The fight could presage a national battle over the rising cost of chronic care for things like kidney disease -- and proponents of the measure said they would seek to put similar ballot initiatives on other state ballots in 2020.
The ballot measure, which Californians rejected 61 to 39 percent, pitted the state's dialysis companies against health-care workers angry at what they argued were exorbitant profits by the clinics when they should be reinvesting money in patient care. The move sought to force such an action by capping clinic profits and requiring anything above a certain threshold be returned to insurance companies.
More specifically, Proposition 8 sought to require state dialysis clinics to refund insurers for profits above 115 percent of the cost of direct patient care. The measure was sponsored by the Service Employees International Union-United Healthcare Worker, which is in a long-running fight to unionize dialysis workers, and opposed by DaVita and the North American unit of Fresenius Medical Care, two of the state's biggest dialysis companies.
The measure would also have have forced clinics to accept all patients and require more information be reported to state regulators. DaVita and Fresenius argued the measure would have forced clinics to limit resources and put patients at risk.
Dialysis is big business in California, with 80,000 patients receiving treatment every month. Together, the dialysis giants make up about 70 percent of the market share in California. According to an analysis by Maplight, DaVita spent just 1 percent of its net worth to oppose the measure. By comparison, the campaign to support Proposition 8 spent more than $18 million.
Dave Regan, president of SEIU-UHW, told me the union is prepared to continue the fight for as long as it takes. He said the group wants to help introduce legislation at the beginning of the upcoming California legislative session and is prepared to refile a ballot initiative in 2020. Next time, Regan said, the union will work with more states “so that we’re not on the ballot in just one state.”
Regan explained that on average, the cost for dialysis treatment in California runs about $250 per treatment for someone who is on Medicare, but for commercially insured patients that cost can be $1,000 or more.
“Dialysis is an outlier within the health-care landscape of a service with a horrible business model, gouging consumers and patients, and it’s just a predatory business and it needs to be reformed,” Regan said.
“What the dialysis industry proved is that they’re literally prepared to spend unlimited amounts of money to preserve,” profits, Regan said. “And if they’re prepared to spend $125 million a year, that’s okay … We are going to redouble our efforts; we’re not discouraged at all.”
The dialysis industry doesn’t appear discouraged, either.
“We are grateful that Californians voted down Proposition 8,” DaVita said in a statement to The Health 202. “It’s disappointing that the SEIU-UHW used the ballot initiative process as leverage in pursuing their own objectives, despite the potential harmful consequences to nearly 70,000 California dialysis patients … We will oppose any similarly misguided policies, promoted by the SEIU-UHW or others, in the future.”
In a statement following the election, Fresenius’s chief executive, Rice Powell, called the proposition a “deeply flawed measure that would have dangerously reduced access for dialysis patients in California by setting arbitrary limits on what insurance companies are required to pay for dialysis care.”
In 2010, ProPublica published an investigation that found dialysis care in the United States had one of the worst fatality rates in the industrialized world and revealed “shockingly poor” conditions within clinics. The report was cited by a “Yes on 8” advertisement. From the other side, “No on 8” campaign ads blanketed the airwaves, warning the measure “would force many dialysis clinics to shut down, and threaten the care that patients need to survive.”
Kati Phillips, spokeswoman for California Common Cause, which supports campaign finance reform, predicted the measure is not going away. “We will see this again,” she said.
“There’s a lot of money to be made off dialysis patients. They want to protect their bottom line,” Phillips added. “It’s surprising when we see big numbers like this — it’s almost like monopoly money."
Phillips said the big money was part of a pattern. In the last decade or so, health care and pharmaceutical companies, along with the oil and tobacco industries, have spent the most on ballot measures. “There is a pattern of every year of one of these sorts of industries outpacing the other,” she added.
Jessica A. Levinson, a professor at Loyola Law School who focuses in part on ballot initiatives and campaign finance, said it was “politically expedient” for SEIU-UHW to announce it will continue their efforts to “keep the pressure on.”
