JR: But it’s happening and we seen some of our colleagues who I respect immensely in many areas say it no big deal. I had colleagues say, it’s like a speeding ticket going a couple of miles an hour over the limit. . Others have said the chances of us getting in trouble are negligible. ….
BW: It’s a good question and difficult to say because it ‘s a matter of degree. Statistically most burglars are never apprehended. So to that extent you can say that burglary is relatively safe. But I don’t think most of us in the mental health field would say go commit burglary.
There are exceptions to that general principle The danger I would see violating anti trust laws if you are effective and I don’t see much sense in it if you are not going to become effective is if you are effective you do run the risk of some managed care company coming in deciding to make an example of some psychologist or social worker or psychiatrist.
No lawyer is going to say there is no risk but I think there is an element of risk her and it behooves one to be fairly careful and to the same extent we can say we are insignificant players you can flip that around and say why that a risk.
Is there enormous risk? Actually the Federal Trade commission was looking at fees and price setting in the health field and they were looking at mental health so I don’t want to say there is a imminent threat of incitement but I would not be cavalier either.
JR: Well one of the things about being online and this series is about online issues is there is a record of it. It’s not like you and I were in some backroom and we were conspiring and the only people who could turn us in are ourselves. Being on the Internet generally hundreds of people can get access and it and they are word for word transcripts. So that is among some of the concerns that I voiced to some of my colleagues in terms of this behavior. Would you concur?
BW: There is no question about it. In fact one of the things with the psychoanalytic anti-trust suit that helped enormously was that there were written records where they said point blank one of the reasons that they did want to train psychologists and social workers is they did not want the unwanted economic competition. When you have that, that’s a smoking gun, and with computers now you can’t really erase and if you sent then through a network any number of people who have them.
JR: Now we have been talking about - and that certainly is my major concern- dealing with these boycotts with managed care companies in part since I wear two hats. I’m a clinician and I advise colleagues where ever I can but I have also become a consumer advocate. And my concern about the managed care boycotts is that there is a tendency and in some cases it is explicit, that the consumer is going to be put in a position where they are a pawn in these struggles. And that to me just troubles me. I make no bones about that whether it’s against the law or not. I don’t know if it illegal I don’t think it is right to have the consumer be a pawn and wait for services. It’s just doesn't’t feel right to me.
But there are other issues. There are degrees of these discussions What about if two practitioners are announcing their fees and not discussing the issue on a listserv. They are saying look I charge such and such, what do you charge?
BW: Let me pick out a word. When you say announce that’s a little bit of a different spin. If you say what if two practitioners tell each other what their fee is. Or let’s take the example that even on a listserv someone asks what are fees like in your area and another says, well some charge 140 and some 130. That kind of information in and of itself is not necessarily problematic. In fact one can argue that that kind of sharing is pro-competitive. One can argue that that kind of flow of information is pro-competitive because if I want to compete with you and I know you charge 140 I think to myself that if I charge 130 I am going to be more competitive that you are. So the mere fact that fee info is shared is not necessarily problematic.
The danger is that people will use it in an opposite way and say well why don’t we all agree that we will keep fees at 140. That’s one thing that is a “no-no” and that is price fixing. Or let's go let people who charge 120 know that they will not get referrals from us. That is an anti competitive boycott and an unfair practice.
So the danger is that it is not inherently wrong to share fee information, the danger is that a number of things that could ensue that could be very problematic. That why I think you hear national organizations or one reason at least why professional organizations are advised not to talk about fees. That avoids people getting on slippery slope. As a lawyer looking how to protect the whole field that is probably the best way to go about it. To have the level of discussion we are having is not always possible they don’t always have the ability to do that.
And with the kind of animosity ( toward managed care) I think you can understand when someone is angry as many are with managed care and rightly so it’s understandable that one can move in the direction of group boycott, price fixing or what have you.
JR: I think you touched upon for me or help to confirm some the thoughts I have had for several months. It seems counter intuitive if we just announce our fees that that is a problem. I think though the slippery slope concept that you bring up is important. If it were just you and I we could announce fees and we could go about our business competing or at least use reasonable caution. But these discussion groups have hundreds and sometimes thousands of people with various degrees of education and sophistication and anyone can jump in. So I can announce my fee and say this is what I charge but someone else could jump in and say, Hey Riolo do you realize that you’re undercutting the bunch of us. What are you doing that? Is that an example of the slippery slope?
