Updated: March 9, 2010
Legislative Overview
The most compelling issue facing California is, once again, the state’s continuing fiscal crisis. The Legislature must address the state’s $19.9 billion deficit – $6.6 billion for the rest of the current budget year, $12.3 billion in the upcoming budget year and a $1 billion reserve. Governor Schwarzenegger has proposed a combination of spending reductions, alternative funding, fund shifts and additional federal funds to close the $19.9 billion budget gap.
He also declared a fiscal emergency and called the Legislature into Special Session and proposed $8.9 billion in budget reductions in the current fiscal year. As a result, the Legislature was obligated to send Governor Schwarzenegger a plan for resolving the current fiscal year budget shortfall by February 22nd. Both houses of the Legislature contemplated about $5 billion in cuts, but were only able to get agreement on $2.3 billion in budget resolutions. The Legislature did not act on the more controversial and difficult budget cuts proposed by the Governor that affected health and social services. These items will be part of any budget negotiations after the release of the May revise. Also compounding their efforts to pass a larger budget package was the Governor’s signal that he would veto a $1.8 billion gas-tax swap that was a central part of the Democratic budget package. Ultimately, the gas-tax swap proposal was divided into two bills, but at this writing it is not clear whether the Governor will sign the legislation.
Much of the new budget problem for 2009-10 is attributed to the state’s inability to implement major solutions (proposed in July 2009) such as: the likelihood that several programs – including the prison system and Medi–Cal – will not collectively achieve billions of dollars of spending reductions assumed in the 2009–10 budget; the expected inability of the state to sell the State Compensation Insurance Fund for $1 billion in 2009–10; the state’s loss of a court case that makes the General Fund unable to benefit from over $800 million in transportation funds in 2009–10; and a nearly $1 billion increase in the Proposition 98 funding guarantee for K–14 education in 2009–10.
State Controller John Chiang has warned that $2.7 billion in cash solutions are necessary to avoid a cash shortage in the 2009-10 fiscal year, which ends June 30th. He urged the Governor and Legislature to swiftly address the state’s projected budget and cash shortfalls for the remainder of the current fiscal year and the next in order to protect California’s economic recovery, continue the financing of public works projects, and prevent Californians hurt by the recession from experiencing even greater financial hardship According to Controller’s projections, California will drop below its $2.5 billion “prudent minimum” cash balance on March 30th by $1.3 billion. On April 1, the state will be in the red by $197 million, and the resources to pay bills are not expected to return to safe levels until April 21st.
In addition to revenue shortfalls from the poor economy, present and future pressures on the state’s General Fund include: budget liabilities (over $35 billion) that includes deficit bonds that dealt with budget shortfalls earlier this decade; infrastructure bonds (about $67 billion) with over $64 billion of authorized, unissued bonds and $11.1 billion water bonds on ballot in November 2010; and retirement liabilities (over $100 billion).
The Governor and Legislature face tough choices this year and in coming years. Short-term or accounting “gimmick” fixes have almost been exhausted and reductions in major state spending programs will be necessary. And with the upcoming legislative and statewide elections, securing a two-thirds vote to increase revenues to pay for current obligations will be a challenge.
Budget/Medi-Cal Program
The Medi-Cal program is second only to education with respect to reliance on General Fund dollars. Unlike education, Medi-Cal does not enjoy state constitutional protections such as those offered by Proposition 98. As Medi-Cal costs continue to rise, primarily because of increased caseload and increased costs of services, it places greater pressure on public policymakers to “bend the cost curve.”
Medi-Cal. As already noted, the Governor’s proposed budget expects to close more than 40 percent of the budget gap with about $8.5 billion in budget reductions. Proposed Medi-Cal reductions account for about $1.1 billion and $750 million of that amount is attributed to expansion of cost sharing and utilization controls. The Administration’s recently released Special Session budget trailer bill language, which further outlines this proposal and gives the Administration almost unfettered authority, notes that it would authorize “adjustment of provider rates.” The Administration also proposes to continue the current year 10 percent reductions in public ($54.2 million) and private ($52 million) Disproportionate Share Hospital funding into 2010-11.
