Workplace

Workplace / en Sat, 26 Apr 2025 06:21:06 -0500 Mon, 29 Jul 24 15:11:07 -0500 AHA, FAH Amicus Brief in FTC Non-Compete Case /amicus-brief/2024-07-29-aha-fah-amicus-brief-ftc-non-compete-case <div class="container"><div class="row"><div class="col-md-8">UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION</div><div class="col-md-4"><div><a class="btn btn-wide btn-primary" href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf" target="_blank" title="Click here to download the AHA, FAH Amicus Brief in FTC Non-Compete Case PDF.">Download the Amicus Brief PDF</a></div></div></div><div class="row"><div class="col-md-8"><div class="row"><div class="col-md-5">RYAN LLC, Plaintiff,CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, BUSINESS ROUNDTABLE, TEXAS ASSOCIATION OF BUSINESS, and LONGVIEW CHAMBER OF COMMERCE, Plaintiff-Intervenors,v.FEDERAL TRADE COMMISSION, Defendant.</div><div class="col-md-2">§ § § § § § § § § § § § §</div><div class="col-md-5">Civil Action No.: 3:24-CV-00986-E</div></div>PROPOSED BRIEF OF THE AMERICAN HOSPITAL ASSOCIATION AND THE FEDERATION OF AMERICAN HOSPITALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S AND PLAINTIFF-INTERVENORS’ MOTIONS FOR SUMMARY JUDGMENT<div class="row"><div class="col-md-6">Katrina A. Pagonis Pro Hac Vice HOOPER, LUNDY &amp; BOOKMAN 44 Montgomery Street, Suite 3500 San Francisco, CA 94104 Telephone: (415) 875-8500 Fax: (415) 986-2157 kpagonis@hooperlundy.com</div><div class="col-md-6">Kelly A. Carroll Pro Hac Vice HOOPER, LUNDY &amp; BOOKMAN 401 9th Street NW, Suite 550 Washington, DC 20004 Telephone: (202) 580-7712 Fax: (202) 609-8931 kcarroll@hooperlundy.com</div></div>Counsel for Amici Curiae<hr><h2>Contents</h2><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=3" target="_blank">TABLE OF AUTHORITIES</a><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=6" target="_blank">INTEREST OF THE AMICI CURIAE</a><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=9" target="_blank">INTRODUCTION AND SUMMARY OF ARGUMENTS</a><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=12" target="_blank">ARGUMENT</a><ol type="I"><li><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=12" target="_blank">The Commission Failed to Adequately Address the Likelihood of Significant Distortions in Hospital Competition Resulting from the Disparate Treatment of Nonprofit and Taxpaying Hospitals</a></li><li><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=17" target="_blank">The Commission Failed to Adequately Explain Its Rejection of Alternatives Proposed by Amici.</a></li><li><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=22" target="_blank">Vacatur Is the Proper Remedy to Uniformly Set Aside the Unlawful Non-Compete Rule</a></li></ol><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=27" target="_blank">CONCLUSION</a><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=28" target="_blank">CERTIFICATE OF COMPLIANCE</a><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf#page=29" target="_blank">CERTIFICATE OF SERVICE</a><hr><h2>Interest of the Amici Curiae</h2>Amici curiae are the �� Association (“AHA”) and the Federation of ��s (“FAH”) (together, “Amici”), national associations representing hospitals and health systems.The AHA represents nearly 5,000 hospitals, healthcare systems, and other healthcare organizations. Its members are committed to improving the health of the communities that they serve, and to helping ensure that care is available to and affordable for all Americans. The AHA educates its members on healthcare issues and advocates on their behalf, so that their perspectives are considered in formulating health policy. One way in which the AHA promotes its members’ interests is by participating as amicus curiae in cases with important and far-ranging consequences.The FAH is the national representative of more than 1,000 leading taxpaying hospitals and health systems throughout the United States. FAH members provide patients in urban and rural communities with access to high-quality, affordable healthcare. Its members include teaching and non-teaching, acute, inpatient rehabilitation, behavioral health, and long-term care hospitals. They provide a wide range of acute, post-acute, emergency, children’s, cancer care, and ambulatory services.Dedicated to a market-based philosophy, the FAH provides representation and advocacy on behalf of its members to Congress, the executive branch, the judiciary, media, academia, accrediting organizations, and the public. FAH routinely submits