BILL ANALYSIS
AB 525
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Date of Hearing: April 6, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 525 (Kuehl and Thomson) - As Amended: April 5, 1999
SUBJECT : HEALTH BENEFITS: ACCESS TO REPRODUCTIVE HEALTH
SERVICES
KEY ISSUES :
1)SHOULD HEALTH PLANS WHOSE PROVIDERS RESTRICT ACCESS TO
REPRODUCTIVE HEALTH SERVICES BE REQUIRED TO CONTRACT WITH AT
LEAST ONE OTHER FACILITY IN THE SAME GEOGRAPHIC AREA THAT
PROVIDES SUCH SERVICES IN ORDER TO ENSURE ACCESS TO THESE
CRITICALLY NEEDED SERVICES?
2)SHOULD HEALTH PLANS BE REQUIRED TO INFORM CONSUMERS CONCERNING
RESTRICTIONS ON ACCESS TO REPRODUCTIVE HEALTH SERVICES SO THAT
CONSUMERS CAN MAKE MORE INFORMED DECISIONS WHEN CHOOSING THEIR
HEALTH CARE PROVIDERS?
3)SHOULD THE ATTORNEY GENERAL BE GIVEN NEW POWERS TO CONTROL
HOSPITAL MERGERS IN NONPROFIT-TO-NONPROFIT TRANSACTIONS AND BE
REQUIRED TO CONSIDER THE IMPACT OF SUCH MERGERS ON PATIENT
ACCESS TO REPRODUCTIVE HEALTH SERVICES, AS WELL AS EMERGENCY
AND INDIGENT CARE SERVICES?
4)SHOULD HEALTH CARE FACILITIES THAT RECEIVE TAXPAYER DOLLARS
THROUGH THE CALIFORNIA HEALTH CARE FACILITIES FINANCING
AUTHORITY AND THE CAL-MORTGAGE LOAN INSURANCE PROGRAM BE
REQUIRED TO GIVE ASSURANCES THAT THE FULL RANGE OF
REPRODUCTIVE HEALTH SERVICES WILL BE MADE AVAILABLE IN THE
COMMUNITIES THEY SERVE, EITHER THROUGH THEIR OWN FACILITIES OR
BY PARTNERING WITH OTHERS WHO WILL PROVIDE THESE SERVICES?
5)SHOULD UNIFORM ANTI-DISCRIMINATION STANDARDS BE APPLIED IN
HEALTH INSURANCE AND HEALTH FACILITIES FINANCING PROGRAMS?
SUMMARY : Seeks to protect patient access to the full range of
reproductive health services, as well as emergency and indigent
care services, and prohibits discrimination in health insurance
and health facilities financing programs. Specifically, this
bill :
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1)Requires health plans (including commercial HMOs and Medi-Cal
managed care plans) whose providers restrict access to
reproductive health services to contract with at least one
other facility in the same geographic area that provides those
services. It also requires HMOs to ensure that voluntary
tubal ligations be made available at the time of labor and
delivery when medically appropriate.
2)Requires health plans to inform consumers concerning
restrictions on access to reproductive health services,
including any hospitals, medical groups and other health care
providers which might deny or delay access to these services.
3)Gives the Attorney General (AG) new powers to control hospital
mergers in nonprofit-to-nonprofit transactions. It also
requires the AG's review of hospital mergers to consider the
impact of the merger on patient access to the full range of
reproductive health services, as well as emergency, urgent
care and indigent care services.
4)Requires that, in order to receive taxpayer dollars through
the California Health Care Facilities Financing Authority Act
and Cal-Mortgage Loan Insurance programs, hospitals and other
health care providers licensed to provide reproductive health
services must first guarantee they will make available all
reproductive health services, either through their own
facilities or by partnering with others who will provide
these services.
5)Prohibits discrimination on the basis of race, color,
religion, national origin, gender, or sexual orientation in
the availability and the type of health insurance coverage
offered by indemnity, Knox-Keene, and Medi-Cal managed care
plans, as well as in the California Health Care Facilities
Financing Authority Act and the Cal-Mortgage Loan Insurance
program.
6)Respects religious health care providers' rights to adhere to
religious principles and does not require religious hospitals
to provide services that are inconsistent with their religious
beliefs.