Healthy Families Program. In addition to Medi-Cal reductions, the Governor is also asking the Legislature to reduce spending for the Healthy Families Program by $100 million. Savings would be achieved by lowering family eligibility from 250 percent of the federal poverty level to 200 percent, eliminating vision care, and making other cost-saving changes.
Trigger. The Governor proposes to close about 35 percent of the budget gap by obtaining just over $6.9 billion in additional federal funding, to include $1.8 billion by increasing the Federal Medical Assistance Percentage (FMAP) from 50 percent to 57 percent. In the event the Governor’s proposed levels of new revenues/savings are not achieved, the proposed budget contains a variety of “solutions” including permanent program cuts that would be “triggered.” Proposed reductions would include reducing Medi-Cal eligibility to the minimum allowed under federal law and eliminating most remaining optional benefits for a $532 million savings. The Healthy Families Program would be eliminated for a savings of $126 million.
Hospital Provider Fee. The Governor’s proposed budget also contemplates $560 million in General Fund savings by substituting a like amount of AB 1383 (Jones) hospital provider fee revenue to pay for children’s health coverage. The Administration is assuming that all seven quarters, at $80 million per quarter, will be available in 2010-11.
Section 1115 Waiver. While not formerly included as a line-item in the Governor’s proposed 2010-11 budget, Administration representatives continue to emphasize the importance of obtaining additional federal funding in the next Section 1115 waiver. Since the current hospital demonstration waiver ends on August 31, 2010, the Administration has given a concept paper, which describes its view of the next waiver, to the federal government. The paper is now the subject of ongoing negotiations between California and federal officials.
The concept paper calls for creating more accountable coordinated systems of care, strengthening the health care safety net, rewarding health care quality and improving outcomes, slowing the long-term expenditure growth rate of Medi-Cal, and expanding coverage to uninsured Californians. Recognizing that the development process is just beginning, many questions remain to be answered. One of the leading questions is how private safety net hospitals will be included in and receive funding under the new waiver. As part of the next waiver the state is interested in exploring the transition of private hospital inpatient services from the current per diem system to a diagnosis or acuity based payment system, such as the diagnosis-related group (DRG) system. A 35-member stakeholder advisory committee, with five hospital representatives among its membership, has been established to consult with Department of Health Care Services on matters related to waiver development and implementation.
Health Care Reform/Access
What seemed inevitable at the start of 2010 – the imminent enactment of national health care reform legislation – went into the political equivalent of sudden cardiac arrest after being jolted by the January 19th election of a Republican to a Massachusetts Senate seat that had been controlled by the Democratic party since 1954. The health care reform effort went on life support after nearly a year of hard work, clearing five Congressional committees and passing both houses of Congress, albeit in different forms.
It is hard to overestimate the disorienting impact this stunning loss has had on the White House, House and Senate Democrats and the immediate future of their signature health care reform proposals. To be sure, there had been warning signs of imminent danger: a range of opinion polls showing a steady deterioration in popular support for the House and Senate reform bills and the November 2009 losses of the governors’ offices in very blue New Jersey and trending purple Virginia. But nothing had prepared the Washington political establishment for the election of a Republican in even bluer Massachusetts. Moreover, the election of a Republican who had campaigned as the 41st Senate vote against reform – the vote that would deny Senate Democrats a filibuster-proof majority.
At this writing, President Obama and Congressional leaders have decided to pursue the reconciliation strategy for passing comprehensive health care reform. Their goal is to have bills on the President’s desk prior to, or shortly after, the two-week long Easter/Passover Recess (March 29 – April 11).
The President’s health care proposal is in the process of being converted to legislative language. The White House had hoped to pass the Senate's already passed health care reform bill by Friday, March 19, thereby bypassing a formal conference between the two chambers. This deadline currently appears to be unachievable. Given recent departures of several Democratic House members, the Speaker will need 215 (not the usual 218) votes to pass the Senate bill. In order to secure the necessary House votes, Senate Majority Leader Reid (D-NV) will need to privately reassure House Democrats that at least 50 of the Senate’s 59 Democrats will vote for the Senate reconciliation reform bill. Vice President Biden, who presides over the Senate, will provide the 51st vote for the reconciliation bill.
Ideally, Senate debate on the reconciliation bill would begin around March 23 with Senate votes beginning around March 26 – roughly a week after the House passes the Senate bill. In order to try and limit GOP amendments, the Senate Majority Leader will threaten to keep the Senate in session during the scheduled Easter/Passover Recess so that final passage can occur no later than the first week in April.
