Free legal research for ADROP/ASTRO on antitrust and cutting spots

[elementaryschooleconomics]

For totally unrelated reasons, I stumbled across this article:

Challenging the Medical Residency Matching System through Antitrust Litigation

It's a paper published in 2015 talking about a lawsuit brought by residents in 2002 against the AAMC/NRMP/universities/hospitals/literally anyone ever involved in running "the Match".

In brief:

"The resident plaintiffs argued that the organizational and institutional defendants, through the match, had imposed anticompetitive restraints on medical residency placement and hiring by quashing the prospective residents’ ability to negotiate the terms of their employment contracts, resulting in fixed and depressed compensation packages. The legal basis for the residents’ claim was that it violated Section 1 of the Sherman Antitrust Act, which holds that “Every contract…or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal”."

The article is fascinating, and worth a read. However, most fascinating is the sneaky AAMC lobbying where they snuck legislation into the Pension Funding Equity Act of 2004. They introduced an amendment, Section 207. What is Section 207, you ask? It is federal legislation which prevents antitrust lawsuits around the Match.

"On April 8, 2004, Congress passed the Pension Funding Equity Act, and President George W. Bush signed it into law. The Section 207 amendment had two major legal effects. First, the provision confirmed that “it shall not be unlawful under the antitrust laws to sponsor, conduct, or participate in a graduate medical education residency matching program, or to agree to sponsor, conduct, or participate in such a program”. Second, in relation to the first statement, the provision held that “evidence of any of the conduct described…shall not be admissible in Federal court to support any claim or action alleging a violation of antitrust laws”

Obviously, I'm not a lawyer. But I would argue that ASTRO/ADROP/etc making a statement in support of decreasing Radiation Oncology residency spots available through the Match falls under the protection of Section 207, therefore, is exempt from antitrust suits.

I made a post in November with a transcript of the recording where Falit discusses antitrust at ASTRO 2019. In that talk, he makes this specific argument:

"And then the Association of Family Practice Program Directors was also sued by the Justice Department because there was an ostensible agreement between the Practice Directors not to offer more economic incentives for residents to come into the program. And so I think there’s a real risk that if that happened, if there was an agreement within ASTRO or SCAROP or some other organization to restrict residency spots that there would be a lawsuit brought by an aggrieved person or by the Justice Department, and if that happens then I think it actually would be unlikely that the defendant (ASTRO or SCAROP) would be able to even make any pro-competitive arguments."

I looked up the AFPRD case - it's from 1996, eight years before Section 207 was signed into law. It's also a totally different type of case, but that's beside the point.

Perhaps I'm totally wrong, and, if so, I would appreciate any practicing lawyer who can come along and explain why I'm wrong.

But - per the wording of Section 207 of the Pension Funding Equity Act of 2004, ASTRO making the recommendation to reduce spots available through the NRMP-sponsored Match is protected from antitrust suits in Federal Court. I haven't seen this argument made on SDN (or anywhere else) before, so I figured I'd throw this out for discussion.

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[Mandelin Rain]

Nope. Antitrust. Definitely antitrust. ANTITRUST!

 

[scarbrtj]

For totally unrelated reasons, I stumbled across this article:

Challenging the Medical Residency Matching System through Antitrust Litigation

It's a paper published in 2015 talking about a lawsuit brought by residents in 2002 against the AAMC/NRMP/universities/hospitals/literally anyone ever involved in running "the Match".

In brief:

"The resident plaintiffs argued that the organizational and institutional defendants, through the match, had imposed anticompetitive restraints on medical residency placement and hiring by quashing the prospective residents’ ability to negotiate the terms of their employment contracts, resulting in fixed and depressed compensation packages. The legal basis for the residents’ claim was that it violated Section 1 of the Sherman Antitrust Act, which holds that “Every contract…or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal”."

The article is fascinating, and worth a read. However, most fascinating is the sneaky AAMC lobbying where they snuck legislation into the Pension Funding Equity Act of 2004. They introduced an amendment, Section 207. What is Section 207, you ask? It is federal legislation which prevents antitrust lawsuits around the Match.

