A bitter power struggle between doctors and health insurers has spread from Congress to the D.C. Council, which is considering a bill to enable self-employed physicians in the city to collectively bargain health plan contracts without fear of breaking federal antitrust laws.
The measure would allow D.C. doctors to band together to discuss patient-care issues with all health plans and to negotiate physician fees with the larger insurers and health maintenance organizations.
Doctors would be able to argue for insurers to expand lists of approved drugs, change financial incentives for physicians, alter quality control supervision of doctors, allow patients longer hospital stays and change any other contractual rule. They would not be able to strike or carry out boycotts.
Independent doctors now are permitted to compete only with each other, and antitrust laws prohibit them from wielding their combined influence against the health plans that pay them.
For insurers, participation in such negotiations under the bill would be voluntary--a key difference from labor laws that require employers to bargain with organized employees. But analysts say that in practical terms, health plans would be forced to come to the table.
The bill puts the District at the forefront of the American Medical Association's battle to restore physician autonomy lost during the rise of the managed-care industry in recent years.
The D.C. Medical Society says the bill, which it submitted to the council based on AMA model legislation, would help doctors act in patients' best interests and blunt the growing clout of insurers, which the society says sometimes undermines good care.
"It's necessary to be able to bring physicians to the table to discuss patient care . . . and other issues because the market is becoming increasingly dominated by a few large players," said Byron Cooper, president of the D.C. Medical Society.
Although the D.C. Council isn't likely to conduct hearings until the fall, insurance industry critics and federal officials already are ridiculing the bill as a blatant attempt by doctors to exempt themselves from consumer protections that prevent unfair trade practices.
"It allows them to form cartels and negotiate on prices, which is going to have a direct impact on health care costs," said Louis Saccoccio, general counsel of the American Association of Health Plans. "There are many other ways of getting to the issue of patient care and physician control without carving out a whole new exception to the antitrust laws."
The D.C. bill carefully navigates the thicket of antitrust laws, administrative rules and judicial precedents that doctors say have muzzled them for decades. Although mergers and acquisitions have concentrated vast economic power in the hands of a shrinking number of insurers, it remains illegal for self-employed physicians to act in concert to restrain trade or to exercise market control over hospitals, HMOs or other elements of the health industry.
Texas is the only jurisdiction that has a physician-negotiation law, but it hasn't taken effect. A similar bill on Capitol Hill, sponsored by Rep. Tom Campbell (R-Calif.) is pending in the House with strong AMA support, but its prospects are uncertain.
AMA President Thomas Reardon said the Texas and D.C. legislation represent the first wave of a campaign he hopes will sweep through many other state capitals.
"These actions reflect physicians' feelings of helplessness in dealing with large managed-care insurance companies," said Reardon, a Portland, Ore., general practitioner. "An individual physician has little or no influence or clout. You can call the insurance company and say you don't like something, and they can say, 'Thank you,' and hang up."
About 17 percent of U.S. doctors are employed by hospitals, HMOs and other medical organizations and already may unionize under federal labor laws. These new measures are designed to cover the other 83 percent, who technically are independent contractors.
"The whole health-care delivery system has changed radically in the last decade, and the lines of authority have shifted--and in some ways not for the better," said the D.C. bill's lead sponsor, council member Phil Mendelson (D-At Large), who has five co-sponsors on the 13-member body. "This is a step at trying to reshuffle the balance. I doubt it goes too far, but whether it goes far enough, I don't know."
Families USA, a consumer health-care advocacy group, does not oppose unionization, but the bill makes Judy Waxman, the government affairs director, uneasy.
"We have some concern that doctors would have more clout than usual unionized people," she said. "We don't want to see insurance premiums go through the roof over unreasonable fees for doctors."
Federal Trade Commission Chairman Robert Pitofsky said courts have consistently held that the District and states may exempt doctors from federal antitrust laws, and said he understands why doctors are upset.
"We have always taken the view that there is a problem here in managed-care groups intruding themselves too much into the details of the practice of medicine," Pitofsky said. "For me, the issue has always been what to do about it, not whether something needs to be done. The problem with the Campbell bill and this [D.C.] bill is, once you try to solve that problem with exemptions to the antitrust laws, it's very difficult to contain the exemption."