Response to Andy Gordon's Memorandum Regarding the Freedom of Choice in Health Care Act

C O N F I D E N T I A L

RESPONSE TO ANDY GORDON’S MEMORANDUM

REGARDING THE FREEDOM OF CHOICE IN HEALTH CARE ACT

by Clint Bolick

September 19, 2008

Andy Gordon of Coppersmith Gordon Schermer & Brockelman has distributed a brief memorandum arguing that Proposition 101, the Freedom of Choice in Health Care Act, will disrupt aspects of the Arizona Health Care Cost Containment System (AHCCCS) in various ways. The memorandum is completely bereft of legal analysis, indulges in unsupportable speculation, and distorts the plain language and meaning of the initiative.

The text of the proposal, which Mr. Gordon cites only selectively, is as follows:

Because all people should have the right to make decisions about their health care, no law shall be passed that restricts a persons freedom of choice of private health care systems or private plans of any type. No law shall interfere with a persons or an entitys right to pay directly for lawful medical services, nor shall any law impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

Gordon asserts that the law could be interpreted to apply to AHCCCS, that an AHCCCS participant might be able to go to any hospital or plan, that AHCCCS may not be able to restrict hospital choices, that AHCCCS might have to reimburse for services outside the program, and that it is an arguable position that the state might not be able to impose licensure requirements on hospitals. In light of that parade of hypothetical horribles, Gordon urges that I would think AHCCCS plans should be up in arms against this.

The language of the proposition makes clear its two aims. First, the amendment would forbid government compulsion of certain decisions by persons or entities. Second, those decisions encompass only the freedom of choice of private health care systems or private plans of any type, the right to pay directly for lawful medical services, and the choice to obtain or decline to health care coverage. That clear and simple language yields the following conclusions that plainly refute each of Mr. Gordons points:

The amendment does not apply to AHCCCS, which is Arizonas version of Medicaid, because it is a purely voluntary program. The proposition only prohibits government-compelled participation in health care systems or plans.

Once an individual chooses to participate in a particular plan or system, the proposition does not affect at all the terms and conditions of such a plan or system.

Although the proposition allows individuals to choose health care systems or plans or to pay directly for lawful medical services, nothing in the proposition requires any plan or system to pay any costs outside of the terms of the provider agreement.

The proposition does not affect in any way the states power to license hospitals or health care providers. Indeed, individuals are protected in their right only to pay for lawful medical services. While the state may not restrict freedom of choice of health care systems or plans, and people may not be penalized for participation in any particular health care system or plan, the proposition does not limit the ability of the state to regulate or license such systems or plans.

Arizona courts have had many occasions to construe laws and constitutional amendments enacted by popular initiative. They do not indulge flights of fancy, but rather do their best to apply and interpret the intent of the initiatives framers. Our primary purpose is to effectuate the intent of those who framed the provision and, in the case of an [initiative], the intent of the electorate that adopted it. Calik v. Kongable, 195 Ariz. 496, 498, 979 P.2d 1055, 1057 (1999) (citation omitted); accord, State v. Gomez, 212 Ariz. 55, 57, 127 P.3d 873, 875 (2006); Raney v. Lindberg, 206 Ariz. 193, 199, 76 P.3d 867, 873 (App. 2003). In other words, the law will look not to Mr. Gordons prognostications, but to the intent of the initiatives framers.

That intent is unambiguous: the framers of the Freedom of Choice in Health Care Act mean to limit government interference in the choices that individuals make regarding health care coverage, not to interfere with voluntary contractual arrangements. In a series of questions and answers provided at www.medicalchoiceforaz.com, the initiatives sponsors state in the clearest possible terms, The Freedom of Choice in Health Care Act will not in any way impact the funding of, or functioning of AHCCCS, our states Medicaid program. People currently on Medicare will not be impacted. They further state that insurance companies, doctors, and hospitals are not directly impacted by this initiative.

By contrast, the amendment would preclude any new laws that force people into health insurance programs or that curtail their choices among such programs. Such a threat is a very serious possibility.

In sum, the fears raised by Mr. Gordon reflect mere propaganda, not serious legal analysis, and therefore are not credible.