Stay in the Fight

Issue: March/April 2023

Author: Jonathan S. Jones, MD FAAEM

In the last month or so, I feel like I’ve spent nearly as much time talking with the Federal Trade Commission (FTC) and various reporters as I have with patients and consultants. I must admit that this did take a little getting used to and at times I was not entirely thrilled to receive word that yet another reporter with yet another news organization wanted an interview for their story on non-competes, and by the way, the deadline is in four hours. However, this is obviously great!

This is a sign of progress for the Academy. Ever since the founding of the Academy, the inappropriateness of non-compete clauses in emergency physician contracts has been core to our mission. Now non-physicians care too. It is exciting, energizing, and makes one optimistic. For decades, we have fought to bring issues vital to the sustained practice of emergency medicine into the public sphere.

During my time with the Academy, with nearly every discussion involving our core issues, weather it be non-competes, non-physician practitioners, due process, physician oversupply, lack of rigorous residency standards, mental health, boarding of patients, staffing levels, or truly any other issue, the single most difficult problem we face is getting our perspective into the public media. Now, at least in regards to non-competes, we have accomplished that.

Our strategy is not simply to comment on non-competes, but to parlay this newfound public interest in non-competes into wider awareness of the problem with lack of due process, among others.

First, some background. While the FTC (and nearly every federal agency) is fairly secretive about the impetus behind their decisions, this non-compete decision didn’t just happen overnight. Way back in December 2020, AAEM, along with multiple other organizations, wrote a letter to President Biden encouraging him to consider opposition to non-compete clauses as a factor in choosing nominations to the FTC. AAEM was the only national medical organization to sign this letter. While I am sure that this one single letter did not influence his administration’s decision, it sure did not hurt. In addition, it also further cemented the fact that AAEM is the clear expert on this issue amongst medical societies.

Then, in April 2022, when the FTC hosted a listening session on the influence of private equity and consolidation in health care, AAEM was well represented with multiple speakers on the topic. We obviously made an impact as in January of this year, the FTC contacted us and asked to arrange a specific follow-up conference to better understand the Academy’s concerns and our suggested interventions and resolutions.

We have continued to provide information and commentary since these meetings. Then in February of this year, I participated in an FTC sponsored listening session on their new proposed ban on non-competes. AAEM was the only emergency medicine organization officially represented on the call.

The Academy’s official response to the FTC proposal has been submitted and widely publicized to lawmakers and journalists. All information referenced above, including links to the FTC sessions, can be found by visiting our webpage or clicking on the QR code at the end of this article.

Following the most recent FTC call, requests for interviews from journalists greatly increased. Many mentioned that AAEM seems to be a leader in opposing non-competes and that they had not previously heard some of our arguments. This is progress. For far too long, journalists simply went to the American Medical Association (which actually supports the presence of non-compete clauses in physician contracts) or to one of the larger subspeciality organizations.

At least in relation to emergency medicine, the media finally seem to be realizing that bigger does not necessarily mean better. Likewise, better funded does not mean better. Better means better. An unwavering devotion to both the patient and specialty physician, such as the mission of our Academy, means better.

Switching gears a little, I want discuss some concerns I have heard from members as well as non-physicians concerning the FTC proposal to ban non-competes as I think this could help us all communicate our concerns more succinctly.

First, many of our members (and some in Congress) have a general libertarian and/or free-market outlook. At first glance, the FTC rule would seem to run counter to these more general beliefs. Specifically, is it an overreach of executive authority? Is it increasing government interference in private business decisions? Does it simply enlarge the administrative state? Does any of this matter as long as the proposal is good for emergency medicine?

Well, of course it matters.  We do not need to convince EM doctors that it matters, we need to convince the patients, media, politicians, and even hospitals that it matters.