“But in terms of looking at the initiative and seeing how it failed and how expensive it was, they may be reticent to try the same tactic again,” she said.
Ken Jacobs, chair of the University of California at Berkeley Center for Labor Research and Education, said it would be a “reasonable assumption” to expect a similar battle two years from now.
“It’s also reasonable if you look at how profitable the industry has become for DaVita and Fresenius, it’s not surprising they would spend more than $100 million to stop regulation,” he added. “They have a good deal and they want to keep that good deal.”
Jacobs pointed to what he described as a poor track record for patient care in the dialysis industry, specifically from for-profit companies.
Levinson explained that even if proponents do try again in 2020, it will be the same uphill battle that marks all ballot initiatives.
“When it comes to ballot initiatives, people’s default is a ‘no’ and you have to move them off of a ‘no,’” she said. “What we also know is that money spent to convince people to vote no is more effective than money spent to convince people to vote yes.”
In the case of Proposition 8, the dialysis companies' campaign “was extraordinarily effective because the message was, ‘If you vote for this, people will die.’ ”
A more effective route for labor in this battle could end up being legislation. In August, the state legislature decisively passed a bill to cap commercial dialysis payments, but the measure was vetoed by outgoing Democratic Gov. Jerry Brown.
Regan said SEIU-UHW was “excited to reintroduce legislation,” adding “hopefully the new governor — we think he’s much more interested in health-care costs than Gov. Brown was.”
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AHH: House Minority Leader Nancy Pelosi (D-Calif.) said in a Sunday interview that one of her main reasons for wanting to lead the party in the House would be to tackle health care.
She also suggested that had the 2016 presidential election outcome been different, she might have “gone home” instead.
“I'm staying as speaker to protect the Affordable Care Act,” Pelosi said during an interview with CBS’s “Face the Nation.” “That's my main issue, because I think that's, again, about the health and financial health of the America's families and if Hillary had won, I could go home,” Pelosi said.
Pelosi has repeatedly pointed to health care as the party’s top agenda item once a new Congress begins. During the interview, she also urged Republicans to work with Democrats on maintaining the ACA’s protections for preexisting conditions, a popular provision that both parties repeatedly pointed to and vowed to protect on the campaign trail.
“They misrepresented during the campaign where they were on this,” Pelosi said. “They have another chance now, with us in the majority, to join us in removing all doubt that the preexisting medical condition is the law — the benefit — is the law of the land.”
OOF: Juul Labs Inc., an e-cigarette start-up behind the trendy USB-flash-drive-sized e-cigarette, plans to stop sales of most of its flavored products at retail stores, a move that follows a planned regulatory crackdown from the Food and Drug Administration amid concerns about youth vaping.
“Juul plans to keep selling menthol- and tobacco-flavored products in stores, while all flavors, including cucumber and mango, will remain on its website, which has age-verification controls,” the Wall Street Journal’s Betsy McKay, Jennifer Maloney and Anne Marie Chaker report. “The planned restrictions could heavily affect Juul Labs, according to analysts who say more than half of its sales come from flavors other than tobacco, mint and menthol.”
“The move comes as the Food and Drug Administration prepares to announce sharp restrictions as soon as next week on the sale of such products, part of its effort to combat use of e-cigarettes by teens and children,” they continue. “The FDA also intends to pursue a ban on menthol cigarettes, agency officials said this week, though it could take years for the rule to take effect.”
OUCH: Veterans Affairs Secretary Robert Wilkie said he would continue to authorize the agency’s controversial experiments on dogs, months after lawmakers passed a bill to limit such tests, my Post colleague Karin Brulliard reports.
Trump signed in March a spending bill that included language to limit such experimental tests, which “occur at three VA locations and are invasive and sometimes fatal to the dogs,” Karin writes. The approved restrictions require testing to be “directly approved” by the VA secretary.
“Wilkie rejected calls to end research that he said led to the invention in the 1960s of the cardiac pacemaker and the discovery in the late 1990s of a treatment for deadly cardiac arrhythmias,” she adds.