comments to the Centers for Medicare &amp; Medicaid Services (“CMS”) on Medicare and Medicaid payment and rulemakings and offers guidance to courts regarding Medicare and Medicaid reimbursement principles. FAH member hospitals serve some of our country’s most vulnerable communities.Amici, their members, and the healthcare ecosystem would be adversely impacted if the Federal Trade Commission’s (the “Commission” or “FTC”) rule prohibiting non-compete clauses, 89 Fed. Reg. 38,342 (May 7, 2024) (the “NonCompete Rule” or “Rule”) goes into effect. As the AHA stated in a public comment in response to the Rule, while “[t]he AHA respects the FTC’s efforts to address issues of genuine unequal bargaining power between certain employers and certain types of workers . . . the proposed rule would profoundly transform the health care labor market – particularly for physicians and senior hospital executives.” See AHA, Cmt. Ltr. Proposed Non-Compete Clause Rule (Feb. 22, 2023), at 1–2, available at <a href="https://www.regulations.gov/comment/FTC-2023-0007-8138" target="_blank">https://www.regulations.gov/comment/FTC-2023-0007-8138</a> (hereinafter “AHA Cmt.”). The Rule “would instantly invalidate millions of dollars of existing contracts, while exacerbating problems of health care labor scarcity, especially for medically underserved areas like rural communities.” Id. at 2.Importantly, the FTC does not have the statutory authority to apply its rule to nonprofit entities that are exempt under Section 501(c)(3) of the Internal Revenue Code, including nonprofit hospitals and health systems. See 15 U.S.C. § 44. As such, only the taxpaying hospital and health-system members of the FAH and AHA would be subject to the requirements of the Non-Compete Rule. This could cause a significant “distortion in the competitive playing field” for hospital labor. FAH, Cmt. Ltr. Proposed Non-Compete Clause Rule (Feb. 22, 2023), at 2, available at <a href="https://www.regulations.gov/comment/FTC-2023-0007-21034" target="_blank">https://www.regulations.gov/comment/FTC-2023-0007-21034</a> (hereinafter “FAH Cmt.”). Indeed, the Rule’s disparate treatment of taxpaying vs. tax-exempt, nonprofit entities could significantly disrupt health care labor markets regardless of hospital ownership type. As the AHA explained, “this disequilibrium could reduce the available supply of highly-trained, highly-skilled labor for forprofit hospitals in particular markets, driving up the price for such labor or at least creating serious instability in those markets. Market distortions of this kind would arise in the context of an already-challenging workforce shortage for America’s hospitals.” AHA Cmt. at 16; see also FAH Cmt. at 7 (“The uneven playing field the Noncompete Rule would impose between taxpaying and tax-exempt hospitals is illogical and would create significant, unintended, and anticompetitive distortions.”).In light of these potential consequences, both Amici filed public comments urging the Commission to more narrowly-tailor its Rule, exempting the healthcare industry or, at a minimum, exempting highly-skilled, highly-compensated physicians and the hospitals’ executives who have greater bargaining power than lower-skilled, lower-wage workers. See AHA Cmt. at 7–17; FAH Cmt. at 6–16. As the AHA concluded: “[T]he proposed regulation errs by seeking to create a one-size-fits all rule for all employees across all industries, especially because Congress has not granted the FTC the authority to act in such a sweeping manner.” AHA Cmt. at 2. For these reasons, Amici have an acute interest in the proper resolution of this case.<a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf" target="_blank" title="Click here to download the AHA, FAH Amicus Brief in FTC Non-Compete Case PDF.">Download the full Amicus Brief PDF.</a></div><div class="col-md-4"><a href="/system/files/media/file/2024/07/AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.pdf" target="_blank" title="Click here to download the AHA, FAH Amicus Brief in FTC Non-Compete Case PDF."><img src="/sites/default/files/inline-images/Page-1-AHA-FAH-Amicus-Brief-in-FTC-Non-Compete-Case.png" data-entity-uuid="c039b313-e98c-495b-9206-3b7c912d6b89" data-entity-type="file" alt="AHA, FAH Amicus Brief in FTC Non-Compete Case page 1." width="695" height="900"></a></div></div></div> Mon, 29 Jul 2024 15:11:07 -0500 Workplace Court grants a narrow preliminary injunction on FTC noncompete ban /news/headline/2024-07-08-court-grants-narrow-preliminary-injunction-ftc-noncompete-ban A federal court in Texas <a href="https://www.uschamber.com/assets/documents/Memorandum-Opinion-and-Order-Ryan-v.