The
litigation
tying
up
the
Federal
Trade
Commission’s
new
rule
prohibiting
for-profit
companies
from
requiring
noncompete
clauses
gives
everyone
in
healthcare
time
to
consider
the
unique
needs
of
our
industry
in
crafting
a
policy
that
works
for
patients,
physicians
and
provider
organizations.
Many
feel
that
noncompete
policies
too
often
disrupt
the
patient-physician
relationship
and
may
also
force
a
physician
to
move
and
re-establish
their
practice
elsewhere.
That
said,
there
are
legitimate
investments
that
many
hospitals,
health
systems
and
larger
physician
practices
make
in
helping
a
physician
establish
a
practice
in
a
new
market.
There
are
better
ways
to
acknowledge
those
investments
than
an
inflexible
noncompete
clause.
A
more
measured
approach
to
noncompete
clauses
can
be
fair
to
physicians
and
provider
organizations,
and
also
serve
patients
better.
Here
are
four
elements
for
a
policy
on
noncompetes
that
works
for
healthcare:
First,
a
new
policy
on
noncompete
clauses
must
apply
to
all
entities
that
employ
physicians,
for-profit
and
not-for-profit
alike.
There
are
legitimate
questions
about
whether
the
FTC
could
enforce
its
original
noncompete
ban
on
not-for-profit
hospitals,
because
the
jurisdiction
of
the
FTC
generally
is
limited
to
for-profit
companies.
This
fact
uniquely
impacts
healthcare,
given
the
prevalence
of
not-for-profit
hospitals
and
health
systems.
While
some
legal
ambiguity
exists
about
the
FTC’s
jurisdiction
over
physicians
employed
by
not-for-profit
hospitals
(e.g.,
a
not-for-profit
can
own
a
for-profit
subsidiary
that
employs
physicians),
an
ideal
noncompete
rule
would
ensure
a
level
playing
field.
Second,
a
new
noncompete
policy
should
provide
a
way
for
employees
to
buy
their
way
out
of
their
contract.
Hospitals
that
invest
in
helping
a
physician
build
their
practice
have
a
fair
point
in
wanting
to
recoup
that
investment.
At
the
same
time,
employed
physicians
make
a
substantial
investment
of
their
time
in
building
relationships
with
patients
in
order
to
deliver
the
best
possible
care.
Should
a
provider
wish
to
sever
their
contractual
relationship
they
should
be
able
to
buy
their
way
out
of
that
commitment
at
a
fair
and
established
amount.
This
balance
of
rights
and
responsibilities
provides
the
right
incentives
for
both
hospitals
and
physicians.
A
third
element
of
a
sound
policy
is
related:
Noncompete
clauses
should
have
a
time
limit.
For
example,
let’s
say
the
income
support
in
a
physician
agreement
lasts
three
years.
Another
three
years
beyond
seems
a
reasonable
time
for
the
noncompete
clause
to
time
out,
giving
the
employer
the
opportunity
to
recoup
the
initial
investment.
If
the
employer
has
not
recouped
its
investment
in
that
time,
the
problem
is
not
the
physician,
but
rather
the
management
and
support
of
that
physician,
and
the
physician
should
not
be
penalized.
Finally,
noncompete
policy
should
require
a
provider
organization
to
allow
communication
to
patients
about
a
provider
moving
on
to
a
new
practice
or
health
system.
This
element
would
be
effective
only
if
the
physician
satisfied
the
buyout
or
time
provisions.
Provider
organizations
could
be
required
to
allow
a
moving
physician
to
contact
their
patients
through
the
provider
organization’s
communication
systems
once
at
the
outset
of
the
physician’s
departure.
Then
for
a
period
of
time,
perhaps
a
year,
the
provider
organization
would
be
required
to
give
the
physician’s
new
contact
details
to
patients
who
request
the
information.
Patients
should
not
be
penalized
or
held
captive.
Perhaps
this
is
an
element
that
should
apply
only
in
healthcare,
a
recognition
of
the
unique
harm
of
disrupting
the
patient-physician
relationship.
This
requirement
would
go
a
long
way
toward
minimizing
that
disruption.
A
federal
policy
on
noncompete
agreements
that
recognized
the
unique
nature
of
healthcare
would
not
be
unprecedented.
Maintaining
the
sanctity
of
the
patient-physician
relationship
is
the
rationale
for
other
laws,
such
as
the
Anti-Kickback
Statute,
which
criminalizes
conduct
in
steering
referrals
that
is
routine
in
many
other
industries.
Healthcare
leaders
should
press
this
case
with
federal
lawmakers
and
policymakers
while
we
have
this
pause
in
the
FTC’s
rulemaking.
No
matter
what
happens
in
court,
this
is
one
genie
that
isn’t
going
back
in
the
bottle
any
time
soon.
Photo:
FG
Trade,
Getty
Images
Jasen
Gundersen,
MD,
is
CEO
of
CardioOne,
a
cardiology-focused
care
delivery
enablement
company,
and
is
a
member
of
the
board
of
the
American
Independent
Medical
Practice
Association.
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