light from Washing

August 23, 1999

Congress isn't likely to exempt you and your colleagues from federal antitrust laws.

Collective Bargaining for Doctors

Don't count on a green light from Washington

Jump to:Choose article section...Depicting managed care as the big bad wolfMaintaining a balance of power between doctors and HMOsSelling the concept of unionized physicians

Congress isn't likely to exempt you and your colleaguesfrom federal antitrust laws.

This spring, California Republican Tom Campbell (RCA, below) introducedthe Quality Health-Care Coalition Act or, as it's more frequently calledon Capitol Hill, HR 1304. The bill would make it legal for doctors--that'sdoctors in solo and group practices, mind you--to bargain collectively.

If it passes, physicians will have nearly the same privileges as unionizedworkers protected under the National Labor Relations Act. The one restrictionon doctors: no strikes. In HR 1304's words, physicians would not have the"right to participate in any collective cessation of service to patients."

The bill has been building support slowly. At last count, it had about130 co-sponsors, including seven of the eight physicians in the House. Interestin HR 1304 also got a boost from the American Medical Association's recentdecision to form a national union for employed physicians, who are allowedto bargain collectively under current law.

But even with the bill's gathering momentum, an antitrust exemption isa long shot. To vote for HR 1304, a member of Congress must place an extraordinaryamount of trust in doctors.

Depicting managed care as the big bad wolf

According to Campbell, HR 1304 would put physicians and other healthcare providers on equal footing with managed care organizations. Physicianscould become strong enough to force an HMO to truly negotiate a contract.No more take-it-or-leave-it dictums. Doctors "will be able to securecontracts of a fair and equitable nature," says Campbell. "Andpatients will be better served."

Testifying before the House Committee on the Judiciary, AMA ExecutiveVice President and CEO E. Ratcliffe Anderson Jr. explained why HR 1304 isdesperately needed. Physicians, he argued, are under siege.

In some parts of the country, managed care organizations are practicallyomnipotent, Anderson said. Through consolidation and acquisition, they havebecome money-mad monsters that now "present physicians with non-negotiablecontract terms that no businessperson with any bargaining power would agreeto. The power of health plans to determine the kind of health care thatpatients receive is virtually unchecked."

High-handed HMOs are only part of the threat to physicians, accordingto Anderson. There's also the matter of half-blind federal agencies. "Despitethe tremendous consolidation of health plans, there has been no significantenforcement action taken by the Federal Trade Commission or the Departmentof Justice against any health care payer or managed care company,"he said. "In stark contrast, the DOJ and FTC have aggressively pursuedphysicians and other providers under the antitrust laws."

Anderson concluded by saying that doctors' push for HR 1304 is basedon altruistic--not self-serving--motives. "The need to level the playingfield in health care contract negotiations is not about restoring some marketpower to physicians," he said. "It's about restoring the balancein favor of adequate representation and appropriate treatment of patients."

Rep. Campbell agrees with Anderson. "First on the list of contractualterms that health care professionals will demand is a greater right to prescribeand care for patients in the proper medical terms," he predicts.

Making the world safe for patients has become the No. 1 justificationfor HR 1304. But to many in Congress, the idea that doctors could be transformedinto white knights who slay, or at least tame, managed care dragons doesn'tquite ring true. Yes, doctors care about their patients. But give physiciansthe right to bargain collectively, the skeptics believe, and what they'llbargain for is more money.

For many, to share Campbell and Anderson's belief in the altruistic doctorrequires a leap of faith. A majority in Congress aren't likely to make thejump.

Maintaining a balance of power between doctors and HMOs

Even if Washington trusted physicians, other objections to HR 1304 wouldprobably keep it from becoming law. While congressional Democrats and Republicans,as well as many in federal agencies such as the FTC and DOJ, acknowledgethat managed care has shortcomings, few see HR 1304 as helping the situation.

"Though there are serious problems concerning the relationship ofHMOs and other health plans to doctors and patients that deserve to be addressed,this is the wrong approach," Robert Pitofsky, chairman of the FTC,testified before the House committee. "Collective bargaining rightsare designed to raise the incomes and improve working conditions of unionmembers. The law protects the United Auto Workers' right to bargain forhigher wages and better working conditions, but we do not rely on the UAWto bargain for safer cars."

Pitofsky--as well as Joel I. Klein, assistant attorney general of theDOJ's antitrust division--also questioned the contention that many marketsare controlled by a single managed care organization that rides roughshodover physicians. "To keep health insurance markets competitive, the[DOJ antitrust] division carefully scrutinizes mergers and other activitiesamong health insurance plans," testified Klein.

To bolster his argument, Klein cited the DOJ's ruling that is forcingAetna to divest some of its holdings before it can acquire Prudential. TheAetna case "clearly establishes the precedent that unacceptable aggregationsof market power by health plans . . . to the detriment of consumers andhealth care professionals [will not be allowed]." The AMA has calledthe ruling "doctor friendly."

Under current law, the FTC and DOJ can prevent managed care from overwhelminga market, but under HR 1304, they would be powerless to prevent physiciansfrom monopolizing it. The bill would, for example, "allow all of thephysicians in a particular medical specialty in an area to demand a 20 percentincrease in fees and to refuse to contract with any insurer who refusedto pay those rates," explained Pitofsky.

The bill's strike restriction also has come under attack. Is there muchdifference between refusing to deal with a managed care organization thathas hundreds or thousands of patients in a given area and carrying a placardon a picket line? "Although providers could not collectively refuseto treat patients, their collective refusal to contract with a plan couldimpose formidable financial obstacles to patients seeking care," saidPitofsky.

Selling the concept of unionized physicians

Some HR 1034 advocates, having heard formidable arguments against themeasure, are working to address these objections. The American College ofPhysicians-American Society of Internal Medicine, for example, is pushingfor what it calls "boundaries," or amendments to the bill.

One amendment would prohibit strikes and work slowdowns in language that'smore specific than what's in HR 1304 now. Another would forbid negotiationsover fees, effectively undercutting the argument that physicians will usethe antitrust exemption for financial gain. "Physicians should be prohibitedfrom engaging in price-fixing or other anti- competitive actions,"says Whitney Addington, ACP-ASIM's president.

Stick to the noble cause, argues ACP-ASIM. As Addington puts it, "Physiciansshould be able to jointly negotiate with managed care plans . . . as longas the purpose is to change health plan policies that adversely affect patients'access to high-quality health care."

But doctors can ride the high road without another new law, say the opponentsof HR 1304. "Health care professionals can and do engage in collectiveadvocacy, both to promote the interests of their patients and to expresstheir opinions about other issues such as payment delays and dispute-resolutionprocedures," the FTC's Pi- tofsky told the committee. "The commissionhas never brought a case based on physicians' collective advocacy with ahealth plan on an issue involving patient care."

Maybe so. But without explicit permission to bargain collectively, doctorsare reluctant to organize for better health care policies. "The currentmanaged care environment has a chilling effect," says Rich Trachtman,ACP-ASIM's director of congressional affairs. "We think Congress needsto make it clear what physicians may do."

HR 1304 is Campbell's second attempt to bestow collective bargainingrights on physicians. His first bill didn't generate enough interest toreach a vote in the House, and even though HR 1304 has received more attention,it will almost surely suffer the same fate. Moreover, the Senate appearsnonplused over the issue; no one there has introduced a bill that wouldbe a companion to HR 1304.

Physicians who want to collectively bargain with managed care must dolot of organized negotiating with Congress first.

By Michael Pretzer, Washington Editor



Michael Pretzer. Collective bargaining for doctors: Don't count on a green light from Washing.

Medical Economics

1999;16:45.