Although the election is about 10 months away, money is already pouring in from deep-pocketed interests eager to defeat measures that would eat into their profits.
This article was published on Friday, January 7, 2022 in Kaiser Health News.
SACRAMENTO — When Californians go to the polls later this year, they will confront contentious healthcare choices.
Voters will weigh whether to overturn a state law that bans flavored tobacco products and will likely consider increasing the cap on medical malpractice awards. They may also vote on proposals that effectively legalize psychedelic mushrooms and regulating dialysis clinics.
Two pandemic-related measures also could qualify for the Nov. 8 general election: One would tax California's wealthiest residents to create an institute to detect disease outbreaks and bolster the state's public health system. The other would limit government officials' ability to shutter schools and businesses during a public health emergency.
Although the election is about 10 months away, money is already pouring in from deep-pocketed interests eager to defeat measures that would eat into their profits.
Big tobacco has invested $21 million to overturn the ban on flavored products, and the healthcare industry has dropped $43 million to beat back the proposal to raise California's cap on medical malpractice awards, according to campaign finance records filed with the California secretary of state's office from Dec. 27, 2019, to Dec. 30, 2021.
"The stakes couldn't be higher at a monetary and at a human level," said Thad Kousser, who chairs the political science department at the University of California-San Diego. "Healthcare is a massive industry, as well as something that affects people in their most vulnerable moments."
Kousser, an expert in California's initiative process, noted that big spending does not guarantee a win. He pointed to failed attempts by Mercury Insurance and its chairman in 2010 and 2012 to raise auto insurance premiums — ballot measures that voters rejected despite massive industry spending.
The flavored tobacco measure is the only one that has officially qualified for the general election ballot, but supporters of the medical malpractice proposal have collected enough signatures for it to qualify, according to the secretary of state's office.
The healthcare industry isn't waiting for the malpractice initiative to become official. The $43 million the California Medical Association, the California Hospital Association and their allies have given to defeat it represents nearly three-quarters of the amount they spent to successfully oppose a 2014 medical malpractice ballot measure, according to a KHN analysis of campaign finance records.
That's also nearly four times what supporters of the 2014 initiative, which also would have increased the cap, raised for their entire campaign. This time, the author of the medical malpractice ballot measure said he plans to invest up to $40 million of his own money to counter the healthcare industry's opposition.
"I don't back down," trial attorney Nick Rowley told KHN. "We have a grassroots effort. They have no idea what is coming."
The measure would raise California's $250,000 cap on medical malpractice awards to about $1.2 million, adjusted annually for inflation. It also would change state law to allow a judge or jury to exceed the cap when a patient has been left permanently impaired, disfigured or disabled, or a loved one has died — categories that critics say would essentially include all patients and subject providers to a flood of lawsuits.
California lawmakers set the $250,000 cap in 1975 after doctors and hospitals complained that malpractice lawsuits were driving up costs and could push providers out of state.
More than four decades later, physicians and other providers are making a similar argument.
"The biggest fear that we have, if this is successful, is having to stretch resources that are already thin," said Leslie Abasta-Cummings, CEO of Livingston Community Health and board chair for the Central Valley Health Network, which represents more than 100 health clinics. Patients, she warned, could "lose access in certain areas to healthcare."
Rowley, a Montana resident who practices law nationwide, dismissed that argument, pointing to a growing number of states that no longer have a cap or have raised it. Doctors, he said, continue to practice in those states while California victims of malpractice have limited legal options.
Healthcare providers are also gearing up to defend a 2020 state law that bans the sale of flavored tobacco products popular with young people who smoke or vape.
When lawmakers approved the ban, they argued that the tobacco industry should not be allowed to market menthol, candy and fruit-flavored electronic cigarettes to children. Tobacco companies counter that the law removes legal products from the market that adults should be allowed to use — and that it discriminates against Black smokers who favor menthol cigarettes.
The California Coalition for Fairness — funded largely by tobacco giants R.J. Reynolds Tobacco Co. and Philip Morris USA and its affiliate U.S. Smokeless Tobacco Co. — is trying to overturn the law with a referendum. The coalition flexed its political muscle early, raising $21 million in the three months after Gov. Gavin Newsom signed the legislation in August 2020.
Healthcare groups have banded together to defeat the ballot measure but are far behind, with just $2.7 million in contributions — nearly 60% of them coming from former New York Mayor Michael Bloomberg.
Several other health proposals could appear on the ballot:
Backers of a measure to decriminalize the possession and cultivation of psychedelic mushrooms have until March 15 to collect the needed signatures. Psilocybin-containing mushrooms, known as "magic mushrooms," are a Schedule I controlled substance under federal law. A growing number of states and cities — including Oakland, Santa Cruz and Arcata in California — have decriminalized the mushrooms.
A healthcare worker union is back with a third try to regulate dialysis clinics via the ballot process, calling for greater transparency of clinic ownership and tougher staffing requirements. If the past is any indication, the dialysis industry will once again spend heavily to defeat the initiative should the SEIU-United Healthcare Workers West union get the signatures it needs by April 27. The industry defeated two earlier dialysis ballot measures, flooding the airwaves with ads and spending $111 million in 2018 and $105 million in 2020.
Frustrated by school and business closures during the pandemic, backers of one proposed initiative want to limit business restrictions during public health and other emergencies to 30 days, unless they are extended every 30 days by state and local lawmakers. The proposal would require big box retailers to be treated as small businesses, noting that many small businesses were forced to shutter early in the pandemic while larger retailers remained open. The proposal also describes schools as an essential service that should remain open "to the maximum extent possible." Supporters have until May 3 to collect signatures.
A proposal to strengthen California's public health system, which proponents say has crumbled during the COVID-19 pandemic, would increase the personal income tax rate by an additional three-quarters of a percentage point on income over $5 million. The tax would last 10 years and generate up to $1.5 billion a year. Half the proceeds would fund an institute to detect and prevent new disease outbreaks, 25% would pay for safety upgrades at schools, and 25% would help rebuild local public health workforces and infrastructure. Backers have until May 23 to gather signatures.
California Healthline's Angela Hart contributed to this report.
The roots of the National Cancer Act can be traced to a small home in Watertown, Wisconsin. In the early 1900s, a girl named Mary tagged along when her mother went to visit their laundress, Mrs. Belter, who had breast cancer.
When they arrived, the woman was in bed, her seven children around her. She was terribly sick. That day, Mary was only around 4 years old, but she remembered it for the rest of her life.
"When I stood in the room and saw this miserable sight, with her children crowding around her, I was absolutely infuriated, indignant that this woman should suffer so and that there should be no help for her," she recalled decades later, in 1962.
That girl grew up to be Mary Lasker, who transformed her outrage into action. Lasker became an activist, philanthropist and strategist focused on supporting medical research.
Belter, who'd had her breasts removed, survived.
"I'll never forget my anger at hearing about this disease that caused such suffering and mutilation and my thinking that something should be done about this," Lasker recounted.
In the first half of the 20th century, cancer was misunderstood. It was widely considered a death sentence, and some people believed it was contagious and something to be ashamed of.
"It was a disease diagnosis that was whispered about and kept secret," said Ned Sharpless, director of the National Cancer Institute. Sharpless said that to protect a person's dignity, doctors commonly fibbed about someone's condition or said that "the patient died of old age."
Decades of advocacy — and scientific breakthroughs — have dramatically changed that. The U.S. government has spent more money on the fight against cancer than any other disease, and many cancers are far less deadly than they once were.
A crucial moment in this evolution was the president's signing of the National Cancer Act into law 50 years ago, on Dec. 23, 1971.
Launching a Crusade
For years, Mrs. Belter's illness remained vivid in Mary Lasker's mind. About 40 years later, in 1943, her cook also fell ill with cancer. As Lasker — a person with wealth and status — helped her employee navigate the healthcare system, she was shocked to discover that cancer care had not advanced much.
So Lasker started a crusade. In the 1940s, broadcasters wouldn't say "cancer" on the radio. She worked to change that, with the help of her husband, Albert Lasker, an advertising executive. The couple persuaded Reader's Digest to do a series of articles about cancer. And Lasker persuaded her friend behind the Ann Landers advice column to write about it.
Lasker, who died in 1994 at age 93, didn't just focus on changing the popular perceptions of cancer. She wanted to cure cancer, and that demanded a real investment in medical research.
"The amount of money that's being spent for medical research is … well, it's just piddling," Lasker told Edward R. Murrow on CBS in 1959. "You won't believe this, but less is spent on cancer research than we spend on chewing gum."
After the United States put a man on the moon, Lasker started calling for "a moonshot for cancer."
"She understood that this was a big problem and the solutions needed to be big. But Mary was willing to think big," said Dr. Claire Pomeroy, president of the Albert and Mary Lasker Foundation.
Lasker built her movement: lobbying Congress and making the most of her time on the social circuit. She was a frequent visitor to the White House, as a friend of President Lyndon Johnson and his wife, Lady Bird.
At the same time, new treatments were being pioneered only a few miles away, at the National Cancer Institute in Bethesda, Maryland. Dr. Robert Mayer was working there, just beginning his career in medicine.
"Every Sunday night, the planes would fly in with patients," Mayer recalled.
Those patients were young children who had acute leukemia and were traveling to the National Institutes of Health to receive their monthly doses of chemotherapy. They came from all over the country because only a handful of hospitals were then capable of aggressively treating cancer patients.
"My colleagues thought we were a little crazy, that we would be giving people 'cell poisons,' which is what chemotherapy was thought to be," said Mayer, now an oncologist at the Dana-Farber Cancer Institute in Boston and a professor at Harvard Medical School.
