Dear Chair Khan,
On behalf of the American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS), representing more than 4,500 practicing neurosurgeons in the United States, we appreciate the opportunity to comment on the Federal Trade Commission’s (FTC) proposed rule regarding non-compete clauses. In general, the AANS and the CNS concur with the FTC that non-compete clauses — particularly as used by large employers — can be anti-competitive and unduly restrict the ability of individuals to change jobs. This is true in the health care system, where non-compete agreements limit physicians’ ability to choose their employer or practice setting, stifling competition and impeding patient access to the physician of their choice. Such restrictions are particularly concerning given the projected shortages1 or maldistribution of physicians. Furthermore, the current patchwork of state laws governing non-competes — many with strict bans and others allowing them in some form but judging enforceability on various factors — further complicates the landscape. Given the ongoing consolidation in the health care marketplace, a uniform national solution may be appropriate. Nevertheless, a blanket prohibition that fails to recognize reasonable contracts to protect certain business owners’ — notably smaller independent neurosurgical practices — legitimate competitive interests may go too far. Therefore, we encourage you to modify the proposed rule to strike the appropriate balance between these competing interests.
Ethical Considerations At the outset, we believe it important to examine non-compete clauses in the context of medical ethical considerations. According to the American Medical Association’s (AMA) Code of Medical Ethics, “[c]ovenants-not-to-compete restrict competition, can disrupt continuity of care, and may limit access to
care.”2 The AMA code goes on to state:
Physicians should not enter into covenants that: (a) Unreasonably restrict the right of a physician to practice medicine for a specified period of time or in a specified geographic area on termination of a contractual relationship; and (b) Do not make reasonable accommodation for patients’ choice of physician. Physicians in training should not be asked to sign covenants not to compete as a condition of entry into any residency or fellowship program. The AANS and the CNS agree wholeheartedly with these ethical considerations and believe the FTC’s final rule should reflect these principles.
Click here to read the full comment letter.
