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Volume 50, No. 5 May 1994
OHIO PHYSICIANS CALL FOR REFORM
On March 12, 1994, the presidents of county medical societies called the second special session ever held in the nearly 160 years of Ohio State Medical Association (OSMA) history. They were concerned that the OSMA Health Care Task Force report was presumed to be the stand of Ohio physicians even though the report had never been officially approved by the House of Delegates. The report has four major flaws, according to physicians who called the meeting. Most of these physicians, led by Drs. Kenneth Christman, David Westbrock, Carl Wehri, and Nino Camardese, are members of AAPS, the Freedom in Medicine Coalition, or the Ohio Medical Action Committee for Education (MACE).
About ten minutes after the opening of the session, a member of the Task Force moved for adjournment.
``Thank God that our Founding Fathers and the signers of the Declaration of Independence had more interest in the future of our country than we seem to have here today,'' stated Nino Camardese, MD, Immediate Past President of AAPS, speaking against that motion.
The motion was defeated resoundingly.
Criticism of the OSMA Task Force report titled ``Shared Goals, Shared Responsibilities'' was summarized by Merrill Matthews, Ph.D., of the National Center for Policy Analysis:
In the quest for health care reform, we must be sure that we do not reform the system in the wrong direction. The Task Force's plan cries out for government control of the practice of medicine.
The Ohio MACE substitute resolution was approved almost unanimously. This was based on the resolutions authored by Dr. Kenneth Christman (see insert in AAPS News, April 1994):
RESOLVED: that the OSMA fully support legislative initiatives that promote individual liberty and responsibility and provide for:
a. Medical Savings Accounts
b. Medical IRAs
c. The elimination of underwriting requirements that create artificial barriers to small business insurance pools
d. Elimination or substantial reduction of pre-existing condition exclusions that permit insurers to skim off artificial ``communities'' of the healthy
e. Guaranteed portability of health insurance
f. Tax equity for insurance premiums
g. Insurance vouchers or tax credits for low-income families.
Some of these proposals had been mentioned in the Task Force report, but not as explicitly. In addition, other goals in the Task Force report are contradictory. Those contradictions will have to be addressed at the regular OSMA meeting.
The reason for calling a special session, stated Dr. Kenneth Christman, is that despite lip service ``organized medicine is not only maintaining a neutral stance towards Medical Savings Accounts and other free-market systems to preserve the integrity of our profession, but is actively working against us.''
Physicians from Florida, Pennsylvania, and Louisiana have already contacted Ohio physicians for advice on calling a special session in their own states. Dr. Christman states that it might be much easier than anyone imagines.
``One or two committed people can do it, and once it gets started it snowballs. Furthermore, the impact it has on organized medicine is quite considerable. It alerts leadership that grassroots physicians are not sleeping.''
A special session of the AMA may also be possible; Dr. Camardese is examining the bylaws.
``I am not even a member of the AMA, since I would rather contribute limited funds to the AAPS,'' writes Dr. Christman. ``However, I would consider joining the AMA simply for the purpose of organizing a special session of the House of Delegates.''
Ohio physicians are aware that last summer Hillary Rodham Clinton owned an interest in a mutual fund that was actively selling short pharmaceutical stocks while buying securities of United Health Care, the huge managed care bureaucracy. At the same time, Rodham Clinton was bashing the pharmaceutical industry and involving United Health Care in Task Force hearings.
Could members of local medical society task forces have conflicts of interest like those that probably predetermined conclusions reached by the Clinton Health Care Task Force?
Physicians are not even allowed to give a lecture for continuing medical education without signing a conflict-of- interest statement. Should they not have to divulge ownership of managed-care stocks, or income from consulting for managed-care interests, if they serve on a committee that will establish medical society policy?
This is another issue that might be addressed in special session by your medical society.
