Malpractice funding creates friction


With no compromise in sight between Gov. Robert L. Ehrlich Jr. and legislative leaders over how to pay for a $60 million fund to stabilize doctors' malpractice insurance premiums, next week's special session of the General Assembly could end in gridlock or a gubernatorial veto.

Ehrlich said he plans to submit a bill today that relies on general taxpayer dollars, not a dedicated funding source, to create a pool of money that would freeze doctors' insurance bills and pay for unexpected malpractice claims.

House Speaker Michael E. Busch told the governor his chamber would amend the bill to impose a tax on health maintenance organizations to cover the program when the General Assembly meets Tuesday. Senate President Thomas V. Mike Miller also said he favors the HMO tax as a funding source, removing an exemption that the insurers have used for decades.

Ehrlich stopped short yesterday of saying he would veto a malpractice bill if it contained an HMO tax, but he left open the possibility. "Clearly, if they put a tax on [the bill], there will be very serious repercussions," Ehrlich said. "We're not going to go for an HMO tax."

Disagreement over a funding source and continued strategizing over veto overrides and other details underscore the unusual nature of Ehrlich's decision to call a legislative session without a firm deal in place.

The governor signed an executive order this week summoning lawmakers to Annapolis on Dec. 28 to tackle the pressing issue of rising insurance costs that some believe are forcing doctors out of business. But as of late yesterday, Ehrlich had not released his bill, and lawmakers did not know what they were going to be asked to vote on.

The governor has said the state budget is robust enough to help cover the insurance bills of doctors, because corporate tax collections are exceeding expectations after the General Assembly passed a bill preventing the shifting of assets to shell companies in Delaware. An HMO tax, he said, would be regressive.

But legislative leaders countered that it would be irresponsible for them to agree to use general taxpayer dollars for the malpractice program because the governor won't reveal the contents of the fiscal 2006 budget he will release next month.

The governor has asked all agencies to submit spending plans that are 12 percent lower than this year's, and lawmakers say they anticipate cuts or severe growth restrictions in social services, the environment and other areas.

"Part of the reason, you have to think, for the governor calling a special session on Dec. 28 is that people won't have a bird's-eye view of the budget cuts he is going to make," Busch said.

While Ehrlich insisted yesterday that he and the presiding officers had reached general agreement on most aspects of tort reform and patient safety measures needed to curb lawsuits and keep doctors in their practices, Miller disagreed.

Miller raised the possibility that lawmakers could go home early Tuesday without casting votes on malpractice legislation, if they don't like Ehrlich's bill.

"The General Assembly could see the governor's bill, determine it is a nonstarter and move to postpone the bill indefinitely," Miller said. "All it needs is 24 votes," out of 47 in the Senate, Miller said.

The governor acknowledged yesterday the risk of failing to reach resolution during the special session but said the malpractice system is in crisis.

"There's some risk, but everybody has to take some risk, everybody has to lead when the situation is dire," he said.

Also yesterday, leading Democratic lawmakers developed a strategy to postpone debate on overriding the vetoes of several bills rejected by Ehrlich, meaning next week's special session could focus solely on medical malpractice issues.

Some lawmakers and interest groups still hope to gather enough votes to increase university system funding through higher corporate income taxes; raise wages of workers covered by state contracts; and improve health care for the frail elderly -- subjects of three of 18 bills vetoed by Ehrlich in May.

But under a plan developed by Democratic leaders and allowed by an attorney general advice letter, debate and votes on overturning the governor's objections could occur just before the mid-January start of the regular General Assembly session, instead of next week as state law seems to require. By law, overrides must be the first order of business when the Assembly next meets -- either in a special session or a regular session.

Advocates on several issues have been lobbying for veto overrides, which require a three-fifths vote in each chamber, or 85 House members and 29 senators. But with the session scheduled for a holiday week when some lawmakers might not change plans to be out of town, key votes that Democrats need for overrides might be missing.

So Democratic lawmakers devised a plan to push off the override debates for several weeks. After seeking advice from an assistant attorney general, Democrats have determined that only they -- not the governor - can end the special session.

"It is my view that the governor may not adjourn the General Assembly," wrote Assistant Attorney General Kathryn M. Rowe in a letter released yesterday that contained historical references dating to 1641.

Under the plan, lawmakers could recess the special session until Jan. 11, instead of ending it, saving the override votes for the day before the Jan. 12 start of the regular session.

"I don't think that anyone would disagree that every single member of the General Assembly should have a voice on an important issue like veto overrides," said Sen. Brian E. Frosh, a Montgomery County Democrat and lead proponent of a bill providing more money for the university system.

Del. Anthony J. O'Donnell, the minority whip from Southern Maryland, said Republicans won't be able to stop the tactic because "the presiding officers control the procedural mechanics of each house."

The highest profile override target is a bill that would cap university tuition increases at 5 percent for three years, while temporarily raising the corporate income tax rate from 7 to 7.7 percent and requiring higher state funding levels for higher education.

Tom Hucker, the executive director of Progressive Maryland, a group leading the push to override a veto of a bill that establishes a so-called living wage for state contractors, said he's confident of success whether the vote is held Tuesday or next month.

The bill, which would require employers with state contracts for services greater than $100,000 to pay their workers at least $10.50 an hour, had a narrow veto-proof majority in the Senate and was six votes short in the House.

"A lot of lawmakers are going to make themselves big fat targets if they vote to sustain the veto," Hucker said. "This is going to be issue No. 1 in 2006 in a lot of races."

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