Collective Bargaining/Antitrust Relief

Physicians have frequently discussed the issue of physician unionization and collective bargaining, and it has become an issue that is continually monitored by the Young Physicians Section. Young physician members across the country have expressed frustration in dealing with hospitals and payors which have increased their dominance over health care delivery and patient care. The issue of physician unionization has come to the forefront due in large part to such frustration.

Employed physicians typically become interested in collective bargaining when: (1) employers set goals for increased productivity without consulting the physicians about the likely impact of those goals on the quality of patient care; (2) employers make significant changes in patient care facilities, staffing of the facilities, or administrative procedures used in the facilities without consulting the physicians; (3) employers demand reductions in physician income; or (4) employers break promises or use heavy-handed techniques to force physicians to make concessions.

Many self-employed physicians feel that they lack the ability to negotiate with managed care plans or be involved in key decisions that affect the well being of their patients and the quality of care of their professional practices or training institutions. There have been several examples of unprofessional and egregious health plan tactics in contract negotiations and employment issues.

Self-employed and employed physicians who demand a collective voice and action do so not only to address economic issues, but also to deal with the psychological impact of the practice environment they face. These physicians often believe they have little ability to affect the administrative structures within which care is provided, the financing decisions that determine what kinds of care get provided and which patients receive that care. They feel their medical decision-making capability is being stripped away and they perceive that they are providing only limited, technical services to society. Professional identity and economic identity are inextricably intertwined. Thus, practicing physicians often feel limited in their ability to advocate on behalf of their patients because when physicians lose their economic identity they also lose their professional identity.

Our AMA has been actively pursuing federal legislation aimed at providing antitrust relief. It has also developed model legislation to create a "state action doctrine" at the state level that would permit self-employed physicians to negotiate with plans. To achieve the state action exemption, the state must, in practice, exercise some degree of independent judgment or control over the activity, in this instance, collective negotiation with health plans.

In July 1999, in response to a resoluiton brought forward by the AMA Young Physicians Section, the AMA’s House of Delegates adopted policy that:

• Asked our AMA to develop a national negotiating organization as an OPTION through which physicians and residents can stand together to fight for their patients' rights.
• Strengthened our AMA's Private Sector Advocacy activities, including proactively initiating litigation to stop egregious health plan practices
• Called for continued advocating for anti-trust exemptions for physicians, including activities supporting legislative and regulatory relief.
• Asked our AMA to develop an educational campaign for physicians and the public regarding the possibilities and limitations of a national negotiating unit.
• All AMA activities will adhere to current ethical guidelines and the Principles of Medical Ethics and will continue to maintain the highest level of professionalism for physicians.
• Continued to support the development of independent House staff activities.

The AMA founded Physicians for Responsible Negotiation, the only national, independent labor organization created specifically for physicians. PRN was created on the basis that it understood the shared values of the physician community and was committed to protecting medicine's high standards of ethics and professionalism. Physicians who chose to join PRN agreed not to strike or withhold essential medical services. PRN was designed to restore the integrity of the patient-physician relationship, and to ensure the quality and integrity of patient care, reinforce the physician's historic role as patient advocate and make it economically viable for physicians to practice quality medicine. PRN was created by the AMA to empower physicians in an ever more challenging environment. PRN was designed to  provide physicians with the information, resources and tools needed to stand up for their profession, for patients, and for quality health care.  In early 2004, the AMA and PRN mutually agreed that PRN should operate as an entirely independent organization with no connection to the AMA.

• Educational resources, including Antitrust 101;  
• Additional antitrust information; and
• AMA Advocacy efforts

AMA Policy

Since 1987, our AMA has addressed the need for antitrust relief for physicians and frustration felt by physicians regarding their inability to collectively bargain or negotiate. The AMA House of Delegates has adopted numerous policies on these subjects, which can be found in the AMA PolicyFinder. Selected policies appear below:

H-385.983 Issues Relating to the Economic Representation of Physicians--(1) Through involvement in case-by-case adjudication and NLRB rulemaking procedures, the AMA supports attempting to expand the scope of non-supervisory, employed physicians to permit organization and representation of more physicians under the labor laws. (2) The AMA favors assisting, in a carefully controlled way, the organization and bargaining efforts of employed physicians by providing needed guidance and expertise. (3) The AMA believes that the AMA and medical societies generally are in a better position, both legally and professionally, than labor unions to assist physicians in their collective efforts. (BOT Rep. BBB, A-87; Reaffirmed: Sunset Report, I-97)