Tax-Exempts Explain Their Goals
Tax-exempt foundations are created for a charitable, scientific, or educational purpose. However, use of the funds for directly providing help to the needy is specifically eschewed by some foundations, for example, the Robert Wood Johnson Foundation (RWJF). Their goals are more far-reaching-and too ambitious to be achieved through grant-making alone.
The summer, 1992, issue of the influential journal Health Affairs helps to explain both purpose and methods.
From ``GrantWatch'' by Nancy Kane, Robert Blendon, and Susan Koch Madden, pp. 181-192 [emphasis added]:
``A foundation grant that represented only a small portion of an institution's budget could not overcome strong market forces or institutional self-interest to reshape a major health care institution.''
According to this article, cooperation occurred naturally only under certain conditions, as when managed care played a large role or the institution's survival was threatened.
``Otherwise, strong incentives-financial or political-were needed to `force' cooperation on what were otherwise competing and successful institutions.''
State political forces were considered the most important factor in assuring a project's success.
Projects designed to develop regionalized systems of patient care or medical education were impeded by institutional desires to maintain identity and independence: ``No participant was willing to give up autonomy to the consortium, particularly the right to withdraw if it did not like the consortium's suggestions.''
Usually, ``there must be governmental intervention and financial support'' to assure cooperation.
Also in the GrantWatch section, p. 200, RWJF President Steven Schroeder comments on the difficulty in getting the political support needed to achieve one of the foundation's goals, universal access. The problem, in his view, is that Americans don't trust their government.
``How to try to reconcile the need for universal coverage with a reluctance to have government in control of it is a real challenge for us as citizens.''
``The earlier method RWJF used in trying to influence public policy, which was `let's just put the data out there and assume that people will make the right choice,' may not be effective as health becomes more of a political issue,'' Schroeder noted.
Do some tax-exempts have the objective of remaking American medicine and even fundamental American values according to their own vision? And do they hope to do so by manipulating the political process from behind the scenes?
Individual issues of Health Affairs can be obtained for $20 from Project HOPE, Two Wisconsin Circle, Suite 500, Chevy Chase, MD 20815. Copies of the AAPS brief that documents the role of tax-exempts in ``health care reform'' may be obtained on floppy disk for $10 from AAPS, 1601 N. Tucson Blvd. Suite 9, Tucson, AZ 85716. (If you need a format other than WordPerfect 5 on a 3.5 inch disk, call to see if we can supply it, 1-800-635- 1196).
AAPS Members Run for Congress
Mildred Jefferson, MD, a surgeon from Boston, is running against Senator Ted Kennedy, in order to represent a different voice.
``Lawyers, businessmen, talk-show hosts and such are already in Congress....I see no medical doctors in the U.S. Senate even now at a time when a national health-care scam has been pushed to the top of the national agenda.''
Dr. Jefferson also stated that ``it is unconscionable that the destiny of `minorities and women' in this country should be perceived as dependent on the morally bankrupt leadership of the senior Senator of this Commonwealth.''
Mildred Jefferson went from the segregated public schools of East Texas to Harvard Medical School, and is on the faculty of the Boston University School of Medicine. We first met her last year when AAPS members testified at the public hearing she called in the basement of the Capitol after being refused the chance to speak in the Senate against the nomination of Joycelyn Elders as Surgeon General.
Dr. Jefferson favors reducing the size of the federal government and opposes ``using the profession to lure the whole country into the socialist net.''
Also running for Congress are Drs. David Westbrock of Dayton, OH; Eugene Fontenot of Houston, TX; and Ted Engel of Westminster, CO.
AAPS members will soon receive a fund-raising letter from AAPS-PAC. But physicians may wish to make a direct contribution to the candidate of their choice. The maximum individual contribution is $1,000. Corporate checks are not acceptable under FEC rules.
On the Private Information Highway...
