Angered by managed care, practitioners look to unions

VOLUME 30 , NUMBER 8 September 1999

Psychologists in New York, Texas and Pennsylvania explore various options.

By Joe Volz
Monitor staff

James Dean, PhD, one of New York's "independent practitioners," wonders these days just how independent he really is.

Dean, who has been practicing for a decade, conducts 80 percent of his business with the giant managed-care companies that dominate health care. They have cut his income by 30 percent in the last three years and, he adds, the firms have smothered him in paperwork in an increasingly intense effort to control his treatment plans.

Dean and colleagues in the New York State Psychological Association (NYSPA) have had enough. They are affiliating with a union--the American Federation of Teachers.

"We feel it's worthwhile to try," he says, "because of the stranglehold managed care has on us."

But other New Yorkers, like June Feder, PhD, a leader with Dean in studying a union affiliation, have sought to downplay any idea that the psychologists are planning to launch an all-out battle against the managed care industry. Feder emphasizes, "Primarily, we wanted to increase our clout on a number of fronts. Through this affiliation, we hope to influence the union's understanding about the mental health services that members receive and, ultimately, what they ask for. The union will also be spearheading a membership drive that we hope will increase our numbers substantially. Right now, NYSPA has only one-third licensed psychologists in its ranks. The union's organizing experience and expertise could help us gain members among licensed psychologists in the state."

Marianne Jackson, NYSPA president, adds, "We want to maintain professionalism and patients' rights against the inroads of managed care."

NYSPA will become the first state psychological association to seek out union affiliation for its self-employed practitioners and will begin a recruiting drive this month hoping to enlist most of its 3,000 members as well as non-NYPSA psychologists. New union members would continue to be members of NYPSA.

The move comes in the wake of increasing interest in organizing health professionals. The American Medical Association recently voted to unionize salaried physicians to gain leverage against powerful managed-care companies. Texas has become the first state to pass a law legalizing bargaining for independent physicians. And on Capitol Hill, Rep. Tom Campbell (R-Calif.), has introduced a bill that would give health professionals bargaining power with managed-care companies.

But those who oppose any form of union affiliation--both psychologists and managed health leaders--say psychologists will be ineffective, creating, instead, an image of a group of greedy clinicians.

Jackson says, "We are trying everything we can to preserve our patients' rights and our right to treat our patients."

Can't strike

But psychologists will not possess the biggest weapon in a union's arsenal-the power to strike. Federal antitrust laws bar independent practitioners from striking although unionized psychologists who are employees of a firm are allowed to strike.

Donna Fowler, an AFT spokesperson, concedes, "The arrangement will not be a traditional union affiliation. Many NYSPA members are private practitioners, not employees in the conventional sense."

She views the affiliation with the union as a chance for NYSPA members to "focus on creating a joint legislative agenda, recruiting members and offering benefits to individual NYPSA members."

In Washington, Patrick DeLeon,PhD, JD, APA president-elect, says affiliating with a union "is very exciting and potentially could revolutionize our state associations." Russ Newman, PhD, JD, APA's executive director for practice, agrees that affiliating with a union is worth exploring.

"The real issue," he argues, "is that independent contractors are getting short shrift from large managed-care companies. There is no question health-care companies have one-sided bargaining power. Anything with the potential to counter this power is worth taking a look at."

Jane Gartner, a New York clinician, agrees. "The main issue is intrusiveness into treatment [by managed care]," she says.

Gartner cites a 12-year-old she treated whose progress was undermined by the intrusiveness of a managed care. Gartner believes the interference had nothing to do with providing good care but everything to do with saving money.

"The child had attended school intermittently for four years," Gartner says. "Her parents were very frustrated. Their difficulty getting her to school consistently was the result of parental conflict, family problems and the girl's anxiety. Eventually, with therapeutic support and the help of the school, attendance improved significantly and the girl began developing friendships. At this point, managed care decided to stop sessions pending a psychiatric evaluation. This took months to arrange. By this time, the setback was unbelievable. This did not need to happen."