EXISTING LAW :
1)Provides, under the Knox-Keene Health Care Service Plan Act of
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1975, for the licensure and regulation of health care service
plans (HMOs) by the Commissioner of Corporations. The
Knox-Keene Act requires, among other things, that HMOs must:
a) use disclosure forms or other materials containing
designated information about the benefits, services and
terms of the plan, including the principal benefits and
coverage of the plan, and the exceptions, reductions and
limitations that apply to the plan.
b) describe how participation in the plan may affect the
choice of physician, hospital or other health care
providers, and other specified information.
c) meet certain requirements, including providing to
subscribers and enrollees basic health care services.
(Health and Safety Code Section 1340 et seq .)
2)Provides for the regulation of insurance by the Insurance
Commissioner, including disability insurers, insurers issuing
policies of disability insurance, and self-insured employee
welfare benefit plans that cover hospital, medical or surgical
expenses. It also circumscribes the authority of the
Insurance Commissioner in approving disability insurance
policies and requires disability insurers to disclose, among
other things, the principal benefits and coverage of the plan
and the exceptions, reductions, and limitations that apply to
the plan. (Insurance Code Section 10110 et seq .)
3)Provides, under the Public Employees' Medical and Hospital
Care Act, health benefits plan coverage for public employees
and annuitants meeting the eligibility requirements prescribed
by the Board of Administration of the Public Employees'
Retirement System (CalPERS). (Government Code Section 22754
et seq .)
4)Provides for the Medi-Cal program, which is administered by
the State Department of Health Services, under which medical
benefits are provided to public assistance recipients and
certain other low-income persons. Under existing law,
Medi-Cal services may be provided to a beneficiary or eligible
applicant by an individual provider, or through a prepaid
managed health care plan, pilot project, or fee-for-service
case management provider. (Welfare and Institutions Code
Section 14000 et seq .)
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5)Requires a nonprofit health facility to provide notice to, and
obtain the consent of, the AG prior to the sale, transfer or
lease of assets to a for-profit or mutual benefit corporation
when a material amount of the nonprofit's assets are involved
in the transaction. (Corporations Code Section 5914 et seq .)
6)Empowers, under the California Health Facilities Financing
Authority Act, the California Health Facilities Financing
Authority (CHFFA) to finance projects of health facilities
that are operated by a city, county, a district hospital, or a
private, nonprofit corporation or association. It also
authorizes CHFFA to issue revenue bonds for this purpose, and
requires borrowers to give reasonable assurance to the
authority that the services of the health facility will be
made available to all persons residing or employed in the area
served by that facility. (Government Code Section 15430 et
seq .)
7)Provides, under the California Health Facility Construction
Loan Insurance Law (also known as the Cal-Mortgage Loan
Insurance Program), for an insurance program for public and
nonprofit health facility construction, improvement, and
expansion loans. (Health and Safety Code Section 129000 et
seq .)
8)Does not apply uniform anti-discrimination standards in health
insurance and health facilities financing programs.
FISCAL EFFECT : Unknown
COMMENTS : According to the authors, AB 525, also known as the
"1999 Healthcare Access bill," was introduced to protect patient
access to a variety of reproductive health care services, as
well as emergency care and indigent care services. The authors
state that in today's managed care environment, more and more
hospitals are merging and entering into other business deals in
order to cut costs. For example, in California, the largest
owner of hospitals (and the biggest merger participant) is
Catholic Healthcare West, with 46 facilities statewide. Tenet
Healthcare, by comparison, owns 42 acute care hospitals in
California.
When a health care provider is a religious entity, patient
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access to the full range of reproductive health services can be
threatened. Catholic hospitals, for example, must adhere to a
strict set of ethical guidelines called the Ethical and
Religious Directives ("the Directives") which severely limit
access to the full scope of reproductive health services,
especially to women. The Directives prohibit Catholic
facilities from providing services such as fertility treatments,
contraception, vasectomy and abortion. Generally, even rape
victims are refused emergency contraception. In addition, under
the Directives, women are prevented from receiving needed tubal
ligations immediately after delivery, which physicians believe
is the best time for such a procedure to avoid greater health
risks associated with multiple surgeries.
The authors state that when Catholic and non-Catholic hospitals
merge, these Directives usually are imposed on the non-Catholic
provider as a condition of sale. That can mean either the loss
of critically needed reproductive health services in the
community or continued restrictions on access. For example, the
authors point to the recent merger in Los Angeles between Queen
of Angels Hospital and Tenet Healthcare, where Tenet, a
non-religious provider , agreed to continue the ban on
reproductive health services for the next 20 years.
