- Email: [email protected]
Do residents need unions?
APM
Association of Professors of Medicine
Do Residents Need Unions?
I
n June 1999, the House of Delegates of the American Medical Association (AMA) voted to “instruct the AMA administration to immediately implement a national labor organization to support the development and operation of local negotiating units, employed physicians, and for resident and fellow physicians who are authorized under state laws to collectively bargain.” At that time, union activities were immediately feasible for physicians who were salaried employees; this category now includes residents and would total about 200,000 physicians, of which about one half are residents. Currently, it is estimated that about 40,000 physicians are in unions (1). Residents working in state hospitals in Michigan and now in California (by a decision of the California Public Employee Relations Board) have been ruled in the relevant state courts as being employees, not students. Our own medical center had a resident union in Ohio until University Hospital changed from being a state institution to a private, not-for-profit hospital, bringing its residents under the then-federal law. A recent agreement of the California Medical Association and the Committee of Interns and Residents (CIR) is significant: each now encourages residents to join each other’s organization and to advocate jointly for shared policy positions (2). CIR is a union with 10,000 members in hospitals throughout the United States and is affiliated with the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). The new AMA collective bargaining unit, Physicians for Responsible Negotiations (PRN), will be a separate legal entity; AMA has specifically excluded the right to strike as one of its founding characteristics. Other union leaders are already criticizing this decision and will clearly compete to become doctors’ unions. Housestaff did strike in the 1970s in the New York public hospitals and received pay increases at that time. In November 1999, the National Labor Relations Board reversed— by a 3–2 vote—a 1976 federal court decision that residents were students rather than employees; therefore, residents in private hospitals may now also unionize (3). The issue of unionization is now a possibility for all resident physicians. This paper will address only the issue of the wisdom of having unions for housestaff, not that of unions for independently practicing or employed physicians after resi264
䉷2000 by Excerpta Medica, Inc. All rights reserved.
dency training. These are very different issues; residents are, to their current substantial benefit, at least as much students as they are employees. The AMA’s decision, while democratically obtained, was by no means unanimous. The Board of Trustees, the AMA Section on Medical Schools, and the AMA Council on Medical Education all recommended against the decision. The reason for the AMA House of Delegates’ decision likely relates to the increasing power of insurance companies and of those companies that employ practicing physicians, accompanied by the loss of physician control over patient care issues. Such managed care-related factors, along with diminished reimbursement for health care, can negatively impact delivery of care in teaching hospitals and attending physicians who are ultimately responsible for billing and payment issues. However, housestaff have no direct responsibility to these insurance companies or physician employers, and are affected by these forces only to the degree reflected by their attendings with whom they jointly manage patients. Thus, the reasons energizing the interest of physicians in the formation of unions do not apply, or apply much less forcibly and directly, to housestaff during their training. Graduate medical education (GME) in the United States has many strengths in its present form that regards residents primarily as students and secondly as employees. Provided their performance meets reasonable and defined standards of clinical competence and professional behavior, housestaff are virtually guaranteed to finish that program and become board eligible in their discipline when accepted into a training program. This arrangement might be at risk if residents are treated purely as employees. The adequacy of resident training and of the institutions and systems in which they train is regulated by the Accreditation Council for Graduate Medical Education (ACGME) and its associated Residency Review Committees (RRCs). The member organizations of ACGME are AMA, the American Board of Medical Specialties, the Association of American Medical Colleges (AAMC), the Council on Medical Subspecialty Societies, and the American Hospital Association. Many specialty societies are involved in providing members to the Residency Review Committees. For example, the American Board of Internal Medicine, the American College of Physicians– American Society of Internal Medicine, and AMA Coun0002-9343/00/$–see front matter PII S0002-9343(00)00294-1
Association of Professors of Medicine
