An increasing number of physicians are seeking to join or form unions. Hospital-based physicians have effectively unionized in many states as a means to have a voice in decisions affecting patient care, such as staffing levels and the required number of patient encounters per physician. While these unions say that patient care is a primary concern, they generally concede that money is a motivating factor, noting that productivity and utilization targets do factor into compensation formulas.
Why Unionize?
Unions are also being formed by private practitioners as a means to gain bargaining power with HMOs. Trade unions have long been exempt from antitrust laws that would otherwise prohibit physicians from collectively bargaining. However, only employees (and not independent contractors or competitors) can collectively bargain through a union.
Recently, the United Food and Commercial Workers Union sought to represent several hundred New Jersey physicians in negotiations with AmeriHealth HMO. In support of its petition, the union claimed that the HMO controls so many aspects of how its physician members practice that they are de facto employees of the HMO. The National Labor Relations Board (NLRB) disagreed, and the decision is being appealed.
Precedent for Unionization
Some unions say there is precedent for physician unionization, pointing out that truck drivers and screen actors who are independent contractors negotiate through unions. Others are skeptical of this argument, pointing out that truckers and actors generally don't have employees, and, therefore, are not supervisors. On the other hand, private practitioners often have employees and are supervisors, and supervisors and managers are not eligible to be organized as unions.
One of the country's largest physician unions, the Federation of Physicians and Dentists (Federation), is based in Tallahassee, Florida. The Federation boasts some 8,000 members throughout the United States. Its membership includes physicians who are employees of public and private sector entities, as well as physicians in private practice. Not surprisingly, physicians in private practice represent approximately 75% of the Federation's membership. The organization claims to limit its representation in bargaining issues only to employee members. As to the remainder who are not employees, the Federation recognizes the antitrust implications of collective bargaining and generally does not attempt to negotiate with managed care companies on behalf of these physicians as a group. However, the Federation has formed an independent practice association (IPA) and also acts as a "messenger" in negotiating contracts between individual physicians and third party payors. The Federation provides other services to its members, including various insurance benefits and mediation services.
Resistance and Support
Recently, the Federation confirmed that the Department of Justice is investigating allegations that the Federation conspired with certain of its physician members to fix prices, a violation of antitrust laws. The Federation believes that the investigation arose from complaints by Blue Cross Blue Shield of Connecticut after the Federation identified problems it observed in a Connecticut Blues provider agreement. Blue Cross Blue Shield of Delaware has reportedly made similar allegations against the Federation. The Federation has responded by saying that it did nothing wrong, but was merely acting as an agent for the physicians under the messenger model.
The American Medical Association (AMA) is supporting physicians in their efforts to collectively bargain, although it has gone on record as saying it is opposed to strikes. The AMA recently supplied a collective bargaining unit in Rockford, Illinois with two labor attorneys through its new Division of Representation, designed to protect physicians from large business.
Union Alternatives
Bargaining power is becoming increasingly important to health care providers as managed care companies seek to lower costs by offering lower payments to providers. While joining a union may not be a viable alternative for independent physicians, physicians can take other steps top protect themselves in negotiating managed care contracts, such as:
- Forming a large group practice
- Forming an IPA
- Becoming an employee of the provider
- Joining a physician network
- Selling their practices to physician practice management companies