Chemotherapy was still experimental, but the doctors at the National Cancer Institute were getting results. For one pediatric leukemia, the chance of survival improved dramatically.
"It wasn't just that they were people — they were children, and they were children at an adorable age of 3 or 4 or 5," Mayer said.
As the stories of these surviving children trickled out in the 1960s, a sense of optimism took hold.
Persuading Congress to Go Big
By the late 1960s, Lasker felt things were moving too slowly and decided to increase the pressure on lawmakers by taking out targeted newspaper ads in key congressional districts.
"This absolutely shocked the people in the House because they never had ads before and people were calling up from their districts and sending telegrams, and it caused quite a little commotion," Lasker said in an interview for the Oral History Research Office at Columbia University Libraries.
She also pestered President Richard Nixon, and publicly. She paid for full-page ads in The New York Times and The Washington Post. Big letters screamed out from the page: "Mr. Nixon: You can cure cancer."
The decades-long campaign in research labs, in the halls of Congress, and in the media finally paid off. On Dec. 23, 1971 — at about noon — Nixon spoke to a crowd of over 100 people, including Mary Lasker, members of Congress, and prominent scientists and doctors.
"Hope and comfort, the relief of suffering and the affirmation of life itself — these are qualities which have traditionally been associated with the Christmas season," Nixon said in a press statement. "There could be no more appropriate time than this to sign into law the National Cancer Act of 1971."
After signing the bill, Nixon posed for the cameras, with members of Congress arranged behind his chair. Sen. Edward Kennedy of Massachusetts, the Democratic whip and chief sponsor of the bill in the Senate, stood directly behind the president, his hand on the back of the chair.
That moment reveals how support for medical research had become politicized, according to Robin Wolfe Scheffler, a historian of science at the Massachusetts Institute of Technology. In Scheffler's analysis, Nixon signed the bill, in part, to ensure that his support for health research would not be in question during the 1972 presidential race. Kennedy was not seeking the nomination, officially, but was widely considered a possible front-runner.
"Nixon embraces the war on cancer as a way of taking an issue away from his potential future rivals, not necessarily because he has any particular desire to do something about cancer," said Scheffler, author of "A Contagious Cause: The American Hunt for Cancer Viruses and the Rise of Molecular Medicine."
Regardless of Nixon's motivation, the public investment was significant, $1.6 billion (almost $11 billion in today's dollars). The National Cancer Act funded biomedical research, set up oncology training programs and built a nationwide network of cancer treatment centers.
Many people thought the cancer moonshot would lead to a cure in five years, in time for the country's bicentennial in 1976. But curing cancer would prove to be much harder than going to the moon.
"I think you have to admit two things about the National Cancer Act. On the one hand, it was visionary and transformative. It was one of the most important things the United States has ever done in terms of biomedical research," Sharpless said. "At the same time, we also have to admit that it was very naive."
America's bicentennial came and went, but cancer death rates continued to climb. News anchors questioned whether taxpayers' money was being wasted.
"People declared the war on cancer 'a medical Vietnam,'" Scheffler said.
A debate ensued about whether the National Cancer Act's focus on basic research was misguided if it wasn't leading to advances in treatment. Environmental activists argued that the emphasis should have been on prevention.
It took time for the research investment to pay off, Sharpless said. "All this basic biology was bubbling beneath the surface. It doesn't look like much was happening in terms of cancer outcomes," he said. "But a lot was happening in the … cancer research space."
Now, 50 years after the funds started flowing, "we really are in a time of rapid progress," Sharpless said.
Although 600,000 Americans die from cancer each year, the overall death rate for cancer has dropped by about a third from its peak in 1991. But the progress has been uneven.
For some cancers, the prognosis is still bleak. For example, the vast majority of people diagnosed with pancreatic cancer die within a few years. But for other types of cancer, there have been major medical advances. Death rates for colorectal cancer, cervical cancer and prostate cancer have declined more than 50%. And there have been advances in the treatment of lung cancer, breast cancer and melanoma, among others.
"We have made remarkable progress," said Dr. Ahmedin Jemal, an epidemiologist at the American Cancer Society. "But there is a certain segment of the population that is not really benefiting from the advances that we have made in the past five decades."
Significant gaps in cancer death rates remain along racial, economic and geographic lines. And insurance makes a big difference — people with consistent health insurance are more likely to survive cancer than people who are uninsured or experience disruptions in health insurance coverage.
Jemal pointed to policies that can help reduce cancer death rates, including smoke-free workplace laws, tobacco excise taxes and the expansion of Medicaid, the federal-state program that provides health insurance to low-income people. Jemal said some states in the South and Midwest that did not expand Medicaid were found to have slightly higher cancer death rates.
Advocates like Jemal say a goal for the future is to make sure all Americans — no matter where they live, what race they are or how much they earn — have access to 50 years of cancer progress.
This story is part of a partnership that includes WBUR, NPR and KHN.
This story relied on archived interviews with Mary Lasker conducted by the Oral History Research Office at Columbia University.
For decades, Americans have been urged to fill out documents specifying their end-of-life wishes before becoming terminally ill — living wills, do-not-resuscitate orders, and other written materials expressing treatment preferences.
Now, a group of prominent experts is saying those efforts should stop because they haven't improved end-of-life care.
"Decades of research demonstrate advance care planning doesn't work. We need a new paradigm," said Dr. R. Sean Morrison, chair of geriatrics and palliative medicine at the Icahn School of Medicine at Mount Sinai in New York and a co-author of a recent opinion piece advancing this argument in JAMA.
"A great deal of time, effort, money, blood, sweat and tears have gone into increasing the prevalence of advance care planning, but the evidence is clear: It doesn't achieve the results that we hoped it would," said Dr. Diane Meier, founder of the Center to Advance Palliative Care, a professor at Mount Sinai and co-author of the opinion piece. Notably, advance care planning has not been shown to ensure that people receive care consistent with their stated preferences — a major objective.
"We're saying stop trying to anticipate the care you might want in hypothetical future scenarios," said Dr. James Tulsky, who is chair of the department of psychosocial oncology and palliative care at the Dana-Farber Cancer Institute in Boston and collaborated on the article. "Many highly educated people think documents prepared years in advance will protect them if they become incapacitated. They won't."
The reasons are varied and documented in dozens of research studies: People's preferences change as their health status shifts; forms offer vague and sometimes conflicting goals for end-of-life care; families, surrogates and clinicians often disagree with a patient's stated preferences; documents aren't readily available when decisions need to be made; and services that could support a patient's wishes — such as receiving treatment at home — simply aren't available.
But this critique of advance care planning is highly controversial and has received considerable pushback.
Advance care planning has evolved significantly in the past decade and the focus today is on conversations between patients and clinicians about patients' goals and values, not about completing documents, said Dr. Rebecca Sudore, a professor of geriatrics and director of the Innovation and Implementation Center in Aging and Palliative Care at the University of California-San Francisco. This progress shouldn't be discounted, she said.
Also, anticipating what people want at the end of their lives is no longer the primary objective. Instead, helping people make complicated decisions when they become seriously ill has become an increasingly important priority.
When people with serious illnesses have conversations of this kind, "our research shows they experience less anxiety, more control over their care, are better prepared for the future, and are better able to communicate with their families and clinicians," said Dr. Jo Paladino, associate director of research and implementation for the Serious Illness Care Program at Ariadne Labs, a research partnership between Harvard and Brigham and Women's Hospital in Boston.
Advance care planning "may not be helpful for making specific treatment decisions or guiding future care for most of us, but it can bring us peace of mind and help prepare us for making those decisions when the time comes," said Dr. J. Randall Curtis, 61, director of the Cambia Palliative Care Center of Excellence at the University of Washington.
Curtis and I communicated by email because he can no longer speak easily after being diagnosed with amyotrophic lateral sclerosis, an incurable neurologic condition, early in 2021. Since his diagnosis, Curtis has had numerous conversations about his goals, values and wishes for the future with his wife and palliative care specialists.
"I have not made very many specific decisions yet, but I feel like these discussions bring me comfort and prepare me for making decisions later," he told me. Assessments of advance care planning's effectiveness should take into account these deeply meaningful "unmeasurable benefits," Curtis wrote recently in JAMA in a piece about his experiences.
The emphasis on documenting end-of-life wishes dates to a seminal legal case, Cruzan v. Director, Missouri Department of Health, decided by the Supreme Court in June 1990. Nancy Cruzan was 25 when her car skidded off a highway and she sustained a severe brain injury that left her permanently unconscious. After several years, her parents petitioned to have her feeding tube removed. The hospital refused. In a 5-4 decision, the Supreme Court upheld the hospital's right to do so, citing the need for "clear and convincing evidence" of an incapacitated person's wishes.
Later that year, Congress passed the Patient Self-Determination Act, which requires hospitals, nursing homes, home health agencies, health maintenance organizations and hospices to ask whether a person has a written "advance directive" and, if so, to follow those directives to the extent possible. These documents are meant to go into effect when someone is terminally ill and has lost the capacity to make decisions.
But too often this became a "check-box" exercise, unaccompanied by in-depth discussions about a patient's prognosis, the ways that future medical decisions might affect a patient's quality of life, and without a realistic plan for implementing a patient's wishes, said Meier, of Mount Sinai.
She noted that only 37% of adults have completed written advance directives — in her view, a sign of uncertainty about their value.
