Opposing Sides Debate Physician Unions

AMA bargaining unit gets warm reception

Antitrust reform advocate turns to AMA

Residents are employees, NLRB rules

Decision "opens door" to unions

Deans say residents are students first


Opposing sides debate physician unions

Will physician unionizing level the playing field or thwart efforts to contain health costs? Physician advocates and insurers expressed widely divergent views at a recent conference.

By Sarah A. Klein, AMNews staff. Jan. 3/10, 2000.

Kennesaw, Ga. -- For an event dubbed the First National Roundtable on

Physician Unionization, the program had all the right elements: the professor

who wrote When Doctors Join Unions, a dyed-in-the-wool union organizer

and his HMO adversary, a representative of the AMA's newly formed

negotiating unit and the envoy of a member of Congress pushing for collective

bargaining rights for independent physicians.

Add to that panel an audience of frustrated and sometimes angry physicians

pursuing their MBAs at Georgia's Kennesaw State University, and you had a

perfect portrait of what drives the unionization movement and where it is

headed.

Like many lectures at universities, the discussion began with a history lesson,

this one from Grace Budrys, the DePaul University professor who has charted

three waves of physician movements. The first began in the late 1960s in

response to fears that the Medicare program and other government-sponsored

health programs would subsume medical practices. Like the second

movement, which developed when professional liability insurance premiums

skyrocketed in the 1970s, it was prompted in part by a clear economic threat.

The latest wave, brought on by loss of control and income to managed care

companies, is similar and will likely have a lasting effect, Budrys said. That's

because it has all the markings of other successful union movements: a

well-paid and sophisticated work force, a momentum that grows out of local

concerns, a backdrop of economic expansion and public opinion that supports

it.

"Current conditions are ripe for physician unionization to take hold," Budrys

said.

The question is who will take part. Under current law only employed

physicians and residents have collective bargaining rights. A number of

traditional labor organizations have mobilized to assist both groups, as has the

AMA with its newly formed and now independent Physicians for Responsible

            Negotiation. But as Jack Seddon, the executive director of the Tallahassee,

Fla.-based Federation of Physicians and Dentists, made clear, it's independent,

self-employed physicians who most want such rights.

Seddon's organization is battling the Justice Dept. over that issue. In August

1998, the government alleged FPD orchestrated a boycott by orthopedic

surgeons in Delaware to compel a local insurer to stop lowering fees. The

feds have also been investigating the conduct of orthopedic surgeons in

Connecticut, Florida and Ohio.

At issue is the method by which the union represented the doctors -- a process

referred to as "the messenger model." According to Seddon, the union acted

within the law, providing advice to individual doctors about contract terms

and not fee-related data on their competitors.

In Dayton, Ohio, where the group's conduct was also under scrutiny, Seddon

said FPD worked to eliminate contract terms from United HealthCare that

allowed for unilateral changes and got provisions for grievance arbitration.

FPD believes that such efforts should be allowed by law and plans to continue

fighting the feds' lawsuit. "We think we've been instrumental in obtaining

change," Seddon said. After all, "the provider agreement is nothing more than

a bad collective bargaining agreement."

David Shafer, United HealthCare's Ohio president, recalled his experience

with FPD's independent physicians differently. According to Shafer, the union

wanted to block the implementation of peer-developed guidelines. "The

physicians would not accept a challenge to their decision-making," even those

that improve patient care, Shafer said.

Shafer filed a complaint with the Justice Dept. after receiving common

responses and common objections that suggested concerted activity. "Unions

must not be used to insulate physicians from accountability requirements of

those who finance and use the health care delivery system," Shafer said.

Rep. Tom Campbell (R, Calif.), who has proposed giving independent

physicians the right to collectively bargain with insurers, said his bill will

impose accountability on both sides and won't provoke a return to health

premium inflation.

Campbell said costs will be contained by employer purchasers, said Lori

Kinder, his chief advisor on health care legislation. To the extent physician

reimbursement will rise, it will come from what the insurers take for

administrative expenses and profits, she said. The Congressional Budget

Office is working on a cost analysis for a House vote scheduled for the

second week of February.

The possibility that the bill will pass is making insurers nervous. Shafer said he

is concerned he will see the dispute in Dayton duplicated around the country.