The authors note that Catholic health networks are not alone in
limiting access to the full scope of reproductive health care
services. According to the authors, other religious entities
that own hospitals and health facilities also limit access. For
example, the authors state that Adventist Health system owns and
manages 20 hospitals and a number of clinics statewide, none of
which provide needed access to abortions.
Unfortunately, the authors contend, this access problem extends
far beyond the hospital doors. In some cases, religious
hospitals purchase outpatient facilities, clinics and physician
networks, blocking all of these facilities and providers from
delivering needed reproductive health services. Even doctors
who are tenants in medical buildings owned by religious
organizations can be made to follow restrictions on access to
these services as a condition of the lease agreement. They
also note these policies regrettably fall most harshly on women,
whose reproductive health service needs more often require
hospital services.
Overview of bill . According to the authors, AB 525 seeks to
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prevent further losses in access to reproductive health
services in the following five ways:
First: AB 525 would require all health plans--including
commercial HMOs and all Medi-Cal managed care plans--to
guarantee that patients have access to the full range of
reproductive health services within the HMO's provider network.
This includes guaranteeing access to voluntary tubal ligations
at the time of labor and delivery.
Second: AB 525 requires all health plans to inform consumers in
their marketing and enrollment materials about how they may
access the full scope of reproductive health services and about
any limitations on access to these services.
Third: AB 525 gives the AG new authority to scrutinize
nonprofit-to-nonprofit hospital mergers and to disapprove
mergers which would have the effect of denying patients access
to the full range of reproductive health services, as well as
emergency care and indigent care services. Currently, the AG
may not consider the impact on patients of the lack of access to
these critical health services. These same standards would be
added to the AG's scrutiny of nonprofit to for-profit mergers as
well.
Fourth: AB 525 requires health facilities that receive taxpayer
dollars through public bond and loan programs to ensure access
to all reproductive health services, either through their own
facilities or by partnering with others who will provide these
services.
Fifth: AB 525 prohibits discrimination in all forms of health
insurance and in public financing of health facilities. It also
places an affirmative obligation on the Insurance Commissioner
and on the California Medical Assistance Commission to ensure
that health policies and Medi-Cal contracts that they approve
and/or negotiate prohibit such discrimination. Currently, there
are no uniform anti-discrimination provisions in health
insurance and health facilities financing programs.
Bill respects rights of religious health care providers . The
authors stress that nothing in AB 525 would force religious
hospitals to provide services that are inconsistent with their
religious beliefs. Rather than require religious health care
providers to violate their religious tenets, the bill only
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requires that religious hospitals partner with others or
otherwise arrange for the provision of reproductive health
services if they elect to receive bond funds and mortgage loan
insurance through state financing agencies.
According to the authors, "the Healthcare Access Bill will help
to assure that women who join HMOs or Medi-Cal managed care
plans will receive the full, uninterrupted range of reproductive
health services. This bill is especially necessary to protect
the working poor and those who are struggling economically from
a threatened diminishment of reproductive health service due to
the mergers of hospitals that have differing health care
approaches. AB 525 will not force a single doctor or hospital
to provide services in which they do not believe. However, it
is not acceptable to have rape victims refused emergency
contraception or to have a mother who has just given birth, and
whose doctor has advised her to have a tubal ligation, forced to
undergo a dangerous second surgery. AB 525 simply guarantees
that patients will know what's available to them and be able to
secure the service they need when they need it."
Background . The following examples of the scope of the growing
problem of restricted access to needed reproductive health
services, together with some key statistics regarding the
increased market share of religious health care providers, may
be helpful in putting this legislation in context.
The Impact of Restrictive Religious Rules On Health Care In
California . The following examples demonstrate the increasing
difficulties facing women in California in accessing
reproductive health services due to the expansion in the number
of health care providers which abide by religious directives
that restrict access to these critically needed services.
? In Lassen County, Lassen Community Hospital, in Susanville, is
a "sole provider" hospital for the area. Although it has a
secular name, it is a Catholic Hospital which provides no
emergency contraception to rape victims and reportedly refuses
to provide a referral to another facility for such help.