cil on Medical Education sponsor the Residency Review Committee in the discipline of internal medicine. Each of the ACGME member groups selects four representatives. The organization also includes a resident representative, two public members, and a nonvoting representative of the federal government appointed by the Secretary of the Department of Health and Human Services. The rules for maintaining ACGME accreditation are described in detail in the Graduate Medical Education Directory for general institutional requirements as well as specific requirements for education in the various specialties. The institutional requirements highlight the following principle: “The single most important responsibility of any GME program is to provide an organized educational program” (4). The important educational aspect of resident training programs is also emphasized by discussion of a structured curriculum, requirements for scholarly activity, and for written criteria and processes for the selection, evaluation, and promotion of residents. These regulations also emphasize the requirements for conditions of work that might otherwise be considered to fall under a union’s jurisdiction, including written contracts for terms of appointment, benefits, access to appropriate and confidential counseling and psychological support services, duty hours, sleeping quarters, ancillary support, and “systems to minimize the work of residents that is extraneous to their educational programs” (4). Due process in supervision of academic progress towards completion of residency must be available. Fair and clear grievance procedures are essential. The institutional GME committee, which is required to include elected residents by ACGME mandate, can ensure that due process is followed. Residents must be able to raise and resolve issues without fear of retaliation through mechanisms such as a local resident organization and the creation of fair institutional policies for adjudication of resident complaints and grievances. A very important component of new RRC rules is that “no-compete” clauses for residents are forbidden. These regulations, when appropriately enforced, should make unionization unnecessary. A national union representing residents is inferior to a local resident organization— one form of the ACGME requirement to provide an organizational system for resident communication and information exchange on their professional and educational environment— because of expenses, obligations of residents to pay those expenses, and lack of knowledge about local issues (4). National unions are not only unnecessary, but they also would endanger the delicate balance between education and clinical service residents presently enjoy. Residency is best regarded as the second stage of medical education, essential to becoming a competent physician. Regulation of residencies by unions risks weakening of the educational component. Union focus would be more on salary, hours of work, and fringe benefits, and less on
the availability and quality of education. Residents would no longer be students and junior colleagues of attending physicians, but hospital or health system employees. Unions are likely to attempt to interfere in the educational academic process because the process may occasionally lead to requirements for extra training, termination of the resident, or inability to sit for board examinations. Academic review is necessary to assure the public that physicians are competent, empathetic, and ethical. Our own experience with a resident union is relevant to some of these issues. In the 1970s, University Hospital—which was at that time part of the University of Cincinnati— developed an agreement with the Housestaff Association. The agreement covered issues such as salary, benefits, and a grievance procedure. Representatives of hospital administration met with the leadership of the Housestaff Association and a final document was produced and signed by both sides. The lead negotiator for the administration was the physician responsible for GME, and residency programs were treated as academic entities. Faculty reviewed all issues and grievances; ultimate decision-making rested in the hands of the physician responsible for the GME enterprise. In the early 1980s, changes were made in the state employment relations act. The Housestaff Association filed a complaint with the State Employees Relations Board requesting that it be allowed to bargain collectively for the housestaff. After almost 10 years of litigation and two lower Court rulings in favor of the hospital, the Supreme Court of the State of Ohio deemed the Housestaff Association as a certified unit for collective bargaining purposes. Both sides were then back at the table in a more formal bargaining position than before. The key issue centered on disciplinary actions and grievance procedures. A major concern was that employment-related issues—after going through appropriate institutional channels— could then be sent to outside final and binding arbitration under the voluntary labor arbitration rules of the American Arbitration Association. The program directors and faculty were concerned that an arbitrator with no background in medicine or academia would be in a position to overturn a faculty decision regarding a house officer’s clinical competence or ethical behavior. As a result, a two-pronged grievance procedure was established. Critical issues regarding the nonrenewal of a resident’s contract were submitted to a housestaff affairs committee composed of members of the medical staff with representation from the Housestaff Association. Thus, issues of academic performance were handled through an academic grievance procedure. Grievances related to “employment” issues were handled through a hospital-based labor relations grievance process. Disputes as to whether a grievance was an educational or an employment-related issue were resolved by the housestaff affairs committee. Nevertheless, encroach-
February 15, 2000
THE AMERICAN JOURNAL OF MEDICINE威