"It was a reverse take-it-or-leave-it. There was so much power that rested

with the 85% to 90% of orthopedic surgeons, there was no power to deal with

it," Shafer said.

Susan Hershberg Adelman, MD, a pediatric surgeon from Southfield, Mich.,

who is an AMA trustee and serves as president of PRN's board, said that fear

is exacerbated by a concern that doctors will strike.

The antitrust community fears the power physicians will have if they withhold

their services, Dr. Adelman said, but the fear is unwarranted. "The strike

weapon is getting less and less useful. It's just not a good arrow to have in

your quiver," she said.


 


AMA bargaining unit gets warm reception

Earlier divisiveness over an AMA-sponsored collective bargaining organization was not in evidence at an informational session hosted by Physicians for Responsible Negotiation.

By Bonnie Booth, AMNews staff. Jan. 3/10, 2000.

AMNews Interim Meeting '99 coverage - AMA's Interim Meeting site.

San Diego --When the AMA House of Delegates voted to form a national

negotiating organization six months ago, a whirlwind of emotional debate and

media attention threatened to engulf all other house business.

In December 1999, when delegates convened for the first time since that

decision, their silence on the issue seemed to indicate they were satisfied with

the work the AMA Board of Trustees had done.

Although about 100 people attended a forum on Physicians for Responsible

Negotiation, the AMA bargaining organization, the session's tone was

informational. An AMA Board of Trustees report on the subject and one

resolution -- calling for education for physicians and the public about PRN --

passed with nary a comment.

There might have been even less interest in PRN but for the National Labor

Relations Board decision, days before the house convened, that recognized

residents as employees with collective bargaining rights.

Competing with traditional unions

Susan Hershberg Adelman, MD, who is an AMA trustee and president of the

PRN board, said the group is ready and able to organize residents. But she

acknowledged the board is uncertain how many resident groups are likely to

spring up now and whether they will want to be represented by PRN -- with

its prohibition on strikes and the withholding of essential medical care -- or

commercial unions.

"There are rather significant differences," Dr. Adelman said. "We will not

strike and we are bound to the ethical principles of the AMA. We believe

there will be a significant number of resident groups that will feel more

comfortable dealing with us than other labor organizations."

Dr. Adelman said PRN received more than 40 membership applications from

residents here interested in joining the organization.

Ross Rubin, acting executive director of PRN, said a significant number of

physicians in practice also expressed interest in joining and took applications

home.

"One of our 'asks' is to please go back and spread the word to the world," Dr.

Adelman said. "Make sure residents are aware they don't have to affiliate

with commercial unions."

Several dues structures have been developed specifically to sustain members

-- those who want to voice their support for the organization with their wallets

-- and those who are actually developing collective bargaining units and who

are planning on using the services that PRN will provide.

The dues for sustaining membership have been set at $50 per year for

physicians and $25 per year for residents. For physicians who are in a

collective bargaining unit, the dues will be $50 per month ($20 per month for

residents).

Dr. Adelman said a significant amount of money will also be required up front

from initial participants in a unit, but that contribution will be credited against

future dues payments.

"We need to ensure there is sufficient commitment to go down a road that is

very challenging," she said. "We need to know that there are financial and

emotional issues that will keep them together through efforts by institutions to

co-opt some of them out of their effort."

PRN projections call for the organization to have 1,750 employed physicians

and 7,500 resident members by 2005.

In other business, delegates voted to educate physicians and the American

public about the benefits they will derive from an AMA-developed collective

bargaining unit.

"Our greatest advocates are patients," said Mark N. Bair, MD, vice chair of

the AMA's Young Physicians Section. "They need to be educated on this

issue."


Antitrust reform advocate turns to AMA

Rep. Tom Campbell (R, Calif.) said he is pressing for antitrust relief for physicians so they can be free to practice their profession.

By Bonnie Booth, AMNews staff. Jan. 3/10, 2000.

AMNews Interim Meeting '99 coverage - AMA's Interim Meeting site.

San Diego -- The U.S. representative championing self-employed physicians'

right to negotiate with health plans asked doctors at the AMA Interim Meeting

to work with him to ensure the bill's passage.

Rep. Tom Campbell (R, Calif.) said his Quality Health-Care Coalition Act will

leave the House Judiciary Committee with a majority and will likely pass the

House because it has 175 co-sponsors. It needs 218 votes to pass.