(Catholics for a Free Choice, "Caution: Catholic Health
Restrictions May Be Hazardous to Your Health," 1999)
? In Los Angeles and Orange County, Catholic Healthcare West
merged with Unihealth, purchasing eight hospitals. Unihealth
is a secular health system, yet it reportedly eliminated all
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of its in-vitro fertilization and abortion services as a
condition of the merger. (Los Angeles Times, "Women Protest
Church Takeover of Hospital," Nov. 17, 1998)
? In Santa Rosa, a doctor who tried to rent space in a medical
office building was apparently told to sign a lease requiring
her to adhere to all of the local Bishop's prohibitions on
reproductive healthcare because the building is owned by a
Catholic Health System. (Sacramento Bee, "Healthcare Ties
That Bind," July 18, 1998)
? In Humboldt County, a woman apparently cannot receive a needed
tubal ligation at St. Joseph's Hospital unless her medical
records show a severe medical condition, a history of suicide,
or that the pregnancy "will precipitate mental dysfunction."
(St. Joseph Health System, "Policy on Tubal Ligations," St.
Joseph Memorandum, August 12, 1996)
? In June 1998, the Beach Cities Health District, a government
entity, leased space in the South Bay Medical Center to Little
Company of Mary, who reportedly provides no reproductive
health services and demanded a lease provision that will allow
it to terminate its lease if anyone provides prohibited health
services, including contraception, anywhere else in the
building. (Los Angeles Weekly, "Higher Calling," July 16,
1998)
? In Sonoma County, a busy medical group that provides care to
more than 100,000 patients was recently purchased by a
religious health system, and the group is now reportedly
prohibited from providing abortions. Consumers apparently
have no way of knowing of these restrictions when they choose
a doctor in that group. (Sonoma County Independent, "The End
of Choice?" Feb. 25 - Mar. 3, 1999)
Some Key Religious Health Care Statistics . The following
statistics reveal a dramatic increase in the market share of
religious health care providers, which, in turn, has resulted in
a significant decline in patient access to the full range of
reproductive health services.
? Nationally, Catholic institutions control 600 hospitals,
140,000 beds and $40 billion in revenue. That compares to 300
hospitals, 60,000 beds and $14.5 billion in revenue for
Colombia/HCA Healthcare. (San Francisco Daily Journal, "Where
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Religion and Abortion Collide," Feb. 2, 1999)
? Reproductive health services were reduced or eliminated in 35
of 71 religious hospital mergers in the country from 1990 to
June 1998. (Sacramento Bee, Forum, "Family Planning, Abortion
Tougher to Obtain," March 28, 1999)
? In 1998, there were 91 Catholic hospitals designated as "sole
provider" hospitals in the country. Sole provider hospitals
receive higher government reimbursement for services because
they are the only hospitals serving their communities, but
they are not required to provide reproductive health services.
(Catholics For a Free Choice, "Caution: Catholic Health
Restrictions May Be Hazardous to Your Health," 1999)
? The largest hospital operator in California is Catholic
Healthcare West, with 46 hospitals, compared to Tenet
Healthcare's 42. (Modern Healthcare, "Unihealth Hospitals to
Merge with CHW," Oct. 19, 1998)
? The largest single borrower of bond proceeds from the
California Health Facilities Financing Authority is Catholic
Healthcare West. They have borrowed nearly $1.6 billion.
(California Health Facilities Financing Authority Report,
July 31, 1998).
? Of 51 Catholic Hospitals surveyed in California, none
permitted emergency contraception to rape victims, 44 reported
they will not provide emergency contraception, and 7 reported
they had no policy. (Catholics for a Free Choice, "Caution:
Catholic Health Restrictions May Be Hazardous to Your Health,"
1999)
Comparison of this bill with AB 254. AB 254 (Cedillo), which is
also scheduled to be heard by the Assembly Judiciary Committee
on April 6, 1999, contains similar provisions expanding AG
authority over hospital mergers to include
nonprofit-to-nonprofit hospital transfers. This bill's AG
provisions are complimentary to, and not in conflict with AB
254. Although there are some minor variations, the principal
difference between these two bills is as follows. This bill
requires the AG's review of a hospital merger to specifically
consider the impact of the merger on patient access to the full
range of reproductive health services, as well as emergency care
and indigent care services; AB 254 does not contain a similar
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requirement. Since some of these bills' differences appear to
create technical conflicts, the authors may wish to adopt
appropriate chaptering-out language as the bills progress.
