August 06, 2013
Area(s) of Interest: Advocacy Health Care Reform
CMA Capitol Insight is a biweekly column by veteran journalist Greg Lucas, reporting on the inner workings of the state Legislature.
Darkest Before the Dawn
Traditionally, in odd-numbered years, the end of the California Legislature’s annual session starts in the middle of August and ends in mid-September. Not in 2013. Both houses still quit for the year on Sept. 13 but, for the first time in 50 years, the Assembly decided to take its one-month summer recess at the beginning of July and return Aug. 5 for an extra week of policy committee hearings. To give lawmakers the time to pay more attention to the quality of their legislation, Assembly leadership said. (The Legislature first convened for the year on January 7, nearly seven months ago.) So this week, the lower house is back at work with the Senate returning August 12.
Anything can happen in the final weeks of session. Far-reaching legislation that has been extensively but secretly negotiated could appear for a brief bit of public scrutiny days before the Legislature quits business. Gov. Jerry Brown’s workers’ compensation legislation last year is a perfect example. The product of months of talks, it plopped into print – all 119 pages worth – the Monday of the Legislature’s final week in session. What’s guaranteed is hundreds of bills being passed with scant attention paid to their contents, rushed committee hearings, slapdash amendments and secretly hatched skullduggery. All of which can be an amusing spectator sport, but it gets more worrisome knowing that the measures approved – if signed into law by the governor – can have a significant impact on millions of Californians. Like the potential dangers of expanding the care nurse practitioners and optometrists can provide.
Lifers Versus Short-Timers
There’s a package of bills on firearms. A high-profile measure to tighten the rules regarding “fracking” – pushing out natural gas by shattering shale with highly pressurized water. Environmentalists worry the practice does more harm than good. Another major measure would “modernize” the state’s environmental quality act. The trio of scope-of-practice bills is pending in the Assembly, of course. What happens to all these bills is affected by a new dynamic in the Legislature. Forty lawmakers know that absent some horrendous blunder on their part, they will still be lawmakers for at least the remainder of this decade. Many of the remaining legislators are forced out by term limits in the next two to four years. Obviously, the short-timers are more into instant gratification, passing bills now rather than waiting to study an issue. Lifers, elected in 2012 under a once-a-decade redrawing of legislative lines that will keep them getting reelected at least through 2020, take a longer view and are leery of acting in haste. A number of lifers cast votes this session reflecting that view. It says something that at one point close to 10 bills on “fracking,” including an outright ban, had been introduced and now only one remains – and its passage isn’t guaranteed. That said, Democratic majorities are so large in the Assembly and the Senate that on a majority vote bill, more than 10 Democrats in the Assembly and five in the Senate can vote “no” or, simply not vote, and the bill will pass. Ask those on the losing end of a bill what kind of mischief can be made with a simple majority vote. Budget plenty of time for the answer.
An old joke features a trial lawyer falling overboard and being nudged gently back to the cruise ship by several sharks. Astounded passengers marvel at the kindness shown by the normally violent predators in rescuing the lawyer. “Professional courtesy,” he replies. Lawmakers showed Gov. Brown a bit of the same, holding onto bills that had passed the Legislature until the Democratic governor returned from his recent trip to Italy and Germany. For those keeping score at home, once a bill is passed it goes to “enrolling and engrossing,” which the Legislature says is “a nonpartisan unit in each house responsible for proofreading all forms of measures. The unit also prepares and delivers bills to the governor for consideration.” Ironically, engrossing is the proofreading part. Enrolling is when a bill is filed with the governor. Once the governor gets a bill, he has 12 days to sign or veto. Otherwise it automatically becomes law. Brown would have been in a pickle if bills were sent to him prior to the start of his 10-day vacation. For instance, a measure that’s generated strong opposition from some “traditional values” groups would put into state law the existing policy of many school districts in dealing with transgender students: They can use the bathroom and locker room of the gender they identify with, irrespective of what’s on their birth certificate. Had they wished to, Democrats could have jammed Brown by sending him the bill so that it became law during his trip abroad. Probably not necessary. Since the bill largely restates existing law, Brown will likely sign it – although not a few governors supportive of the policy wouldn’t have minded escaping some of the political heat by, oops, having it become law while they were conveniently out of the state. After Brown’s safe return, bills are now heading downstairs to his desk.
Ballot Measure Sleuthing
So what can be discovered from a quick examination of the ballot measure aimed at repealing the Medical Injury Compensation Reform Act (MICRA)? A copy of the trial lawyer’s initiative, “The Troy and Alana Pack Patient Safety Act of 2014,” can be found here. Several important conclusions can be reached from looking at the title alone. Increasing the cap on noneconomic damages in a lawsuit against a doctor clearly isn’t going to be the centerpiece of the arguments used by proponents. Although the initiative itself doesn’t say so, Jimena Barreto, a hit-and-run driver under the influence of prescription pills and alcohol, killed Troy, 10, and his sister Alana, 7, in 2003. Barreto, who was not in the medical profession, was sentenced to 30 years in prison. Robert Pack, the father of Troy and Alana, created a foundation to make it harder to overprescribe potentially addictive drugs. He signed the letter conveying the initiative named after his children to the Attorney General for review. So the pitch for a “yes” vote will focus on substance abuse, not boosting punitive damages. Pack, most likely, will appear in the initiative’s “yes” campaign describing the heartache that can be caused by addiction. Beneath the title, follow 10 “findings and declarations.” Buttressing the conclusions drawn from the title, the first five findings discuss doctors who suffer from addiction or practice while impaired by drugs or alcohol. The sixth finding discusses doctors overprescribing prescription drugs, and the seventh says patients harmed by impaired doctors deserve compensation for “such things as pain, suffering, physical impairment, disfigurement, and decline of quality-of-life.” Finding eight says that physicians can’t police themselves – another likely campaign theme – and nine notes that MICRA’s $250,000 cap has never been adjusted for inflation. A casual reader could easily wonder why there hasn’t been such an adjustment for inflation. Everything else is adjusted for inflation. The initiative doesn’t say that inflation has increased more than 300 percent since 1975, driving the cap on pain and suffering in malpractice awards to more than $1 million. The tenth finding then says research shows “fair and adequate compensation” serves as a deterrent to future negligent acts. Odds are the word "fair” or "fairness” will be prominently used to describe the result of a “yes” vote. The initiative then says what its purpose is. It first says it protects patients and their families through random drug tests of doctors, the reporting of impaired doctors and requiring hospitals to report impaired doctors, among other substance abuse provisions. Adjusting MICRA’s cap is included almost as an afterthought. The current cap on attorneys’ fees will remain in medical negligence cases, the initiative says. The fact that the cap isn’t going to change likely will be noted in the “yes” campaign. The fact that the maximum fee will now be one-third of as much as $1.2 million won’t. The remaining four pages map out the specific changes to law the initiative would make. Reading them only reinforces the soundness of the deductions reached from the first three pages about the strategy of the measure’s proponents.
“If you know the enemy and know yourself, you need not fear the result of a hundred battles.” So says Sun Tzu, the oft quoted – and succinct – ancient Chinese general.