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The Ins and Outs of Hospital Mergers, or: How Canon Law Watches Over Vital Interests

BY Bishop John Meyers

January 5, 1997 Issue | Posted 1/5/97 at 1:00 PM

 

By BISHOP JOHN MEYERS

Bishop John Meyers of Peoria, Ill., Delivered the following address Nov. 9 at a meeting of the Catholic Medical Association in Scottsdale, Ariz. (Excerpted)

MY FIRST area of concern is perhaps the largest and the one most in need of urgent attention: the on-going evolution of healthcare delivery and the apparently necessary alignment of free-standing healthcare facilities with other such entities in collaborative efforts to provide a full range of services. The partnering that is now in frantic progress is bringing Catholic hospitals into a wide variety of relationships with Other Catholic and non-Catholic providers. Each of these partnerships is almost as unique as snowflakes. However, all of them involve the raising of the question of the relationship between ownership, sponsorship and control. These are canonical realities of concern to both those directly engaged in the apostolate and to the bishops in whose jurisdiction these entities exist.

There are several canonical concerns of great magnitude regarding the alteration of these three fundamental realities all of which revolve around the resultant “identity” of the newly aligned entity. Let me share some [stipulations] of the Code of Canon Law regarding the Church's worldly possessions. The Church owns property for one of three reasons: the worship of God, the housing of the Church's ministers and for works of apostolic charity. Catholic identity is bestowed upon an apostolate by a canonically recognized individual (usually a corporate person) known as a public juridic person. Apublic juridic person can be a diocese, parish, religious institute (such as an order of nuns), etc. If this public juridic person is a diocese or an order, one or more individuals are designated to represent the interests and authority of the public juridic person on the governing bodies of a given apostolate. These representatives are called “canonical stewards.” It should be noted that in the case of hospitals owned by religious orders, for example, the order itself is the public juridic person, certain individual Sisters who serve on boards of trustees are designated as cannonical stewards and the hospital itself is an incorporated apostolate of the public juridic person. It has no Catholic identity of itself apart from the sponsorship of the public juridic person. “Sponsorship,” then, is the relationship between the public juridic person and its incorporated apostolate (hospital) by which the apostolate enjoys Catholic identity. Sponsorship takes concrete form through “ownership” and “control.”…

In the United States, “control” is exercised by reserving fundamental governing powers to the canonical stewards by means of whom the public juridic person stands as the sole member of the corporation of the incorporated apostolate. These reserved powers include the determination of the mission and philosophy of the incorporated apostolate, the sole right to alienate the property, naming of the board of directors and the CEO of the facility, and the like—all this beyond the control of the board of trustees. In this way, the public juridic person, fundamentally responsible for fidelity to the faith obligations of the incorporated apostolate, has ultimate and final say in the most basic characteristics of the apostolate.

We say, however, that everyone in the Church has a boss. Not even the public juridic persons of the religious orders have the last word. The Church is very solicitous with regard to her property inasmuch as generous people of good will have given it in good faith to the patrimony of the Church to be used in a certain way. Alienation of any property owned by the Church in excess of $3 million requires both consultation with the local bishop and the permission of the Holy See.

Today's healthcare scenario is characterized by “merger-mania.” Often, in non-Catholic merger negotiations, the main concern is who will be CEO and who will be the chairman of the board. The Church's questions would be totally other. The Church is “mission-driven,” not “margin-driven.” My concern is this: In any given proposal of partnering (especially with non-Catholic providers) how can we make sure that authentic and credible Catholic identity is maintained? The Church is clearly contributing to the common good through the provision of health care and she does so in imitation of Christ and in obedience to his command to heal and to teach.…

[I'm also concerned] about the impact of managed care on the very heart of the art of medicine: the professional-patient relationship. Financial constraints, HMO expectations, government regulations and the all-pervading threat of malpractice litigation are turning “visits to the doctor” into “studies in constitutional law.” Is this what you envisioned when you first decided to study medicine? Is it a blessing from on high that managed care leans in the direction of “not treating” and discourages overuse of the health care system? Isn't this the same complaint we had about purely symptomatic medicine that had an inherent preference to treat the stroke, but not pay for the blood pressure medicine that would have prevented it? It is my concern that while over-emphasis on technology will continue to de-personalize the professional-patient relationship, managed care will continue this trajectory by replacing the human drama of sickness and care with a contractual arrangement between a person with damaged parts and the technician that fixes them.

[Then there is] the whole spiritual aspect of illness. The drama of human suffering is precisely that: a human problem. We practical Americans are prone to a total misunderstanding of this. We ask questions about human problems as if they were purely medical or legal issues. That is, we de-personalizewhat is really going on by asking questions only about the medical or legal aspects of the larger human reality of the problem. As a result, we answer a human problem with a medical solution. Inconvenient pregnancy? Solution: abortion (or contraception). Human suffering? Medical solution: suicide.

The Holy Father wrote a pastoral letter entitled On the Christian Meaning of Suffering in 1984. In it he taught that the riddle of suffering is precisely a theological and spiritual question, and can be answered only from a context as broad as the theological and spiritual. The medical and legal contexts, important as they are, are inherently insufficient to address this larger concern. Again, concern about the spiritual aspect of illness is multi-faceted. Given the increasingly short stays patients have in the hospital, they have less time to process their experience in the hospital setting—where at least now there is general respect for pastoral care departments. But even with the marvels of day-surgery, the removal of a gall bladder or cataracts is vastly more significant than filling a tooth. My concern is that the human drama goes unaddressed and is pushed to the side in the wake of clinical efficiency (itself a blessing). Being a doctor is more than being a technician. It is a vocation of presence in the midst of human suffering and offering comfort as well as biological expertise.