H-385.976 Physician Collective Bargaining--The AMA's present view on the issue of physician collective negotiation is as follows: (1) Congress is not now likely to change existing federal antitrust laws to provide special protection for physician collective bargaining. (2) There is more that physicians can do within existing antitrust laws to enhance their collective bargaining ability, and medical associations can play an active role in that bargaining. Education and instruction of physicians is a critical need. The AMA supports taking a leadership role in this process through an expanded program of assistance to independent and employed physicians. (3) The AMA supports continued intervention in the courts and meetings with the Justice Department and FTC to enhance their understanding of the unique nature of medical practice and to seek interpretations of the antitrust laws which reflect that unique nature. (4) The AMA supports continued advocacy for changes in the application of federal labor laws to expand the number of physicians who can bargain collectively. … (6) The AMA supports obtaining for the profession the ability to fully negotiate with the government about important issues involving reimbursement and patient care. (BOT Rep. P, I-88)

H-385.973 Collective Negotiations--It is the policy of the AMA to seek amendments to the National Labor Relations Act and other appropriate federal antitrust laws to allow physicians to negotiate collectively with payors who have market power. (Res. 95, A-90; Reaffirmed by BOT Rep. 33, A-96; Reaffirmation A-97)

H-385.971 Physician Negotiations with Third Party Payors--The AMA (1) will aid, encourage and guide medical societies in efforts to directly negotiate with any larger payor of medical services; (2) will negotiate with national third party payors with regard to national policies which arbitrarily interfere with patient care; and (3) will use its legal and legislative resources to the maximum extent to change the laws to permit physicians to fairly and collectively deal with third party payors. (BOT Rep. MMM, A-91; Reaffirmation A-97)

H-180.975 Insurance Industry Antitrust Exemption--It is the policy of the AMA (1) to continue efforts to have the insurance industry be more responsive to the concerns of physicians, including collective negotiations with physicians and their representatives regarding delivery of medical care; … (3) to analyze proposed amendments to the McCarran-Ferguson Act to determine whether they will increase physicians' ability to deal with insurance companies, or increase appropriate scrutiny of insurance industry practices by the courts; and (4) to continue to monitor closely and support appropriate legislation to accomplish the above objectives. (BOT Rep. DD, I-91; Reaffirmed: Res. 213, I-98)

H-165.954 Organized Medicine’s Role in Health Care Policy and Implementation--It is the policy of the AMA … (2) to continue to seek, as the highest of priorities, the necessary changes in the antitrust laws to permit involvement of organized medicine in the negotiating process, which is inherent in the development and implementation of all areas of health policy; … (Sub. Res. 206, A-92; Reaffirmed: BOT Rep. I-93-40; Reaffirmed by Sub. Res. 110, A-94; Reaffirmation I-96)

H-165.942 Negotiation Issue – Current Activities--The AMA will continue to … (2) pursue enhanced roles for physicians in private sector health plans, including lobbying for appropriate modification of the antitrust laws to facilitate physician negotiation with managed care plans and for legislation requiring managed care plans to allow participating physicians to organize for the purpose of commenting on medical review criteria, and including the development of an AMA team to develop the information and networks of consultants necessary to assist physicians in their interactions with managed care plans; (Reaffirmed: BOT Rep. I-93-25) and (3) enhance its activities in standard setting and enforcement, including the pursuit of protection from antitrust and tort liability necessary to facilitate self regulatory activities. (BOT Rep. QQ, I-92; Reaffirmed: BOT Rep. I-93-40; Reaffirmed: Sub. Res. 110, A-94; Reaffirmation I-98)

H-385.946 Collective Bargaining for Physicians--The AMA will seek means to remove restrictions for physicians to form collective bargaining units in order to negotiate reasonable payments for medical services and to compete in the current managed care environment; and will include the drafting of appropriate legislation. (Res. 239, A-97; Reaffirmation I-98)

H-385.947 Physicians and Unions--The AMA and state and county medical societies will continue their strong primary role as the advocates for physicians and work together whenever possible to enhance organized medicine's ability to represent physicians in the private sector. (BOT Rep. 41, A-97)