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Augustin R. Jimenez – Special Counsel to the Secretary of the Transportation Agency


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April 18,2008

Hillarie Levy 

Re: Alleged Inaction by the Department of Managed Health Care [Your Letter of February 18,2008]

Dear Ms. Levy:

As you know, we are in receipt of your letter of February 18,2008, regarding the sad and unfortunate passing of your daughter, Robyn, more than three years ago on February 15, 2005. When we spoke on April 7, 2008, I confirmed that we are in the process of reviewing the allegations and concerns expressed in your letter and that we would endeavor to respond by the end of that week. However, other pressing matters and commitments have resulted in my inability to respond until now. Thank you so much for your patience and understanding.

In reviewing the materials you submitted, the underlying concern of your complaint is the alleged violations of sections 4733 and 4736 of the California Probate Code by a physician affiliated with Kaiser Permanente (Woodland Hills Medical Center) (Kaiser) relative to organ donor protocols. These Probate Code sections concern, generally, (1) compliance with individual health care instructions by a health care provider, and (2) prompt notification to a patient or authorized person when the health care provider declines to comply with individual health care instructions. This allegation was the subject-matter of an investigation undertaken by the Department of Managed Health Care (DMHC or Department) and its letter to you dated February 6, 2008, concluding its investigation. In your letter of February 18, 2008, you now allege Department “inaction” regarding alleged violations of the above Probate Code sections and “Knox Keene Act Title 42 part 482, and Title 28 § 1468.B(5) and § 1300.68(3).” Subsequently, in a facsimile transmittal dated April 3, 2008, you added an additional claimed violation of Health and Safety Code section 7154, subdivision (b).

We have carefully reviewed all the materials you submitted with your letter of February 18, 2008, including the February 6, 2008 DMHC letter, where the Department concludes, among


Hillarie Levy April 18, 2005 Page 2

other things, that its ‘jurisdiction does not extend to the enforcement of the California Probate [Code].” Our review also included a meeting in early March with the key DMHC senior staff who worked on responding to your concerns. In reviewing your submitted materials and questioning the DMHC staff, we sought to determine whether the DMHC conclusions were premised on a review that was thorough, adequate, and unbiased, and whether there exists any predication for this agency to take action to ”utilize [its] position to ensure compliance of state and federal laws,” as you have specifically requested. For the reasons stated below, we have concluded that (1) the DMHC response to your concerns reflects a thorough, adequate, and unbiased assessment of its proper role in enforcing the Knox-Keene Heath Care Service Plan Act of 1975 (Knox-Keene Act) (Gov. Code § 1340 et seq.), and (2) there is no basis for this agency to take any further action to ensure that the DMHC is in compliance with state and federal laws relative to the issues you now raise.

Sections 4733 and 4736 of the California Probate Code

As noted, the DMHC concluded that it does not have jurisdiction regarding the enforcement of the California Probate Code. The provisions of law you allege were violated by the Kaiser physician involved with your daughter’s care are contained in Division 4.7 of the Probate Code. That division, known as the Health Care Decisions Law (Prob. Code § 4600 el seq.), also contains Part 3, relating to Judicial Proceedings, where the Legislature included Chapter 2 on Jurisdiction and Venue. There, Probate Code section 4760 provides that “[t]he superior court has jurisdiction in proceedings under this division.” The Knox-Keene Act was amended in 2000, at which time the DMHC was created. Two years later the California Court of Appeal held that the DMHC “has only the power delegated to it in the [Knox-Keene] Act.” (Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 CaI. App. 4th 1018, 1024.) A careful reading of the Knox Keene Act makes it clear that the Department has been conferred no authority by the Legislature relative to any provisions of the Probate Code.

Accordingly, Ms. Levy, as a matter of law, the DMHC was correct when it concluded that its jurisdiction does not extend to the enforcement of sections 4733 and 4736 of the Probate Code. Given that DMHC is legally without authority to take action to enforce these, or any other, provisions of the Probate Code, this office has no power or authority over the Department to require it to take actions to “ensure compliance” with that code. In that regard, we agree with the Department that you should retain private counsel at your earliest opportunity if you wish to pursue civil remedies that may be available to you under the Probate Code.

You have further alleged DMHC “inaction” regarding violations of “Knox Keene Act Title 42 part 482, and Title 28 § 1468.B(5) and § 1300.68(3).” We have carefully reviewed these particular citations and discuss them separately below.

Hillarie Levy April 18, 2005 Page 3

“Knox Keene Act Title 42 part 482”

The “Knox Keene Act Title 42 part 482” does not exist. The Knox-Keene Act does not contain either a title 42 or a part 482. However, Title 42 of the Code of Federal Regulations contains Part 482 relating to “Conditions of Participation for Hospitals,” which pertains to hospital participation in the federal Medicare or Medicaid programs. (42 CFR § 482.1.) Additionally, Part 482 of this federal regulation contains 29 separate provisions specifying conditions of hospital participation in MedicarelMedicaid ranging from medical staff and nursing services to discharge planning and outpatient services. (42 CFR §§ 482.22,482.23,482.43, and 482.54.)

Among these provisions you will find section 482.45 relating to “Organ, tissue, and eye procurement.” We believe that this is the regulation you intended to cite in your letter. Section 482.45 requires MedicarelMedicaid participating hospitals to, among other things, have written protocols with an organ procurement organization (OPO) (defined in 42 CFR Part 486) regarding notification to an OPO or OPO-designated third party for purposes of determining medical suitability for organ, tissue, and eye donation. (42 CFR § 482.45, subd. (a)(l).) These regulations are promulgated by the Secretary of the U.S. Department of Health and Human Services. The administration of Medicare- and Medicaid-related matters falls under the purview of the federal Centers for Medicare and Medicaid Services (CMS). We have enclosed contact information for Region 9 of the CMS for your convenience. As noted in the CMS enclosure, that office is the point of initial contact on any Medicare/Medicaid issue arising in California.