Ban prevails-except in Texas

For frustrated psychologists like Gartner, though, there may be some hope for dealing with the big companies in the future. Texas has become the first state to allow independent physicians to bargain but the law, right now, applies only to physicians. It goes into effect this month, having passed despite heavy lobbying against it by the business community and health plans. Just how it will operate though, is not clear. It first allows certain doctors to negotiate about clinical issues and then, if the state attorney general permits, also about rates.

But Texas physicians emphasize that it wasn't a union bill they pushed. It was an antitrust bill. Alan Baum, MD, president of the Texas Medical Association, says the law is "a very small step toward allowing physicians to advocate for our patients rather than knuckle under to investor-driven health plans that are more concerned with market share than patient care."

Although medical professionals, especially solo practitioners, can now jointly negotiate with HMOs, Baum says, "strikes are prohibited."

On the federal level, Campbell, contending that HMOs "can override a doctor's better judgement about how to service a patient," has introduced the Quality Health-Care Coalition Act of 1999 that giving health professionals bargaining powers. But it is unlikely that there will be any floor action on the bill soon.

So, for the foreseeable future, in most states, the position of the National Labor Relations Board (NLRB) will prevail. Last May, the Philadelphia office of NLRB, the independent federal agency created in 1935 to enforce labor laws, turned down a bid by 500 New Jersey physicians working for an HMO, Amerihealth, to join the United Food and Commercial Workers Union. The doctors claimed that they were really employees of the HMO because Amerihealth controlled the details of their practices, right down to which patients should have surgery.

But the NLRB rejected that contention, ruling that Amerihealth didn't have that much control because only four percent of the doctors' practices was devoted to Amerihealth patients.

Potential drawbacks

Some officials, like Robert Pitofsky, chair of the Federal Trade Commission (FTC), argue that allowing independent contractors like psychologists to have collective bargaining rights would hurt the patients. Testifying on Capitol Hill in June, he said, "The FTC continues to believe [an antitrust exemption] would be bad medicine for consumers." He said such an exemption would mean that consumers "would have to pay more in premiums."

David Nickelson, PsyD, JD, Newman's special assistant, who has been watching the New York situation closely, says a union affiliation could help NYSPA take advantage of the union's concentrated political power and ability to get things done in the legislature. And members of the union, at the same time, could be educated about the value of psychological services in union contracts.

But Nickelson cites potential drawbacks described in the media:

"Professionals are perceived as affluent. Strikes or labor actions would receive little sympathy and professionals are, by nature, independent and difficult to organize."

If New Yorkers are anxious to move ahead, Pennsylvanians, who spent a year studying the matter, are not. A committee of the Pennsylvania Psychological Association (PPA) never issued a final report after its study. Tom DeWall, PPA executive director, says, "There wasn't enough consensus."

One committee member, Mark A. Hogue, PsyD, offers reasons for not joining a union: "It would not be in the best interest of the profession to unionize at this time."

Hogue says, "The idea that unions will be able to influence contract negotiations in a positive manner for psychologists is speculative. Union negotiators will have to consider a myriad of issues when negotiating contracts, and the interests or perspectives of psychologist union members will become quite distant and irrelevant in their discussions."

But another Pennsylvania clinician, Edward Lundeen, PhD, insists: "Unions provide psychologists with a great potential for unity and coordinated action."

Samuel Knapp, EdD, PPA professional affairs officer, says that no move towards affiliation with unions will occur without careful analysis and continued discussion.

"The concept of unionization evokes strong emotions among many psychologists," he says. "Some psychologists come from families where unions were viewed positively and had noticeable successes in improving the conditions of the workers. Other psychologists come from families that were more aligned with management."

The spokesperson for the American Association of Health Plans, the trade organization for managed care, is not enthusiastic about independent contractors affiliating with unions.

"Our view is this is not about quality of care," says Susan Pisano, "it is about protecting income, pure and simple."

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