But he encouraged physicians who will be visiting the Washington, D.C., area

during the first two weeks of February, when the bill is likely to be voted on, to

stop by his office.

"We will tell you who needs to be convinced," he said. "A visit from a doctor

may make all the difference in those last two weeks."

Campbell told delegates the reasoning behind allowing physicians to band

together to negotiate against health care plans boils down to one simple thesis.

"You should be allowed to practice your profession," he said.

Campbell, a former law professor, said current antitrust law, based on

legislation passed in 1890, was not meant to address the actual service that

physicians provide. It was an interpretation of antitrust enforcement embraced

in the 1970s that brought under the law's purview the services people perform.

In the law's most absurd implementation, he said, it has been used against

physicians who banded together and agreed not to charge above a certain

price.

Campbell's antitrust reform bill has had a difficult history of late. First, Rep.

Henry Hyde (R, Ill.), chair of the House Judiciary Committee, refused to give

the bill a hearing in his committee. Although he eventually relented, House

Speaker J. Dennis Hastert (R, Ill.) then pulled the bill from consideration.

"I went to see the Speaker of the House and basically spent every chit that I

had," Campbell said. "I explained the merits of the bill, and the speaker

promised to have a vote on the House floor. I don't know what it takes to get

matters to the floor at the American Medical Association House of Delegates,

but I expect it's difficult enough that you understand the importance of that

promise from the speaker."

Critics of the California legislator's bill have claimed that it'll increase health

care costs and put some practitioners at an unfair competitive advantage

because it will eliminate competition in the marketplace.

They've also said the 1996 Dept. of Justice/Federal Trade Commission Health

Care Antitrust Guidelines set up adequate options for physicians to organize.


 
 


Residents are employees, NLRB rules

The National Labor Relations Board has ruled that residents at private hospitals are employees -- with the same right to unionize as residents at public hospitals.

By Jay Greene, AMNews staff. Dec. 20, 1999. - Related story on NLRB

ruling.

The National Labor Relations Board last month ruled that residents are

employees, granting union rights to more than 90,000 resident physicians at

private hospitals.

The 3-2 decision, rendered in a case involving physicians in training at Boston

Medical Center, stated that federal law should protect residents and fellows

who wish to collectively bargain for wages, hours and working conditions. The

60-page NLRB ruling compared resident physicians to student employees in

other occupations, including associate lawyers and apprentice architects, who

are granted the right to unionize.

But for 23 years, residents at private hospitals were not afforded federal labor

law protection if they chose to form collective bargaining units. As a result,

few residents at private hospitals join unions -- in most cases only when

they've had the blessing of hospital and medical school administration.

The historic decision has sent chills through the medical education community,

because many fear resident unionization will interfere with traditional faculty

authority over educational matters. Jordan Cohen, MD, president of the Assn.

of American Medical Colleges, said the NLRB's decision could allow unions

to request arbitration whenever residents dispute academic decisions.

"We are very disappointed," Dr. Cohen said. "Nothing has changed the last

two decades, from our perspective. Residents still are primarily students."

Despite the educational aspect of residency training, the NLRB said it had

reached an "erroneous conclusion" in 1976 when it ruled residents were not

entitled to collective bargaining rights in a case involving Cedars-Sinai Medical

Center in Los Angeles.

"Plainly, many employees engage in long-term programs designed to impart

and improve skills and knowledge. Such individuals are still employees,

regardless of other intended benefits and consequences of these programs,''

said the board, which is the federal entity charged with regulating

private-sector labor-management relations.

AMA President Thomas R. Reardon, MD, said the NLRB ruling would

improve working conditions for residents.

"We hope the decision will prompt teaching hospitals and other resident

employers to move quickly in addressing resident concerns in a fair and timely

manner," Dr. Reardon said. "At the same time, we urge residents to use their

newfound rights responsibly, keeping medical ethics, professionalism and

their patients at the forefront of their negotiations with employers."

Dr. Cohen said he hoped the decision would cause residency programs to

improve their working relationships with residents and stave off organizing

efforts by labor unions. "We want to make sure teaching hospitals do what

they can to resolve resident issues and concerns," he said.

