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Version of Letter:
STATE OF
CALIFORNIA
Department
of Alcoholic Beverage Control Department of Corporations Department of
Financial Institutions California Highway Patrol California Housing
Finance Agency Department of Housing & Community Development
Department of Managed Health Care Department of Motor Vehicles
DALE E.
BONNER Secretary
ARNOLD
SCHWARZENEGGER Governor
Office
of the Patient Advocate Department of Real Estate Office of Real Estate
Appraisers Office of Traffic Safety Department of Transportation
California Film Commission Califomia Travel and Tourism Commission
Infrastructure and Economic Development Bank
BUSINESS,
TRANSPORTATION AND HOUSING AGENCY
VIA FIRST
CLASS MAIL
April 18,2008
Hillarie
Levy
Re: Alleged
Inaction by the Department of Managed Health Care [Your Letter of
February 18,2008]
Dear Ms.
Levy:
As
you know, we are in receipt of your letter of February 18,2008,
regarding the sad and unfortunate passing of your daughter, Robyn, more
than three years ago on February 15,2005.
When we spoke on April 7,2008, I confirmed that we are in the process
of reviewing the allegations and concerns expressed in your letter and
that we would endeavor to respond by the end of that week. However,
other pressing matters and commitments have resulted in my inability to
respond until now. Thank you so much for your patience and
understanding.
In
reviewing the materials you submitted, the underlying concern of your
complaint is the alleged violations of sections 4733 and 4736 of the
California Probate Code by a physician affiliated with Kaiser
Permanente (Woodland Hills Medical Center) (Kaiser) relative to organ
donor protocols. These Probate Code sections concern, generally, (1)
compliance with individual health care instructions by a health care
provider, and (2) prompt notification to a patient or authorized person
when the health care provider declines to comply with individual health
care instructions. This allegation was the subject-matter of an
investigation undertaken by the Department of Managed Health Care (DMHC
or Department) and its letter to you dated February 6, 2008, concluding
its investigation. In your letter of February 18, 2008, you now allege
Department "inaction" regarding alleged violations of the above Probate
Code sections and "Knox Keene Act Title 42 part 482, and Title 28
§ 1468.B(5) and § 1300.68(3)." Subsequently, in a facsimile
transmittal dated April 3, 2008, you added an additional claimed
violation of Health and Safety Code section 7154, subdivision (b).
We
have carefully reviewed all the materials you submitted with your
letter of February 18, 2008, including the February 6, 2008 DMHC
letter, where the Department concludes, among
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Hillarie
Levy April 18, 2005 Page 2
other
things, that its 'jurisdiction does not extend to the enforcement of
the California Probate [Code]." Our review also included a meeting in
early March with the key DMHC senior staff who worked on responding to
your concerns. In reviewing your submitted materials and questioning
the DMHC staff, we sought to determine whether the DMHC conclusions
were premised on a review that was thorough, adequate, and unbiased,
and whether there exists any predication for this agency to take action
to ''utilize [its] position to ensure compliance of state and federal
laws," as you have specifically requested. For the reasons stated
below, we have concluded that (1) the DMHC response to your concerns
reflects a thorough, adequate, and unbiased assessment of its proper
role in enforcing the Knox-Keene Heath Care Service Plan Act of 1975
(Knox-Keene Act) (Gov. Code § 1340 et seq.), and (2) there is no
basis for this agency to take any further action to ensure that the
DMHC is in compliance with state and federal laws relative to the
issues you now raise.
Sections
4733 and 4736 of the California Probate Code
As
noted, the DMHC concluded that it does not have jurisdiction regarding
the enforcement of the California Probate Code. The provisions of law
you allege were violated by the Kaiser physician involved with your
daughter's care are contained in Division 4.7 of the Probate Code.
That division, known as the Health Care Decisions Law (Prob. Code
§ 4600 el seq.), also contains Part 3, relating to Judicial
Proceedings, where the Legislature included Chapter 2 on Jurisdiction
and Venue. There, Probate Code section 4760 provides that "[t]he
superior court has jurisdiction in proceedings under this division."
The Knox-Keene Act was amended in 2000, at which time the DMHC was
created. Two years later the California Court of Appeal held that the
DMHC "has only the power delegated to it in the [Knox-Keene] Act."
(Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 CaI. App. 4th
1018, 1024.) A careful reading of the KnoxKeene Act makes it clear that
the Department has been conferred no authority by the Legislature
relative to any provisions of the Probate Code.
Accordingly,
Ms. Levy, as a matter of law, the DMHC was correct when it concluded
that its jurisdiction does not extend to the enforcement of sections
4733 and 4736 of the Probate Code.
Given that DMHC is legally without authority to take action to enforce
these, or any other, provisions of the Probate Code, this office has no
power or authority over the Department to require it to take actions to
"ensure compliance" with that code. In that regard, we agree with the
Department that you should retain private counsel at your earliest
opportunity if you wish to pursue civil remedies that may be available
to you under the Probate Code.
You
have further alleged DMHC "inaction" regarding violations of "Knox
Keene Act Title 42 part 482, and Title 28 § 1468.B(5) and §
1300.68(3)." We have carefully reviewed these particular citations and
discuss them separately below.
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Hillarie
Levy April 18, 2005 Page 3
"Knox Keene
Act Title 42 part 482"
The
"Knox Keene Act Title 42 part 482" does not exist. The Knox-Keene Act
does not contain either a title 42 or a part 482. However, Title 42 of
the Code of Federal Regulations contains Part 482 relating to
"Conditions of Participation for Hospitals," which pertains to hospital
participation in the federal Medicare or Medicaid programs. (42 CFR
§ 482.1.) Additionally, Part 482 of this federal regulation
contains 29 separate provisions specifying conditions of hospital
participation in MedicarelMedicaid ranging from medical staff and
nursing services to discharge planning and outpatient services. (42 CFR
§§ 482.22,482.23,482.43, and 482.54.)
Among
these provisions you will find section 482.45 relating to "Organ,
tissue, and eye procurement." We believe that this is the regulation
you intended to cite in your letter. Section 482.45 requires
MedicarelMedicaid participating hospitals to, among other things, have
written protocols with an organ procurement organization (OPO) (defined
in 42 CFR Part 486) regarding notification to an OPO or OPO-designated
third party for purposes of determining medical suitability for organ,
tissue, and eye donation. (42 CFR § 482.45, subd. (a)(l).) These
regulations are promulgated by the Secretary of the U.S. Department of
Health and Human Services. The administration of Medicare- and
Medicaid-related matters falls under the purview of the federal Centers
for Medicare and Medicaid Services (CMS). We have enclosed contact
information for Region 9 of the CMS for your convenience. As noted in
the CMS enclosure, that office is the point of initial contact on any
MedicarelMedicaid issue arising in California.
We
trust that the CMS will be able to provide you with appropriate
guidance regarding your concern that the involved Kaiser physician may
have violated provisions of 42 CFR Part 482 regarding OPO protocols.
The DMHC has no authority or jurisdiction to enforce compliance with
these federal regulations and, accordingly, this office has no power or
authority over the Department to require it to take actions to "ensure
compliance" with those federal regulations and standards governing
hospital participation in MedicarelMedicaid programs.
"Knox
Keene Act Title 28 & 1468.B(5)"
Again,
we note that the "Knox Keene Act Title 28 § 1468.B(5)" does not
exist. The KnoxKeene Act does not contain either a title 28 or a
section 1468.B(5). Further, there is no section 1468.B(5) contained in
the California Health and Safety Code. However, the Department has
promulgated regulations contained in Title 28 of the California Code of
Regulations, but, again, there is no section 1468.B(5) to be found.
"Knox
Keene Act Title 28 & 1300.68(3)"
As
noted, the DMHC has promulgated regulations contained in Title 28 of
the California Code of Regulations. There, section 1300.68 is contained
along with several other provisions under Article 8 pertaining to
"Self-policing Procedures." Section 1300.68 requires every health care
service plan (in this case, Kaiser) to establish a "grievance system."
As you correctly suggest in
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Hillarie
Levy April 18, 2005 Page 4
your
letter, subdivision (d)(3) of that section requires plans to respond to
grievances with a "resolution" in writing that contains a "clear and
concise explanation of the plan's decision." You now assert that the
Department "never addressed" your claim that Kaiser failed to provide
you with a "clear and concise" response to your complaint that the
involved Kaiser physician violated the Kaiser organ donor protocol.
That assertion, Ms. Levy, is not supported by the evidence you have
provided this office.
