Bill O’Neill is a Registered Nurse working in a Pediatric Emergency Department in Northeast Ohio. He has first hand experience with the problems facing emergency rooms – and with the medical system as a whole. He also has a little experience with the law, having spent ten years as a Judge serving on the 11th District Court of Appeals in Warren.

Needless to say, Judge William O’Neill’s experience provides him with a pretty unique perspective on Issue 3, the dangerous, Tea Party-driven, anti-“Obamacare” amendment that appears on the November ballot.

Judge O’Neill recently sent us a letter about Issue 3 that I think is really worth sharing. We don’t typically publish unsolicited material but O’Neill’s excellent examples and his uncommon and diverse background in both the medical and legal sides of the issue made the decision to bend the rules pretty easy in this case.

  
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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 save $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.

 
  • that information is great!!  

  • Batemankn57

    Dani the ACA doen’t resolve the issues the Judge raises. I’ve already voted no on issue 3……we need to go further. http://www.spanohio.org

  • Progressive Willy

    Thank you, Judge O’Neill, for clearly stating the ramifications of Issue 3 from two standpoints.

    Is the Tea Party pushing Issue 3 simply because they oppose anything and everything Obama proposes?  Or, do they want to preserve Medicaid?  I can’t believe they want to preserve Medicaid since they campaign on the ‘less government’ platform.  Does anyone have some insight?

    There are so many abuses of our tax dollars – Medicaid being a huge one.  Yet, Kasich goes after unions.  When will his followers see through his rhetoric and understand that public unions are not the problem.  smh.

  • Man, Bill would have made a great congressman. 

  • Progressive Willy

    I understand the ‘throw away’ part and had read Kasich didn’t really care either way about the bill, but ‘they’ hoped it would bring out the yes on 2 vote.  What I don’t understand is why the Tea Party is pushing so hard to keep Obamacare out of Ohio.  After reading your letter, yes, they should be ashamed.  

  • Progressive Willy

    The concept of Medicaid may not be an abuse of our tax dollars, but a number of Medicaid recipients, in my opinion, abuse the Medicaid system.  

    Medicaid expenses consume something like 40% of our state budget.  Forty percent of our state budget to insure the uninsured?!  There are often less expensive alternatives to ER care that would save millions (billions?) of dollars each year.  When the recipient of the care isn’t paying a dime for it, why would they seek out a less expensive, and possibly less convenient, alternative?  That’s where abuse sets in.  

    It’s almost a given that economically disadvantaged high school girls who become pregnant don’t worry one second about how they’re going to pay the doctor and hospital bills for the delivery of their child.  In fact, some brag that they won’t have to pay anything for medical expenses ‘because they have Medicaid’ – like it’s some type of insurance company (one with no premiums for the ‘policy holder’).  That’s abuse…and I’m partially paying for that abuse.  I’m also paying when the hospital disperses unreimbursed Medicaid charges to those with insurance coverage.  

    Does Medicaid benefit some children and adults.  Yes.  Is there abuse?  Yes.  

    People who support Issue 2 are insistent that public union employees are privileged when it comes to health insurance and pensions; yet, I’m not hearing an outcry over the cost of Medicaid to taxpayers.  

  • Fotogirlcb2002

    8 days  —   everyone has worked so hard on issue 2 — lets reward these efforts 

    please vote Nov.8 

    VOTE NO on Issues  1,2,3

    If you live in Warren County — Springboro area vote for Gabbard for trustee ( Shannon Jones husband is running for that also )
    vote for  Gregg  she is a NO on issue 2

  • Anonymous

    it is also anti-RomneyCare…thus Mitt’s gaffs of late

  • Anonymous

    Just like the entire country. We have been set up to fail. Then we are called failures by the people who did this to us. The people who are supposed to work for us don’t.

    They lie to get elected so that they can sell us out to the lowest bidder. They lie to get elected so that they can break stuff then brag that is is broken.

    They lie to get elected so that the rotten 1% can get richer by robbing us.

    They don’t believe in life liberty and pursuit of happiness unless you already have yours.

    Evil in America brought to us by our fellow Americans, the big fat liars.

  • Anonymous

    Painting the recipients of Medicaid in terms of the “deserving” and the “undeserving” only feeds into the larger meme that people without other means of health care or economic stability are “deserving” of their state.

    Criticizing the young mother to be about “bragging” that Medicaid will pay her bills is disingenuous–it’s setting up an expectation that aid recipients ought to be somehow blubberingly grateful for the generous aid doled out to them by their “betters” and hearkens back to early industrial-age “charities” set up by wealthy individuals aiming to correct poverty through moral manipulation.

