The fallowing report was submitted September 9, 1995, by the Executive Council Special Ad Hoc Select Investigative Committee on Lobbying Activity. Members of the committee were Henry Kaminer (chair), Diane Martinez, Jon Meyer, and Elise Snyder.
Few of our members today would doubt the importance of attempting to influence legislation affecting the practice of psychoanalysis. Nonetheless, our first efforts in this field raised heated questions about the goals, procedures, and results of our lobbying effort. Although these issues were repeatedly discussed in Council, the debate was given new urgency by the report at the 1995 Business Meeting that our lobbyist had resigned because of difficulties in his working relationship with our organization. Because documents relevant to this development might have “actionable” content, they were withheld from Council. In response, Council appointed its own select committee to review the documents, the lobbying effort, related issues of governance, and other matters which might be pertinent. Drs. Kaminer, Martinez, Meyer, and Snyder were nominated and elected by Council.
The Central Office compiled for us as many relevant documents as possible. To supplement these documents, we addressed specific questions to individual officers and members. The committee met by means of telephone conference calls and exchanged information and comments by fax.
After much discussion, we decided to address the following questions: (a) Was the material made available to us comprehensible, adequate, and sufficient for the Committee's purposes? (b) Did the material contain sensitive statements rendering it unsuitable for general distribution and requiring handling by a select committee? (c) Is there any evidence of activity contrary to the goals of Council or of The American? (d) What was the proper function of our lobbyist? (e) How was the effectiveness of the lobbyist measured? (f) Who oversees and evaluates the lobbying activity? (g) Were there problems in oversight or governance? (h) Are there intrinsic organizational problems or conflicts which tended to provoke the difficulties? (i) As ours is the first select committee formed by the Executive Council, is this a useful and productive mechanism for addressing difficult and sensitive issues?
The report is organized along the lines of the agenda outlined above.
The material supplied was adequate. Dr. Judith Schachter and Ms. Tina Faison of the Central Office deserve special credit for collating and supplying the massive documentation in a timely fashion. In brief, the detailed, candid documentation our committee received was sufficient to study the process. Where specific comments of members of the Executive Committee or CGRI were not available, the point at issue, if not the precise content, could be inferred from context or from replies.
We concluded it would have been unwise to distribute this material to the Council as a whole. The copious material was indeed sensitive, and would have necessitated considerable effort to distribute and then retrieve all copies after an Executive Session of Council. In addition, the time for review would have been inadequate considering the volume of material. There is no question, in our judgment, that Council, as the Board of Directors, has the right and obligation to review the material. In this instance, however, it was appropriate for the Council to delegate that responsibility to a Select Committee.
We felt unable to comment on the legal question of whether statements were “actionable,” but, to be sure, much of the material was candid, very critical, uncompromising, and blunt. While questions might be raised about the advisability of committing such strong opinions to paper, we concluded that the need for frank exchange within and between the Executive Committee and CGRI justified this practice. We will comment more on this later, but it is worth noting that similar frankness would have been appropriate in communications with Council. Clearly, the Executive Committee is a committee of the Council (as is CGRI), and responsible to the Council. It has a duty to report fully and frankly to Council not only its conclusions and actions, but also major internal conflicts which impede the Executive Committee's ability to carry out its functions.
We found no evidence of activity detrimental to the goals of The American, as established by the Council. Indeed, we were impressed with the vigor of the debate and the evidence of vital, concerned, and well-intentioned discussion in the Executive Committee and in CGRI. Omissions occurred in reporting to Council, and these require correction in the future. Troubling as such omissions may be, however, they are consistent with the traditional view of Council as a “rubber stamp” endorsing Executive Committee decisions.
The record of the Council deliberations leading to the statement of goals for the lobbying effort clearly shows that the members were divided. Some felt that the exclusion of analysis from any government-sponsored insurance plan was the only way to secure the right of patients to contract privately for psychoanalytic treatment; these members advocated a maximum effort directed solely at that goal. Others supported a broader program, emphasizing, among other issues, the inclusion of psychotherapy coverage in insurance plans. This latter group was in the majority. After debate, goals for the lobbying effort were agreed upon at the May 1994 Council meeting. The Council endorsed a five-point program, including (1) freedom to contract privately, outside government health plans; (2) freedom from intrusion into patient confidentiality by third parties; (3) insurance coverage for mental illness as close to parity as possible; and (4) the patient's freedom of choice in health plans (to include point-of-service options) and nondiscrimination against psychoanalysts by insurers. The fifth point stipulated that if it proved impossible to protect psychoanalytic treatment under a third-party payer system, we would lobby for the exclusion of psychoanalysis from the system.
Despite this clear mandate by the Council, there was polarization about the lobbyist's activities within CGRI and on the Executive Committee. Some members of CGRI and of the Executive Committee were pleased with the work of the lobbyist, and others were quite critical. In general, it seems that newer members of CGRI, some of whom had been appointed to afford a voice to the minority faction, were more critical, while long-term members praised his work. Criticism centered on the issues of lobbyist reporting and accountability. Most agreed that the lobbyist had done a good job of presenting our priorities to the Democratic Congress and to the Executive Branch. Various government officials did listen to our presentation, and various bills were submitted with wording acceptable to us. In addition, the inappropriate CHAMPUS coding practices were modified in accord with our suggestions. There were complaints, however, that the lobbyist did not document his specific activities sufficiently either to justify his fee or to enable follow-up activity by our members at some future time. We appreciate the difficulty of answering these questions and understand that dedicated, well-intentioned people can disagree. Although not as polarized as CGRI or the Executive Committee, our own committee also expressed differences in assessing the lobbyist's performance. With few exceptions, members of The American have little experience in working with lobbyists, especially at the national level. This fact has perhaps contributed to the difficulty in defining criteria of performance, and to attempts by various members of CGRI to “second-guess” the lobbyist.