The P.D.A. Link E-mail system, now operational, provides a dedicated forum for persons desiring to return to free-market principles in medicine and to reduce government intrusion. AAPS publications have been contributed to the data base. You may take a tour or subscribe on-line by modem at (404)386-7009. Simply make the call and follow the instructions on your screen.
The Heartland Institute has a ``Policy FAX'' service to provide instant information and intellectual ammunition on a variety of issues, including ``health care,'' education, environment, privatization, and taxes. A free up-to-date listing of publications available by FAX can be obtained by calling (510)208-8000. The cost is $5 per document. AAPS documents are available.
Americans for Free Choice in Medicine, headed by Dr. Arthur Astorino of Newport Beach, CA, offers suggestions by FAX on contacting key congressmen. For subscription information, call (714)645-2622, FAX (714)645-9864.
The Rule of Law
The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant hanges that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule which is little known, and less fixed?
The Federalist quoted in The Freeman, March, 1994
Kentucky Supreme Court Upholds Provider Tax;
Federal Challenge to Be Filed
On March 24, 1994, the Supreme Court of Kentucky, with three contested special justices sitting, handed down its opinion in the constitutional challenge to the ``provider tax'' included in House Bill No. 1. A majority of five justices, including all three contested special justices, voted to reverse the trial court and uphold the constitutionality of the tax.
The three special justices were appointed by the governor who drafted and lobbied for the provider tax and called the legislature into special session to pass it. All three were asked to recuse themselves on the ground that their appointment by the governor, a party in interest, created an ``appearance of impropriety and unfairness,'' in violation of the due process clauses of the Fifth and Fourteenth Amendments.
Writing for the ``majority,'' Justice Reynolds concluded that ``the enacted legislation and federal criteria as to qualification for federal matching money forms a rational basis in the General Assembly's actions....''
``The Kentucky statute,'' he continued, ``is coextensive with the federal law. Thus, when a state elects to enact a provider tax, its discretion in classifying those who will be taxed appears circumscribed by federal law. Thus, defining the class in a coextensive manner with the federal law results in a rational basis for such classification without arbitrariness.''
What Justice Reynolds did not address is that the federal Medicaid provider-specific tax statute was not meant to be forced upon the States, and it cannot form a basis for rational classification simply because it is an Act of Congress. By upholding the classification, the Court has virtually written out of the Kentucky and Federal constitutions all provisions guaranteeing citizens equal protection of the laws.
Two regular sitting justices, Stumbo and Wintersheimer, filed dissents. Justice Wintersheimer concluded that the tax ``unfairly burdens physicians who do not participate in Medicaid,'' yet it is ``impossible to distinguish the benefit the nonparticipating physicians have in funding Medicaid from that of the general population.'' Furthermore, the principle can lead to taxing contractors, engineers, and architects for the construction of state highways; grocery stores for accepting food stamps; psychologists for working in public mental health centers; and policemen for victim compensation programs.
Justice Wintersheimer cited the dissent in the AAPS case of Coy v. Florida Birth-Related Neurological Injury Compensation Plan, stating that the tax is both too narrow and too broad. It does not include all persons who receive Medicaid payments and does include physicians who do not. It is inequitably applied, as it allows some health care entities to ``pass on'' the tax to consumers but does not allow physicians to do so.
``The public press,'' said Wintersheimer, ``reports that the Revenue Cabinet is now involved in eleven major lawsuits. It is not difficult to understand why the taxpayers are very concerned in a society in which ordinary working people will pay in excess of 40% of their gross income in taxation.''
``The power to tax involves the power to destroy, noted Chief Justice Marshall.''
``The duty of the judiciary is to distinguish between constitutional error and proper deference to the Legislature. Unequal treatment really should not be acceptable, although it is seemingly approved by the Majority Opinion,'' wrote Justice Wintersheimer.
Dr. Stuart Yeoman and other plaintiffs, all AAPS members, are now planning to challenge the composition of the Court as well as its decision in a direct action against the Court and the Governor in US District Court.