Union saw Boston as test case

The decision in Boston Medical Center v. NLRB affects nearly 90,000

physicians in training at private hospitals. Already nearly 20,000 residents who

work in public hospitals are eligible to join unions under state laws. The NLRB

decision merely levels the playing field, legal experts said. About 10,000

residents, including a few hundred working in private hospitals, belong to the

Committee of Interns and Residents, a New York-based resident union.

The CIR filed the lawsuit against NLRB on behalf of 430 residents it

represents at Boston Medical Center, a private hospital formed through the

1996 merger of public Boston City Hospital and private Boston University

Medical Center. As part of the merger agreement, the medical center

recognized CIR's representation of the resident union. But the CIR used the

merger as an opportunity to challenge NLRB's ruling.

"Residents are more employees than they are students and deserve the right to

decide if they want union representation," said Mark Levy, CIR executive

director. "They see the way medicine is managed and controlled right in front

of their eyes. Nobody asks them how they feel about it. Unions are a way to

get their point across."

A spokesman for Physicians for Responsible Negotiation, the national

negotiating organization created by the AMA in June, said the ruling gives

residents opportunities to resolve patient care and workplace issues. Many

residents work more than 80 hours per week and have complained about poor

working conditions for years.

"This decision will now allow physicians in training to raise and resolve

important patient care and other workplace issues with the protection of

federal labor laws," said Susan H. Adelman, MD, PRN president and an

AMA trustee. "We have been waiting for this decision, and we are prepared

to begin working with resident groups that would like to organize through

PRN."

Dr. Adelman said PRN would offer resident physicians a professional

alternative to traditional labor unions. PRN's chief differences with other

physician unions include pledges not to strike or withhold essential medical

services.

"It is now up to resident physicians across the country to decide what is right

for them," said Dr. Adelman. "For some residents, collective bargaining under

federal labor laws will be an important opportunity. Others may choose a

different course. For those who do choose the collective bargaining path, PRN

will be there for them."

California case pushes NLRB

In another recent regulatory ruling that some said influenced the NLRB, a

state labor board in California ruled in October that more than 2,000 residents

at the University of California are hospital employees. That decision clears the

way for residents to vote on whether to form a union affiliated with CIR early

next year.

"Residents have been asked to increase our work load more and more," said

Denise Greene, MD, a second-year psychiatry and family medicine resident at

the University of California, Davis. "We have heavier patient loads and new

patient duties we were not asked to perform in the past. There are fewer RNs

on the floor, and they have cut back on lab techs so many times that we have

to draw blood ourselves and run it down to the lab."

To address such concerns, University of California residents formed an

independent housestaff organization in the 1980s, the University of California

Assn. of Interns and Residents. But few residents were able to take on the

necessary administrative and leadership duties. The organization soon went

into limbo.

But in 1996, under the leadership of Andrea Cervanka, MD, the California

group affiliated with CIR. Through CIR, the California residents petitioned for

permission from the state Public Employee Relations Board to form a union.

That board ruled residents do enough work to be considered hospital

employees.

"Even though we had 500 residents in the association, it was very difficult to

pay for a full-time staff person to keep things going and everyone informed,"

said Dr. Cervanka, now a CIR vice president in California. "Resident leaders

have to train their successors, and that is very difficult because everyone is so

busy."

Despite the administrative and organizational challenges, some resident

organizations are opting for independent housestaff associations.

For example, several hundred residents at Montefiore Medical Center in New

York City signed a petition to form a housestaff association, said Michael Suk,

MD, a Montefiore resident and chair of the interim executive committee of the

Montefiore Housestaff Assn. Although not formally recognizing the resident

association, Montefiore officials have agreed to add residents of their choice

to hospital committees and clinical department work groups.

"The medical school and the administration have thrown Band-Aid after

Band-Aid at us but have continued to deny one central element -- they have

refused to recognize us as an organization of residents," said Dr. Suk, who

served on the AMA Board of Trustees in 1995 while a medical student. "They

have encouraged us to become part of hospital committees, but they have

completely denied us the right to peer-select the residents or to allow us to

have a vehicle by which residents can communicate with each other."

But Steve Safyer, MD, Montefiore's senior vice president and chief medical

officer, said the hospital complies with all rules required of it by the

Accreditation Council for Graduate Medical Education, the national residency

program accrediting body. Dr. Safyer added that most residents are happy

with their work and educational environment.