In
its letter of February 8, the Department states that on November 28,
2007, it "requested the Vice President of Health Plan Regulatory
Services [for Kaiser] to investigate the handling of your complaint and
to respond to your claim that the Plan's response to your grievance
lacked a clear and concise explanation of its findings and
conclusions." Two days later, the Department met with Kaiser
representatives to discuss your concerns. At that time it was confirmed
that your grievance was reviewed by the Woodland Hills Medical Center,
but that two years had past since the alleged improper conversation
occurred between you and the Kaiser physician involved in your
daughter's care. Due to the time lapse, Kaiser reported that the
physician was unable to recall any conversation with you about organ
donations from your daughter. DMHC did not conclude, as you now
suggest, that the physician could not recall that your daughter had
passed away.
Nor
did DMHC determine that the medical entry of February 15,2005, was "not
as valid" for having been "written by a nurse." Instead, the Department
merely observed that the entry "is a nurse's note, rather than a
physician's statement" and, upon further contact with Kaiser in
December 2007, learned that the author of the notes was no longer
employed by the Kaiser medical center and therefore not available to
amplify, explain, or clarify the medical entries.
While
DMHC did not express a conclusion in its February 6 letter that
Kaiser's response to your grievance meets the "clear and concise"
standard, it is clear from the record that the Department undertook a
concerted effort to address the plan's response to your concerns. The
record shows that in doing so, DMHC found that with the passing of over
two years, memories had faded, witnesses were no longer available, and
that, consequently, the substance of conversations between you and the
Kaiser physician could not be confirmed. Accordingly, DMHC correctly
advised you that it "does not have a mechanism to conclusively resolve
factual disputes" and that, given its regulatory responsibility and the
investigation it had undertaken, reached a conclusion that Kaiser had
"thoroughly investigated your complaint."
Health
and Safety Code section 71 54(b)
As
noted above, you also claim a violation of Health and Safety Code
section 7154, subdivision (b). That provision was repealed in 2007 by
the passage of AB 1689 (stats. 2007, chap. 629) when the Legislature
recast, revised, and reenacted the Uniform Anatomical Gift Act (UAGA).
The
prior law that you cite (§ 7154, subd. (b)) prohibited physicians
in attendance at the time of an organ donor's death from also
participating in the removal or transplant of the donated organ unless
a document of gift designates a particular physician. That prohibition
and the exception
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Hillarie
Levy April 18, 2005 Page 5
are now set
forth in Health and Safety Code sections 7150.65, subdivision (e), and
7150.20, subdivision (e).
As
previously mentioned, the DMHC "has only the power delegated to it" in
the Knox-Keene Act. (Kaiser
Foundation Health Plan, supra.)
There is nothing in the Knox-Keene act that authorizes the Department
to administer or enforce the provisions of the UAGA. So, again, this
office has no power or authority over the DMHC to require it to take
actions to "ensure compliance" with the UAGA, generally, or sections
7150.65, subdivision Letter from California Transportation Agency to
Hillarie Levy - RE: Inaction by The Department of Managed Health Care.
- Dated April 18, 2008(e), and 7150.20, subdivision (e), in particular.
Please note that it appears from our preliminary research that the
provisions of the UAGA are enforceable through actions filed in the
superior court.
Finally,
you ask that our "legislative department" review bringing enforcement
of the Probate Code within the jurisdiction of the Department. While
this office does review proposed legislation affecting this agency and
the departments within its jurisdiction, sponsorship of legislation is
a matter taken up by members of the Legislature. Accordingly, we invite
you to contact your representatives in the California Legislature who
might be interested in sponsoring the legislative concept you are
suggesting. For your convenience, we have enclosed a list of Assembly
and Senate members who represent legislative districts that include
your zip code. In that respect we have also enclosed contact
information for the legislative sponsors of AB 1689, Assemblywoman
Sally Lieber and Assemblyman Tom Berryhill.
Ms.
Levy, I am a father of two sons, ages 12 and (soon to be) 17. As a
parent, I cannot imagine the pain and grief you have endured for over
three years since Robyn succumbed to a terminal illness. As many others
before me have expressed, please accept our deepest sympathy and
condolences on the loss of your beloved daughter.
Sincerely,
Augustin R. Jimenez
cc: Edward
G. Heidig, Esq., Chief Deputy Director, DMHC
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