Although the differences in the health reform bills are potentially paralyzing, a group of health care experts have pointed out that while the House and Senate bills differ on specific points, they are built on the same framework and common elements – eliminating health status underwriting and insurance abuses, creating functioning insurance markets, offering affordability credits to those who cannot afford health insurance, requiring that all Americans act responsibly and purchase health insurance if they are able to do so, expanding Medicaid to cover all poor Americans, reforming Medicare payment to encourage quality and control costs, strengthening the primary care workforce, and encouraging prevention and wellness.
While giving the President credit for continuing to fight on this important issue, Washington analysts have identified several concerns with the reconciliation approach:
• Democratic unity between the House and Senate on abortion, immigration and affordability issues (taxes and subsidies) has thus far proved elusive
• Democratic strategy for success on reconciliation will require an unprecedented degree of precision, unity, and especially trust between both houses, the latter virtue has been in short supply in the House of late
• House Democratic leaders will be asking moderate Democrats to vote on an unpopular bill in election year based on the hope that the Senate will subsequently “fix” the bill through the reconciliation process
• Reconciliation authority expires April 1, but Republican’s ability to offer amendments during the reconciliation debate is virtually unlimited
• Public opinion could turn against either party during the course of the unprecedented debate. Public opinion is currently strongly opposed to the House and Senate reform bills and, to date, the president has not been able to “move the numbers” in his direction
• No one can predict what provisions in the reconciliation bill Senate Republicans will object to, or which ones the Senate Parliamentarian will rule out of order as not germane, i.e., not strictly related to taxes or spending
• The President’s announced intention to add “Republican ideas" to his plan could make it more difficult to corral the requisite Democratic votes in the time allotted. The “GOP ideas” to be included are as follows:
– Engage medical professionals to conduct random undercover health care fraud investigations
– $50 million for medical malpractice state demonstration grants
– Increased physician reimbursement under Medicaid
– Allow high-deductible health plans to be offered in the Exchanges – which would encourage people to take advantage of Health Savings Accounts (HSAs)
Meanwhile in California, SB 810 (Leno), the single-payer health bill, continued its slow movement through the legislative process. Perhaps amplified by the dimming chances of a national public insurance option, the practical motivation for moving this state health reform measure is that the bill was on the Senate Appropriations suspense file since last year, but had to be approved by the Appropriations Committee in order for the full Senate to act by the January 31st legislative deadline to pass bills in their house of origin. Creating a single-payer system would cost California an estimated $210 billion in its first year. Governor Schwarzenegger has twice vetoed similar legislation, and it is expected he will veto this bill should it reach his desk.
Hospital Provider Fee
During 2009, the hospital community focused it resources on the passage of AB 1383 and AB 188 (Jones), which established the hospital provider fee program. In large measure, the benefit of passing the hospital provider fee program was to take advantage of the increased FMAP that raised the federal Medicaid matching rate for California from 50-50 to a 62-38 match. The temporary FMAP increase was part of the American Recovery and Reinvestment Act (ARRA) to provide more funding for state Medicaid programs. It was designed to keep up with increased Medicaid enrollment due to the recession.
The increased FMAP was scheduled to expire on December 31, 2010; however, in late December 2009 the House of Representatives voted to extend by six months the 6.2% increase of FMAP – to June 31, 2011. On March 1st, Senate Finance Committee Chairman Max Baucus (D-MT) offered a substitute amendment in the Senate to the most recent "jobs" bill – HR 4213, the American Workers, State, and Business Relief Act of 2010 – that includes a six-month extension of the FMAP.
The December 31, 2010 sunset of the state’s hospital provider fee program aligns with the scheduled expiration of the increased FMAP. Absent the increased Medicaid matching rate, the hospital fee proposal/modeling is not workable for many health systems. In addition, if the FMAP reverts back to the 50-50 match, the state will have to restore approximately $700 million in General Fund (GF) money to maintain Medi-Cal payments to hospitals at current levels – an unlikely scenario given the state’s severe budget shortfall. In anticipation of the federal government extending the FMAP, Assemblymember Dave Jones has introduced AB 1653 to extend the sunset date of the hospital provider fee program to June 30, 2011.