Volume 108 265
Association of Professors of Medicine
ment by the union on academic issues was a concern in some individual cases. Privatization of the University Hospital in 1996 terminated the union. If unions representing residents and not affiliated with PRN use the right to strike, this would drive a wedge between the faculty and the residents in teaching hospitals. Likewise, a steady push toward a 40-hour work week, as is the case in some European countries, will put pressure on the faculty-resident teaching relationship. Methods of coverage of patients other than by residents will be developed and the quality of residents’ clinical experience in following and assessing illness will deteriorate. If the current level of experience in developing clinical judgment with procedures is to be retained, a longer training experience may well then be required. Through the 1999 National Resident Matching Program, 94% of US seniors obtained residency positions in the discipline of their choice. The percentage filling of available positions by graduating US seniors varied between 37% in neurology and 91% in orthopedic surgery (5). In general, resident applicants now have a buyer’s market; programs are competing vigorously for good applicants. Program directors and the chairs of the relative departments use departmental resources and are vigorous resident advocates for their education and conditions of service. Academic leaders regard the quality, professional satisfaction, and performance of their housestaff as a vital component of determining the status of the department. The single most important characteristic of a residency that determines recruitment of high-caliber residents is the opinion held by residents already in the program about the educational quality of their experiences and the interest in and competence of the faculty in furthering their education. Responsibility for completion of education in a specialty—and, in the case of internal medicine, for education in all of its subspecialties—is now assumed by the program. Such responsibilities are not assumed in other Western countries in which house officers are regarded as employees, often to be replaced on an annual basis. Responsibility for complete education in a discipline by a residency program is one of the strongest attributes of American resident education and should not be put at risk lightly. Consecutive hours of service to and observation of patients serves to educate young physicians on the course of illnesses. Admittedly, no one can learn when exhausted. There must be a compromise between continuity of care and adequate rest for residents. This compromise can best be attained by physician educators and the profession in general, with overview by ACGME and the RRCs along with local resident associations as well as open and due process and peer review. One example of the latter in
266
February 15, 2000
THE AMERICAN JOURNAL OF MEDICINE威
our own program is a resident committee containing no faculty that supervises and regulates the extent of moonlighting in our residencies (6). Rules were set by joint agreement between the faculty and residents. The amalgamations caused by “managed care” systems raise concerns about consolidation and termination of residencies. Once a resident is accepted into a program and performs up to accepted standards, every effort must be made to ensure completion of that resident’s education in the involved academic health center (AHC). Fiscal problems in hospitals may cause termination of programs. AMA, AAMC, and our specialty societies must strive to avoid or make satisfactory alternative training arrangements for such breaches of contract. Program directors, not unions, are likely to be the best allies of residents who find themselves in such an unfortunate situation. The Health Care Financing Administration regulations relating to caps on the size of resident programs must be modified to permit transfer of such positions to facilitate completion of resident education. AHCs should carefully acknowledge and follow ACGME regulations to support the unique blend of education and service that makes the second stage of medical education so successful for both residents and the US population they are trained to serve. If some residents now choose to have unions, they should maintain local control, and academic issues must be carefully excluded from union interference. Robert G. Luke, MD Dr. Luke is Chair of the Department of Internal Medicine at University of Cincinnati College of Medicine. He currently serves on the APM Education Committee.
ACKNOWLEDGMENT I am grateful to A. T. Filak, MD, Associate Dean for Medical Education at UCMC, for his help in preparing this paper.
REFERENCES 1. Greenhouse S. AMA’s delegates vote to unionize. New York Times. June 24, 1999; Sec. A, Pg. 1, Col. 6. 2. AMA, ANA opt to form restructured labor groups. Hospital Outlook. Federation of American Health Care Systems. Sept. 1999. 3. Greenhouse S. Intern’s right to unionize at hospitals is expanded. New York Times. November 30, 1999; Sec. A, Pg. 16, Col. 6. 4. Section II. Essentials of accredited residencies in graduate medical education: institutional and program requirements. Graduate Medical Education Directory 1999 –2000. American Medical Association: Chicago, IL, 1999. 5. 1999 NRMP Match Data. National Resident Match Data, April 1999. 6. Yingling KW, Hattemer C, Rouan GW, Luke RG. Internal medicine residents’ monitoring of their colleagues’ moonlighting activities at the University of Cincinnati. Acad Med. 1991;66:11.