"On April 8, 2004, Congress passed the Pension Funding Equity Act, and President George W. Bush signed it into law. The Section 207 amendment had two major legal effects. First, the provision confirmed that “it shall not be unlawful under the antitrust laws to sponsor, conduct, or participate in a graduate medical education residency matching program, or to agree to sponsor, conduct, or participate in such a program”. Second, in relation to the first statement, the provision held that “evidence of any of the conduct described…shall not be admissible in Federal court to support any claim or action alleging a violation of antitrust laws”

Obviously, I'm not a lawyer. But I would argue that ASTRO/ADROP/etc making a statement in support of decreasing Radiation Oncology residency spots available through the Match falls under the protection of Section 207, therefore, is exempt from antitrust suits.

I made a post in November with a transcript of the recording where Falit discusses antitrust at ASTRO 2019. In that talk, he makes this specific argument:

"And then the Association of Family Practice Program Directors was also sued by the Justice Department because there was an ostensible agreement between the Practice Directors not to offer more economic incentives for residents to come into the program. And so I think there’s a real risk that if that happened, if there was an agreement within ASTRO or SCAROP or some other organization to restrict residency spots that there would be a lawsuit brought by an aggrieved person or by the Justice Department, and if that happens then I think it actually would be unlikely that the defendant (ASTRO or SCAROP) would be able to even make any pro-competitive arguments."

I looked up the AFPRD case - it's from 1996, eight years before Section 207 was signed into law. It's also a totally different type of case, but that's beside the point.

Perhaps I'm totally wrong, and, if so, I would appreciate any practicing lawyer who can come along and explain why I'm wrong.

But - per the wording of Section 207 of the Pension Funding Equity Act of 2004, ASTRO making the recommendation to reduce spots available through the NRMP-sponsored Match is protected from antitrust suits in Federal Court. I haven't seen this argument made on SDN (or anywhere else) before, so I figured I'd throw this out for discussion.

It says EXPLICITLY in the Federal Register that *any* MD or DO or DPM can supervise radiation therapy, anywhere, and NPs or PAs can supervise in a hospital setting. And yet... "everyone* is quite sure it's illegal/wrong. So, I mean, you can come loaded for bear with all the fancy arguments you want. But who're you gonna believe? The powers that be or your own eyes?!

EDIT: check this out.

 

[elementaryschooleconomics]

It says EXPLICITLY in the Federal Register that *any* MD or DO or DPM can supervise radiation therapy, anywhere, and NPs or PAs can supervise in a hospital setting. And yet... "everyone* is quite sure it's illegal/wrong. So, I mean, you can come loaded for bear with all the fancy arguments you want. But who're you gonna believe? The powers that be or your own eyes?!

EDIT: check this out.

Yeah, I believe you and others have utilized the fancy argument that if you can successfully increase spots while crying "shortage", the inverse must be true.

Still waiting for this scary suit the DOJ will bring against Emergency Medicine for when they made their statement about supply and demand...

 

[fiji128]

I'm digging way back in my memory here but maybe there was something posted on this somewhere on SDN like five years ago. Basically for some legal reason programs can collude in regards to the match process for obtaining residents, per the legal exception passed in 2004. However, this does not cover programs colluding among themselves to limit number of programs or total available spots. That being said, its not like this has ever been legally tested. Even if it was legally tested, worst case scenario would be DOJ would just say you can't do this and the situation needs to be remedied. It's not like people would be going to jail or even paying a fine or anything like that.

Lets say the folks that run ASTRO somehow manage to grow a pair and move beyond the group think/glad handing thing and make a concerted effort to decrease spots. Would this even be considered illegal? Probably not as all contraction would still be voluntary at the program level. ASTRO could obviously make a statement that in their opinion we are training more residents then what society needs. ASTRO has no control over the RRC or individual programs but it could make a statement and this would carry weight in the specialty in the hushed corridors of elite academia.

But currently our "leadership" continues to stand for 0 fraction radiation and 0 potential law suits instead, so no progress will be made. Just part of the reason why it continues to be unethical to advise any student to pursue training in this field.

 

[BobbyHeenan]

More likely lawsuit:

1. anti trust lawsuit (who exactly would file this? who are the damaged parties? We are not derm or plastics with an infinite cash business potential).
2. a disgruntled unemployed rad onc with a ton of student loans sues a mentor for telling him/her to enter the field with lies about unrealistic job prospects

Neither likely or nah?

We tell ourselves to just do the right thing and not practice defensive medicine. That strategy is the right, just thing to do. So just do the right thing and contract spots and let the chips fall where they may. Do. The. Right. Thing.