Hospital Seismic Safety
In January 2010, the California Building Standards Commission adopted emergency regulations (as set forth under the newly-enacted SB 499, Ducheny) that include a number of seismic relief measures, including raising the HAZUS threshold, enabling more SPC-1 hospital buildings to be reclassified as SPC-2 and receive an extension to 2030. Hospitals that applied for HAZUS and do not benefit from these HAZUS standards will receive an extension to 2015 to meet the 2008 requirements. Also under SB 499, new annual reporting requirements (and penalties for late submissions) were established for hospitals with SPC-1 buildings.
In early March, the Senate Health Committee held an informational hearing on the Status of Hospitals’ Compliance with Seismic Safety Deadlines. The hearing’s purpose was to examine hospitals’ compliance with state seismic safety requirements, the degree of seismic risk posed by the hospital buildings that have not yet been retrofitted or rebuilt, and hospitals’ financial status and their ability to access capital to make seismic improvements. Among other presentations, officials with the Office of Statewide Health Planning and Development presented information on compliance and hospital finances and representatives from the hospital community, including California Hospital Association (CHA) and Catholic Healthcare West, testified on the financial and bureaucratic pressures that have affected hospitals’ ability to comply fully with the 2013-2020 seismic safety statutory deadlines. Committee members questioned both OSHPD and the hospital representatives in an attempt to understand why some hospitals have been able to make progress in meeting the current deadlines while others have not.
Currently pending is a spot bill sponsored by the California Hospital Association - SB 289 (Ducheny). Consideration is being given to various amendments to this bill, including expanding the SB 1661 eligibility (which provided up to a two-year extension to hospitals that were working in good faith toward meeting the 2008 and 2013 deadlines) to 2015; expanding the SB 306 model (“safer sooner”) by retrofitting or rebuilding by 2020; and allowing a general extension of an additional five years to the 2013/2015 deadline.
However, it is anticipated that there will be some reluctance among legislators to approve additional extensions absent hospitals providing additional substantive data. In addition, the recent devastating earthquakes in Chile and Haiti are giving legislators pause about granting additional broad extensions.
Several key questions and issues are expected to be brought back to the Senate Health Committee for consideration sometime during the 2010 legislative session, including: how OSHPD and hospitals can better communicate on the status of compliance, what defines a “good faith” effort by hospitals to comply, and a listing of subcategories of compliance - e.g., which buildings are on hold for compliance, which buildings will be taken out of service, timelines for compliance from those hospitals currently not able to meet the 2013 deadline, list of building characteristics that impact compliance (such as reinforced masonry buildings). Senate Health Committee members have expressed an interest in understanding the “value” of the hospital/hospital building and its impact in the community if it is closed or is non-compliant and at risk of collapse. This would include data on such issues as who is served (seniors, low-income), where it is located relative to other available hospital services (rural, proximity to other hospitals in the community), payer mix (Medi-Cal, DSH provider), size of hospital/number of beds, ownership (for-profit or nonprofit), etc.
Palliative and End of Life Care
One of the core principles and priorities for Catholic health care is to advocate for appropriate public policies and programs that address the needs of persons at the end of life. In the face of policy proposals such as legalizing assisted suicide, Catholic health care must be seen as a proactive partner in California in addressing and promoting positive alternatives to this troubling policy proposal.
POLST. Since it became law in 2009, work on implementing Physicians Orders for Life Sustaining Treatment (POLST) will continue into 2010. POLST establishes a new mechanism by which patients can provide specific instructions for their end-of-life care. Through the Ministry-funded Coalition for Compassionate Care of California, Alliance staff serves on the statewide POLST Task Force and continues to lead the POLST Model Policy Committee. This committee has developed model POLST policies and procedures for acute care hospitals, skilled nursing facilities, hospices and home health agencies (in process) and will revise and refine these policies during the first quarter of 2010.
A key component to help ensure effective implementation of POLST throughout California is the establishment of community POLST coalitions. Several Alliance member hospitals are part of these local multi-organizational stakeholder coalitions to ensure implementation and use of POLST across care settings (hospitals, nursing facilities, residential care facilities, home).