    Any system put in place to serve a large, diverse group will have manipulators in it, but that is NOT a characteristic of a state or federal program. You might not think you hear as much about people abusing church charities, but let me throw out a few names: Oral Roberts, Jim and Tammy Faye Bakker, and Ted Haggard (yeah, you don’t naturally lump them in the same category as the “welfare queen” meme, do ya, but who works the system more, an urban woman with five kids or a Teevee preacherman with a smack habit and a closeted lover, two estates, and six luxury cars?)

    Systems can be and are abused–that’s why there’s oversight in place. Medicaid’s oversight needs to broaden its scope and update its methods, but trying to do that on a shoestring budget held by people who are actively trying to break it is no easy task, and voting “yes” on Issue 3 will only make it harder here in Ohio.

    NO on Issues 1,2, and 3. YES on Issue 9 (if you’re in Warren County the Lebanon school district), Elderly Services, and Mental Health Services renewals.

  • Anastasjoy

    And the Affordable Care Act provided for just such community health clinics as you describe, although I know some of the Republicans in Congress are trying to slash the funds. What a stupid non-economy from people who claim they are so concerned about “spending.”

  • Anastasjoy

    Bateman, it is already clear that state referendums CANNOT usurp federal law. Just CANNOT. Period, no court challenge needed. But the problem is YES on everything else you describe. It DOES impact all state law relating to health care, apparently freezing it at where it was on March 19, 2010. Given that this is even on the ballot, establishing a state-based universal health care system in ohio – even if this bill did not outlaw it, which it does — is wildly unlikely. But all of it impacts state law, and it cannot be corrected, amplified, fixed or adjusted by the legislature, because it will be in the state constitution if passed. Any provision that turns out to be disastrous would have to be repealed by an amendment to the constitution. Now, it’s very likely that some individuals and/or providers are going to try to get around this by trying to claim that what they want to do is not really a “health-care system” as defined by the amendment. This will tie up the court and keep lawyers busy for years.

  • Anastasjoy

    We also have infant mortality rates in economically disadvantaged areas that rival those of some third-world countries — in fact, some of the worst rates in the developed world. “Economically disadvantaged high school girls who become pregnant” are a lousy, kick-them-when-they’re-down group to pick on at a time when the Republicans in our legislature want to strip poor kids of educational opportunities and employment and want to pass punitive, misogynist abortion legislation piously proclaiming the sanctity of the fetus while meanwhile turning down legislation to prevent unplanned pregnancy by guaranteeing access to affordable birth control and accurate contraceptive information and to provide support for young mothers, including daycare. 

    In a country that worships fetuses but hates real children, I don’t think this line of reasoning gets us anywhere. Pregnant teens are way undersupported in this country — especially in providing the types of things that will keep them from being pregnant teens.

  • Anastasjoy

    I don’t get why it takes a decade and a half to not gather enough signatures for single-payer but the “take away health care” crew can do a major push and go from “unlikely” to “on the ballot” in less than two months. My beef with SpanOhio is they don’t seem to have any momentum; they’re just spinning their wheels. They need to regroup and strategize.

  • Batemankn57

    “I don’t get why it takes a decade” ……Money. The signatures for Issue 2 had 300k + people directly being attacked and the additional labor folk plus their treasuries that rightfully saw SB5 as an existential threat.  The voter suppression challenge; same story, high numbers of hired signature gathers. If anyone tells you a volunteer effort alone can meet the signature numbers for any initiative measure in the time constraints under the law, they’re lying to you. Add to this fact, once the measure has made the ballot a paid campaign to promote the position must be mounted. Try raising 15 million at bake sales. None of these ingredients have ever been in place for the single payer movement in Ohio. Perhaps when more middle class folks die due to lack of care access we might build  a movement that can’t be ignored. Help us build the healthcare as human right movement. The fiscal argument, while compelling, doesn’t engender the passion of people seeing their families suffer and die from lack of adequate care.
    Until now most of Labor has been engaged in name only. Maybe after SB5/issue 2 the realization that Wall Street won’t stop profiting from our misery will shake Organized Labor from its belief that this can be negotiated any longer.

  • Adrienne

    Agreed sounds like the difference between moldy crumbs and 100% of nothing. “We” deserve better but someone thinks that we deserve worse all the way to 100% nothing.  And better say thank you for that 100% of nothing. They and the people who vote for them can go to the devil. He’s waiting in the ninth circle with rotten Ronnie and Dick. 

    Medicaid is moldy crumbs. We have no system because too many people make money on the status quo because money (profit)  is more important than people and has been for ever in USA. 

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