As our committee analyzed the records, we discerned a pattern. The American had been divided between the ideas of CGRI and those of the supporters of CPR and the Southern California group. Although the Council had strongly endorsed a program which attempted to combine the two approaches in the official five-point policy, these philosophical and political differences were deeply held and not easily reconciled. The lobbying effort seemed to be the lightning rod which focused all the sparks of conflict. It appeared that
the original split, seemingly resolved in Council, had instead continued in the Executive Committee, and from there was exported to CGRI. CGRI had been expanded, it seemed, in order to afford all factions a voice on that committee. The intent was that CGRI should resolve the differences and formulate a unified approach. It seemed to us likely that in this process the functions of oversight and evaluation became embroiled in dispute.
We demonstrated within our committee that reasonable people could disagree on the adequacy and cost-effectiveness of The American's lobbying effort. The question then became, Which organizational issues might be encouraging the polarization that led to the lobbyist's resignation, rather than encouraging resolution by consideration, compromise, and agreement? We did conclude that certain organizational difficulties exacerbated this problem. Even though a Council majority clearly established the four-point priority plan, the membership continued to be divided, with the minority group remaining passionate and vocal advocates of the private-contracting agenda. This division seemed to extend to the Executive Committee and in turn to CGRI. CGRI membership was expanded to afford representation to all factions in this dispute. Nevertheless, viewpoints became more extreme, and reconciliation was not effected.
When the lobbyist was invited to Philadelphia to speak to the Council, the Executive Committee was already divided over whether the goals, performance, and cost of the effort justified continued support. This division in the Executive Committee, however, was not revealed fully and frankly, and Council was put in the position of authorizing large expenditures without being fully informed of these differences of opinion. It appears in retrospect that, perhaps, the united position that the Executive Committee presented was misleading. It is not at all certain that the Council could have resolved this issue. Nonetheless, the Council, the Board of Directors holding fiduciary responsibility for The American, was not informed of the extent of disagreement. Such knowledge might have led to more debate and a successful resolution, or even to a majority vote to end the lobbying program. Without the information, however, no action by Council was possible.
It is important to reiterate that Council is the Board of Directors of the American Psychoanalytic Association. The Executive Committee, under the laws of New York State, is a committee of the Council. It is not a joint committee of Council and BOPS. While the Executive Committee has broad latitude and administrative powers, it is responsible to the Council, which has ultimate fiduciary and legal responsibility. While Council should not become involved in the details of administrative activities, it is essential that it be informed when the Executive Committee (or any other committee) finds itself split over major issues of policy and finance.
The oversight of the lobbying operation could have been tighter, and the performance objectives more clearly defined. Objectives could have been described either in terms of specific activities (number of contacts, calls, etc.) or specific results (obtaining information, inserting provisions in proposed bills, etc.), without unduly inhibiting the unique nature of lobbying activity. Evaluation criteria should be set down in writing early on, to avoid later recriminations. One specific person on CGRI should have overseen the lobbyist, and that person should have reported frequently, in detail, to CGRI, the Executive Committee, and the Council.
The Executive Committee has an obligation to report to the Council not only about policy issues and decisions, but about matters which have resulted in major internal disagreement. In this case, disagreement meant that the execution of the lobbying program approved by the Council was jeopardized. The appropriate step would have been to reopen the issue on the Council floor, with discussion of the reasons for the disagreement.
The Executive Committee and CGRI have executive functions which include expediting the programs approved by Council. If this function becomes difficult, Council should be informed in a timely manner. It is quite possible that members of Council would need to be alerted to a difficult situation at some time other than the twice-yearly regular meetings. Possible mechanisms include mailings, fax messages, regional phone conferences, the appointment of a select committee, and, in extreme cases, calling a special meeting of Council (this was done once in regard to the lawsuit brought by various psychologists). Mailings could include descriptions of issues, new information, and requests for opinions on specific questions.
To understand the circumstances causing the resignation of our lobbyist, the Council invoked its power to appoint a select committee to investigate and report. We believe this is a very positive phenomenon which came from our attempts to deal with this difficult situation. The Council is the Board of Directors of The American, and the Councilors are the Board Members. Individually and collectively, we have an obligation to be dedicated to The American, to assume fiduciary responsibility, to be informed of all aspects of its operation, and to exercise due diligence on its behalf. There has been much interest recently in reorganization of The American. We hope that the members of Council, who are the Directors, will see that the procedure of appointing a select committee is one way to meet these various responsibilities.
Our investigation has highlighted the complex relationships between Council, Executive Committee, standing committees, and the Board on Professional Standards. Difficulties in these relationships seem to arise, in part, from a lack of clarity about Council's functioning in its role as the Board of Directors of The American. Our immediate task is complete, but we suggest that Council consider establishing a longer-term committee to clarify Council's responsibilities as the Board of Directors and to clarify its relationships with the other important bodies within The American, in order to improve the harmonious functioning of the organization.