October 1999 Bulletin

Bill would restore physician's role

H.R. 1304 allows health care professions to negotiate with payers

From a Capitol Hill perspective, the question of whether physicians should be forming collective bargaining units or joining unions has never been central to the health policy issues at stake. Instead, the focus of this issue must be viewed in the broader context of health care reform, patient protection legislation, and the growth and merger of health care plans.

In the last few years, we have witnessed an unprecedented consolidation of health care plans, as well as an introduction into the marketplace of several delivery models that have led to a deterioration of the physician-patient relationship. As health plans have gained economic power, some have imposed limits on the time a doctor can spend with a patient, placed restrictions on medical tests, placed restrictions on referrals to a specialist, limited treatment or offered "take it or leave it" contracts. All of these actions have had a detrimental effect on the quality of patient care.

As a consequence, early in the debate the patient and medical professional community, including the AAOS, attempted to address this state of affairs by endorsing strong patient protection provisions, including: a ban on financial incentives with result in the withholding of care or the denial of a referral; a prohibition on "gag clauses;" access to specialists in-network; an expedited independent external appeals mechanism; broad consumer information for patients to compare health plans; and a point-of-service feature to allow patients to go out-of-network for a copayment that was not cost-prohibitive. Six years later, Congress is still considering these legislative proposals-with no end in sight in the near future.

Seen in this context, legislation-at both the federal and state level-to allow health care professionals to collectively negotiate with health plans is just one more tool in the arsenal of legislators and lobbyists to focus public attention on the shortcomings of the current health care delivery system, where:

Unfortunately, while several states have attempted to address these concerns through patient protection legislation, the federal government has not yet acted. In the last Congress, Rep. Tom Campbell (R-Calf.) first proposed a novel approach to restore the physician-patient relationship. Concurrently, physicians also have been forming and joining labor unions.

In the current Congress, Rep. Campbell teamed-up with Rep. John Conyers (D-Mich.) to introduced H.R. 1304, the Quality Health Care Coalition Act of 1999. The Campbell-Conyers bill would allow physicians and other health care professionals to enter into negotiations with health care plans or other payers without violating the antitrust laws. Currently, federal law prohibits physicians from engaging in most collaborative activity when dealing with health care plans.

In June, hearings on H.R. 1304 were held before the House Judiciary Committee and there will probably be a "mark-up" of this legislation in the early fall. As of the August congressional recess, the bill had almost 150 cosponsors, including a majority of the members of the House Judiciary Committee. Similar legislation has not yet been introduced in the Senate.

The Campbell-Conyers bill takes no position on physician unions at all, and this legislation has come to mean very different things to very different constituencies. Labor unions that support the bill believe that they are in the best position to create collective bargaining units and negotiate on behalf of doctors. Thus, they feel that that the passage of this legislation will result in an increase to their rank-and-file union membership. In contrast, many physicians groups support the legislation as an alternative to forming a union, since any group of doctors, medical association, local, state or regional society would be able to collectively negotiate with a health plan.

While the health insurance industry has claimed that the "real" purpose of this approach is to increase physician incomes, it has never been the core intent of this proposal. Instead, it has always been to restore the physician as the central and overriding decision-maker on behalf of the patient.

It was out of this frustration about the control that health plans now have over the delivery of care that the AMA House of Delegates voted to create a collective bargaining unit (the equivalent of a labor union). This action was taken even though almost two-thirds of the physicians in this country would obtain no benefit. Most physicians are not considered employees, according to the definition under the National Labor Relations Act, and there is also some controversy whether residents will be considered as employees under federal law. So, the newly created AMA collective bargaining unit could do nothing on behalf of most physicians. For these, only a change in the antitrust laws would allow all physicians to collectively bargain, regardless of employment status.

While the AAOS has taken no official position on physician unions, the AAOS strongly supports H.R. 1304, and it also remains committed to patient protection legislation.

The very fact that so many members of Congress have cosponsored H.R. 1304, demonstrates that elected representatives recognize that something is clearly wrong with the health care delivery system, and these deficiencies must be corrected. Whether it is done through patient protection legislation or changes to the antitrust laws, Congress must act to address these problems which have an adverse effect on the quality of patient care.

Note: The AAOS has established a toll-free telephone number: 1-888-812-8824, which you can call to urge cosponsorship of H.R. 1304. When you call this number, the operator will connect you directly to your Congressman's office, or you can send a letter to your Representative on your behalf.

David A. Lovett is director of the AAOS Washington office.

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