Other problems can compromise the usefulness of these documents. A patient's preferences may be inconsistent or difficult to apply in real-life situations, leaving medical providers without clear guidance, said Dr. Scott Halpern, a professor at the University of Pennsylvania Perelman School of Medicine who studies end-of-life and palliative care.
For instance, an older woman may indicate she wants to live as long as possible and yet also avoid pain and suffering. Or an older man may state a clear preference for refusing mechanical ventilation but leave open the question of whether other types of breathing support are acceptable.
"Rather than asking patients to make decisions about hypothetical scenarios in the future, we should be focused on helping them make difficult decisions in the moment," when actual medical circumstances require attention, said Morrison, of Mount Sinai.
Also, determining when the end of life is at hand and when treatment might postpone that eventuality can be difficult.
Morrison spoke of his alarm early in the pandemic when older adults with COVID-19 would go to emergency rooms and medical providers would implement their advance directives (for instance, no CPR or mechanical ventilation) because of an assumption that the virus was "universally fatal" to seniors. He said he and his colleagues witnessed this happen repeatedly.
"What didn't happen was an informed conversation about the likely outcome of developing COVID and the possibilities of recovery," even though most older adults ended up surviving, he said.
For all the controversy over written directives, there is strong support among experts for another component of advance care planning — naming a healthcare surrogate or proxy to make decisions on your behalf should you become incapacitated. Typically, this involves filling out a healthcare power-of-attorney form.
"This won't always be your spouse or your child or another family member: It should be someone you trust to do the right thing for you in difficult circumstances," said Tulsky, who co-chairs a roundtable on care for people with serious illnesses for the National Academies of Sciences, Engineering and Medicine.
"Talk to your surrogate about what matters most to you," he urged, and update that person whenever your circumstances or preferences change.
Most people want their surrogates to be able to respond to unforeseen circumstances and have leeway in decision-making while respecting their core goals and values, Sudore said.
The Centers for Disease Control and Prevention also has a comprehensive list of resources.
We're eager to hear from readers about questions you'd like answered, problems you've been having with your care and advice you need in dealing with the healthcare system. Visit khn.org/columnists to submit your requests or tips.
South Dakota voters will decide in November whether the state should become the 39th to expand Medicaid under the Affordable Care Act, a move that would provide coverage to 42,000 low-income residents.
For nearly a decade, the Republican legislature has opted against expansion, citing concerns about the federal debt and worries that Congress would eventually cut federal funding for the program. South Dakota Gov. Kristi Noem, a Republican, strongly opposes Medicaid expansion, even though the federal government picks up most of the cost.
To counter the Medicaid ballot initiative, GOP leaders are promoting a separate measure on the June primary ballot that, if passed, would require 60% voter approval for any new constitutional measures that increase taxes or cost the state $10 million or more. It would apply to the Medicaid initiative in November.
South Dakota is one of 12 states that have yet to expand Medicaid to all residents with annual incomes under 138% of the federal poverty level, or about $17,774. In South Dakota, adults without dependent children do not qualify for Medicaid regardless of income level.
Most states accepted the Medicaid expansion quickly after the ACA was implemented in 2014. After Republican lawmakers blocked widening eligibility, voters in Maine, Idaho, Utah, Nebraska, Oklahoma and Missouri approved Medicaid expansion at the ballot box in recent years. Only the Idaho vote scored more than 60% approval.
In the states without Medicaid expansion, collectively more than 2 million Americans are in the so-called coverage gap with incomes too high to qualify for Medicaid but too low to qualify for federal subsidies to help them buy coverage through the ACA insurance marketplaces.
President Joe Biden's Build Back Better legislation would expand federal subsidies to help those in that gap, but the effort has stalled since Sen. Joe Manchin (D-W.Va.) announced last month he would not support the bill. In a Senate evenly split along party lines with universal GOP opposition to the bill, Democrats cannot afford to lose a single vote.
South Dakotans Decide Healthcare, a coalition of patients' groups, health providers, faith leaders, educators and farmers, is leading the initiative to expand Medicaid in the state. The group is following a playbook used elsewhere, emphasizing how Medicaid expansion will bring in millions in federal dollars and help rural hospitals stay in business.
Zach Marcus, the campaign manager for South Dakotans Decide Healthcare, said the group is pushing to defeat the 60% voter threshold ballot initiative. But even if it passes, "if we need it, we are confident we can get to 60% support," he said.
"Medicaid expansion will be an economic driver for South Dakota," he said. "This is a healthcare issue, but it's also a common-sense dollars-and-cents issue."
South Dakota could be the lone state to face a Medicaid ballot initiative this year. Advocates have also targeted Mississippi but must wait for state officials to reinstate the voter initiative process there. An effort to get an initiative before Florida voters is still being evaluated, according to the Fairness Project, which helps organize Medicaid ballot initiatives, including the one in South Dakota. The Fairness Project is funded by the Service Employees International Union-United Healthcare Workers West, a California union.
Voter-backed referendums have helped bypass GOP opposition to Medicaid expansion, but results have varied. For example, as of early last month, 210,000 people had enrolled in Oklahoma while Missouri had added fewer than 20,000, following expansions approved in 2020 in both states. The Nebraska expansion was delayed for nearly two years by state officials after voters approved a ballot measure in 2018.
More than a year after voters approved legalizing marijuana for recreational use in Montana, anyone older than 21 can now enter a dispensary and buy cannabis. That has medical marijuana user Joylynn Mane Wright worried.
Wright lives in Prairie County, the state's fifth-least-populated county, with nearly 1,100 people. She already drives about 35 minutes to get to the marijuana dispensary nearest her home, which is 2½ hours northeast of Billings. And now she wonders how much more difficult it will be to get the cannabis she uses to relieve the chronic pain she developed after a 2017 spinal surgery.
"I'm really worried about supplies and what it's going to cost," she said.
For Wright and the approximately 55,000 other Montanans who hold medical marijuana cards and use cannabis for cancer, glaucoma, Crohn's disease, central nervous system disorders and other ailments, the question is how will recreational marijuana affect their ability to access their medicine.
Pepper Petersen president and CEO of the Montana Cannabis Guild and a medical marijuana provider in Helena, said he's been telling his patients to stock up because he thinks the state's dispensaries will run out of pot in the short term.
"We are going to have cannabis shortages. Access will be a problem until supply can catch up with demand," Petersen said. "How can we produce enough product for thousands of new users in January? The answer is we can't."
In Wright's case, stocking up isn't an option because of her fixed income, she said. She wonders how high the price of a pre-rolled joint, which now costs nearly $8, will rise and whether she'll have to drive even farther to get her medicine.
Jared Moffat, a campaign manager for the Marijuana Policy Project, said a state's market usually takes six to 12 months to stabilize after recreational cannabis becomes legal. One reason marijuana markets are unstable is that possessing and distributing the drug remain illegal under federal law, so moving products across state lines is not an option for dealing with a shortage. Everything that is sold in a state must be grown in that state.
Adding to the potential supply-chain problem is that Montana has restricted who can sell cannabis, at least initially. The legislation that set up the framework for Montana's recreational marijuana market gave existing dispensaries an 18-month head start on new producers, meaning newly licensed sellers can't get into the market until July 2023.
That leaves medical marijuana customers to compete with recreational users for a limited supply of cannabis.
About 80 dispensaries — just 18% of Montana's 451 licensed dispensaries — plan to exclusively serve holders of medical marijuana cards, according to Czelsi Gómez, spokesperson for the Montana Department of Revenue, which oversees the state's marijuana programs. The rest plan to cater to both recreational and medical users or to only recreational users.
Some states that have legalized recreational cannabis — including New Jersey and Illinois — have required dispensaries to maintain enough stock to ensure that medical users can get what they need.
Montana has not instituted such a rule. But Gomez said the 80 dispensaries that will serve only medical marijuana users will protect patients. "We believe the medical-only establishments are the safeguard for ensuring medical marijuana is available to registered cardholders," Gomez said.
Some dispensary owners said they will reserve some of their supplies to ensure medical customers don't run out. But others said they don't plan on holding back, arguing that would be bad for business.
Barbie Turner, a co-owner of Alternative ReLeaf, a dispensary with locations in Missoula, Polson and Libby, said she is worried about where medical users will get their cannabis. She said that if serving medical customers requires her to stop selling cannabis to recreational users, she will.
"Not only do our medical patients have a need, they're the ones who built up these businesses. They're the ones who built this industry," she said. "So I think we have an ethical responsibility to take care of them, just like they have taken care of us."
How big the recreational marijuana market will be is unclear. A University of Montana study cited survey results from 2017 and 2018 that found about 14% of Montana adults said they used cannabis in the previous month, compared with 9% of adults nationally.
Petersen and others said more people might become recreational users once cannabis products that can be smoked or eaten become easier to buy.
Turner said that she and her employees have been working for months to make sure they have enough marijuana but that she's still worried about the supply. There are limits, both legally and financially, on how much a provider can grow, she said.
Shops will get some help, she said, with the state's wholesale market opening in January, meaning that dispensaries will be able to sell to one another in bulk.
Although many dispensaries — especially in college towns such as Missoula and Bozeman — are bracing for shortages this month, Erin Bolster said she thinks the real test of marijuana supplies will come in the summer, when millions of tourists visit Yellowstone and Glacier national parks.
Bolster owns Tamarack Cannabis in the Flathead Valley, a popular tourist destination not far from Glacier National Park. In summer 2020, long before dispensaries could sell recreational cannabis, Bolster said, she would get one or two walk-ins and two or three calls a day from tourists who had heard Montana had legalized adult-use marijuana and wanted to see if they could buy.
