The US Medical Tourism Association responds to criticism on its non-compete clause

 

The US Medical Tourism Association has amended the non-compete clause in its membership agreement following criticism of the association’s “protectionist” stance from some MTA members and non-members. The MTA has received criticism in the past for restrictive clauses contained in speaker agreements related to its conference activities.

In recent weeks, the non-compete clause attracted comment on medical tourism forums and discussion groups.  One MTA Member who contacted IMTJ regarding the clause, stated; “I find the clause in question very troubling and will not renew our membership under such conditions. Because the MTA seems to compete directly with many organizations with which we participate or are involved, such clause makes it impossible for our organization to agree on such. Besides, because the MTA provides very little, if any, visibility into its “future activities”, I cannot and will not handcuff our organization to the future whim of the MTA.”

The offending words appeared within a clause entitled “CONFIDENTIALITY/NON-COMPETE” and originally read as follows:

  • “Member agrees not to participate or be involved in another competing organization whether for profit or nonprofit that directly competes with the Medical Tourism Association or Medical Tourism Magazine and any of it’s (sic) current or future activities.”

In a December 1st version of the member’s agreement edited by J Edelheit, (according to the PDF document details), the words were amended to read:

  • “Member agrees not to share any MTA information under any circumstances with another competing organization whether for profit or non-profit that directly competes with the Medical Tourism Association or Medical Tourism Magazine and any of its current or future activities. Member agrees to immediately notify MTA in writing, if it participates in such competing organization, so that MTA is aware of any potential conflict and aware of this, prior to sharing proprietary information and confidential information with member.”

On December 10th, Gabriella Vicuna from the MTA told IMTJ; “The confidentiality clause listed has never restricted members from any activity or affiliation... No one is our competitor.....  Not a single MTA member has ever had an issue with our membership application”.

IMTJ asked for clarification on the continued existence of what was still described as a “CONFIDENTIALITY/NON-COMPETE” clause, and how members would know which organizations the MTA regarded as competing organizations (as stated in the clause).

A further response was received from Gabriel Vicuna at the MTA; “Please explain what specific language about non-compete has been “watered down”? There is not one single sentence in that revised membership agreement that could ever be considered a non-compete. .  There is absolutely no language whatsoever in the new agreement that mentions a non-compete in any way shape or form. The MTA does not restrict members from participating with any other organization.  It has only attracted comment by a small group of people who are in the conference business with an underlying objective of creating a competing association, which have misrepresented that the MTA restricts members when that is simply not true.”

IMTJ checked the membership agreement available for download on the MTA site again. We found that a third version had appeared, edited by Gabriel Vicuna that same day (according to the PDF document details). In this latest version, the “NON-COMPETE” description had been removed, and the wording amended to:

  • Member agrees that it will be privy to proprietary and confidential information not available to the general public or non-MTA members and that member agrees not to share any proprietary or confidential information shared with MTA member under any circumstances with any other organization, entity or individual. Member agrees to immediately notify MTA in writing, if it participates, violates this confidentiality clause or if there will be a potential conflict of interest where this proprietary information may be shared with a non-MTA member.

So...... those MTA members and non members who were critical of the original clause will be pleased to hear that the non-compete elements have finally be removed. However, on the one hand the MTA is still saying “No one is our competitor”, but contradicts itself by saying it is concerned about “a small group of people who are in the conference business with an underlying objective of creating a competing association”. IMTJ is not aware of any attempt to create a new associaion in the USA.  

A chequered history

The Medical Tourism Association has had a chequered history attracting comment both in the industry and the US media for the “commercial” activities of its two founders - Jonathan Edelheit and Renee Stephano. (See Reuters - Controversial couple dominates U.S. medical tourism). Whilst generating increased awareness and understanding of medical tourism in the USA, the MTA has failed to attract support from many of the bigger players in the sector, notably the larger facilitatators, that would give it a truly representative role within the industry.

MTA has started to use additional descriptors in its materials, notably, “Global Healthcare Association” and “Medical Travel Association”. Last year the MTA sued the International Medical Travel Association (IMTA), a non profit trade association registered in Singapore over service mark infringement and unfair competition. Subsequently, the IMTA closed down, reluctant to commit its members to the costs of defending an action in the US courts.

The MTA founders have spread their wings in 2010, establishing another association on a similar model, entitled “The Self Funding Employer Association”. A magazine and a conference have been set up alongside the SFEA which promotes itself as the “first non-profit employer based self insurance association organization”.  The new association appears to be in direct competition with the long established Self-Insurance Institute of America, Inc. (SIIA).

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