-FTC-N.D.-Tex.pdf">last week</a> found that the Federal Trade Commission likely lacked statutory authority to issue its Non-Compete Clause Final Rule. The court also found the rule was likely arbitrary and capricious because the FTC did not provide sufficient “evidence as to why they chose to impose such a sweeping prohibition — that prohibits entering or enforcing virtually all non-competes — instead of targeting specific, harmful non-competes,” and because the agency failed to consider adequate alternatives to its sweeping final rule. In so doing, the court issued a preliminary injunction against enforcement of the rule only as to the parties challenging the rule (e.g., Ryan LLC, a global tax firm). The court stated that it intends to rule on the ultimate merits of this action on or before Aug. 30.&nbsp; &nbsp; The AHA last year submitted <a href="/lettercomment/2023-02-22-aha-comments-ftc-proposed-non-compete-clause-rule">comments</a> making these and other arguments against the rule. In addition, the AHA and other national organizations in May sent a <a href="https://www.uschamber.com/assets/documents/Coalition_NoncompeteRule_FTC.pdf">letter</a> to the FTC requesting a stay on the Sept. 4 effective date to allow for judicial review.&nbsp; Mon, 08 Jul 2024 16:01:03 -0500 Workplace Ascension responds to NYT article on staffing /news/headline/2022-12-16-ascension-responds-nyt-article-staffing Ascension, a nonprofit health system that includes 139 hospitals in 19 states, yesterday published a <a href="https://healthcare.ascension.org/pages/message" target="_blank">detailed response</a> to a New York Times article that examined staffing at the health system.&nbsp; &nbsp; “Ascension is deeply committed to providing a positive workplace culture for our nurses, as well as other clinicians and associates,” the Ascension blog states. “Doing so is not only an inherent aspect of valuing the dignity of our colleagues, but a well-functioning and supported workforce improves the quality of care we provide to the communities we serve. Unlike what The New York Times has indicated that it was told, the reality is that Ascension’s hospital staffing levels – particularly bedside nursing staffing – increased in the years leading up to the pandemic and continue to exceed levels maintained by the majority of our peers. &nbsp; “Ascension is also committed to continually measuring and improving the quality of care provided to the communities we serve. Despite facing unprecedented and challenging financial times, our dedication to our Mission is evidenced by the fact that we provided nearly $2.3 billion in care of persons living in poverty and other community benefit programs during our last fiscal year ended June 30, 2022. Since fiscal year 2010, Ascension has provided more than $23.5 billion in care of persons living in poverty and community benefit.”&nbsp; &nbsp; Read <a href="https://healthcare.ascension.org/pages/message" target="_blank">Ascension’s full blog</a> for a detailed response to the article. Fri, 16 Dec 2022 15:10:49 -0600 Workplace Surgeon general releases framework for workplace mental health, well-being /news/headline/2022-10-21-surgeon-general-releases-framework-workplace-mental-health-well-being U.S. Surgeon General Vivek Murthy, M.D., yesterday <a href="https://www.hhs.gov/surgeongeneral/priorities/workplace-well-being/index.html" target="_blank">released a framework</a> outlining recommended policies, processes and practices to support mental health and well-being in the workplace. “A healthy workforce is the foundation for thriving organizations and healthier communities,” <a href="https://www.hhs.gov/about/news/2022/10/20/us-surgeon-general-releases-new-framework-mental-health-well-being-workplace.html" target="_blank">he said</a>. “As we recover from the worst of the pandemic, we have an opportunity and the power to make workplaces engines for mental health and well-being, and this Surgeon General’s Framework shows us how we can start. It will require organizations to rethink how they protect workers from harm, foster a sense of connection among workers, show workers that they matter, make space for their lives outside work, and support their growth.” AHA also offers resources to help hospitals and health systems <a href="https://aha.org/workforce-home" target="_blank">support their employees</a> and <a href="/suicideprevention" target="_blank">protect the health and well-being of their health care teams</a>.