Come summer, she thinks, the number of customers will skyrocket. That could mean even more competition for Montana's medical marijuana there and in other popular destinations.
"We've been able to expand production," Bolster said. "But the question is 'Did we expand enough?'"
SACRAMENTO, Calif. — California has become the first state to require health insurance plans to cover at-home tests for sexually transmitted infections such as HIV, chlamydia and syphilis — which could help quell the STI epidemic that has raged nearly unchecked as public health departments have focused on covid-19.
The rule, part of a broader law addressing the STI epidemic, took effect Jan. 1 for people with state-regulated private insurance plans and will kick in sometime later for the millions of low-income Californians enrolled in the state's Medicaid program.
By making it easier and cheaper for Californians to self-administer tests in the privacy of their homes, the provision could bring better disease monitoring to rural and underserved parts of the state, reduce the stigma patients experience when seeking care and give them more control over their health, say experts on infectious diseases.
"This is the first law of its kind, and I'd say it's kind of cutting-edge," said Stephanie Arnold Pang, senior director of policy and government relations for the National Coalition of STD Directors. "We want to bring down every single barrier for someone to get STI testing, and out-of-pocket cost is a huge factor."
But being first has its downsides. Because the concept of insurance coverage for home STI tests is so new, the state's Medicaid program, Medi-Cal, could not establish by Jan. 1 the billing codes it needs to start paying for tests. Federal regulators also haven't approved the tests for home use, which could make labs reluctant to process them. And a state analysis predicts most in-network healthcare providers won't start prescribing home tests for at least a year until they adjust their billing and other practices.
Nevertheless, the situation is urgent and requires action, said state Sen. Richard Pan (D-Sacramento), a pediatrician who wrote the law.
"We have children born in California with syphilis," Pan said. "You'd think that went away in the Victorian era."
Even before covid, sexually transmitted infections hit all-time highs in the U.S. and California for six years in a row, according to 2019 data from the Centers for Disease Control and Prevention. Rates of congenital syphilis, which babies contract from their mothers, illustrate the severity of the STI epidemic: Cases were up 279% from 2015 to 2019 nationally and 232% in California. Of the 445 cases of congenital syphilis in California in 2019, 37 were stillbirths.
The pandemic only worsened the problem because health departments were overwhelmed responding to the covid emergency, and stay-at-home orders kept people away from clinics.
In surveys of public health programs across the country since May 2020, the National Coalition of STD Directors found that most respondents — up to 78% in one survey — have diverted some of their STI workforces to test and monitor covid. A report that accompanied the most recent survey found that some STIs were "completely unchecked" due to reductions in clinic hours, diversion of resources, shortages of testing kits and staff burnout.
Some at-home STI tests screen for a single disease but other kits can collect and send samples to check for a variety of infections. Depending on the test, patients collect a drop of blood with a lancet, or swab their mouth, vagina, anus or penis.
Some tests require patients to send samples to a lab for analysis, while some oral HIV tests give results at home in a few minutes.
Ivan Beas, a 25-year-old graduate student at UCLA, was getting tested frequently as part of a two-year research study. When clinics closed during the pandemic, researchers sent him a home kit.
The kit, which tests for HIV, hepatitis C, herpes, syphilis, chlamydia, gonorrhea and trichomoniasis, was packaged discreetly and came with easy instructions. It took Beas about 10 minutes to prick his finger, swab his mouth and send the samples to the lab.
Beas wanted to continue screening himself every few months after the study ended, he said, but the kit he used retails for $289, which is out of reach for him.
The last time he went to a clinic in person, "I spent two hours waiting to even be seen by a doctor because of how busy they are," he said. Until Medi-Cal begins covering home tests, he said, he will have to find time to get tested for free at a Planned Parenthood clinic.
"If insurance were to cover it, I'd definitely do it more," he said.
Under California's new law, plans regulated by the state must cover home STI tests when ordered by a healthcare provider.
Privately insured Californians can take advantage of the coverage immediately. How much they will owe out-of-pocket for the tests — if anything — depends on the type of plan they have, whether their provider is in-network, and if they fall into a category the federal government has designated for free screening.
Medi-Cal patients almost never face out-of-pocket expenses, but they will have to wait for coverage because the Department of Healthcare Services, which administers Medi-Cal, is working with the American Medical Association and the federal government to create billing codes. The reimbursement rates for those codes will then need federal approval.
The state doesn't know how long that process will take, according to department spokesperson Anthony Cava.
The rule does not apply to the millions of Californians whose job-based health insurance plans are regulated by the federal government.
Other states and organizations have experimented with at-home STI tests. The public health departments in Alabama and the District of Columbia send free kits to residents who request them, but neither jurisdiction requires insurance coverage for them. The National Coalition of STD Directors is sending free kits to people through health departments in Philadelphia; Iowa; Virginia; Indiana; Puerto Rico; and Navajo County, Arizona. The list of recipients is expected to grow this month.
Iwantthekit.org, a project of Johns Hopkins University, has been sending free kits to Maryland residents since 2004, and to Alaskans since 2011. The program is funded by grants and works with local health departments.
Charlotte Gaydos, co-founder of the project, said that requests for test kits during the pandemic nearly tripled — and that she would expand to every state if she could bill insurance the way the California law mandates.
The tests fall into a murky regulatory area. While they have been approved by the Food and Drug Administration, none have been cleared for use at home. Patients are supposed to collect their own samples within the walls of a health facility, and some labs may not analyze samples collected at home.
Public health officials cited other potential challenges: Patients may not have the same access to counseling, treatment or referrals to other services such as food banks that they would receive at clinics. And although patients are supposed to self-report the results of their tests to public health authorities, some people won't follow through.
Vlad Carrillo, 31, experienced such trade-offs recently. Carrillo used to get tested at a San Francisco clinic, where they could get counseling and other services. But Carrillo lost their apartment during the pandemic and moved about seven hours away to Bishop, the only incorporated city in rural Inyo County.
"Being away from the city, it took me a whole year to find a way to get tested," Carrillo said.
Carrillo eventually got the kit through the mail, avoiding the stigma of going to the clinic in Bishop, which is "more focused on straight stuff," like preventing pregnancy. Without the test, Carrillo couldn't get PrEP, a medication to prevent HIV.
"Going without it for so long was really hard on me," Carrillo said.
The future of nursing homes is deeply uncertain as older adults and their families shy away from care in these institutions, where nearly 142,000 residents have died of COVID-19.
This article was published on Tuesday, January 4, 2022 in Kaiser Health News.
When Marvin Querry, whose wife, Diane, lives at the Barone Alzheimer's Care Center in Nevada, Missouri, heard the center might close, he started an online petition protest and spent nearly $3,000 to run ads (pictured) in the local newspaper. (KHN photo illustration/Marvin Querry)
Marvin Querry, 86, was on his tractor, planting rye on his 770-acre western Missouri farm, when the call came in early November.
It was the social worker from Barone Alzheimer's Care Center, where Querry's wife, Diane, is a resident. The facility would be closing because of financial hardship, she said, reading from a statement.
It was an agonizing moment for Querry, a retired physics professor and former executive dean for academic affairs at the University of Missouri-Kansas City. "I was stunned," he said. "Where could I find another place as wonderful to care for Diane?"
It's rare to hear people talk about a nursing home the way they talk about this 40-bed facility in Nevada, Missouri — a city of nearly 8,300 people near the Kansas border — with deep affection, respect and gratitude.
"We couldn't ask for a more loving and thoughtful staff than those who work at Barone," a woman whose mother lives there wrote on a petition to save the facility. In a business where staff turnover is constant, many of Barone's staff members have been there for five years or more.
"The care there, it goes beyond words," said Kay Stevens, whose 94-year-old mother moved into Barone in May. "The residents are treated so well, and it's such a joyous environment."
But even a sterling reputation and deep community support can't overcome a stark reality: The future of nursing homes is deeply uncertain as older adults and their families shy away from care in these institutions, where nearly 142,000 residents have died of COVID-19.
With ongoing expenses related to the pandemic and beds sitting empty, 54% of nursing homes report operating at a financial loss, according to a national survey released in June by the American Healthcare Association, a long-term care trade organization. Only a quarter are confident they can make it through the next year or beyond. At least 134 nursing homes closed their doors in 2021, on top of 170 closures in 2020.
Although COVID relief funding has helped many nursing homes in the short term, "things are much more uncertain going forward," said David Grabowski, a professor of health policy at Harvard Medical School.
Barone's fortunes reflect these broader trends. Before the pandemic, all 40 beds were full, and there was a waiting list of 25 people. About 60% of patients paid privately for care; the other 40% were on Medicaid, the government's program for people who are poor. The facility was making money, although not a lot.
Then COVID began circulating, and an outbreak of 32 COVID cases and four associated deaths in the weeks after Thanksgiving in 2020 created enormous stress. Querry's wife, Diane, 76, was one of the residents who became ill, but she recovered.
Between January and October of last year, Barone's financial losses totaled $675,318, according to data from William Denman, city treasurer of Nevada, which owns the facility. Even more alarming, another city-owned nursing home, Moore-Few Care Center, which has 108 licensed beds, lost more than $1.1 million in the same period.
Moore-Few, which does not include a locked area for patients with dementia, experienced a COVID outbreak after a staffer came to work with symptoms in October 2020. In the following weeks, 47 residents contracted the virus, and 10 died. A subsequent investigation resulted in an "immediate jeopardy" citation from the Centers for Medicare & Medicaid Services, a signal of serious problems that pose a risk to residents and mandates quick action, and a fine of $144,693. Investigators found that the nursing home had not adequately screened staffers for COVID or prevented those with symptoms from working.