ARGUMENTS IN SUPPORT : The California Women's Law Center (CWLC),
a co-sponsor of the bill, is a statewide private nonprofit
organization that works to secure the civil rights of women and
girls. CWLC states that the frequency and pervasiveness of the
expansion of religious health care systems and the affiliations,
in particular, between Catholic systems and community and
private hospitals have left virtually no community in California
unaffected. When a Catholic hospital affiliates with a
community or privately controlled facility, usually all medical
staff, as condition of employment, must agree to abide by the
Religious and Ethical Directives for Catholic Health Care
Services. These directives prohibit contraception,
sterilization, the distribution of condoms even to prevent the
spread of AIDS and sexually transmitted diseases, emergency
contraception for rape victims, most fertility treatments, the
removal of ectopic pregnancies unless they have become life
threatening, and abortion. CWLC notes that the extent to which
these Directives are actually enforced is a matter of
negotiation between the local bishop and the health system, not
between the patient and his or her health care provider.
According to CWLC, the marginalization of these aspects of men's
and women's health is in direct conflict with the medical trend
toward integration of services and comprehensive care.
Moreover, women are being squeezed between the threats of clinic
violence when they seek services at stand alone family planning
clinics, and are being denied care at mainstream health
facilities. According to CWLC, the impact is often felt most
harshly in low income neighborhoods and communities of color
where the proliferation of religious hospitals is spurred by the
Catholic mission to serve the poor. Ironically, however, low
income women, who are least able to travel or pay out of pocket
for health care, are denied basic services.
CWLC also contends that the denial of these services directly
conflicts with standards adopted by the American Public Health
Association. APHA has recognized the harm created by the denial
of the full range of reproductive health services. According to
CWLC, official APHA policy "urges that mergers and affiliations
between religious and non-sectarian health systems should not be
allowed to create obstacles that prevent women, men and
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adolescents from receiving the full range of reproductive health
services they need."
Women with private insurance who are in managed care plans also
have no choices. When their assigned health care providers
refuse to provide reproductive healthcare, these women are
forced not only to travel to other facilities, but also to pay
for these services out of their pockets. According to CWLC,
women pay significantly more out of pocket for their health
care, 54%, largely due to the lack of access to family planning
services. CWLC argues that it is disingenuous to suggest that
men and women and their physicians can always simply choose to
go to an alternate site for their health care.
Finally, CWLC notes that many religious hospitals have found
creative partnerships with other community resources to ensure
that they truly serve the needs of their communities. "AB 525
encourages creative partnerships and collaboration instead of
denial of care."
The National Health Law Program (NHeLP), a co-sponsor of the
bill, writes that the vast majority of non-elderly women (80%)
receiving Medi-Cal are between the ages of 18 and 44, the
childbearing ages. According to NHeLP, low-income women on
Medi-Cal are being targeted for Medi-Cal managed care
enrollment. "Reproductive health services are a critical part
of basic, primary care for all women, and for women in this age
group in particular. AB 525 will ensure that low-income women,
men and adolescents enrolled in Medi-Cal managed care plans have
access to these important services."
NHeLP states that "AB 525 will ensure that Medi-Cal managed care
and commercial managed care consumers, alike, receive the
information that they need about the availability of
reproductive health services in order for them to make their
health care choices. Up front, clear information is needed at
the time that individuals choose their health plans, medical
groups, and primary care doctors as well as when they are
seeking needed health care services." According to NHeLP,
"[I]ndividuals often assume that
reproductive health services are going to be available. Without
this information, health care consumers will not be aware that
services may be restricted until they are seeking care. This is
often too late to make alternative arrangements."
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By requiring health plans whose providers restrict access to
reproductive health services to contract with at least one other
facility in the area that provides services, NHeLP contends the
bill ensures that health plans that serve both Medi-Cal and
commercial managed care consumers provide accessible choices
within their plan networks. "If these services are not easily
accessible within the health plan network, women often will not
have access to these services at all. Low-income health care
consumers, in particular, do not have the time, income, and
transportation to seek needed services outside of their health
plans (for which services would be reimbursed) or outside of
their communities." By requiring that services be accessible,
NHeLP believes the bill ensures coordination of care and
continuity of care for all of women's primary care services.
