Home – CA Dialysis Regulation Effort Stalled...For Now

CA Dialysis Regulation Effort Stalled...For Now

 Three mornings every week for the last few years California resident Dave Kennedy grabs his headphones, a reading tablet and a few pillows and makes a 15-minute drive to the dialysis clinic nearest his home in the foothills east of Sacramento. Once there, he settles into what looks like a high-tech lounge chair for the better part of the next five hours as a machine takes over the work his severely damaged kidneys are no longer able to on their own. It is a routine that will continue for him for the foreseeable future.


“This is my life now until either I get a transplant or I’m dead,” he says.


He is not alone. He is on a kidney transplant waiting list, but until a suitable donor is found he will remain one of about 63,000 Californians and approximately 470,000 Americans nationwide who rely on regular dialysis machine treatments to remove waste, salt and excess water from their blood. Without it they would most likely die within a few weeks.


According to the U.S. Centers for Disease Control and Prevention, 4.9 million Americans suffer from kidney disease, and it is the nation’s ninth leading cause of death. It also has a somewhat peculiar place in American health care in that because of legislation signed by President Richard Nixon in 1972, anyone with kidney disease is guaranteed Medicare coverage to pay for its treatment, including dialysis and even transplants. In that way many consider it to be the only form of U.S. socialized medicine.


As reporter Robin Fields noted for ProPublica in 2010, the legislation was the culmination of “a supremely hopeful moment” in which lawmakers saw a chance to help a small number of people suffering from a devastating disease who were generally being blocked from life-saving treatment solely because of its tremendous expense. There initial legislation was expected to apply to only 11,000 such patients in 1972, and the overall cost was a manageable $135 million.  


But while the critical nature of such care has not changed, the price tag has grown exponentially, now consuming 1 percent of the entire federal budget. And since most of that care is done by private, for-profit providers, it also generates enormous annual revenues for dialysis treatment clinics like DaVita Kidney Care and Fresenius Medical Care.


With so much on the line for both patients and providers, any proposed changes to how that treatment is meted out come with significant concerns. But the dialysis industry has come under increasing scrutiny in recent years, mostly over what critics contend are serious staffing shortages and a lack of state oversight they argue are putting patients at risk.


Those complaints were brought front and center in May when comedian John Oliver of HBO’s “Last Week Tonight” assailed the industry’s alleged churning of patients, which critics contend was leading to those patients receiving treatment under less than sanitary conditions. During the segment, Oliver showed comments from Megallan Handford, a former DaVita nurse who accused the company of putting profits ahead of patients.


“When I was working at DaVita, the priorities for transitioning patients was to get them on dialysis and get the next patient on as soon as possible,” Handford said in the clip. “You would have sometimes 15, maybe 25 minutes to get that next patient on the machine, so you were not properly disinfecting.”


While being the focus of an immensely popular show like Oliver’s brought the issue in front of a wider audience than would normally be paying attention to it, the dialysis community was already closely following legislation in the California Legislature aimed at imposing several strict new regulations on the Golden State’s 562 dialysis treatment clinics. Although a handful of other states (see Bird’s Eye View [INSERT LINK] in this issue) have imposed staffing ratios via administrative regulations, none have yet adopted such standards legislatively.


Under SB 349 – authored by Sen. Ricardo Lara (D) in February at the behest of the Service Employees International Union (SEIU) – dialysis treatment nurses would be limited to no more than eight patients at a given time. The bill also calls for facilities to have at least one technician on duty for every three patients receiving treatment, mandates at least 45 minutes of transition time between patients and requires clinics to undergo annual state inspections.


The measure cleared the Senate in May. It was also endorsed by two Assembly committees, but amidst speculation the bill might not get through the full Assembly, Lara pulled it from further consideration as the legislative session was winding down in September.


In a statement, Lara said he had introduced the bill “in response to the shocking stories I heard from patients and workers about lack of protections and oversight in this rapidly expanding industry,” which he said California treated “like a Wild West with bare minimum standards.”


Those stories include complaints of patients obtaining infections from insufficiently cleaned dialysis machines, theoretically because staff were too rushed to do that cleaning properly.


But Lara’s measure drew fierce opposition not only from the likes of DaVita and Fresenius, but from a wide array of health organizations, business groups, doctors and even dialysis patients. Their most significant complaint was that increased staffing ratios were unnecessary and more about the desire of the SEIU to unionize those facilities. Citing data from the Centers for Medicare and Medicaid Services, opponents contend that 69 percent of California dialysis patients give their clinic a score of nine or 10 out of 10. Only 10 percent of those patients rated their clinic at a six or below.


Doctors like Berkeley-based nephrologist Dr. Bryan Wong argued that the proposed staffing ratios would likely force clinics to offer fewer appointments or even turn patients away, particularly in rural or underserved areas. If so, he told Kaiser Health News, everyone would feel it in the pocketbook.


“It would drive up the cost of care because the patient would have to be hospitalized to get their treatment,” he said.


Lara noted the concerns over the potential impact on rural health facilities, agreeing to amendments that would have allowed the state Department of Public Health to issue waivers on staffing requirements in certain situations. But he ultimately opted to pull the bill in an effort to bring stakeholders, including the administration of Gov. Jerry Brown (D), together to see if they could hammer out a compromise.


“To give this process time to develop, I will not seek a vote in the Assembly before the end of session and will bring SB 349 up for consideration when the Legislature reconvenes [in 2018] after we have conducted stakeholder meetings. I will invite industry, workers’ groups, patient groups, advocates and the administration to work together in the coming months to find common ground that protects patient safety and increases oversight,” he said in his statement.


The SEIU, however, made it clear they are not ready to roll over without a more contentious fight. In their own statement, SEIU-United Healthcare Workers West President Dave Regan lauded the bill, saying it had “successfully raised awareness of the disturbing patient care problems in dialysis clinics that the industry claimed were not happening, and we are eager to have productive discussions to find solutions that improve patient care for the 66,000 Californians who need dialysis to survive.” But he also sounded a warning, saying “If the discussions are not productive, we will ask California voters to stand up for dialysis patients through a statewide ballot initiative planned for the November 2018 election.”


While that plays out, patients like Kennedy have no choice but to just wait and see what happens next. He says he is perfectly happy with the treatment he gets from the DaVita facility he goes to, but he would also welcome more staffing. Whatever comes out of this, he says, he only hopes all sides remember to keep patients like him at the forefront of their thinking.


“I know this is a business,” he says. “But to me and a lot of people like me, this is life and death.”