Since then, about half of Moore-Few's beds have remained empty.
Financial and operational problems of this sort "can't continue," said Denman, a retired businessman who grew up in Nevada. "We're going to lose both of these homes if we don't do something soon."
But there's considerable controversy over how to move forward.
Marvin Querry has become an activist — a role he never anticipated playing at this stage of life — leading the opposition to Barone's closure.
The day after he learned of the proposal to close the home, Querry asked several pointed questions at a meeting of a five-member board that oversees Nevada's nursing homes. More than 100 community members attended that meeting, many of them angry and distressed. The board ended up tabling plans to vote on the home's closure for now.
A few days later, with his daughter's help, Querry created an online change.org petition requesting detailed financial information about Nevada's nursing homes and protesting Barone's closure. Within a month, it had gathered more than 1,500 signatures.
Also, Querry attended city council meetings and ran ads in the local newspaper three times a week featuring the petition. "I've spent almost $3,000 on these ads. I'm willing to spend $30,000 — or more — because the care [at Barone] is unsurpassed."
He wants nothing less for Diane, 76, whom he's been married to for 47 years and who's lived at Barone for two years. Every evening, Querry goes there to feed her dinner.
Karen Hertzberg, who owns a local furniture store and whose husband, Steve, 68, moved to Barone in September, feels equally strongly about saving the facility. "We need time for conversation, for research, for finding funding," she told me. Steve has severe multiple sclerosis with related cognitive dysfunction and is completely dependent on assistance.
One option could be a new city tax that would pay for Nevada's city-owned long-term care facilities. When the city hospital faced financial trouble several years ago, voters passed a dedicated tax. It generates about $800,000 a year for the hospital, whose financial difficulties continue.
"We rallied to save the hospital, so why aren't we saving our seniors? We need to stand up and fight for this," said Jennifer Gundy, a lifelong resident of Nevada and executive director of On My Own, a center that helps older adults and people with disabilities live independently.
But what if current trends continue beyond the pandemic? What if families shun nursing homes and keep loved ones at home? And what if short-term solutions — grants for COVID-related funding, contributions from donors, new city funding — don't make up for financial shortfalls for long?
Faced with the controversy over Barone Care Center's potential closure, four members of Nevada's long-term care board resigned. As four new members joined the board in mid-December, Moore-Few's administrator and up to a dozen staffers also tendered their resignations. The sense of crisis seems more acute than before.
Officials are sending mixed messages. "Our intent is to do whatever has to be done and absolutely keep [Barone] open," said George Knox, Nevada's mayor. "I don't think anything is decided yet," said Judy Campbell, who chairs the city's long-term care board. "We just have to go back to square one and see if there's any chance of keeping Barone going."
In the meantime, community members are determined not to back down. "I have no idea what will happen, but I'm not giving up," Querry said. "I'm going to do everything I can to save this place that's so important to all of us."
We're eager to hear from readers about questions you'd like answered, problems you've been having with your care and advice you need in dealing with the healthcare system. Visit khn.org/columnists to submit your requests or tips.
NASHVILLE, Tenn. — Just before students at Meharry Medical College went home for Thanksgiving, Dr. James Hildreth, the school's president, emailed them a video message that he acknowledged seemed hard to believe. Or at least they had to give it a second listen.
"We'll gift each of you $10,000 in cash," he said, looking at the camera. "You heard me right."
They were told to expect a direct deposit the next day or pick up a check in person. Hildreth, an expert in infectious diseases who helped lead Nashville's pandemic response, explained that this gift with no strings attached was money from the CARES Act, a major covid-19 relief law passed by Congress in 2020. He asked only that they be "good stewards" of the windfall.
After deep consideration, Meharry's administration decided to give roughly a third of its CARES Act funding — $10 million — directly to its future doctors, dentists and public health researchers. All told, 956 students received payments.
Meharry's students had already been heavily involved in the pandemic response, staffing Nashville's mass covid testing and vaccination sites. But the money isn't so much surprise compensation for volunteer efforts as it is an investment in a future career — and an assist in overcoming financial hurdles Black students especially face to become medical professionals.
While Black Americans make up roughly 13% of the population, the Association of American Medical Colleges finds Black doctors account for just 5% of the nation's working physicians — a figure that has grown slowly over more than a century. And studies have found that Black patients often want to be cared for by someone whom they consider culturally competent in acknowledging their heritage, beliefs and values during treatment.
"We felt that there was no better way to begin distributing these funds than by giving to our students who will soon give so much to our world," Hildreth said.
Cheers erupted in the library as students clicked the video link.
Andreas Nelson fell silent, he recalled later. He went to his banking app and stared in disbelief. "$10,000 was sitting just in my bank account. It was astonishing," he said. "I was literally lost for words."
The Chicago native is finishing a master's degree in health and science at Meharry with hopes of entering its dental school. The average student loan debt in the program totals more than $280,000. So, undoubtedly, 10 grand won't make much of a dent in the debt.
But the money in his pocket eases his top concern of making rent each month. Nelson said it feels as though he's being treated like an adult, allowing him to decide what his greatest needs are in getting through school.
"It's motivating," Nelson said. "Because that means they have trust in us to do with this money whatever the cause may be — whether it be student debt, investing or just personal enjoyment."
Across the board, students at HBCUs rely more on student loans than students at historically white institutions. Roughly 80% take out student loans, according to an analysis by UNCF, formerly known as the United Negro College Fund, and they borrow considerably more.
Meharry was founded a decade after the Civil War to help those who had been enslaved. But the 145-year-old institution has always struggled financially, and so have its students.
Meharry's average student debt is far higher than other area schools of medicine at Vanderbilt University and the University of Tennessee, representing both private and public institutions.
Virtually all colleges and universities received allotments under the CARES Act, but HBCUs have been much more aggressive about funneling substantial amounts directly to students, who tend to have greater need. More than 20 HBCUs have erased outstanding tuition balances. Some have canceled student fees.
But Meharry, one of the few stand-alone HBCU graduate schools, is a rare case in cutting checks for students.
"These young people are rising to medical school against all odds," said Lodriguez Murray, who leads public policy and government affairs at UNCF. "Of course, they have to borrow more because people who look like them have less."
During the pandemic, major philanthropists have taken new interest in supporting the few HBCU medical schools. Michael Bloomberg committed $100 million to four institutions, including Meharry, to help educate more Black doctors.
Students at Meharry can now apply for $100,000 scholarships. The $34 million from Bloomberg Philanthropies is also going toward other kinds of financial support.
The school is now offering, for no additional fee, expensive test-prep services through a Boston-based company, MedSchoolCoach. The service, which entails paying a doctor by the hour to help with studying, can cost thousands of dollars.
While the price is often out of reach for students tight on cash, acing the benchmark exams toward board licensure is key to landing coveted fellowships, qualifying for lucrative specialties or just finishing on time. And Meharry's four-year completion rate of roughly 70% is below most schools. The most up-to-date national average is around 82%.
For some, Murray said, a $10,000 windfall may make all the difference in whether they cross the finish line and become a doctor who can afford all their medical school debt.
"Many of those students are borrowing a lot of money to complete their dream, and to become relatively high earners in the future," Murray said. "The fact that these students are largely coming from lower socioeconomic backgrounds means that the funds that Meharry turned around and gave to the students are particularly impactful."
Hospitals with high rates of covid patients who didn’t have the diagnosis when they were admitted have rarely been held accountable due to multiple gaps in government oversight, a KHN investigation has found.
One by one, the nurses taking care of actress Judi Evans at Riverside Community Hospital kept calling out sick.
Patients were coughing as staffers wheeled the maskless soap opera star around the California hospital while treating her for injuries from a horseback fall in May 2020, Evans said.
She remembered they took her to a room to remove blood from her compressed lung where another maskless patient was also getting his lung drained. He was crying out that he didn’t want to die of covid.
No one had told her to wear a mask, she said. “It didn’t cross my mind, as I’m in a hospital where you’re supposed to be safe.”
Then, about a week into her hospital stay, she tested positive for covid-19. It left the 57-year-old hospitalized for a month, staring down more than $1 million in bills for treatment costs and suffering from debilitating long-haul symptoms, she said.
Hospitals, like Riverside, with high rates of covid patients who didn’t have the diagnosis when they were admitted have rarely been held accountable due to multiple gaps in government oversight, a KHN investigation has found.
While a federal reporting system closely tracks hospital-acquired infections for MRSA and other bugs, it doesn’t publicly report covid caught in individual hospitals.
Medicare officials, tapped by Congress decades ago to ensure quality care in hospitals, also discovered a gaping hole in their authority as covid spread through the nation. They could not force private accreditors — which almost 90% of hospitals pay for oversight — to do targeted infection-control inspections. That means Riverside and nearly 4,200 other hospitals did not receive those specific covid-focused inspections, according to a government watchdog report, even though Medicare asked accreditors to do them in March 2020.
Seema Verma, former chief of Medicare and Medicaid under President Donald Trump, said government inspectors went into nearly every nursing home last year. That the same couldn’t be done for hospitals reveals a problem. “We didn’t have the authority,” she told KHN. “This is something to be corrected.”
KHN previously reported that at least 10,000 patients nationwide were diagnosed with covid in hospitals last year after being admitted for something else — a sure undercount of the infection’s spread inside hospitals, since that data analysis primarily includes Medicare patients 65 and older.