The American College of Obstetricians and Gynecologists (ACOG),
District IX, which represents over 3,900 California board
certified physicians, also supports the bill. According to
ACOG, many women's health services are being restricted or
eliminated as a result of the growing number of health care
facilities in California that are being purchased by religious
organizations. "For example, a number of religious
organizations do not believe in sterilization, as a result tubal
ligations cannot be performed at the time of labor and delivery.
This forces women to locate a hospital and possibly another
physician if their own doctor does not have privileges at a
hospital accepting their health insurance and allowing tubal
ligation." ACOG states that "an inability to have a post partum
tubal ligation (sterilization at the time of delivery) means an
unnecessary second hospitalization, additional recuperation and
risk of additional anesthetic in the same case."
ACOG also contends that in many religious affiliated medical
centers, emergency contraceptives are not available for victims
of sexual assault. ACOG notes that a 1996 study in American
Journal of Obstetrics and Gynecology reportedly revealed that 5%
- 12% of rapes result in pregnancy. According to ACOG, "[s]ince
patients' choice of facilities and physicians is often dependent
on health insurance company contracts, women should be
guaranteed access to necessary services in reasonable proximity
to their home. While we believe that individual conscience
should be respected, we do not believe that such beliefs should
be extended to systems of care when it limits access to medical
care for California women."
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Planned Parenthood Affiliates of California (PPAC) supports the
bill, stating that one of the recent trends in the health care
industry has been the increasing number of nonprofit hospitals
that are being acquired by religiously controlled entities, who
then limit access to women's health care services based on their
religious beliefs. According to PPAC, this has resulted in
women across California seeing rapid erosion of their access to
basic reproductive health care services, such as contraception,
fertility treatments, abortion, and tubal ligation and
vasectomy. PPAC notes that when the only hospital left in a
community is controlled by a religious institution that doesn't
provide these services, women must travel out of their
community, and often, out of their county of residence, to
access these services. PPAC states that this bill would take an
important first step toward preventing this erosion of services
by requiring that all health plans guarantee that all patients
have access to the full range of reproductive health services
within the HMO's health network. PPAC believes that AB 525 will
ensure that reproductive health services, protected by the
courts and the Legislature, remain available to all California's
men and women.
The California Nurses Association supports the bill, stating
that it assures access to reproductive services through health
plans and will provide significant economic savings as well as
social benefits to women and families in general.
The Hedgpeth Group, an organization that works with women's
health groups and coalitions serving women's and children's
health and social needs, also supports the bill. The Hedgpeth
Group states that "[w]ith the continuing 'merger mania' that is
affecting hospitals, and with many of those mergers and/or
takeovers putting existing community hospitals into the Catholic
Healthcare West system, women are losing access to reproductive
health services." According to the Hedgpeth Group, it has
become apparent over the past several years that the majority of
women who are being denied access to reproductive health
services tend to be in populations which already lack sufficient
health services either because of family location or income.
The Reproductive Rights Coalition-Los Angeles strongly supports
the bill, stating that it will protect women and men's access to
vital reproductive health services. According to the Coalition,
"[t]his legislation will strengthen the communities' involvement
in their health care, rights that are critical and long overdue.
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The perception that health care is just another market
commodity is a dangerous one and undermines everyone's access to
health care." The Coalition states that "AB 525 brings health
care decision-making back to consumers and the communities in
which they live."
Women Lawyers Association of Los Angeles (WLA) also strongly
supports the bill, stating that reproductive health services are
an essential part of health care to which all individuals should
be able to obtain access in all communities throughout the
state. WLA states that "[w]ith the merger of so many health
care providers in today's managed care environment, the passage
of AB 525 is crucial to safeguard against the loss of critically
needed reproductive health services in the community and against
restrictions on access to these services in hospitals,
outpatient facilities, clinics, medical buildings and physician
networks." WLA believes that this bill "is an effective and
well-reasoned measure to protect the imperative need for women's
access to the full range of health services."
ARGUMENTS IN OPPOSITION : The California Association of Catholic
Hospitals (CACH) and the Alliance of Catholic Health Care
Systems (ACHCS) support those provisions in the bill which seek
to prohibit discrimination in the provision of health insurance
and health services. However, they oppose the other provisions
in the bill unless it is amended. CACH and ACHCS set forth five
main reasons for their opposition.
