Call Made For Rule Changes So All Present Must Vote Or Not Be Paid
Ignoring the pleas of a Health Net patient locked out of the court system by mandatory arbitration, a cabal of silent Democrats friendly to corporations joined with Republicans to put the interests of the HMO industry above those of patients. They refused to support, or to oppose, legislation in the California Assembly Health Committee that would have allowed patients seriously injured by their HMO to choose between courts and arbitration.
In response, the Foundation for Taxpayer and Consumer Rights wrote Assembly Speaker Wesson for rule changes that require members to vote when present or not pay the member for the day if they do not vote.
"Politicians are not paid to 'take a walk' when the choices of innocent constituents harmed by their HMO are at stake," said Jamie Court, executive director of the Foundation for Taxpayer and Consumer Rights (FTCR). "Politicians must either live with the consequences of voting against HMO patients' interests or support patients, but they must take a stand. Not voting has become the modus operandi of corruption without consequence. The Assembly Speaker must change the rules to force those present to vote. Sickness should be the only abstention. Any politician who is present and not voting should not be paid for the day. "
SB 458 (Escutia) allowed the choice of court only in cases of HMO
interference with treatment -- lawsuits that fall under California's new HMO liability law (Section 3428 of the Civil Code). Voting in support of the measure were Dario Frommer, Jackie Goldberg, Paul Koretz, Virginia Strom-Martin, Carl Washington, Howard Wayne.
The corporate Democrats present but taking no stand ("not voting") on the SB 458, which had already passed the Senate, include Ed Chavez (ring leader of the HMO opposition), Rebecca Cohn, Gloria Negrete-McCloud, Simon Salinas. Wilma Chan, not typically a corporate democrat, but based in the home town of Kaiser, the state's largest HMO, also refused to vote. Helen Thompson voted
"no." Republicans present voting "no" include Aanestad, Bates, Dickerson, Pacheco, Zettel. Keith Richmond was not in the legislature that day.
The first HMO patient to try to hold his HMO accountable under a new California HMO liability law testified that his HMO had denied him both vital treatment for his degenerative disk disease and access to the courts.
"I now have extensive fusion of the vertebrae and spine resulting in
permanent disability, which could have been avoided had I had a prompt response," stated Warren Goold, the Health Net patient. "I did not realize when I enrolled in my health plan that I had given up my constitutional right to trial in the fine print. I started up with an employer who provided health care and they signed away that right away for me, knowingly or unknowingly. I have been asked to pay extraordinary costs, $11,000, just to file a case in arbitration because of the extreme damage. A person in my situation who collects long term disability from my employer is no position to pay that cost."
Goold's is the first known case under the HMO liability law, effective January 1, 2001. He filed his case about one year ago and has still not had a hearing. SB 458 follows the recommendation of the American Arbitration Association, which announced in March it would only administer voluntary health care arbitrations because of ethical concerns about the process.
The Foundation for Taxpayer and Consumer Rights (FTCR) announced it would be exploring a possible ballot initiative in 2004 to give patients and policyholders the choice of courts.
Consumer advocates and members of the California Nurses Association complained that problems with mandatory arbitration undermined the 2001 law establishing legal accountability of the HMO to the individual and other patients' rights Governor Davis has touted as the toughest in the nation.
Among the problems with mandatory arbitration are its secrecy, as there is no public record of abuses revealed; the financial incentive arbitrators have to rule for HMOs to receive repeat business; the fact that legal errors by arbitrators cannot be appealed and arbitrators need not follow rules of jurisprudence; and the high cost for consumers compared to the courts.
"California is alone among the 11 states with HMO liability laws in permitted patients to be forced in mandatory arbitration," said Jamie Court, executive director of FTCR, which sponsored SB 458. "Californians should not be second class citizens. Patients should not have to give up their seventh amendment right to trial just to receive health coverage. Innocent patients victimized by an HMO should be able to choose the courts. Politicians who refuse to give patients choices when their harmed are abetting HMOs that deny care and access to the courts."
Other HMO liability states have seen few lawsuits, but much deterrence to malfeasance. For instance, Texas, which has allowed the right to sue in court since 1997, has had only a dozen lawsuits.
June 19, 2002
Honorable Herb Wesson
Sacramento, CA 95814
VIA FACSIMILE & U.S. MAIL
"End The Silence of the Legislators"
The Assembly has become a graveyard for good consumer protection legislation that has too often been defeated through the silence of legislators present for a debate but who choose to "take a walk" rather than make tough decisions.
Assembly members are paid to take votes and positions, not to be silent. Politicians must either live with the consequences of voting against the public interest or supporting it, but they must take a stand. Not voting has become the modus operandi of corruption without consequence. The Foundation for Taxpayer and Consumer Rights calls upon you to require those members who
are present at a committee to vote. Sickness should be the only abstention. Any politician who is present and not voting should not be paid for the day.
These are changes the legislature should make itself. We urge you to do so. If not, the voters may choose to make even more extreme changes themselves.