&nbsp; Fri, 21 Oct 2022 14:17:57 -0500 Workplace Advertorial calls for zero tolerance for abuse against health care workers /news/news/2022-04-25-advertorial-calls-zero-tolerance-abuse-against-health-care-workers The AHA and its American Organization for Nursing Leadership today published an advertorial in the <a href="/aha-news/2022-04-25-advertorial-supporting-health-care-workers-who-support-all-us-april-25-2022">Wall Street Journal</a>&nbsp;on the need for federal legislation to protect nurses and other health care workers from assault and intimidation. Health care workers account for nearly three-quarters of violence-related workplace injuries and illnesses, with hospital workers six times more likely to suffer job violence than private sector workers as a whole, notes AONL CEO Robyn Begley, AHA chief nursing officer, in the message from America’s hospitals and health systems.&nbsp; &nbsp; “Workers who dedicate themselves to saving lives deserve a safe environment — free of violence and intimidation — in which to deliver care,” Begley writes.&nbsp; &nbsp; AHA has <a href="/news/news/2022-03-24-aha-urges-doj-protect-health-care-workers-workplace-violence">urged</a>&nbsp;the Department of Justice to support legislation that would give health care workers the same legal protections against assault and intimidation as flight crews and airport workers have under federal law. Mon, 25 Apr 2022 14:50:13 -0500 Workplace Penn Medicine develops ‘first-of-its-kind’ framework for measuring, operationalizing workforce inclusion /news/insights-and-analysis/2018-09-11-penn-medicine-develops-first-its-kind-framework-measuring As health care organizations strive to cultivate inclusive workplaces, many could use a comprehensive structure to keep their efforts in check. A ‘first-of-its-kind’ study from the Perelman School of Medicine, which is part of the academic medical center Penn Medicine in Philadelphia, has given way to a taxonomy that other health care leaders can use to do exactly that.&nbsp; Published in JAMA Network Open, the study outlines a template to identify, measure and address the issues that contribute to inclusive learning and work environments. A team of researchers narrowed these factors down to six: presence of discrimination; silent witness; interplay among hierarchy, recognition and civility; effectiveness of leadership and mentors; support for work-life balance; and perceptions of exclusion from inclusion efforts.&nbsp; “Regardless of the factor, the underlying thread among [them] was the need to belong and feel recognized and valued,” the researchers <a href="https://www.pennmedicine.org/news/news-releases/2018/august/ensuring-equality-penn-develops-first-of-its-kind-framework">wrote</a>.&nbsp; The framework is a “relatively easy and incredibly insightful way” for health care leaders to conduct inclusivity audits, said lead author Jaya Aysola, M.D., assistant professor of general internal medicine and assistant dean of inclusion and diversity.&nbsp; A forum that works Penn researchers decided to come up with their own study to better understand the recommended diversity engagement surveys of the day. Rather than conduct a focus group, “which puts people on the spot,” or attempt internal surveys that could compromise participants’ anonymity, Aysola and her team used a method developed by Penn’s Frances Barg, M.D., a professor of family medicine and community health.&nbsp; They asked, through a private online platform, two open-ended questions of employees, faculty, and students across Penn’s health science schools and hospitals about their experiences with inclusion. They asked respondents to divulge moments in which they or a colleague was treated in a way that made them feel either included, valued, and welcome or excluded, devalued, and unwelcome, and were also asked to comment on how the respondent perceived the general climate at Penn as it pertained to inclusion and respect. Three hundred fifteen people responded, and the results were “striking” in their candor, Aysola said. Respondents felt safe to share in this way, she said, which made all the difference. “We were shocked at the appetite for people to want to tell their stories,” Aysola said. “The length of stories we received, the time of night they were submitted online, the emotion, the analogies, the quotations… it was amazing how much [respondents] gravitated toward this forum.” When you see something, say something The research team identified themes in the responses and then developed improvement strategies. Their recommendations, which included inclusivity education for existing leadership, developing advocacy campaigns across the health system and encouraging leaders to diversify their professional networks, addressed changes at the system-level, since most respondents referenced problems with a systemic culture that influenced their group and interpersonal dynamics.