"We reject the concept of the so-called IHO," Dr. Safyer said. "We don't

embrace unionization. We are very strong on creating the best educational

environment possible and making sure patients get the best quality care. I

believe we already have a process here that has residents in traditional

hospital committees and involved in resident work groups. Unions only

interfere with the process."

Although the AMA is assisting residents in forming housestaff associations at

several teaching hospitals, including Montefiore, residents who wish to form

collective bargaining units also have the option to contact PRN for assistance,

Dr. Adelman said.

But CIR's Levy and Dr. Cervanka said the organizations were difficult to

maintain because residents had little time to train replacements.

"Every IHO that has been formed eventually has turned into a union or fizzled

out," Levy said.

"You need to bring in someone to keep records and who has the institutional

memory and resources to keep things going. The practical matter is that IHOs

will become unions if there is a need to be."


 


Decision "opens door" to unions

Physicians in training fear the labor board ruling could be used to thwart some forms of negotiating and to justify cuts in federal GME funding.

By Jay Greene, AMNews staff. Dec. 20, 1999. - Related story on NLRB

ruling - AMNews Interim Meeting '99 coverage - AMA's Interim Meeting site

San Diego -- A week after the elation of victory, residents began the sobering

task of trying to realize what they won -- and at what cost -- when the

National Labor Relations Board ruled in late November that doctors in training

are employees entitled to collective bargaining rights.

A resolution approved by the Resident and Fellow Section at the AMA's

Interim Meeting this month calls on the AMA to study the effects of employee

status on education, funding for graduate medical education, resident finances

and formation of housestaff organizations. A final decision by the AMA

House of Delegates on the matter was not available at press time.

"This ruling is what we wanted," said Christopher Cogle, MD, Resident and

Fellow Section chair, in reference to the NLRB decision. "We need to study

the implications of our new designation and understand how effective a

housestaff association or a labor union can be to help us advance good patient

care."

Because any discussion between an organized housestaff association and

hospital officials can now be construed as a "negotiated agreement" if

promises are made, such talks are not likely to occur as often, said Mark

Flaherty, an attorney with Physicians for Responsible Negotiations, a national

negotiating organization created by the AMA in June to assist employed

residents and physicians.

"If a hospital works with an independent housestaff organization, the NLRB

views that as voluntary recognition," Flaherty said. "We predict most hospitals

will not want to bargain with IHOs."

Several IHOs -- or PHOs, professional housestaff organizations, as they are

also called -- are in existence at academic health centers. They include PHOs

at Tulane University School of Medicine in New Orleans, Vanderbilt

University School of Medicine in Nashville, the Cleveland Clinic and the

Medical College of Ohio in Toledo. A dozen or more are under development,

AMA officials said.

Decision may chill talks

"It is highly likely" that the NLRB's decision will chill talks between residents

and hospitals in matters involving workplace issues, said Darrell Kirch, MD,

dean of the Medical College of Georgia, Augusta. Dr. Kirch is past chair of

the AMA's Section on Medical Schools.

To evaluate the effects of the NLRB's decision, residents approved another

resolution instructing the Resident and Fellow Section to study the impact of

existing labor unions and housestaff organizations at teaching hospitals. The

RFS also will disseminate educational materials to residents on the ruling.

"It is very important to study housestaff organizations so we can learn from

them," said George Hanna, MD, a delegate from Massachusetts. "Very few

people understand the true benefits and disadvantages. If we understand

them, then we can better choose our options."

At Montefiore Medical Center in New York City, Michael Suk, MD, said the

NLRB's decision gives residents who recently formed a housestaff association

the union option.

"We have important issues in patient care we want to collectively address with

hospital administration," said Dr. Suk, an RFS delegate from New York. "The

NLRB opened the door for us. We are at an institution where the

administration will not recognize us as a PHO. We are hoping to work

constructively with administration on issues that affect us all."

Dr. Suk said the new Montefiore Housestaff Assn. plans to meet later this

month to decide strategy. "PRN is completely available to us," he said. "We

want the option to be available to residents. It is up to them now."

AMA Chair D. Ted Lewers, MD, told residents he supports the NLRB's

decision. "It's good news for those who wish to negotiate," he said. "With

PRN, we now have the structure to help you."