 

[Radonky]

For totally unrelated reasons, I stumbled across this article:

Challenging the Medical Residency Matching System through Antitrust Litigation

It's a paper published in 2015 talking about a lawsuit brought by residents in 2002 against the AAMC/NRMP/universities/hospitals/literally anyone ever involved in running "the Match".

In brief:

"The resident plaintiffs argued that the organizational and institutional defendants, through the match, had imposed anticompetitive restraints on medical residency placement and hiring by quashing the prospective residents’ ability to negotiate the terms of their employment contracts, resulting in fixed and depressed compensation packages. The legal basis for the residents’ claim was that it violated Section 1 of the Sherman Antitrust Act, which holds that “Every contract…or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal”."

The article is fascinating, and worth a read. However, most fascinating is the sneaky AAMC lobbying where they snuck legislation into the Pension Funding Equity Act of 2004. They introduced an amendment, Section 207. What is Section 207, you ask? It is federal legislation which prevents antitrust lawsuits around the Match.

"On April 8, 2004, Congress passed the Pension Funding Equity Act, and President George W. Bush signed it into law. The Section 207 amendment had two major legal effects. First, the provision confirmed that “it shall not be unlawful under the antitrust laws to sponsor, conduct, or participate in a graduate medical education residency matching program, or to agree to sponsor, conduct, or participate in such a program”. Second, in relation to the first statement, the provision held that “evidence of any of the conduct described…shall not be admissible in Federal court to support any claim or action alleging a violation of antitrust laws”

Obviously, I'm not a lawyer. But I would argue that ASTRO/ADROP/etc making a statement in support of decreasing Radiation Oncology residency spots available through the Match falls under the protection of Section 207, therefore, is exempt from antitrust suits.

I made a post in November with a transcript of the recording where Falit discusses antitrust at ASTRO 2019. In that talk, he makes this specific argument:

"And then the Association of Family Practice Program Directors was also sued by the Justice Department because there was an ostensible agreement between the Practice Directors not to offer more economic incentives for residents to come into the program. And so I think there’s a real risk that if that happened, if there was an agreement within ASTRO or SCAROP or some other organization to restrict residency spots that there would be a lawsuit brought by an aggrieved person or by the Justice Department, and if that happens then I think it actually would be unlikely that the defendant (ASTRO or SCAROP) would be able to even make any pro-competitive arguments."

I looked up the AFPRD case - it's from 1996, eight years before Section 207 was signed into law. It's also a totally different type of case, but that's beside the point.

Perhaps I'm totally wrong, and, if so, I would appreciate any practicing lawyer who can come along and explain why I'm wrong.

But - per the wording of Section 207 of the Pension Funding Equity Act of 2004, ASTRO making the recommendation to reduce spots available through the NRMP-sponsored Match is protected from antitrust suits in Federal Court. I haven't seen this argument made on SDN (or anywhere else) before, so I figured I'd throw this out for discussion.

Thank you for bringing up this important topic. Some of my thoughts-

ASTRO/ADROP/ABR/ cannot limit spots, they don't have the authority to do so. As you said, they can make a statement, which is legal, it is simply a suggestion, but without any actual changes. Historically our leadership was willing to make statements of overtraining in the past, and have published on this as well (please see https://www.redjournal.org/article/0360-3016(96)00209-X/fulltext). Quote: "The ASTRO Committee on Human Resources believes that the oversupply of radiation oncologists will have significant adverse effects for the specialty" "The Committee on Human Resources believes that the oversupply problem will affect radiation oncologists in all age groups. Residents just finishing their training will have more difficulty finding jobs than residents have had in the past." There are other excellent points in the paper, but it is a stark contrast to statements of current leadership.

Antitrust wise - I don't believe statements alone would constitute antitrust violation (especially backed by research), but actually conspiring to reduce spots can potentially do so, if it can be proven that by reducing spots there are health care ramifications (it would hurt standard of care by reducing doctors, etc). Again, not a lawyer, so may be wrong on this.

