Issue 3 Spells Economic Disaster...In Addition To Ruining Health Care
Issue 3 Is A Recipe For The State To Shoot Itself In The Foot.
Judge William Michael O’Neill (Retired) 11th District Court of Appeals
In the name of conservatism, a small segment of the population is now inviting the rest of us to shoot ourselves in the foot under the theory that we must immediately amend the Ohio Constitution. The folly is evident on its face.
The Ohio Constitution has served as a durable foundation for our government for over two hundred years. It provides the authority for the government to make decisions on our behalf. And those decisions benefit us all. In short, it is the framework for our self-governance. As such, it is a document which must be protected, and in all instances, it must be shielded from becoming an instrument of “change” to reflect temporary shifts in public opinion. History has shown that the amending of our Constitution must be discouraged under all but the most compelling circumstances.
If ever there was a case of throwing out the baby with the bath water, Issue 3, which will be on the November ballot, is a classic example of unintended consequences run rampant.
The new amendment is generically known as “Preservation of the Freedom to Choose Health Care and Health Care Coverage”. But in the court of public opinion it is known as the “Stop Obamacare” amendment.
Without taking sides on that divisive issue, possibly now would be a good time for the legislature to adopt the medical profession’s long standing rule of beginning with the premise of “first, do no harm”.
Anyone who has been following the national debate on health care is aware that the U.S. Supreme Court is going to review the Affordable Care Act. Thus, Issue 3 is nothing more than political grandstanding, as the federal law will either be found constitutional or not, and the Supremacy Clause of the U.S. Constitution will override any state-level attempt to prevent the enactment of federal health care reform. However, Issue 3 will prevent state and local governments in Ohio from attempting to address the health-care crisis.
As a Lawyer, Judge and a Registered Nurse I have the unique perspective of understanding the importance of clear communications. A law is readily obeyed and enforced when it is clearly written. And a doctor’s order is only effective when it is clearly written and understood by those who read it. State Issue 3, the so-called “health care amendment” to the Ohio Constitution fails on both counts.
It is neither clearly written nor easily implemented. But more importantly it carries with it the real possibility of doing significant harm if enacted.
Significantly, if passed, the Ohio Constitution will be amended to hold, among other things, that:
No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.
From a legal analysis standpoint, it is readily apparent that the amendment is not clearly written. For example, by what authority does the Ohio Constitution prohibit the Federal Government from enacting
a rule requiring any person, say its employees, to participate in a health care system? Clearly, it has no such authority, as we learn in high school civics class – federal law trumps state law under the Supremacy Clause of the U.S. Constitution. Now obviously the drafter’s of Issue 3 did not intend to interfere with health care decisions made by the Federal Government with regard to their employees. But if the foundation of our government, our Constitution, is amended as proposed, the impossibility
of enforcing it as written is obvious. It is not clearly written as a matter of law.
From a practical standpoint the amendment becomes far more troubling. In fairness, the amendment would grandfather in all laws and rules on the books as of the magical date of March 19, 2010. But a lot has happened in America since 2010, and this Amendment attempts to block change in our health care system from this day forward. Not to change or repair past practices, but to block change in the future. I don’t have a crystal ball to predict the future but, unfortunately, our health-care system may have new or amplified problems in the future. Issue 3 would prevent future lawmakers in Ohio – regardless of party affiliation – from considering a vast amount rationally-based legislation to correct those problems.
Everyone in Ohio knows that health care in America and Ohio has become a big problem from a financial standpoint. We are simply spending too much money for too little coverage, and nowhere is that more evident than in Medicaid. In the 1970s as a nation we made a decision to guarantee high quality medical care to the least fortunate among us; and as a nation we made a decision that this federal act of compassion shall be paid for by the states. And from the beginning the program has been plagued with wildly exploding costs, use and abuse. And today it remains a giant part of every state budget. But, if Issue 3 passes, the Ohio Legislature’s hands will be tied as it will be prevented from attempting to correct the problem.
A quick look at one example of the quagmire of Medicaid will demonstrate from a practical standpoint why this constitutional amendment in Ohio could readily leave Ohio taxpayers on the hook for more costs than ever.
It is a well known fact that Emergency Rooms have become overwhelmed in the past decade with uninsured patients who simply, of necessity, treat the ER as their primary care physician. Low grade fever? No problem. After a five hour wait Motrin is prescribed and an ER visit bill is sent to Columbus in the $1,000 range. Without making any effort to affix blame for this outrageous waste of resources , it is helpful to look at its origin. The patient could well be a “free rider” who has never held a job; could be a recently unemployed father of three who lost his health care coverage in the downsizing of his industry; or could be a free spirit who simply knows that he does not need insurance coverage or money because FEDERAL LAW GUARANTEES his being seen in the ER.
But what about the cost? Well, a portion is undoubtedly absorbed by the hospital; a portion is paid by Medicaid in Columbus; and unquestionably a portion is padded into the bill of those insured citizens who use that hospital. In other words, all citizens of Ohio pay for that unnecessary visit in one way or another…without a voice in the outcome. An unfortunate system to be sure. For the purpose of this “practical” analysis, however, it must be assumed this particular patient got a free ride. In other words, the medical waste does not come out of his or her particular pocket. And it could have been avoided.
Say, for example, the State of Ohio decides sometime in the future that “enough is enough” and we are going to address the “free rider” syndrome because we are tired of it. Let’s say in the name of saving hundreds of millions in health care dollars we drive these thousands of “free riders” into free standing clinics staffed by nurse practitioners and newly minted doctors. Assume that it this “clinic first visit” becomes a requirement before they can even present themselves to the ER. The benefit to all concerned would be immediate and substantial. The patient would be seen in one hour by a competent provider; the ER would be freed up to deal with truly traumatized patients; Medicaid would $900 per visit (!) and the INSURED citizens of Ohio would see their premiums go down.
In one sweeping change, we could replace the $1,000 ER visit with a $100 clinic visit for the same outcome and the same bottle of Motrin. HUNDREDS OF MILLIONS WILL BE SAVED in the first year alone. But wait. That would entail a “state agency….requiring a person…to participate in a…health care system.” It would be unconstitutional in Ohio and no Court, no agency, no municipality could defy the newly amended Ohio Constitution!
In short, Issue 3, if passed, will amend the Ohio Constitution to prevent ALL changes in addressing health care in Ohio…to the detriment of ALL taxpayers. This goes beyond throwing out the baby with the bath water. It even goes beyond shooting oneself in the foot. This is economic suicide in the name of freedom of choice in health care. The question remains. Freedom for whom?
In conclusion, there is no question there is ample room for disagreement on how to rein in health care costs in America and Ohio. And that is why we have legislative bodies. To resolve policy differences. But the Ohio Constitution, in all due respect, does not belong in this particular fight. The stakes are too high. I strongly encourage the citizens of Ohio to vote “NO” on Issue 3.
Editor’s Note: The author, Judge William Michael O’Neill is retired from the 11th District Court of Appeals in Warren, where he served for 10 years; and is currently a Registered Nurse working in a Pediatric Emergency Department in Northeast Ohio.