Catholic healthcare must remain the treasured ministry that it is by adapting prudently, bravely and confidently.

My final concern can be stated very simply; is there any place for Catholic hospitals and healthcare providers in the future?… I would emphatically say that wherever humanity is, there the Church belongs. The Lord sent his disciples to “all the nations” not just with sacristy duties, but with the Gospel—addressed to every human being about his or her whole being. Humans are persons created “to the image of God,” whose very potential to live as a child of God imparts a radical, inalienable and inviolable dignity with natural rights to life, to liberty and to the pursuit of happiness. Inherent to the Gospel and its message of God's love that creates human dignity is the social nature of the human being, recognized by the whole classical philosophical tradition from the Greeks to modern and contemporary non-revisionists.…

My concern about the spiritual aspect of illness and its potentially dropping through the cracks as acute care treats sicker patients more quickly actually points out a needed piece in the structure of healthcare we can help to create. We all know of patients who are discharged to home situations that are less than ideal for recuperation. Perhaps patients live alone and need medication every four hours. Perhaps other family members are themselves elderly or otherwise unable to assist in a loved one's care. Here, I fully agree with Cardinal Law of Boston who sees a golden opportunity for parishes to step in and help through the creation of parish-based low-tech, high-touch step down/recuperation assistance. This would entail a combination of home care and nurse visitor. Parishes are already geographical realities containing enormous human potential and pastoral assistance and sensitivity. It is Cardinal Law's thought that parish-based healthcare outreach can be for our time as dramatic and important a creation as were the Catholic parochial schools of nearly two centuries ago by St. Elizabeth Ann Seton. While this does not exhaustively treat the question of the spiritual process of suffering, its novelty and potential render it deserving of serious thought.

My … concern about the impact of managed care on the professional-patient relation (and consequently on the fundamental understanding of the practice of medicine) is best addressed by enshrining in medical schools the raison d'être of the clinical practice of medicine: to help people in their illness as much as possible and to respect the privacy of one's patients. It must be within this confidential forum that the truth is told about a patient's condition and medical possibilities (despite the rules of silence about certain treatment modalities that HMOs and other insurers may insist upon). One must follow the Lord's counsel to be as cunning as serpents while as innocent as doves.…

It is the responsibility of the Catholic sponsor to seek out other Catholic providers with which to align before any consideration of non-Catholic involvement. Believe it or not, there is mystifying reluctance to do this in areas, particularly large metropolitan areas, where there are many Catholic providers.

Secondly, in any such proposal of reconfiguration and alignment, if there is no other potential Catholic partner, a thorough investigation of the possibility of acquisition of non-Catholic partners should be made. Third, I would not permit in my diocese any alignment, merger or sale of Catholic healthcare facilities or services to for-profit, investor-owned companies. The National Coalition on Catholic Health Care Ministry has clearly pointed out that such a proposal would involve cooperation with operative philosophies and undertakings incompatible with our operative assumptions, motives and goals. Fourthly, the structuring of any partnership must adhere strictly to the traditional teaching on the principles of cooperation. On this point there are several things that need to be said:

√ I am not in favor of any outright alienation of Church property nor the closure of any aspect of the healthcare mission of the Church. Too often, one hears of the closure of a Catholic hospital or the absorption of a Catholic healthcare system by a non-Catholic group.

As I said, never, under any circumstances, should our hospitals be sold to for-profits.

√ Nor would I easily accept the idea of selling the property to a non-Catholic Holding Company even if it promises to let the Catholic facility operate according to the ERDs. It still constitutes alienation, and despite covenants and contracts, it is no longer “Catholic” because ownership, sponsorship and ultimate control are lost.

√ I would not even approve “virtual alienation” by which the deed to the hospital remains with the Religious sponsor but “control” of the mission is given to a deeply penetrating management corporation.…

In light of all the above, as bishop of Peoria, I have mandated for my diocese a protocol by which Catholic sponsors of healthcare within my diocese must consult with me and my relevant vicars at the beginning, in the course of and at the conclusion of their deliberations with potential partners. Also mandated is a formal structure of ongoing evaluation of past decisions and actions by meetings at regular intervals between representatives of Catholic healthcare sponsors and me or my vicar.

Our healthcare ministry is too precious to lose. And in the words of the Holy Father, “it remains one of our most vital apostolates.” In these times, characterized by fundamental shifts both in the structure of healthcare and cultural shifts in society, Catholic healthcare must remain the treasured ministry that it is by adapting prudently, bravely and confidently—and always in ways that are absolutely faithful to the teaching of Christ and his Church: Our mission is to follow him in his concern for the “least of the brethren.” America hungers for his presence. We must be confident of the leaven we can be with his grace. America will be better served, not by our abdication of this role, not by our allowance of this patrimony to fission out of existence by inaction or despair of being able to remain faithful in hardships, but by a meeting of the present challenges with the serenity, peace and joy that come from confidence in the Lord's presence to our needs, assistance in our projects and blessing on the works of our hands. It's is he who gives life to our deeds.

Perhaps here we find the fundamentally “Catholic moment” for our society, for civilization itself. At the end of this the bloodiest of all centuries, hemorrhaging from war, genocide, wild social projects that sacrifice men for the sake of humanity, current proposals to legalize euthanasia and, of course the torrents of blood spilled in abortion, perhaps this is the Church's hour to focus the world's eyes on a billion corpses and say: Be not afraid! Christ is the way, and the truth and the life. Choose life, not death!