Therefore, as to the concern that the FTC may be overstepping its constitutional authority in proposing a ban, this does not matter. This is a separate issue. It is certainly an important issue, but one on which AAEM cannot comment. We are not a constitutional law society. We are an emergency medicine society. It is premature to have that discussion and detracts from the pertinent issues related to the need for a ban. Other than acknowledging that the Supreme Court may well strike down any final FTC rule, no further discussion of this issue need take place at this time. Anyone pushing this angle is simply sidestepping the true concern which is the appropriateness, or lack thereof, of non-compete clauses, specifically in emergency physician contracts.

And by the way, this is one reason why the Academy is not simply communicating with the FTC, but with media and politicians as well. Even if the FTC ban is overturned, we are working to create enough public and political support so that critical portions of the rule will be pursued by Congress.

As to the argument that the rule is increasing government intervention in private business decisions. Well, if health care were truly a free market system, then this rule may indeed be unnecessary. However, I can think of no industry in this country (perhaps save alcohol distribution), that is further from a true market economy than health care. Health care is essentially the only industry where the consumer has no idea of the actual cost of the product. The consumer also often has limited to no choice as to where to obtain the product. Likewise, the true supplier of the product is often obfuscated from the consumer. Finally, government price controls exist to cover a vast majority of the product. Those arguing against the FTC proposal because it would distort the market or that it is an over intrusive government intervention, have clearly flawed logic. There already is overly intrusive government intervention in health care.

While it feels odd and somewhat uncomfortable to refer to patients as consumers, and medicine as a product, I think some of the problems we face are due to not treating health care as a business. Yes, it is a unique business, but if we are to hold sway with the FTC and other agencies regulating business, then we must, at least in some respects, treat what we do as a simple business.

Much media attention has rightly been given to the fact that many service sector workers, specifically in fast food have non-compete clauses in their contracts. This is egregious and unwarranted. And while we are well compensated, in the grand scheme of things, at least in the business world, how is an emergency physician any different than a short order cook? I hold that we are not. Just as the cook has no inside or proprietary knowledge concerning the restaurant, neither do we have proprietary knowledge of the hospital or of how to practice emergency medicine. It’s not like we know the recipe to the secret sauce. And just as the restaurant does not teach the cook how to cook, the hospital does not teach the doctor how to doctor. The cook and the doctor are both hired because we already possess the knowledge and skills needed for the job. The main difference is compensation.

This leads us to collaborations. It may seem odd at first, but to the ubiquitous Contract Management Group (CMGs), especially one run by private equity, we are simply labor. The CMG sees us as an expense, as a worker, as a provider.

Yes, I actually used the word provider. I hate it too, but that is what we are to CMGs. Incidentally, one CMG for which I work part-time seems to go out of their way to call physicians providers, even given an award to the physician with the highest patient satisfaction for the month, but the award is for the being an excellent “provider.”

If we are to vanquish our advisories, then we need to understand how they think. And so if they see us simply as an expendable and replacement labor expense, then it may well be time to examine the successful strategies of those also viewed as replaceable labor.

Is it time for collective bargaining? I don’t know, but it certainly seems that it is time for serious consideration. Maybe instead of collective bargaining, we need some trust busting. Maybe it’s time to realize that there is no market economy left in health care and so intervention, such as the recent FTC proposal are needed.

To address these questions, the Academy is communicating with multiple other specialties, specifically hospital based specialties, to organize a summit to address shared concerns and pursue meaningful action from either federal agencies or Congress. And we are partnering with allies outside of the house of medicine as well. The American Academy of Emergency Medicine has been fighting for fair and equitable practice rights for decades. We are no longer fighting alone. Like all crises, the COVID crisis affected significant change, some for the better and some for the worse. One repercussion of the crisis is the public realization that the emergency medicine “safety net” has holes.

Together with our like-minded partners in other specialties, similarly impacted workers in other fields, concerned patients, citizens, and politicians, we are starting to mend those holes. The prohibition of non-compete clauses is just the beginning.

This is an exciting time to practice emergency medicine. It is an even more exciting time to be fighting for changes to improve health care delivery in this country. That is what you, I, and every single member of the Academy is doing. Thank you for your support. Stay in the fight.