Volume 108
Association of Professors of Medicine
Do Residents Need Unions?
I
n June 1999, the House of Delegates of the American Medical Association (AMA) voted to “instruct the AMA administration to immediately implement a national labor organization to support the development and operation of local negotiating units, employed physicians, and for resident and fellow physicians who are authorized under state laws to collectively bargain.” At that time, union activities were immediately feasible for physicians who were salaried employees; this category now includes residents and would total about 200,000 physicians, of which about one half are residents. Currently, it is estimated that about 40,000 physicians are in unions (1). Residents working in state hospitals in Michigan and now in California (by a decision of the California Public Employee Relations Board) have been ruled in the relevant state courts as being employees, not students. Our own medical center had a resident union in Ohio until University Hospital changed from being a state institution to a private, not-for-profit hospital, bringing its residents under the then-federal law. A recent agreement of the California Medical Association and the Committee of Interns and Residents (CIR) is significant: each now encourages residents to join each other’s organization and to advocate jointly for shared policy positions (2). CIR is a union with 10,000 members in hospitals throughout the United States and is affiliated with the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO). The new AMA collective bargaining unit, Physicians for Responsible Negotiations (PRN), will be a separate legal entity; AMA has specifically excluded the right to strike as one of its founding characteristics. Other union leaders are already criticizing this decision and will clearly compete to become doctors’ unions. Housestaff did strike in the 1970s in the New York public hospitals and received pay increases at that time. In November 1999, the National Labor Relations Board reversed— by a 3–2 vote—a 1976 federal court decision that residents were students rather than employees; therefore, residents in private hospitals may now also unionize (3). The issue of unionization is now a possibility for all resident physicians. This paper will address only the issue of the wisdom of having unions for housestaff, not that of unions for independently practicing or employed physicians after resi264
䉷2000 by Excerpta Medica, Inc. All rights reserved.
dency training. These are very different issues; residents are, to their current substantial benefit, at least as much students as they are employees. The AMA’s decision, while democratically obtained, was by no means unanimous. The Board of Trustees, the AMA Section on Medical Schools, and the AMA Council on Medical Education all recommended against the decision. The reason for the AMA House of Delegates’ decision likely relates to the increasing power of insurance companies and of those companies that employ practicing physicians, accompanied by the loss of physician control over patient care issues. Such managed care-related factors, along with diminished reimbursement for health care, can negatively impact delivery of care in teaching hospitals and attending physicians who are ultimately responsible for billing and payment issues. However, housestaff have no direct responsibility to these insurance companies or physician employers, and are affected by these forces only to the degree reflected by their attendings with whom they jointly manage patients. Thus, the reasons energizing the interest of physicians in the formation of unions do not apply, or apply much less forcibly and directly, to housestaff during their training. Graduate medical education (GME) in the United States has many strengths in its present form that regards residents primarily as students and secondly as employees. Provided their performance meets reasonable and defined standards of clinical competence and professional behavior, housestaff are virtually guaranteed to finish that program and become board eligible in their discipline when accepted into a training program. This arrangement might be at risk if residents are treated purely as employees. The adequacy of resident training and of the institutions and systems in which they train is regulated by the Accreditation Council for Graduate Medical Education (ACGME) and its associated Residency Review Committees (RRCs). The member organizations of ACGME are AMA, the American Board of Medical Specialties, the Association of American Medical Colleges (AAMC), the Council on Medical Subspecialty Societies, and the American Hospital Association. Many specialty societies are involved in providing members to the Residency Review Committees. For example, the American Board of Internal Medicine, the American College of Physicians– American Society of Internal Medicine, and AMA Coun0002-9343/00/$–see front matter PII S0002-9343(00)00294-1
Association of Professors of Medicine