But Dr. Lewers cautioned residents to emphasize the point in negotiations that

they are physicians in training and not merely employees. One reason:

Congress is expected to consider next year a Medicare advisory body's

recommendation to eliminate direct GME funding to teaching hospitals.

Instead, the Medicare Payment Assessment Commission recommends paying

academic health centers an "enhanced" Medicare reimbursement to

compensate them for their higher level of services to beneficiaries.

"It is very important in your negotiations to keep that connection [to

education]," Dr. Lewers said. "Don't claim you are employees. Tie

employment and education together. There are people who want to take GME

funding away."


 
 


Deans say residents are students first

Though generally wary of a recent decision allowing collective bargaining by residents, medical educators see some potential benefit in the ruling.

By Vida Foubister, AMNews staff. Dec. 20, 1999.

AMNews Interim Meeting '99 coverage - AMA's Interim Meeting site.

San Diego -- The National Labor Relations Board ruling last month that gave

collective bargaining rights to resident physicians at private hospitals

emphasizes their role as employees.

But members of the AMA's Section on Medical Schools are eager to keep

their focus on education.

"I'm afraid we're on a slippery slope," said H. David Wilson, MD, chair of the

section and dean of the University of North Dakota School of Medicine and

Health Sciences in Grand Forks. "We're concerned with the residents as

students. Now they're seen as workers."

Although they recognize that residents have hesitated to report grievances for

fear of causing their program to lose accreditation, there are concerns among

the medical educators who attended the section's meeting during this month's

Interim Meeting that further unionization within the profession will tarnish

the public's perception of physicians.

"Can we maintain a profession if we engage in this activity?" Dr. Wilson

asked. "I try to keep an open mind, but I'm a little skeptical."

A further challenge is how to apply the ruling, given that resident job

arrangements often involve a medical school and a mix of public and private

hospitals. In addition, residents often do rotations among various facilities.

"Residencies are not designed for ease of employment; they're designed for

educational needs," said Kevin Pranikoff, MD, associate professor of urology

at State University of New York at Buffalo.

"It's a decision that is going to be very difficult in practical terms to

adjudicate," he added.

PRN: A solution?

Although questions remain about some of the ruling's implications, most

section members urged the AMA to act quickly to promote organized

medicine options to residents who are looking to unionize. They include

Physicians for Responsible Negotiation, the AMA's newly formed national

negotiating organization, and the Association's private-sector advocacy group.

"It's going to be a very interesting time to see how this sorts out, but we can't

afford to sit and see what happens," said Barbara A. Chase, MD, a member

of the governing council and dean for student and clinical affairs at Tufts

University School of Medicine in Boston. "The AMA must be very proactive

in view of the ruling to offer PRN as the solution for housestaff and employed

physicians who want to form a collective bargaining unit."

But many realize that PRN doesn't yet have the resources, infrastructure or

experience to compete with established organized labor groups.

That has put pressure on PRN to act quickly and to limit its appeals to those

residents who are currently looking to organize, said Susan Hershberg

Adelman, MD, an AMA trustee and PRN president.

"Before this opinion, it would have been more practical to be very, very

low-profile and to start sending out materials in a very gradual AMA way,"

she said. "But now the level of urgency has greatly increased, and it is

extremely obvious that we need to move faster."

Some fear that PRN's adherence to the principles of medical ethics --

including no strikes -- raises the stakes that residents might look elsewhere for

more aggressive action.

"What if you're not tough enough?" asked Dr. Wilson. "What if you're not

mean enough? Then these other people are waiting in the wings."

Deans see ruling's potential benefit

The ruling is also expected to affect how hospital administrators and residents

interact and, in situations where legitimate grievances exist, be beneficial.

"Out of necessity, they're going to have to be more concerned with a

disgruntled employee as opposed to a disgruntled student in terms of possible

litigation," Dr. Pranikoff said.

Added Dr. Wilson: "Institutions that have been taking advantage of interns

and residents will think twice before they do that."

Those with union experience, such as the New Jersey Medical School in

Newark and the faculty of the American Assn. of University Professors, said

good medical education and unions are not incompatible.

"We have learned how to live with unions," said dean Ruy V. Lourenco, MD.

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