Nationally, 1.7% of Medicare inpatients were documented as having covid diagnosed after being admitted for another condition, according to data from April through September 2020 that hospitals reported to Medicare. CDIMD, a Nashville-based consulting and data analytics company, analyzed the data for KHN.
At Riverside Community Hospital, 4% of the covid Medicare patients were diagnosed after admission — more than double the national average. At 38 other hospitals, that rate was 5% or higher. All those hospitals are approved by private accreditors, and 29 of them hold “The Gold Seal of Approval” from their accreditor.
To be sure, the data has limitations: It represents a difficult time in the pandemic, when protective gear and tests were scarce and vaccines were not yet available. And it could include community-acquired cases that were slow to show up. But hospital-employed medical coders decide whether a case of covid was present on admission based on doctors’ notes, and are trained to query doctors if it’s unclear. Some institutions fared better than others — while the American public was left in the dark.
Spurred by serious complaints, federal inspectors found infection-control issues in few of those 38 hospitals last year. In Michigan, inspectors reported that one hospital “failed to provide and maintain a sanitary environment resulting in the potential for the spread of infectious disease to 151 served by the facility.” In Rhode Island, inspectors found a hospital “failed to have an effective hospital-wide program for the surveillance and prevention” of covid.
KHN was able to find federal inspection reports documenting infection-control issues for eight of those 38 hospitals. The other 30 hospitals around the country, from Alabama to Arizona, had no publicly available federal records of infection-control problems in 2020.
KHN found that even when state inspectors in California assessed hospitals with high rates of covid diagnosed after admission, they identified few shortcomings.
“The American public thinks someone is watching over them,” said Lisa McGiffert, co-founder of the Patient Safety Action Network, an advocacy group. “Generally they think someone’s in charge and going to make sure bad things don’t happen. Our oversight system in our country is so broken and so untrustworthy.”
The data shows that the problem has deadly consequences: About a fifth of the Medicare covid patients who were diagnosed after admission died. And it was costly as well. In California alone, the total hospital charges for such patients from April through December last year was over $845 million, according to an analysis done for KHN by the California Department of Health Care Access and Information.
The Centers for Disease Control and Prevention has pledged funding for increased infection-control efforts — but that money is not focused on tracking covid’s spread in hospitals. Instead, it will spend $2.1 billion partly to support an existing tracking system for hospital-acquired pathogens such as MRSA and C. diff.
The CDC does not currently track hospital-acquired covid, nor does it plan to do so with the additional funding. That tracking is done by another part of the U.S. Department of Health and Human Services, according to Dr. Arjun Srinivasan, associate director for the CDC’s health care-associated infection-prevention programs. But it’s not made public on a hospital-by-hospital basis. HHS officials did not respond to questions.
The Scene at Riverside
In March 2020, Evans was alarmed by nonstop TV footage of covid deaths, so she and her husband locked down. They hadn’t been going out much, anyway, since losing their only child at the end of 2019 to another public health crisis — fentanyl.
At the time, concerns about covid were mounting among the staff at Riverside Community Hospital, a for-profit HCA Healthcare facility.
The hospital’s highly protective N95 masks had been pulled off the supply room shelves and put in a central office, according to Monique Hernandez, a shop steward for her union, Service Employees International Union Local 121RN. Only nurses who had patients getting aerosol-generating procedures such as intubation — which were believed at the time to spread the virus — could get one, she said.
She said that practice left the nurses on her unit with a difficult choice: either say you had a patient undergoing such procedures or risk getting sick.
Nurse unions were early adopters of the notion — now widely accepted — that covid is spread by minuscule particles that can linger in the air. Studies since have matched the genetic fingerprint of the virus to show that covid has spread among workers or patients wearing surgical masks instead of more protective masks like N95s.
On April 22, 2020, Hernandez and other nurses joined a silent protest outside the hospital where they held up signs saying “PPE Over Profit.” By that time, the hospital had several staff clusters of infection, according to Hernandez, and she was tired of caregivers being at risk.
In a statement, Riverside spokesperson David Maxfield said the hospital’s top priority has been to protect staff “so they can best care for our patients.”
“Any suggestion otherwise ignores the extensive work, planning and training we have done to ensure the delivery of high-quality care during this pandemic,” he said.
In mid-May, Judi Evans’ husband coaxed her into going horseback riding — one of the few things that brought her joy after her son’s death. On her second day back in the saddle, she was thrown from her horse. She broke her collarbone and seven ribs, and her lung was compressed. She was taken to Riverside Community Hospital.
There, many of her nurses wore masks they had previously used, Evans recalled. Other staffers came in without any masks at all, she said. A few days in, she said, one of the doctors told her it’s crazy that the hospital was testing her for MRSA and other hospital infections but not covid.
Maxfield said that the hospital began enforcing a universal mask mandate for staff and visitors on March 31, 2020, and, “in line with CDC, patients were and are advised to wear masks when outside their room if tolerated.” He stressed “safety of our patients and colleagues has been our top priority.”
After about a week in the hospital, Evans said, she spiked a fever and begged for a covid test. It was positive. There is no way to know for certain where or how she got infected but she believes it was at Riverside. Covid infections can take two to 14 days from exposure to show symptoms like a fever, with the average being four to five days. According to CDC guidance, infection onset that occurs two days or more after admission could be “hospital-associated.”
Doctors told her they might have to amputate her legs when they began to swell uncontrollably, she said.
“It was like being in a horror film — one of those where everything that could go wrong does go wrong,” Evans said.
She left with over $1 million in bills from a month-long stay — and her legs, thankfully. She said she still suffers from long-covid symptoms and is haunted by the screams of fellow patients in the covid ward.
By the end of that year, Riverside Community Hospital would report that 58 of its 1,649 covid patients were diagnosed with the virus after admission, according to state data that covers all payers from April to December.
That’s nearly three times as high as the California average for covid cases not present on admission, according to the analysis for KHN by California health data officials.
“Based on contact tracing, outlined by the CDC and other infectious disease experts, there is no evidence to suggest the risk of transmission at our hospital is different than what you would find at other hospitals,” Maxfield said.
A lawsuit filed in August by the SEIU-United Healthcare Workers West on behalf of the daughter of a hospital lab assistant who died of covid and other hospital staffers says the hospital forced employees to work without adequate protective gear and while sick and “highly contagious.”
The hospital “created an unnecessarily dangerous work environment,” the lawsuit claims, “which in turn has created dangerous conditions for patients” and a “public nuisance.”
Attorneys for Riverside Community Hospital are fighting the ongoing lawsuit. “This lawsuit is an attempt for the union to gain publicity, and we have filed a motion to end it,” said Maxfield, the hospital spokesperson.
The hospital’s lawyers have said the plaintiffs got covid during a spike in local cases and are only speculating that they contracted the virus at the hospital, according to records filed in Riverside County Superior Court.
They also said in legal filings that the court should not step into the place of “government agencies who oversee healthcare and workplace safety” and “handled the response to the pandemic.”
‘A Shortcoming in the Oversight System’
Decades ago, Congress tasked Medicare with ensuring safe, quality care in U.S. hospitals by building in routine government inspections. However, hospitals can opt to pay up to tens of thousands of dollars per year to nongovernmental accreditors entrusted by CMS to certify the hospitals as safe. So 90% do just that.
But these accrediting agencies — including the Joint Commission, which certified Riverside — are private organizations. Thus they are not required to follow CMS’ directives, including the request in a March 20 memo urging the accrediting agencies to execute targeted infection-control surveys aimed at preparing hospitals for covid’s onslaught.
Riverside, despite allegations of lax practices, holds The Gold Seal of Approval from the Joint Commission, which last inspected the hospital on-site in May 2018 before going in on Nov. 19 this year.
The inspector general’s office urged CMS to pursue the authority to require special surveys in a health emergency — lest it lose control of its mission to keep hospitals safe.
“CMS could not ensure that accredited hospitals would continue to provide quality care and operate safely during the COVID-19 emergency,” and could not ensure it going forward, the report said.
“We’re telling CMS to do their job,” the report’s author, Assistant Regional Inspector General Calvin Jones, said in an interview. “The covid experience really showed a shortcoming in the oversight system.”
CMS spokesperson Raymond Thorn said the agency agrees with the report’s recommendation and will work on a regulation after the public health emergency ends.
Accrediting agencies, however, pushed back on the inspector general’s findings. Among them: DNV Healthcare USA Inc. Its director of accreditation, Troy McCann, said there was not a gap in oversight. Although he said travel restrictions limited accreditors ability to fly across state lines, his group continued its annual reviews after May 2020 and incorporated the special focus on infection control into them. “We have a strong emphasis, always, on safety, infection control and emergency preparedness, which has left our hospitals stronger,” McCann said.
Angela FitzSimmons, spokesperson for the Accreditation Commission for Health Care, said that the accrediting organization’s surveys typically focus on infection control, and the group worked during the pandemic to prioritize hospitals with prior issues in the area of infection prevention.
“We did not deem it necessary to add random surveys that would occur at a cost to the hospital without just cause,” FitzSimmons said.
Maureen Lyons, a spokesperson for the Joint Commission, told KHN that, after evaluating CMS guidance, the nonprofit group decided it would incorporate the infection-control surveys into its surveys done every three years and, in the meantime, provide hospitals with the latest federal guidance on covid.
“Hospitals were operating in extremis. Thus, we collaborated closely with CMS to determine optimal strategies during this time of emergency,” she said.