cil on Medical Education sponsor the Residency Review Committee in the discipline of internal medicine. Each of the ACGME member groups selects four representatives. The organization also includes a resident representative, two public members, and a nonvoting representative of the federal government appointed by the Secretary of the Department of Health and Human Services. The rules for maintaining ACGME accreditation are described in detail in the Graduate Medical Education Directory for general institutional requirements as well as specific requirements for education in the various specialties. The institutional requirements highlight the following principle: “The single most important responsibility of any GME program is to provide an organized educational program” (4). The important educational aspect of resident training programs is also emphasized by discussion of a structured curriculum, requirements for scholarly activity, and for written criteria and processes for the selection, evaluation, and promotion of residents. These regulations also emphasize the requirements for conditions of work that might otherwise be considered to fall under a union’s jurisdiction, including written contracts for terms of appointment, benefits, access to appropriate and confidential counseling and psychological support services, duty hours, sleeping quarters, ancillary support, and “systems to minimize the work of residents that is extraneous to their educational programs” (4). Due process in supervision of academic progress towards completion of residency must be available. Fair and clear grievance procedures are essential. The institutional GME committee, which is required to include elected residents by ACGME mandate, can ensure that due process is followed. Residents must be able to raise and resolve issues without fear of retaliation through mechanisms such as a local resident organization and the creation of fair institutional policies for adjudication of resident complaints and grievances. A very important component of new RRC rules is that “no-compete” clauses for residents are forbidden. These regulations, when appropriately enforced, should make unionization unnecessary. A national union representing residents is inferior to a local resident organization— one form of the ACGME requirement to provide an organizational system for resident communication and information exchange on their professional and educational environment— because of expenses, obligations of residents to pay those expenses, and lack of knowledge about local issues (4). National unions are not only unnecessary, but they also would endanger the delicate balance between education and clinical service residents presently enjoy. Residency is best regarded as the second stage of medical education, essential to becoming a competent physician. Regulation of residencies by unions risks weakening of the educational component. Union focus would be more on salary, hours of work, and fringe benefits, and less on
the availability and quality of education. Residents would no longer be students and junior colleagues of attending physicians, but hospital or health system employees. Unions are likely to attempt to interfere in the educational academic process because the process may occasionally lead to requirements for extra training, termination of the resident, or inability to sit for board examinations. Academic review is necessary to assure the public that physicians are competent, empathetic, and ethical. Our own experience with a resident union is relevant to some of these issues. In the 1970s, University Hospital—which was at that time part of the University of Cincinnati— developed an agreement with the Housestaff Association. The agreement covered issues such as salary, benefits, and a grievance procedure. Representatives of hospital administration met with the leadership of the Housestaff Association and a final document was produced and signed by both sides. The lead negotiator for the administration was the physician responsible for GME, and residency programs were treated as academic entities. Faculty reviewed all issues and grievances; ultimate decision-making rested in the hands of the physician responsible for the GME enterprise. In the early 1980s, changes were made in the state employment relations act. The Housestaff Association filed a complaint with the State Employees Relations Board requesting that it be allowed to bargain collectively for the housestaff. After almost 10 years of litigation and two lower Court rulings in favor of the hospital, the Supreme Court of the State of Ohio deemed the Housestaff Association as a certified unit for collective bargaining purposes. Both sides were then back at the table in a more formal bargaining position than before. The key issue centered on disciplinary actions and grievance procedures. A major concern was that employment-related issues—after going through appropriate institutional channels— could then be sent to outside final and binding arbitration under the voluntary labor arbitration rules of the American Arbitration Association. The program directors and faculty were concerned that an arbitrator with no background in medicine or academia would be in a position to overturn a faculty decision regarding a house officer’s clinical competence or ethical behavior. As a result, a two-pronged grievance procedure was established. Critical issues regarding the nonrenewal of a resident’s contract were submitted to a housestaff affairs committee composed of members of the medical staff with representation from the Housestaff Association. Thus, issues of academic performance were handled through an academic grievance procedure. Grievances related to “employment” issues were handled through a hospital-based labor relations grievance process. Disputes as to whether a grievance was an educational or an employment-related issue were resolved by the housestaff affairs committee. Nevertheless, encroach-
February 15, 2000
THE AMERICAN JOURNAL OF MEDICINE威
Volume 108 265
