Full Transcript of Audio Interview With Dr. Bryant Welch, J.D., PhD

 

 

 

 

 

 

Dr. Bryant Welch, JD, PhD

Hello this is John Riolo and welcome to Psychjourney and Your Advocate Online's Special Series on Anti-trust.

Against anti-trust laws or not, and despite warnings from their professional organizations non-affiliated mental health practitioners are discussing and comparing fees. And in some cases seem to be actually calling for boycotts of some managed care plans whose rates they considerer too low. It’s often done on the Internet in discussion groups, bulletin boards and listservs. To try to address this matter we have invited a number of experts to clarify key some points.

 Today I have the honor of speaking with Bryant Welch, a nationally prominent psychologist/attorney for thirty years. Dr. Welch graduated from Harvard Law School in 1972 and earned a Ph.D. in Clinical Psychology from the University of North Carolina in 1976. With that combination of degrees he is an ideal person to offer some insight in to these matters. Dr. Welch has provided testimony on psychological matters.His full bio and extensive credentials can be found on our website or on his website at http://www.bryantwelch.com.

So without further ado Welcome Bryant!

 

BW: Good morning John.

JR: Well, the question of anti-trust, any general comments and then I could get into specifics I might have? First to the average mental health practitioner, it’s hard to conceptualize what anti-trust is. We think of that’s what they go after Bill Gates and Microsoft. How does it apply to us?

BW: Well it does apply to us in fact the attorney for the Federal government, Joel Kline the attorney going after Microsoft, was also the attorney in the Psychoanalytic litigation. We had an anti-trust suit filed against them to try to open their training to psychologists and social workers across the country. So there is a connection and the same rules and principles do apply.

But let me just say that the idea behind the antitrust laws is to promote competition throughout the economy and that includes the mental health field.
The theory behind our free enterprise system is if you have many competing in the market place it going to lead to lower prices and it will lead to better products. In order to sell you need a good product at a lower price. So the theory behind the anti-trust laws is that’s the kind of economic system we want to have.

Now what we have discovered and the reason behind the anti-trust laws particularly in the 1890s is that some companies were becoming so powerful in the economic system that they were able to drive out competition. And there were a number of ways they did that. They might get control of a crucial ingredient you needed to produce a product or they might be able to hold prices down until the competition died out and then have a complete monopoly. Or they could threaten suppliers that if they sold products to a competitor they would not deal with them. That would of course drive competitors out of the market place.
The anti-trust laws are designed to prevent those kinds of abuses. There are designed ironically or paradoxically for the government to step in and regulate the economy enough that we maintain the kind of competitive balance to obtain the benefits of lower prices and higher quality goods.

JR: Yes, well I think that is what we all received from our high school and college civics. I think or at least what I have observed is that it hard for the average private practicing psychologist, social worker etc. to make that connection as it applies to them. I can understand it, but I can also see that it’s a difficult jump. We see ourselves as the little guy. We’re not big corporations. In fact some of us are fighting for our very existence against the big managed care companies. It feels as if the anti-trust laws are turned around on their head. Can you clarify a bit?

BW: Yea, I can certainly understand the feeling full well. The problem we run into is we still have to play by the rules of the game and the main way in which I see practitioners potentially getting into trouble in today’s health care delivery system is caused by their reaction to managed care.

Now as you know I. believe managed care and it’s not much of a hyperbole to say that it has made it almost impossible to get  high quality mental health care particularly if you need more than 5 or 6 therapy visits with someone Nonetheless the anti-trust laws apply to us as well as anyone else in the economy.

One of the things we cannot do is we cannot encourage our colleagues to participate in what’s called a group boycott. That is we can not get online or in our professional organization and say, Hey the way we can deal what managed Care Company X, which is truly awful, is – to simply all agree to not do business with them. In that way we are going to force them to improve benefits or pay a higher fee. That what’s we can’t do. That’s using our economic power, limited though we may feel it is, to reduce their access to critical ingredient that need to participate in the economic system.

The second thing we cannot do is price fix. We cannot get together and say, look if we all keep competing with each other, like in the milk wars and lower prices we all lose. Let’s just agree to charge $130 and hour and let that be the standard fee.

That is an absolute “no- no” under the anti-trust laws. And if you think about the reason for them, it makes sense. You can’t go in and simply decide that we are going to subtract the competition from the market place that we participate in because the consumer loses. The consumer loses the benefit of having us compete with one another for lower fees and hopefully better services that we have to offer. So those are the two kinds of things we cannot do

JR: Now would it help clarify if we looked at this in terms of buyers and sellers? My understanding is and tells me if I am understanding it correctly is that basically anti-trust laws protect buyers. In effect when we deal with consumers or managed care companies we are sellers. The buyer can choose to agree collectively to buy or not. 

BW: Actually, your statement as it pertains to the law is correct. I think there are situations where the sellers can have some protections from anti trust laws. If buyers for whatever reason simply conspire with one seller to knock another seller out of the market place there are protections that sellers can have as well.

JR: OK

BW: But your statement- the example you used- is a correct articulation of the law.

JR: The other question that comes up - because you are articulating what certainly my professional organization has drummed into our heads and all seem to have the same caution against this is this. It seems pretty clear when you hear about it. But then you get individuals whether it’s online or in person and frankly it doesn’t matter whether it’s on line in person. It could be in a professional forum or 5 people (not affiliated) setting around having lunch. Is that correct?

BW That’s correct.

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

Key Highlights from Dr. Bryant Welch JD, PhD Interview 

Full Transcript of Audio Interview With Dr. Bryant Welch, J.D., PhD