BW: Exactly that’s what I am talking about. That is a very good example of how it could play out.
JR: From there it can get to a number of problems.
BW: Yea, You can already see that the spokesperson is pressuring you to raise your fee and it has an anti-competitive effect on you, to the extent it has an effect and therefore it is a prohibited behavior to the extent they are pressuring you to raise your fees.
JR: Now, A couple of more questions to close up since this has been exceedingly helpful to clarify a number of points. I know certainty the professional organizations have been explicit about it in part since they don’t want to run the risk of some of these things sliding down into problematic behavior. However over the past couple of years many of us have become part of what might be called free standing (internet) groups. Almost anyone can develop a group or listserv particularly since it’s free under Yahoo or MSN or any number of other service providers. I guess my question would be can the listserv owners and moderators be held responsible there. Or what about Yahoo groups. ( the server itself)?
BW: That is a very good question. My hunch is there is not a lot of established law directly on point on that. I have not researched it and could be wrong. The closest thing it reminds me of is the question of “agency”- or what degree of responsibility does the organization have for the behavior of it’s members.
Now the classic case is the Hydrolevel Case in the general field we art talking about which probably in the early 80s. And that got all the national organizations excited and concerned about this issue. Because in that case, the American Academy of Engineers I think that’s roughly what the name was. But there was concern about some unfair trade practices and the held that the organization was responsible for what it’s members did in the anti-trust area.
So if we extrapolate that from your concern of a listserv, one can certainly discern differences in the nature of the organization in structure. But it at least raises some concern and If I were running a listserv, I would want to make sure I took the same educational steps ( used by professional organizations) which is basically to say this is not a place to organize boycotts; not a place to price fix and we would prefer that we not discuss economic matters on this listserv.
Now as I say, I think it would unfortunate if people could not say what their fees are as long as it is not a covert attempt to fix fees.
JR: So if some people have asked me can I put my fees on my web site . Would that be an example of promoting competition, no?
BW: That’s right, and I think there is a good body of ant-trust law that supports my position. That’s putting out information that is competitive. Remember a few years ago professionals could not advertise. Professional organizations came after them claiming it was unprofessional and unseemly. But the Supreme Court said no, It’s pro-competitive. It helps the public decide who they want to go to. You guys are no better than the rest of us..
JR: This has been fantastically helpful in clarifying some of the misconceptions.
I want to give you the opportunity tells us more about yourself and what you have done.
BW: Well thank you, John. I now live on Hilton Head SC and have a practice where I do consulting to practitioners around the country. I represent professionals, licensing boards and see a few patients. I can be reached on my web site http://www.bryantwelch.com .
JR: Thanks again and perhaps you may come back to discus other topics in the future.
About Our Guest
Bryant Welch has been a nationally prominent psychologist/attorney for thirty years. He currently resides on Hilton Head Island, SC where he practices clinical and forensic psychology. Dr. Welch graduated from Harvard College in 1968 and from Harvard Law School in 1972. In 1976 he received the Ph.D. in Clinical Psychology from the University of North Carolina at Chapel Hill. He is also a research associate graduate of the Washington Psychoanalytic Institute. Dr. Welch is an experienced psychotherapist and has provided clinical services to individuals and couples since 1976. He has been voted a Distinguished Practitioner by the National Academy of Practice and holds the Diplomate in Clinical Psychology.
Dr. Welch has provided testimony on psychological matters to all levels of government including the White House, Congress, and the Federal Judiciary. He has been widely recognized as an effective advocate for mental health services and for minority rights. In August of 2005, Dr Welch was awarded the APA Presidential Citation for his "seminal and unique contribution to professional psychological practice."
From 1986 to 1993 Dr. Welch initiated and ran the American Psychological Association Practice Directorate leading Organized Psychology through one of its most successful advocacy eras.
Dr. Welch has appeared on all major networks and been quoted in most major news sources on mental health related matters. He has received numerous awards from national and state mental health organizations and held academic appointments with several universities including the University of North Carolina, George Washington University, and the University of South Carolina at Beaufort.
Visit his website.
Bryant L. Welch J.D., Ph.D. & Associates
19 Shelter Cove Lane
Suite 204
Hilton Head Island, SC 29928
Business Phone: 843-686-2260 | Business Fax: 843-341-9331
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