Association of Professors of Medicine
ment by the union on academic issues was a concern in some individual cases. Privatization of the University Hospital in 1996 terminated the union. If unions representing residents and not affiliated with PRN use the right to strike, this would drive a wedge between the faculty and the residents in teaching hospitals. Likewise, a steady push toward a 40-hour work week, as is the case in some European countries, will put pressure on the faculty-resident teaching relationship. Methods of coverage of patients other than by residents will be developed and the quality of residents’ clinical experience in following and assessing illness will deteriorate. If the current level of experience in developing clinical judgment with procedures is to be retained, a longer training experience may well then be required. Through the 1999 National Resident Matching Program, 94% of US seniors obtained residency positions in the discipline of their choice. The percentage filling of available positions by graduating US seniors varied between 37% in neurology and 91% in orthopedic surgery (5). In general, resident applicants now have a buyer’s market; programs are competing vigorously for good applicants. Program directors and the chairs of the relative departments use departmental resources and are vigorous resident advocates for their education and conditions of service. Academic leaders regard the quality, professional satisfaction, and performance of their housestaff as a vital component of determining the status of the department. The single most important characteristic of a residency that determines recruitment of high-caliber residents is the opinion held by residents already in the program about the educational quality of their experiences and the interest in and competence of the faculty in furthering their education. Responsibility for completion of education in a specialty—and, in the case of internal medicine, for education in all of its subspecialties—is now assumed by the program. Such responsibilities are not assumed in other Western countries in which house officers are regarded as employees, often to be replaced on an annual basis. Responsibility for complete education in a discipline by a residency program is one of the strongest attributes of American resident education and should not be put at risk lightly. Consecutive hours of service to and observation of patients serves to educate young physicians on the course of illnesses. Admittedly, no one can learn when exhausted. There must be a compromise between continuity of care and adequate rest for residents. This compromise can best be attained by physician educators and the profession in general, with overview by ACGME and the RRCs along with local resident associations as well as open and due process and peer review. One example of the latter in
266
February 15, 2000
THE AMERICAN JOURNAL OF MEDICINE威
our own program is a resident committee containing no faculty that supervises and regulates the extent of moonlighting in our residencies (6). Rules were set by joint agreement between the faculty and residents. The amalgamations caused by “managed care” systems raise concerns about consolidation and termination of residencies. Once a resident is accepted into a program and performs up to accepted standards, every effort must be made to ensure completion of that resident’s education in the involved academic health center (AHC). Fiscal problems in hospitals may cause termination of programs. AMA, AAMC, and our specialty societies must strive to avoid or make satisfactory alternative training arrangements for such breaches of contract. Program directors, not unions, are likely to be the best allies of residents who find themselves in such an unfortunate situation. The Health Care Financing Administration regulations relating to caps on the size of resident programs must be modified to permit transfer of such positions to facilitate completion of resident education. AHCs should carefully acknowledge and follow ACGME regulations to support the unique blend of education and service that makes the second stage of medical education so successful for both residents and the US population they are trained to serve. If some residents now choose to have unions, they should maintain local control, and academic issues must be carefully excluded from union interference. Robert G. Luke, MD Dr. Luke is Chair of the Department of Internal Medicine at University of Cincinnati College of Medicine. He currently serves on the APM Education Committee.
ACKNOWLEDGMENT I am grateful to A. T. Filak, MD, Associate Dean for Medical Education at UCMC, for his help in preparing this paper.
REFERENCES 1. Greenhouse S. AMA’s delegates vote to unionize. New York Times. June 24, 1999; Sec. A, Pg. 1, Col. 6. 2. AMA, ANA opt to form restructured labor groups. Hospital Outlook. Federation of American Health Care Systems. Sept. 1999. 3. Greenhouse S. Intern’s right to unionize at hospitals is expanded. New York Times. November 30, 1999; Sec. A, Pg. 16, Col. 6. 4. Section II. Essentials of accredited residencies in graduate medical education: institutional and program requirements. Graduate Medical Education Directory 1999 –2000. American Medical Association: Chicago, IL, 1999. 5. 1999 NRMP Match Data. National Resident Match Data, April 1999. 6. Yingling KW, Hattemer C, Rouan GW, Luke RG. Internal medicine residents’ monitoring of their colleagues’ moonlighting activities at the University of Cincinnati. Acad Med. 1991;66:11.
Volume 108