First, they state that they are "unaware of any objective data
that support the need for legislation of this scope on this
issue." However, as noted above on pages 5-6 of this analysis,
consumers are facing significant barriers in accessing basic,
primary care reproductive health services in many communities
throughout the state as a result of the increase in the number
of religious health care providers in California.
Second, they object to the AG oversight provisions in the bill,
claiming that there is no public policy basis in law or fact for
the AG's authority to be expanded to review mergers between
charitable health care organizations. They also complain that
requiring the AG to review whether a merger will "perpetuate" a
significant effect on the availability or accessibility to,
among other things, abortion, "clearly targets Catholic health
care institutions." CACH and ACHCS also argue that
implementation of the bill presents a conflict of interest for
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the AG, since the AG has the obligation to uphold all of the
laws of the state, including the constitutional protections
guaranteeing the free exercise of religion. It should be noted,
however, that the AG already has authority to oversee nonprofits
because of its obligation to ensure that charitable assets are
protected. Proponents argue this bill appropriately modifies
the AG's authority in this area consistent with the state's
interest in ensuring that health care is available to all
Californians, including access to critically needed reproductive
health care, as well as emergency and indigent care services.
Third, CACH and ACHCS argue that the bill's public financing
provisions are unconstitutional since, they claim, it would
financially penalize any nonprofit entity that refuses to
provide or arrange for, among other things, abortion. They
believe that these provisions, while appearing neutral, unfairly
single out for denial of benefits Catholic health care
institutions that, by virtue of their religious principles, are
fundamentally opposed to providing or assisting in the provision
of abortion. They also argue that the denial of tax-exempt
financing and bond insurance to Catholic health care
institutions will lead to increased costs and a diminution in
charity care. However, proponents note the purpose of the bill
is to assure access to reproductive health services; it does not
dictate the particular methods for making these basic health
services available, and it allows for creative arrangements
whereby bond and loan recipients can partner with other groups
who will provide these services.
Fourth, they state that the provision in the bill which requires
voluntary tubal ligations to be available at the time of labor
and delivery is ambiguous since "[i]t does not clearly identify
who (i.e., the hospital or the health plan) bears the burden of
the obligation to make such voluntary tubal ligations available.
They also argue that it is inconsistent with medical practice
since, they claim, "doctors that intend on performing voluntary
post-delivery tubal ligations on their patients admit them to
hospitals other than Catholic hospitals." However, the bill
does not require each individual hospital make tubal ligations
available at the time of labor and delivery. The authors
explain that the point of this provision in the bill is that,
with the increased enrollment in managed care, health plans
must be responsible for ensuring the ability of doctors and
patients to make this choice.
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Fifth, CACH and ACHCS oppose the provision which requires health
plans to notify prospective and current enrollees of the
facilities and providers that restrict access to reproductive
health services "because its only practical effect is simply to
penalize Catholic health care institutions by requiring health
plans to make such disclosures of a purely negative nature."
Instead, they argue that this provision in the bill should be
restructured to provide more information about where such
services are available, consistent with the intent of the
legislation. However, according to the authors, most consumers
presume that basic primary care includes the full range of
reproductive health services and that their doctors and the
hospitals they use will make these services available, only to
find out later that it is not always the case. The bill
requires health plans to give consumers basic information about
how to access reproductive health services, including any
limitations on accessing these services, so they can make more
informed choices when picking their providers.
CACH and ACHCS seek several amendments to the AG provisions in
the bill, including: adding a requirement that the AG also
evalute whether there would be no significant change in the
availability of reproductive health services, and the long-term
impact on the availability of the full range of health care
services if consent to the merger transaction is denied;
requiring that experts or consultants used by the AG must be
neutral on the subject matter being reviewed or monitored; and
prohibiting the AG from seeking reimbursement of contract costs
of reviewing or monitoring a proposed merger or affiliation
between two charitable providers. They also recommend deleting
the requirement that health plans disclose the identity of
facilities and providers that restrict access to reproductive
health services. However, CACH and ACHCS have agreed to work
with the author in the hope of addressing their concerns in a
way which will allow them to modify their position as the bill
progresses.