The Joint Commission cited safety issues for its inspectors, who travel to the hospitals and need proper protective equipment that was running low at the time, as part of the reason for its decision.
Verma, the CMS administrator at the time, pushed back on accreditors’ travel safety concerns, saying that “narrative doesn’t quite fit because the state and CMS surveyors were going into nursing homes.”
Though Verma cautioned that hospitals were overwhelmed by the crush of covid patients, “doing these inspections may have helped hospitals bolster their infection-control practices,” she said. “Without these surveys, we really have no way of knowing.”
‘Immediate Jeopardy’
Medicare inspectors can go into a privately accredited hospital after they get a serious complaint. They found alarming circumstances when they visited some of the hospitals with high rates of covid diagnosed after a patient was admitted for another concern last year.
At Levindale Hebrew Geriatric Center and Hospital in Baltimore, the July 2020 inspection report says “systemic failures left the hospital and all of its patients, staff, and visitors vulnerable to harm and possible death from COVID-19.”
In response, hospital spokesperson Sharon Boston said that “we have seen a large decrease in the spread of the virus at Levindale.”
Inspectors had declared a state of “immediate jeopardy” after they investigated a complaint and discovered an outbreak that began in April and continued through the beginning of July, with more than 120 patients and employees infected with covid. And in a unit for those with Alzheimer’s and other conditions, 20% of the 55 patients who had covid died.
The hospital moved patients whose roommates tested positive for covid to other shared rooms, “potentially exposing their new roommate,” the inspection report said. Boston said that was an “isolated” incident and the situation was corrected the next day, with new policies put in place.
The Medicare data analyzed exclusively for KHN shows that 52 of Levindale’s 64 covid hospital patients, or 81%, were diagnosed with covid after admission from April to September 2020. Boston cited different numbers over a different time period: Of 67 covid patients, 64 had what she called “hospital-acquired” covid from March to June 2020. That would be nearly 96%.
The hospital shares space with a nursing home, though, so KHN did not group it with the general short-term acute-care hospitals as part of the analysis. Levindale’s last Joint Commission on-site survey was in December 2018, resulting in The Gold Seal of Approval. It had not had its once-every-three-years survey as of Dec. 10, 2021, according to the Joint Commission’s tracking.
Boston said Levindale “quickly addressed” the issues that Medicare inspectors cited, increasing patient testing and more recently mandating staff vaccines. Since December 2020, Boston said, the facility has not had a covid patient die.
At the state level, hospital inspectors in California found few problems to cite even at hospitals where 5% or more patients were diagnosed with covid after they were admitted for another concern. Fifty-three complaints about such hospitals went to the Department of Public Health from April until the end of 2020. Only three of those complaints resulted in a finding of deficiency that facility was expected to fix.
CDPH did not respond to requests for comment.
A New Chapter
Things are better now at Riverside Community Hospital, Hernandez said. She is pleased with the current safety practices, including more protective gear and HEPA filters for covid patients’ rooms. For Hernandez, though, it all comes too late now.
“We laugh at it,” she said, “but it hurts your soul.”
Evans said she was able to negotiate her $1 million-plus hospital bills down to roughly $70,000.
Her covid aftereffects have been ongoing — she said she stopped gasping for air and reaching for her at-home oxygen tank only a few months ago. She still hasn’t been able to return to work full time, she said.
For the past year, her husband would wake up in the middle of the night to check whether her oxygen levels were dipping. Terrified of losing her, he’d slip an oxygen mask on her face, she said.
“I would walk 1,000 miles to go to another hospital,” Evans said, if she could do it all over again. “I would never step foot in that hospital again.”
Methodology
KHN requested custom analyses of Medicare, California and Florida inpatient hospital data to examine the number of covid-19 cases diagnosed after a patient’s admission.
The Medicare and Medicare Advantage data, which includes patients who are 65 and older, is from the Centers for Medicare & Medicaid Services’ Medicare Provider Analysis and Review (MedPAR) file and was analyzed by CDIMD, a Nashville-based medical code consulting and data analytics firm. The data is from April 1 through Sept. 30, 2020. The data for the fourth quarter of 2020 was not yet available.
The data shows the number of inpatient Medicare hospital stays in the U.S., including the number of people diagnosed with covid-19 and the number of admissions for which the covid diagnosis was not “present on admission.” CMS considers some medical conditions that are not “present on admission” to be hospital-acquired, according to the agency. The data is for general acute-care hospitals, which may include a psychiatric floor, and not for other hospitals such as those in the Department of Veterans Affairs system or stand-alone psychiatric hospitals.
KHN requested a similar analysis from California’s Department of Health Care Access and Information of its hospital inpatient data. That data was from April 1 through Dec. 31, 2020, and covered patients of all ages and payer types and, in general, private psychiatric and long-term acute-care hospitals. Etienne Pracht, a University of South Florida researcher, provided the number of Florida covid patients who did not have the virus upon hospital admission for all ages and payer types at general and psychiatric hospitals from April 1 through Dec. 31, 2020. KHN subtracted the number of Medicare patients in the MedPAR data from the Florida and California datasets so they would not be counted twice.
To calculate the rate of hospitalized Medicare patients who tested positive for covid — and died — KHN relied on the MedPAR data for April through September. That data includes records for 6,629 seniors, 1,409 of whom, or 21%, died. California data for all ages and payer types from April through December shows a similar rate: Of 2,115 diagnosed with covid-19 after hospital admission, 435, or 21%, died. The MedPAR data was also used to calculate the national rate of 1.7%, with 6,629 of 394,939 covid patients diagnosed with the virus whose infections were deemed not present on admission, according to the CDIMD analysis of data that hospitals report to Medicare. It was also used to calculate which entities licensed as short-term acute care hospitals had 5% or more of their covid cases diagnosed within the hospital. As stated in the story, Levindale Hebrew Geriatric Center and Hospital in Baltimore was not included in that list of 38 because it shares space with a nursing home and had fewer than 500 total discharges.
Data that hospitals submit to Medicare on whether an inpatient hospital diagnosis was “present on admission” is used by Medicare for payment determinations and is intended to incentivize hospitals to prevent infections during hospital care. The federal Agency for Healthcare Research and Quality also uses the data to “assist in identifying quality of care issues.”
Whether covid-19 is acquired in a hospital or in the community is measured in different ways. Some nations assume the virus is hospital-acquired if it is diagnosed seven or more days after admission, while U.S. data counts cases only after 14 days.
Hospitals’ medical coders who examined patient records for the data analyzed for this KHN report focus on each physician’s admission, progress and discharge notes to determine whether covid was “present on admission.” They do not have a set number of days they look for and are trained to query physicians if the case is unclear, according to Sue Bowman, senior director of coding policy and compliance at the American Health Information Management Association.
KHN tallied the cases in which covid-19 was logged in the data as not “present on admission” to the hospital. Some covid cases are coded as “U” for having insufficient documentation to make a determination. Since Medicare and AHRQ consider the “U” to be an “N” (or not present on admission) for the purposes of payment decisions and quality indicators, KHN chose to count those cases in the grand total.
In 409 of 6,629 Medicare cases and in 70 of 2,185 California cases, the “present on admission” indicator was “U.” The Florida data did not include patients whose “present on admission” indicator was “U.” Medical coders have another code, “W,” for “clinically undetermined” cases, which consider a condition present on admission for billing or quality measures. Medical coders use the “U” (leaning toward “not present on admission”) and “W” (leaning toward “present on admission”) when there is some uncertainty about the case. KHN did not count “W” cases.
The Medicare MedPAR data includes about 2,500 U.S. hospitals that had at least a dozen covid-19 cases from April through September 2020. Of those, 1,070 reported no cases of covid diagnosed after admission for other conditions in the Medicare records. Data was suppressed due to privacy reasons for about 1,300 hospitals that had between one and 11 of such covid cases. There were 126 hospitals reporting 12 or more cases of covid that were “not present on admission” or unknown. For those, we divided the number of cases diagnosed after admission by the total number of patients with covid to arrive at the rate, as is standard in health care.
Inspection and Accreditation Analysis
To evaluate which of the 38 hospitals detailed above had federal inspection reports documenting infection-control issues, KHN searched CMS’ publicly available “2567” reports, which detail deficiencies for each hospital for 2020. For surveys listed online as “not available,” KHN requested and obtained them from CMS. KHN further asked CMS to double-check the remaining hospitals for any inspection reports that weren’t posted online. KHN also checked the Association of Health Care Journalists’ database http://www.hospitalinspections.org/ for each of the 38 hospitals for any additional reports, as well as CMS’ Quality, Certification and Oversight Reports site.
To check that each of these hospitals was accredited, KHN looked up each hospital using a site run by the Joint Commission and reached out to the accreditors DNV Healthcare USA Inc. and the Accreditation Commission for Health Care.
To tabulate infection-control complaints for hospitals at the state level in California, KHN used data available through the California Department of Public Health’s Cal Health Find Database. KHN searched the database for the hospitals that had higher than 5% of covid patients being diagnosed after admission, according to the California data, and tallied all complaints and deficiencies found involving infection control from April to December 2020.
After Amanda Wilson lost her son, Braden, 15, to covid-19 in early 2021, she tried to honor his memory. She put up a lending library box in his name. She plans to give the money she saved for his college education to other teens who love the arts and technology. But in one area, she hit a brick wall: attempting to force change at the California hospital where she believes her son contracted covid in December 2020.
After Amanda Wilson lost her son, Braden, 15, to covid-19 in early 2021, she tried to honor his memory. She put up a lending library box in his name. She plans to give the money she saved for his college education to other teens who love the arts and technology.