Assisted Suicide Legislation. The Alliance will continue to organize and lead a statewide coalition, Californians Against Assisted Suicide – a diverse coalition of disability rights, Latino, health care workers, low income and faith-based organizations formed to defeat efforts to legalize assisted suicide in California. The 2009 legislative session was the first time since 2005 that an assisted suicide measure was not introduced. However, given the efforts of the proponents of assisted suicide in other states, as well as trying to insert themselves into the health reform debate, the assisted suicide coalition remains intact with a focus on continuing its outreach to new legislators and maintaining relationships with sitting legislators. In 2010, the Coalition will continue to organize legislative briefings and other resource materials for key Democratic and Republican legislative staff and key committee staff.
Statewide Coalitions. The Alliance will continue its financial support for and participation in the Coalition for Compassionate Care of California (CCCC). This is a statewide collaborative of over 60 organizations that represent health care providers, consumers, and state agencies that promote high-quality end-of-life care for all Californians. Alliance member hospitals and health systems participate in the various initiatives and projects of the Coalition. Previously under the non-profit arm (California Hospital Foundation and Trust) of the California Hospital Association, the Coalition recently transitioned to its own 501(c)3. The Alliance is a member of CCCC’s Governing Board and leads its statewide Public Policy Committee.
In addition, the Alliance will be coordinating with the California Hospital Association on its efforts through the statewide Palliative Care Task Force to support hospitals on regulatory and legislative issues affecting palliative care.
Revision to Directive 58. In late 2009, the United States Catholic Conference of Bishops (USCCB) approved a revision to Directive 58 of the Ethical and Religious Directives for Health Care Services in order to incorporate recent authoritative Church teaching regarding nutrition and hydration of persons in a “permanent vegetative state.” The Alliance coordinated a statewide approach to educating the California bishops on this matter in order to positively influence the debate with the larger conference of U.S. bishops. The Alliance convened its member system ethicists to review and comment on the various drafts of the revisions and examined their implications for clinical practice, California case and statutory law and potential media concerns.
Since California law clearly empowers surrogate decision makers to refuse medically supplied nutrition and hydration for persons in a persistent vegetative state, in collaboration with the health system ethicists, concerns about ethical issues related to cooperation will need to be addressed. California law allows individual health care professionals and health care facilities to refuse to abide by such a request, but the professional and facility are legally obligated to assist the surrogate in transferring the patient to a willing provider. To date, Compassion & Choices – the pro-assisted suicide advocacy organization – has used the revision to the Directives to distort the role of Catholic health care and alarm the public. The Catholic health care ministry will work to mitigate any attempts to legislate a change in public policy that would compel Catholic hospitals to violate the spirit of the Directives.
Peer Review
In 2009, two bills were passed by the legislature that would have amended existing law regulating the physician peer review process in hospitals. The hospital community opposed SB 820 (Negrete-McLeod) because of the new standard that peer review bodies would have to use in order to evaluate and make reports to the Medical Board of California. And the hospital community was neutral on CMA-sponsored AB 120 (Hayashi). The bills were double-joined and were vetoed by the Governor. In his veto message the Governor encouraged the authors and stakeholders to work with the Department of Consumer Affairs on streamlining and improving the peer review process in a way that increases the overall effectiveness and reporting mechanisms to the Medical Board of California.
During the legislative interim, and anticipating that legislation will again be introduced in 2010, the California Hospital Association convened interested health systems and their respective legal staff to develop an informational document containing the hospitals’ perspective on the various peer review issues that has been shared with the Department of Consumer Affairs. To date, Senator Negrete-McLeod and Assemblymember Hayashi have re-introduced legislation similar to their failed 2009 bills, and Senator Sam Aanastad also has introduced legislation that addresses aspects of peer review.
Physician Employment
Access to physicians in disadvantaged, medically underserved and rural communities continues to be a challenge. Lack of sufficient reimbursement, especially for Medi-Cal patients, coupled with the ban on the corporate practice of medicine, have made it extremely difficult for hospitals to recruit and retain physicians to work in these communities. In 2009, three different bills were introduced to revise the existing pilot project allowing certain qualified health care districts and/or qualified rural hospitals to directly employ physicians and extend the sunset date for the pilot project. The bills set forth restrictions on the number of physicians that can be hired and on the terms of their contracts.