The California Catholic Conference of Bishops (Bishops) oppose
the bill, stating that "it would curtail the religious freedom
of Catholic hospitals and narrow women's health concerns to
reproduction prevention." The Bishops also argue that the bill
"may place in jeopardy the ability of these hospitals to
continue to provide healthcare for the poor as they have done
for over one hundred years." According to the Bishops, the bill
tramples on religious freedom rights by "setting up conditions
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for the operation of Catholic hospitals which would demand a
complicity in performance of actions that are in violation to
their religious principles." The Bishops further state that if
enacted, "the government would be choosing to disadvantage us by
impacting non-profit lending and skewing the market dynamics to
accomplish its goals."
Sutter Health is opposed to the provisions in the bill which
would give the AG oversight over hospital mergers in
nonprofit-to-noprofit transactions. Sutter argues that the bill
unnecessarily burdens charity-to-charity transfers and
unnecessarily increases hospital expenses by requiring hospitals
to pay filing fees, expert witness fees, publication fees,
document production fees, consultants' fees and attorney's fees.
Sutter also contends that the bill "unnecessarily intrudes the
Attorney General into a decision vested in hospital boards and
trustees, who are subject to legally enforceable fiduciary
duties both before and after a charitable affiliation." In
addition, Sutter claims that the bill "would effectively
preclude managers from advising their own boards by disabling a
manager who exercises the normal responsibilities of his or her
office from ever being employed by the transferee charity."
Finally, Sutter argues that "[t]he web of burdensome
restrictions and fiscal levies imposed by [this bill's AG
provisions] simply do not constitute a solution to any
demonstrated problem."
The Catholic League for Religious and Civil Rights opposes the
bill, stating that it "would punish Catholic hospitals for
practicing Church teaching on the sacredness of human life. It
would do this by denying funds to Catholic hospitals that are
collected through the sale of revenue bonds." According to the
Catholic League, the bill is "not only inimical to Catholic
interests and to the First Amendment, it is inimical to the
public interest as well." However, proponents note that the
Catholic League's arguments appear to be misplaced since, as
noted above, nothing in the bill requires a religious provider
to provide services inconsistent with their religious beliefs.
The bill provides that if health care providers wish to take
advantage of taxpayer dollars through various public financing
programs, they must provide assurances that reproductive health
services will be made available in the local community.
Proponents note the bill does not dictate how these services
should be made available; it gives flexibility to the health
facilities by allowing them to enter into creative partnerships
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with other organizations and groups who may deliver or otherwise
arrange for the provision of these services.
Related Pending Legislation. AB 254 (Cedillo), which, as noted
above, contains similar provisions expanding AG oversight over
nonprofit-to-nonprofit hospital transfers, is currently
scheduled to be heard in the Assembly Judiciary Committee on
April 6, 1999.
AB 351 (Steinberg), which gives the AG similar oversight over
HMO mergers , is also scheduled to be heard in the Assembly
Judiciary Committee on April 6, 1999.
Prior Legislation . AB 3101 (Isenberg), Ch. 1105, Stats. 1996,
which provided the AG with greater oversight and regulatory
authority over the sale or other disposition of assets between
non-profit and for-profit health facilities.
AB 2527 (Cedillo - 1998), which was substantially similar to AB
254 (discussed above), was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Women's Law Center (co-sponsor)
National Health Law Program (co-sponsor)
American College of Obstetricians and Gynecologists
Asian Law Alliance
Asians & Pacific Islanders for Reproductive Health
The Birthing Project
California Family Health Council
California National Organization for Women
California Nurses Association
California Primary Care Association
California School Employees Association
California Women Lawyers
California Women's And Children's Health Coalition
Catholics for a Free Choice
The Feminist Majority
Hadassah (Sacramento Chapter)
The Hedgpeth Group
Maternal and Child Health Access
National Center For Youth Law
National Council Of Jewish Women
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National Latina Health Organization
Natividad Medical Center, Medical Staff
Northern California Lawyers for Civil Justice
The Pacific Institute for Women's Health
Planned Parenthood Affiliates of California
Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo
Reproductive Rights Coalition - Los Angeles
Unitarian Universalist Service Committee, Project Freedom of
Religion
Women's Health Specialists (Chico, Redding, Sacramento, Santa
Rosa clinics)
Women Lawyers Association of Los Angeles
various individuals
Opposition
Alliance of Catholic Health Care Systems & California
Association of Catholic Hospitals (unless amended)
California Catholic Conference of Bishops
Catholic League for Religious and Civil Rights
Sutter Health (to AG asset transfer provisions)
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334