&nbsp; Penn has already begun rolling out those initiatives, starting with a series of 12 leadership workshops, with help from external consultants, that focus on understanding implicit bias, managing diverse employees and highlighting discrimination. Penn also is testing a “bystander advocacy” campaign to encourage staff to speak up when they witness discrimination.&nbsp; “When you hear a discriminatory remark, or you hear an off-handed joke, in a meeting, in a clinical setting or in medical school or the C-suite — it doesn’t really matter — everyone is encouraged to point that out on-the-spot,” Aysola said. “We provide a tactical set of tools to highlight that and move on.”&nbsp; In addition, Penn plans to “continue this ongoing measurement of inclusivity” through a permanent cultural audit, she said.&nbsp; Scaling the study to the field Although the study responses may not be nationally generalizable, the resulting template may be widely applicable. Aysola urges hospital leaders who wish to adopt this methodology to integrate their solutions into existing initiatives.&nbsp; “There are so many ways in which to take this template and say, ‘how can we make our current and already operational standards and policies reflect inclusion as well?’” Aysola said. “Right now, inclusion is often a siloed activity, or it’s often relegated to a diversity officer in a hospital system or an office of diversity within a medical school. It’s really not integrated into the normal operations within a health care infrastructure.” Aysola cited human resources’ policies around family leave and compensation, as well as wellness initiatives, as areas where inclusion efforts could blossom. Doing so makes it “mainstream,” she said, which also normalizes it for those who typically feel exempted from traditional diversity efforts. “If inclusion was part-and-parcel of all your wellness initiatives, it wouldn’t be seen potentially by a subset of the population as something that wouldn’t benefit them,” she explained.&nbsp; Tue, 11 Sep 2018 08:46:43 -0500 Workplace A Glimpse into the Future of Health Care Facilities /infographics/2018-08-08-glimpse-future-health-care-facilities <img src="/sites/default/files/inline-images/Futurescan-health-care-facilities.jpg" data-entity-uuid="e691c2f3-e224-45dd-b596-5e713cd5cf26" data-entity-type="file" alt="Futurescan graph of a glimpse into the future of health care facilities" width="1362" height="751">Don King, the lead for the Healthcare Executive Leadership Council of the �� Association’s American Society for Healthcare Engineering, reviews trends in health care facilities management in Futurescan 2018-2023.In the annual guide published by the American Society for Healthcare Strategy &amp; Market Development (SHSMD), King points out that providers are increasingly taking action to improve patient and staff safety. This observation is supported by the Futurescan national survey of healthcare leaders, which found that nearly two thirds of hospitals and health systems will have made capital investments to redesign or equip their facilities in ways that address this critical issue by 2023.Other trends noted by King include the growing demand for medical facilities to withstand earthquakes, floods, and other catastrophes and the increasing need for hospital and outpatient pharmacies to increase drug security to guard against theft.To learn more about the future of health care facilities and a variety of other emerging trends, order your copy of SHSMD’s Futurescan publication from the <a href="https://ams.aha.org/eweb/?ahabu=SHSMD&amp;Action=Add&amp;ObjectKeyFrom=1A83491A-9853-4C87-86A4-F7D95601C2E2&amp;WebCode=ProdDetailAdd&amp;DoNotSave=yes&amp;ParentObject=CentralizedOrderEntry&amp;ParentDataObject=Invoice%2520Detail&amp;ivd_formkey=69202792-63d7-4ba2-bf4e-a0da41270555&amp;ivd_prc_prd_key=67bd8450-28c0-43d3-8367-f82c3d8c266f" target="_blank">SHSMD online store</a> or visit <a href="http://www.shsmd.org/resources/display.dhtml?slug=futurescan-20182023-healthcare-trends-and-implications" target="_blank">SHSMD’s website</a>. Wed, 08 Aug 2018 08:46:06 -0500 Workplace