CHA-sponsored AB 648 (Chesbro) would allow physicians to be employed by rural hospitals. AB 646 (Swanson), co-sponsored by AFSME and the Association of California Healthcare Districts, would allow physicians to be employed by health care districts. Both bills are pending Senate Business, Professions and Economic Development Committee. SB 726 (Ashburn), which would allow certain qualified health care districts and rural hospitals, is pending the Assembly floor. This bill has gone through a series of amendments in both the Senate and Assembly. All bills have until at least May before they must be acted upon to continue moving through the legislative process.
The hospital community will continue to discuss this issue with the California Medical Association (CMA) who, to date, have opposed all bills pertaining to employment of physicians. Hospitals are attempting to find common ground with CMA on legislative language.
Protecting Not-For-Profit Health Care:
Tax Exempt Status, Charity Care
Federal Community Benefit Requirements. For the last several years, Senator Charles Grassley, Ranking Member on the Senate Finance Committee, has advocated for increased accountability and reporting related to the community-benefit obligations of tax-exempt hospitals, including contemplating a requirement that hospitals spend at least 5% of operating expenses on allowable community-benefit activities and how to penalize hospitals that fail to spend 5%. In 2009, the issue of community benefit was inserted into the Senate health reform measure. The Senate health reform bill would establish thresholds for tax-exempt status based on hospitals meeting certain requirements on community health needs assessments, financial assistance policies, limitation on charges, and billing and collections. Most, if not all, requirements are already part of California state law or practice.
As outlined in the Senate health reform bill, if the specific provisions were enacted, they would: 1) Change the currently broad statutory definition of community benefit to require a host of specific, measurable behaviors by hospitals and systems that are desirous of retaining their federal tax-exemptions; 2) Provide the IRS with a new tool (excise tax) for enforcing those behaviors; 3) Require the Treasury Department to monitor each exempt hospital’s/system’s compliance with the new requirements at least once every three years; 4) Require the Treasury Department to file an annual report with Congress on exempt hospitals’ charity care/community benefit performance as compared with their public and for-profit counterparts; and 5) Require the Treasury Department to study how the new community benefit requirements should evolve and change over time. All of this would result in greater tax compliance burdens for nonprofit hospitals and systems and ongoing federal scrutiny with regard to the benefits society receives in return for the tax breaks it affords nonprofit hospitals and systems.
Should national health reform fail, or if these requirements on the community-benefit obligations of tax exempt hospitals are absent from any scaled back reform proposal, it is anticipated that Senator Grassley will continue to pursue policy changes in this area through other avenues in Congress.
State Board of Equalization Questionnaire. In early 2009, the California Board of Equalization (BOE) voted to require all nonprofit hospitals (and certain clinics and LLC entities) that have state property tax exemptions to complete a burdensome 18-part questionnaire that obtains a large volume of financial and other information, called “Supplemental Reporting Form – Organizational Clearance Certificate Holders Nonprofit Hospital Organizations.” The BOE questionnaire asks for information that is, in many respects, redundant to the information that the federal IRS will be collecting on its new Form 990 Schedule H. The BOE questionnaire is different from the IRS Form 990 in that it seeks data for fiscal years 2004 through 2008. Based on discussions with BOE staff, the data obtained from the questionnaire will be available to the public, but staff indicated that no other report would be forthcoming to the BOE or legislature.
Following the action taken by BOE, Alliance board members raised serious concerns about these administrative costs and discussed whether it would be possible to get the BOE to revisit and amend its action. It was suggested that, while difficult, it could be possible to get the BOE to reconsider its action as it issued the new reporting requirements as an order rather than through the formal regulatory promulgation process. This means the BOE could entertain a board motion to withdraw or revise the new requirements.
In an effort to determine the extent to which Catholic health systems and hospitals complied with this new reporting requirement, a survey was completed by Alliance member health systems and hospitals. Results of the responses are being shared with the Alliance Board and Advocacy Team Leaders, which will include: whether the questionnaire was completed and submitted; how was the questionnaire completed (on an individual hospital basis or on a health system or regional basis); whether all parts of the questionnaire completed, and if not, what questions or areas were incomplete or left blank; what questions were most difficult to answer or not clear and required “interpretation” in order to answer; what department(s) was responsible for completing and submitting the questionnaire; and an estimate of the amount of staff time (in hours) and other resources expended to complete the questionnaire.
The Catholic health ministry will revisit this issue with key members of the BOE, and contemplate collaboration with other nonprofit health care systems and the California Hospital Association to develop and implement a strategy for seeking BOE reconsideration of the reporting requirements should it be warranted.
Workforce/Labor Issues
The “Employees’ Freedom of Choice Act” (EFCA) - aka card check - has stalled since its March 2009 introduction. Enactment of this bill has been organized labor’s single highest priority. It would require employers to recognize unions once a majority of their employees sign cards indicating they want union representation. It would also require employers and unions to submit to binding arbitration if they are unable to reach a contract agreement within 120 days. Even when the Democratic Senate caucus numbered 60, EFCA supporters were not able to secure the support of enough moderate Democrats to overcome a filibuster. That challenge has increased with the loss of the Democrats’ filibuster-proof majority. However, organized labor is signaling that it will continue to push EFCA, arguing that it should be part of the economic recovery conversation because it would give workers leverage to increase their wages and benefits through collective bargaining.
At the state level, no attempt was resurrected in the 2009 legislative session to enact a measure to address non-nurse health care staff levels in hospitals. Past legislation sponsored by SEIU has attempted lay the groundwork for minimum hospital staffing levels and was part of a long-term SEIU strategy to enact staffing ratios (or similar requirements) for technical personnel who work in hospitals. Given the internal unrest within SEIU, the severe budget cuts that will affect organized labor’s workforce and efforts at the national level to pass health reform, it is unclear at this writing what policy proposals targeted at hospitals will surface as priorities for organized labor during 2010.
Sustaining Catholic Ethical Integrity
Religious Freedom
During the past thirty years, the U.S. Congress has enacted a series of conscience clauses that protect health care providers from being compelled to provide abortion if doing so would violate their ethical or religious beliefs. The most recent conscience clause – the Weldon Conscience Protection Amendment – specifically protects institutional health care providers. Since 2005 it has been re-enacted annually as a rider to the Labor-HHS appropriations bill. Also, during the last part of the Bush Administration the U.S. Department of Health and Human Services issued a regulation that would enforce the conscience clauses.
The federal conscience clauses have been especially important to Catholic health care providers in California, where certain state elected officials have engaged in a decade-long effort to compel hospitals to provide or arrange for the provision of abortion – despite the fact that with the third highest abortion rate in the nation abortion is readily available in California. Catholic hospitals have been a specific target of some of these efforts.
President Obama has publicly indicated that he supports a “sensible” conscience clause, including one that would be every bit as strong as the Bush-era conscience regulation his Administration had announced, early in his presidency, its intention to rescind.
Weldon Conscience Protection Amendment. Preserving “Weldon” will continue to be an advocacy imperative for the Alliance as Catholic hospitals in California operate in a political and governmental environment that is largely hostile to legal protections for health care providers that object to providing abortions. President Obama surprised many on both sides of the conscience rights debate by including the Weldon Amendment in his FY 2010 budget submission to Congress. We welcomed the president’s statements in support of conscience rights as the Catholic health ministry has been able to cite them as we worked with Congressional Democrats to reenact “Weldon.” Nevertheless, the White House has been unwilling to actively promote conscience rights legislation on Capitol Hill – leaving it up to the proponents and opponents to “fight it out” in Congress.
The Alliance met with Representative David Obey, (D-WI), who is chairman of both the House Appropriations Committee and its Labor/HHS/Education Subcommittee and provided him and his staff with materials that made the policy, legal and constitutional case for “Weldon.” The subcommittee subsequently reported the bill with “Weldon” intact. Weldon also was included in the “chairman’s mark” in Senate Labor/HHS/Education Subcommittee.
Neither the House nor Senate Labor/HHS appropriations bills have passed in its respective house. As a result, the federal government is operating on a “continuing resolution” (CR), which includes “Weldon.”
Provider Conscience Regulations. Despite the President’s stated support for conscience rights, the status of the Bush-era conscience regulation is unclear. In 2009, the Alliance met with the Counselor to the HHS Secretary. No action yet has been taken by the Obama Administration to formally rescind the regulation or reissue it in revised form. The Catholic health ministry must remain vigilant in protecting the provider conscience regulations.