In my (humble) opinion, I see 3 ways to this.
1. ASTRO follow their predecessors and actually create a human resources study, like they have in the past, and evaluate the job market and make statements regarding current job market status, projections, and ramifications (I don't recall any publication since 2015/16 reflecting current practice, which has changed significantly since then)
2. Make medical students aware of the difficult job situation, give them complete full consent (like we do with our patients, the potential benefits and potential downsides) of choosing this field
3. Raise the standard for starting new residencies and maintaining residencies

I don't see ASTRO doing #1, but we are already seeing demand collapse from #2. I expect it would get bad enough where programs cannot SOAP (with COVID, I don't know if the international market is able to be tapped to fill spots like they used to). This will eventually lead to program closures (like occurred in the 80's/90's). There is some movement for #3 (which would benefit physicians, patients, etc) but I don't see any meat on this bone, unfortunately.

If things continue on the current path, I do expect residency closures, not because of altruistic desires to help the field, but because there simply isn't anyone to fill the role.

 

[scarbrtj]

It seems COGME has been federally/congressionally mandated to get entities like the ABR and residency programs all on-board to engage in one big, beautiful, concerted collusion effort to reduce residency spots when there's evidence of specialist physician over-supply?

 

[RickyScott]

Thank you for bringing up this important topic. Some of my thoughts-

ASTRO/ADROP/ABR/ cannot limit spots, they don't have the authority to do so. As you said, they can make a statement, which is legal, it is simply a suggestion, but without any actual changes. Historically our leadership was willing to make statements of overtraining in the past, and have published on this as well (please see https://www.redjournal.org/article/0360-3016(96)00209-X/fulltext). Quote: "The ASTRO Committee on Human Resources believes that the oversupply of radiation oncologists will have significant adverse effects for the specialty" "The Committee on Human Resources believes that the oversupply problem will affect radiation oncologists in all age groups. Residents just finishing their training will have more difficulty finding jobs than residents have had in the past." There are other excellent points in the paper, but it is a stark contrast to statements of current leadership.

Antitrust wise - I don't believe statements alone would constitute antitrust violation (especially backed by research), but actually conspiring to reduce spots can potentially do so, if it can be proven that by reducing spots there are health care ramifications (it would hurt standard of care by reducing doctors, etc). Again, not a lawyer, so may be wrong on this.

In my (humble) opinion, I see 3 ways to this.
1. ASTRO follow their predecessors and actually create a human resources study, like they have in the past, and evaluate the job market and make statements regarding current job market status, projections, and ramifications (I don't recall any publication since 2015/16 reflecting current practice, which has changed significantly since then)
2. Make medical students aware of the difficult job situation, give them complete full consent (like we do with our patients, the potential benefits and potential downsides) of choosing this field
3. Raise the standard for starting new residencies and maintaining residencies

I don't see ASTRO doing #1, but we are already seeing demand collapse from #2. I expect it would get bad enough where programs cannot SOAP (with COVID, I don't know if the international market is able to be tapped to fill spots like they used to). This will eventually lead to program closures (like occurred in the 80's/90's). There is some movement for #3 (which would benefit physicians, patients, etc) but I don't see any meat on this bone, unfortunately.

If things continue on the current path, I do expect residency closures, not because of altruistic desires to help the field, but because there simply isn't anyone to fill the role.

I think in the long run there will always be FMGs who just want a visa. Lots of FD up countries with smart docs who will do anything to get out. Even if attending in home country, would be a big step up to have residents salary and life in usa. See this in pathology with residents from Venezuela and Syria etc.

The Panopticon Is Already Here

Xi Jinping is using artificial intelligence to enhance his government’s totalitarian control—and he’s exporting this technology to regimes around the globe.

www.theatlantic.com

 

[RickyScott]

It seems COGME has been federally/congressionally mandated to get entities like the ABR and residency programs all on-board to engage in one big, beautiful, concerted collusion effort to reduce residency spots when there's evidence of specialist physician over-supply?

AS you said, just like with CMS supervision rules, feds and CMS can make the rules, but ASTRO will tell the cms/feds how to interpret their own rules.

 

[medgator]

I think in the long run there will always be FMGs who just want a visa. Lots of FD up countries with smart docs who will do anything to get out. Even if attending in home country, would be a big step up to have residents salary and life in usa. See this in pathology with residents from Venezuela and Syria etc.

I think it stopped in nuc med though right when the job market bottom really fell out?

 

[RickyScott]

I think it stopped in nuc med though right when the job market bottom really fell out?

I am not sure, but would think there is a larger pool of overseas oncologists (many countries train in both medonc and radonc) than nuclear meds