But in one area, she hit a brick wall: attempting to force change at the California hospital where she believes her son contracted covid in December 2020. While seeking treatment for a bleeding cyst, Braden was surrounded for hours by coughing patients in the emergency room, Wilson said. Yet, she said, she has been unable to get the hospital to show her improvements it told her it made or get a lawyer to take her case.
“I was pretty shocked,” Wilson said. “There’s truly no recourse.”
Throughout the pandemic, lawmakers from coast to coast have passed laws, declared emergency orders or activated state-of-emergency statutes that severely limited families’ ability to seek recourse for lapses in covid-related care.
Under such liability shields, legal advocates say, it’s nearly impossible to seek the legal accountability that can pry open information and drive systemic improvements to the infection-control practices that make hospitals safer for patients.
“Lawsuits are there for accountability and truth to be exposed,” said Kate Miceli, state affairs counsel for the American Association for Justice, which advocates for plaintiff lawyers. “These laws are absolutely preventing that.”
A previous KHN investigation documented that more than 10,000 people tested positive for covid after they were hospitalized for something else in 2020. Yet many others, including Braden Wilson, are not counted in those numbers because they were discharged before testing positive. Still, the KHN findings are the only nationally publicly available data showing rates of patients who tested positive for covid after admission into individual U.S. hospitals.
Those who have lost a family member say hospitals need to be held more accountable.
“My mom is not like one of those people who would say ‘Go sue them,’” said Kim Crail, who believes her 79-year-old mom contracted covid during an eight-day stay at a hospital in Edgewood, Kentucky, because she tested positive less than 48 hours after leaving. “But she just wouldn’t want it to happen to anyone else.”
‘You Put Your Trust in the Hospital’
At age 89, Yan Keynigshteyn had begun to fade with dementia. But he was still living at home until he was admitted to Ronald Reagan UCLA Medical Center in Los Angeles for a urological condition, according to Terry Ayzman, his grandson.
Keynigshteyn, a Soviet Union emigrant who did not understand English, found himself in an unfamiliar place with masked caregivers. The hospital confined him to his bed, Ayzman said. He did not understand how to navigate the family’s Zoom calls and, eventually, stopped talking.
He was tested regularly for covid during his two-week-plus stay, Ayzman said. On Keynigshteyn’s way home in an ambulance, his doctor got test results showing he had tested positive for covid. It can take two to 14 days from exposure to covid for patients to start showing symptoms such as a fever, though the average is four to five days. His grandson believes that because Keynigshteyn was in the hospital for over two weeks before testing positive, he contracted covid at Ronald Reagan UCLA Medical Center.
As the ambulance doors opened and Keynigshteyn finally saw his wife and other family members, he smiled for the first time in weeks, Ayzman said. Then the crew slammed the doors shut and took him back to the hospital.
A few days later, Keynigshteyn died.
“You put your trust in the hospital and you get the short end of the stick,” Ayzman said. “It wasn’t supposed to be like that.”
Ayzman wanted to find out more from the hospital, but he said officials there refused to give him a copy of its investigation into his grandfather’s case, saying it was an internal matter and the results were inconclusive.
Hospital spokesperson Phil Hampton did not answer questions about Keynigshteyn. “UCLA Health’s overriding priority is the safety of patients, employees, visitors and volunteers,” he said, adding that the health system has been consistent with or exceeded infection-control protocols at the local, state and federal level throughout the pandemic.
Ayzman reached out to five lawyers, but he said none would take the case. He said they all told him courts were unsympathetic to cases against health care institutions at the time.
“I don’t believe that a state of emergency should give a license to hospitals to get away with things scot-free,” Ayzman said.
The Current State of Legal Play
The avalanche of liability shield legislation was pitched as a way to prevent a wave of lawsuits, Miceli said. But it created an “unreasonable standard” for patients and families, she said, since a state-of-emergency raises the bar for filing medical malpractice cases and already makes many lawyers hesitant to take such cases.
Almost every state put extra liability shield protections in place during the pandemic, Miceli said. Some of them broadly protected institutions such as hospitals, while others were more focused on shielding health care workers.
William Melofchik, general counsel for NCOIL, said member legislators drafted their model bill because they felt it was important to guard against a never-ending wave of litigation and to be “better safe than sorry.”
Nathan Morris, vice president of legislative affairs for the Chamber’s Institute for Legal Reform, said his group’s work had influenced states across the country to implement what he called timely and effective protections for hospitals that were trying to do the right thing while working through a harrowing pandemic.
“Nothing that we advocated for would slam the courthouse door in the face of someone who had a claim that was clearly legitimate,” he said.
The other two organizations did not answer questions about their involvement in such work by deadline.
Joanne Doroshow, executive director of the Center for Justice & Democracy at New York Law School, said such powerful corporate lobbying interests used the broader “health care heroes” moment to push through lawsuit protections for institutions like hospitals. She believes they will likely worsen patient outcomes.
“The fact that the hospitals were able to get immunity under these laws is pretty offensive and dangerous,” she said.
Some of the measures were time-limited or linked to public emergencies that have since expired, but, Miceli said, more than half of states still have some form of expanded liability laws and executive orders in place. Florida legislators are currently working to extend its protections to mid-2023.
“Liability protections can be incredibly important because they do encourage providers to continue working and to continue actually providing care in incredibly troubling emergency circumstances,” said Jennifer Piatt, a deputy director of the Western Region Office for the Network for Public Health Law.
Akin Demehin, director of policy for the American Hospital Association, said it’s important to remember the severe shortages in testing and personal protective equipment at the start of the pandemic. He added that the health care workforce faced tremendous strain as it had to juggle new roles amid personnel shortages, along with ever-evolving federal guidance and understanding of how the coronavirus spreads.
Piatt cautioned that appropriately calibrating liability shields is delicate work, as protections that are too broad can deprive patients of their ability to seek recourse.
Those wanting to learn more about how covid spreads within a U.S. hospital have few resources. Dr. Abraar Karan, now an infectious diseases fellow at Stanford, and other researchers examined covid transmission rates among roommates at Brigham and Women’s Hospital in Boston. But few hospitals have dug deep on the topic, he said, which could reflect the stretched-thin resources in hospitals or a fear of negative media coverage.
“There should be dialogue from the lessons learned,” Karan said.
‘Do Not Put Anything in Writing’
Crail and Kelly Heeb lost their mother, Sydney Terrell, to covid early in 2021. The sisters believe she caught it during her more-than-weeklong stay at St. Elizabeth Edgewood Hospital outside Cincinnati following a hernia repair surgery.
They said she spent hours in an ER separated from other patients only by curtains and did not wear a mask in her patient room while she recovered. She was discharged from the hospital complaining about tightness in her chest, the sisters said. Within 24 hours, she spiked a fever. The next day, she was back in the ER, where she tested positive for covid on Christmas Eve 2020, they said. After a difficult bout with the virus, Terrell died Jan. 8.
When Crail attempted to file a complaint detailing their concerns, she said a hospital risk management employee told her: “‘No, do not put anything in writing.’”
Crail filed cursory paperwork anyway. She received the hospital’s conclusion in the mail in an envelope postmarked Dec. 1, more than seven months after the April 27 date typed at the top of the letterhead. The letter stated the St. Elizabeth Healthcare oversight committee determined it was “unable to substantiate” that their mother contracted covid in the hospital due to high community transmission rates, incubation timing and unreliable covid tests. The letter did note that despite the hospital system’s extensive protocols, “the risks of transmission will always exist.”
Guy Karrick, a spokesperson for the hospital, did not comment on the sisters’ specific case but said “we have not and would not tell any patient or family not to put their concerns in writing.” He added that the hospital has been following all federal and state guidelines to protect its patients.
Braden’s mom, Amanda Wilson, had far more dialogue with the hospital where she thinks her son got covid. But it still left her with doubts that she made an impact.
When her son was in the Adventist Health Simi Valley ER in December 2020 in a bed separated by curtains, they could hear staffers periodically reminding coughing patients around them to keep on their masks. She and Braden kept their own masks on for the vast majority of their several-hours-long stay, she said, but staffers in their bay didn’t always have their own masks pulled up.
Hospital spokesperson Alicia Gonzalez said staffers “track infections that may occur in our facilities and we have no verified infection of any patient or visitor of covid-19 in our facility,” adding that the hospital is “dedicated to serving our community and ensuring the safety of all who are cared for at our hospital.”
Wilson, a mathematician who works in the aerospace industry, expected the hospital to be able to show her evidence of some of the changes she discussed with hospital officials, including its president. For one, she hoped the staffers would get trained by a physician with direct experience treating the covid complication that made her son fatally ill, called MIS-C, or multisystem inflammatory syndrome. She also had hoped to see proof that the hospital installed no-touch faucets in the ER bathroom, which would help limit the spread of infections.
Gonzalez said that hospital executives listened to Wilson’s concerns and met with her on more than one occasion and that the hospital has improved its internal processes and procedures as it has learned about transmissibility and best practices.
But Wilson said they wouldn’t send her photos or let her see the changes for herself. The hospital declined to list or provide evidence of the changes to KHN as well.
“It made me more angry,” Wilson said. “Here I tried to make it better for people. I couldn’t make it better for Braden, but for people who’d come to this hospital — it is the only hospital in our town.”
She said she reached out to a lawyer, who told her there would be no way to prove how Braden caught covid. She had no other way to force more of a reckoning over her son’s death. So, she said, she has turned to other ways to “leave little pieces of him out in the world.”