“I love canines,” Wilkie said. “But we have an opportunity to change the lives of men and women who have been terribly hurt. And until somebody tells me that that research does not help in that outcome, then I’ll continue.”
— Many physicians expressed outrage after the National Rifle Association tweeted last week calling on doctors “to stay in their lane" instead of entering the gun control debate.
One forensic pathologist responded on Twitter saying, “Do you have any idea how many bullets I pull out of corpses weekly? This isn’t just my lane. It’s my [expletive] highway.”
The pathologist, Judy Melinek, is “among countless medical professionals who have taken to Twitter in the past few days to fire back at the NRA — creating a viral response that has ricocheted around the Internet under the hashtags #thisisourlane and #thisismylane,” as my Post colleague Frances Stead Sellers reports.
“They have taken a debate that has churned for decades among powerful political gun lobbies and in academic journals and relaunched it in the unfiltered Twittersphere,” she adds. “And they have accompanied their indignant messages with photographs of feet sliding on red-splattered floors, of swabs and scrubs drenched in blood, and occasionally of unidentifiable and misshapen torsos heaped on gurneys.”
The NRA’s controversial tweet last week was prompted by a position paper from the American College of Physicians published by the Annals of Internal Medicine last month. It recommended “a public health approach to firearms-related violence and the prevention of firearm injuries and deaths,” adding that the medical profession should speak out about gun injury prevention and support “appropriate regulation of the purchase of legal firearms,” as Frances reports.
Some physicians who pointed they are not anti-gun criticized the divisiveness of the debate. Richard Sidwell, a trauma surgeon in Des Moines who owns a gun and is a member of the NRA, said such division wont’ help improve safety. “I am not anti-gun, I own firearms,” he told Frances. “I am anti-bullet hole.”
— Former first lady Michelle Obama shared in a recent interview her struggles with infertility and a miscarriage. The interview was meant to promote her upcoming memoir, "Becoming."
It was yet another barrier-breaking moment in a week that saw a ton of gains for women in public office, as my colleague Colby Itkowitz reports. In the book, the former first lady reveals that 20 years ago, the couple chose to go with IVF after a miscarriage weeks after a positive pregnancy test "left me physically uncomfortable and cratered any optimism we felt," according to the Associated Press.
“What makes her story so remarkable is not that she and her husband had issues with fertility, but that she’s now talking about it and opening the door for the millions of women who had or currently have trouble conceiving to share their own stories,” Colby writes. “That this particular woman broached this subject could move the focus immediately to how public policy treats it. Obama’s new willingness to discuss her previously secret struggles can shine a new light on the prevalence of infertility and the incredible emotional and financial cost of going through medical treatments to have a baby.”
Colby also notes that although her husband’s landmark health-care law "mandated coverage of maternal health care, it did not require coverage of fertility treatments. Neither does Medicaid.”
“I think it’s the worst thing that we do to each other as women, not share the truth about our bodies and how they work, and how they don’t work,” Michelle Obama said during interview Friday on "Good Morning America."
— Justice Ruth Bader Ginsburg was discharged from the hospital just one day after being admitted for three fractured ribs.
Ginsburg had been admitted to George Washington University Hospital on Thursday morning after a fall left her with three fractured ribs, but she was released on Friday and was “doing well” and worked from home that day, my Post colleague John Wagner reported, citing a Supreme Court spokeswoman.
— And here are a few more good reads from The Post and beyond:
- The Washington Post brings together scientists, doctors, health-care innovators, patients and policymakers, including FDA Commissioner Scott Gottlieb, for its “Chasing Cancer” live-news event on Tuesday.
- CDC Director Robert Redfield speaks at an NIH event on opioids on Tuesday.
- The Atlantic holds an event on “People v. Cancer” on Wednesday.
- The House Veterans Affairs Subcommittee on Technology Modernization holds a hearing on Wednesday.
- The House Veterans Affairs Subcommittees on Disability Assistance and Memorial Affairs hold a hearing on oversight of contract disability examinations on Thursday.
View the destruction of Southern California’s wildfires: