In the early days most of these discussion groups were under the auspices of our professional trade associations such as APA, NASW and other trade associations. The legal councils of these trade associations kept a close eye on group discussions and intervened quickly if discussions suggested even the possibility of antitrust activity. The organization itself might be liable for the actions of a few members therefore it was seen prudent to intervene sooner rather than later.
Unfortunately this created the impression among many of us, myself included, that the trade associations were not representing the interests of their member strongly enough. Many of us with yours truly leading the pack broke away from our trade association groups and developed free standing discussion groups using servers like MSN but mostly Yahoo Groups. Today one can fine literally hundreds of groups for mental health practitioners sponsored by Yahoo alone. Despite a Terms of Service policy requiring those who use these groups to abide by US laws, no monitoring or enforcement is observable.
Looking back on the events of the past years, I now see as many negatives resulting as positives with the negative arguably outweighing the positive in many respects. Many mental health professionals express dissatisfaction with their respective trade organizations to this day. They may ask, “What am I getting for my dues”. While that is always a fair question to be asked by anyone paying for anything, it is also fair to say that like me many were asking unreasonable things of our trade associations. In short, we wanted a trade association to represent us in our dealings and act like unions in negotiating fees with managed care organizations. But that simply is not possible. Non affiliated providers can’t unionize. It’s as simple as that. It took a while for that to sink into my head and to this day some of my colleagues still don’t get it.
Am I smarter than the rest of them? Hardly! However I had the good fortune to be privy to the advice of a wonderfully dynamic and intelligent woman. Betsy Owens, CSW. Betsy was one of the founders of the NASW Private Practice Section and the moderator of the NASW sponsored listserv. Betsy had a way of explaining things that even a rabble rousing advocate like me could understand. With the help of some law notes from my trade organization’s general council she walked me through Antitrust 101. It took me a wile, but it sunk in. Most of my dissatisfaction with my trade association was that I wanted it to be what it was not, a union. Betsy also had the ability to hold people of very different interests and orientation together. In short, Betsy had the ability to herd cats. 5
Unfortunately Betsy is no longer with us. After her untimely death in 2003 the voices of moderation were no longer allowed to speak their views on these unaffiliated groups/listservs and anti-managed care sentiment ran amok and unrestrained. Whereas I might tell colleagues that interpreting laws like antitrust laws are not like interpreting a dream where just anyone can simply free associates to it or by attempting to “validate unconscious images of the law’s meaning”6 rather legal interpretations actually require an interpretation by someone with considerable expertise. Betsy would always find a way to say that in a nice way without ruffling feathers. She would say, “John I know you have a hard time suffering fools, but let’s look for a nicer way to say it.” It a knack I still need to master. She is missed to this day.
With her passing, radical elements have taken over the control of many therapists discussion groups. Now, it’s often the group owners and moderators who advocate lawbreaking including but not limited to antitrust activity with no moderating influence. Nowhere can this be demonstrated than in the following post put up on a discussion group of psychotherapists of nearly 700 people.
<<Subject: [Yahoo group name] discussing fees online Date: Wed, 25 Jan 2006 19:38:32 -0500 Message #
Hi: The anxiety re this was stirred up years back when there was some discussion re this on an NASW-sponsored listserve and the NASW attorney issued an opinion warning against this. I looked into the laws at that time and found her opinion a real stretch re a almost non-existent danger. Living in DC, I am surrounded by attorneys, some of which work for the Dept of Justice. Believe it or not, they actually have "real" crime to go after: murderers, drug dealers, Enron, etc.
To think they would go after our penny-ante group of social workers comparing notes on fees is about as worrisome as your local police arresting 12 year olds for spitting on the sidewalk or a bunch of old men for playing poker. (No one has ever identified an actual case where DOJ went after any group of private practitioners for comparing notes on fees--whether online, at a professional conference, or elsewhere.)
That being said, an NASW attorney would be a fool to give a public legal opinion that such discussions in a NASW forum were "legal"---or to encourage same. Similarly, the NASW attorney shouldn't sanction a poker game for money in a meeting room at a NASW conference. But if a half dozen conference attendees go up to a room to play poker, nothing is going to happen.
The discussion brings to mind a broader issue about the tendency of social workers to become intimidated by legal issues to the point of paranoia. Sometimes we need to break out the moonshine and relax....
Now before one can make any judgments about the above post one needs to look at in context and several factors need to be considered.
First, while the above post can be interpreted as someone giving legal advice the poster is not an attorney. Are they offering legal advice anyway despite any known lack of legal credentials? It’s seems like it. Could newly trained and inexperience mental health professionals interpret that statement to mean that as long as they are just a bunch of penny-ante social workers ( or MFT or psychologists) comparing notes on fees7 nothing is going to happen? Perhaps, but could some interpret that post to also mean that its OK not merely to compare notes but agree on minimum fees they will charge and it’s even ok to boycott selected MCOs as long as they can view themselves as penny-ante? Is it really true that only drug dealers and Enron execs are ever subject to investigations? If so that means the rest of us can break laws and not worry about a thing. Can that really be true? When professionals view themselves as penny ante, what are they saying about themselves?
At best the advice legal8, friendly or otherwise no matter how much is sounds like it comes from authority is poorly thought out and potentially dangerous advice. Why would any professional give that kind of advice? What Other kinds of questionable advice would they give?
In order to answer those questions I contacted the author to inquire whether they would like to explain themselves. I know that on occasion I have written something that I later regretted whether it be a glaring typo, an unclear sentence to simply a stupid comment made without thinking. I always appreciated someone pointing it out to me and offering me the opportunity to clarify, amend or even retract. It’s how I like to be treated and could offer my colleague no less.
My colleague declined to clarify, amend or retract stating only that they have no concern about any impropriety of their statement and that their posting was in the context of other emails where others had sought expert opinions re these issues.9 And, my colleague is absolute correct on one point at least.
No matter how bad the above post may look, in and of itself, it means little save someone pretending to sound more knowledgeable than they are. In order for anyone be they a reader of this article to a fact finder from FTC or DOJ, to determine whether or not and to what extent the post in question facilitates or contribute to anticompetitive behavior one needs to put it in context with the other discussions or posts on the matter over time. Discussing fees per se is not a problem but an agreement to fix prices or engage in illegal boycott is. But that easy to do with discussion groups since they are archived.
Without making any judgments on the legality of this and other posts it would appear that Adam Smith axiom has been corroborated
1 LISTSERV is currently a commercial product marketed by L-Soft International. Although LISTSERV refers to a specific mailing list server, the term is sometimes used incorrectly to refer to any mailing list server. Another popular mailing list server is Majordomo, which is freeware. See http://www.webopedia.com/TERM/L/Listserv.html
2 Sometimes competitors will attempt to engage in anticompetitive behavior and disguise it as a survey. The FTC and DOJ have fairly specific guidelines for fee surveys See http://www.usdoj.gov/atr/public/guidelines/0000.htm#CONTNUM_49
3 When two or more people connect on a discussion group or listserv and decide to continue their conversation off the list and in private or at least as private as an online conversation can be.
4 See http://www.youradvocateonline.com/internet_socialwork_one.html and http://www.youradvocateonline.com/internet_socialwork_two.html
5 A common joke among mental health professionals is that to get any of us to actually agree on anything is like herding cats.
6 “Validating unconscious images of good treatment” is considered by some psychoanalytic therapists as the epitome of evidence based treatment. If you have no idea what the statement “validating unconscious images” means you are not alone. They never explain it
7 If comparing notes on fees is interpreted to mean that a provider generated survey that falls short of FTC/DOJ safety zone guidelines, that could be a problem. In fact such a survey was initiated on that discussion group any may have been influenced by the post in question.
8 One indicator that the advice in the post is not from someone with legal training is that true attorneys and anyone rarely give advice without strong disclaimers that it is not legal advice.
9 My colleague did not grant permission to reprint this post. He or she acknowledged however that legally and from a standpoint of professional ethics no permission was required. A post to a listserv is as public as any statement made in a crowd. Out of courtesy however the posters identity is not revealed. The identity of the author is not that relevant for this particular purpose although anyone accessing the posts on the listsrv can discern the identity without difficulty. Confidentiality on the internet is a myth.