Legal Insider Says FTC Needs Further Education on Potential Anti-Competition Impacts

Because the home care industry is so large and fragmented, it’s often difficult to come to a consensus.

This is also the likely outcome of the debate on the prohibition of non-compete agreements. For example, many in the industry believe that this will be a step in the right direction.

But there are providers. And many of their leaders are aware of how much a ban could hurt their businesses—not just for one, but for others.

“What I have seen over the years and continue to beat the drum is that when we act collectively as an industry, it is really loud.” – Angelo Spinola, Chair of Home Care, Home Health and Hospice-in-Law. Polsinelli, HCP said at last week’s Growth Summit. “It’s such a big industry and so many voices. We really need to be proactive in how we seek change.”

In early January, the Federal Trade Commission (FTC) proposed a ban on non-compete agreements. The rule is likely to be finalized, Spinola previously told Home Health Care News. However, he is likely to face strong defense and legal opposition.

But Spinola believes the competition ban can be avoided if the home care industry can collectively explain how it will affect it.

“From my point of view, this option is the most prone to problems of all, because it is really unique,” ​​Spinola said. “It’s an extraordinary test of strength to do something like this for several reasons.”

On the one hand, non-compete agreements have traditionally been a state issue, not a federal one, Spinola said.

But perhaps more importantly, there are also deep-seated misconceptions about home care within the federal government, he said.

For example, a customer service agreement has a penalty clause that states that the client and caregiver cannot contract with each other and take the agency out of the deal without paying a fee.

Now the federal government, through the FTC, is taking the position that this process is uncompetitive and illegal.

“Because [in their eyes], you limit the right of guardians to work for whoever they want,” Spinola said. “This is a fundamental misunderstanding of our industry, right? And a lack of understanding of how much work, time, effort and training goes into checking and preparing a caregiver to work with a client. If you can’t protect that interest because the law restricts non-competition, it will very, very much dampen business and the desire to even do business.”

This is one example, Spinola said, that could be used as training material from providers to teach the FTC the specific details of how this type of assistance is provided and how these professions often work.

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