We trust that the CMS will be able to provide you with appropriate guidance regarding your concern that the involved Kaiser physician may have violated provisions of 42 CFR Part 482 regarding OPO protocols. The DMHC has no authority or jurisdiction to enforce compliance with these federal regulations and, accordingly, this office has no power or authority over the Department to require it to take actions to “ensure compliance” with those federal regulations and standards governing hospital participation in Medicare/Medicaid programs.

“Knox Keene Act Title 28 & 1468.B(5)”

Again, we note that the “Knox Keene Act Title 28 § 1468.B(5)” does not exist. The Knox Keene Act does not contain either a title 28 or a section 1468.B(5). Further, there is no section 1468.B(5) contained in the California Health and Safety Code. However, the Department has promulgated regulations contained in Title 28 of the California Code of Regulations, but, again, there is no section 1468.B(5) to be found.

“Knox Keene Act Title 28 & 1300.68(3)”

As noted, the DMHC has promulgated regulations contained in Title 28 of the California Code of Regulations. There, section 1300.68 is contained along with several other provisions under Article 8 pertaining to “Self-policing Procedures.” Section 1300.68 requires every health care service plan (in this case, Kaiser) to establish a “grievance system.” As you correctly suggest in

Hillarie Levy April 18, 2005 Page 4

your letter, subdivision (d)(3) of that section requires plans to respond to grievances with a “resolution” in writing that contains a “clear and concise explanation of the plan’s decision.” You now assert that the Department “never addressed” your claim that Kaiser failed to provide you with a “clear and concise” response to your complaint that the involved Kaiser physician violated the Kaiser organ donor protocol. That assertion, Ms. Levy, is not supported by the evidence you have provided this office.

In its letter of February 8, the Department states that on November 28, 2007, it “requested the Vice President of Health Plan Regulatory Services [for Kaiser] to investigate the handling of your complaint and to respond to your claim that the Plan’s response to your grievance lacked a clear and concise explanation of its findings and conclusions.” Two days later, the Department met with Kaiser representatives to discuss your concerns. At that time it was confirmed that your grievance was reviewed by the Woodland Hills Medical Center, but that two years had past since the alleged improper conversation occurred between you and the Kaiser physician involved in your daughter’s care. Due to the time lapse, Kaiser reported that the physician was unable to recall any conversation with you about organ donations from your daughter. DMHC did not conclude, as you now suggest, that the physician could not recall that your daughter had passed away.

Nor did DMHC determine that the medical entry of February 15,2005, was “not as valid” for having been “written by a nurse.” Instead, the Department merely observed that the entry “is a nurse’s note, rather than a physician’s statement” and, upon further contact with Kaiser in December 2007, learned that the author of the notes was no longer employed by the Kaiser medical center and therefore not available to amplify, explain, or clarify the medical entries.

While DMHC did not express a conclusion in its February 6 letter that Kaiser’s response to your grievance meets the “clear and concise” standard, it is clear from the record that the Department undertook a concerted effort to address the plan’s response to your concerns. The record shows that in doing so, DMHC found that with the passing of over two years, memories had faded, witnesses were no longer available, and that, consequently, the substance of conversations between you and the Kaiser physician could not be confirmed. Accordingly, DMHC correctly advised you that it “does not have a mechanism to conclusively resolve factual disputes” and that, given its regulatory responsibility and the investigation it had undertaken, reached a conclusion that Kaiser had “thoroughly investigated your complaint.”

Health and Safety Code section 71 54(b)

As noted above, you also claim a violation of Health and Safety Code section 7154, subdivision (b). That provision was repealed in 2007 by the passage of AB 1689 (stats. 2007, chap. 629) when the Legislature recast, revised, and reenacted the Uniform Anatomical Gift Act (UAGA).
The prior law that you cite (§ 7154, subd. (b)) prohibited physicians in attendance at the time of an organ donor’s death from also participating in the removal or transplant of the donated organ unless a document of gift designates a particular physician. That prohibition and the exception

Hillarie Levy April 18, 2005 Page 5

are now set forth in Health and Safety Code sections 7150.65, subdivision (e), and 7150.20, subdivision (e).

As previously mentioned, the DMHC “has only the power delegated to it” in the Knox-Keene Act. (Kaiser Foundation Health Plan, supra.) There is nothing in the Knox-Keene act that authorizes the Department to administer or enforce the provisions of the UAGA. So, again, this office has no power or authority over the DMHC to require it to take actions to “ensure compliance” with the UAGA, generally, or sections 7150.65, subdivision Letter from California Transportation Agency to Hillarie Levy – RE: Inaction by The Department of Managed Health Care. – Dated April 18, 2008(e), and 7150.20, subdivision (e), in particular. Please note that it appears from our preliminary research that the provisions of the UAGA are enforceable through actions filed in the superior court.

Finally, you ask that our “legislative department” review bringing enforcement of the Probate Code within the jurisdiction of the Department. While this office does review proposed legislation affecting this agency and the departments within its jurisdiction, sponsorship of legislation is a matter taken up by members of the Legislature. Accordingly, we invite you to contact your representatives in the California Legislature who might be interested in sponsoring the legislative concept you are suggesting. For your convenience, we have enclosed a list of Assembly and Senate members who represent legislative districts that include your zip code. In that respect we have also enclosed contact information for the legislative sponsors of AB 1689, Assemblywoman Sally Lieber and Assemblyman Tom Berryhill.

Ms. Levy, I am a father of two sons, ages 12 and (soon to be) 17. As a parent, I cannot imagine the pain and grief you have endured for over three years since Robyn succumbed to a terminal illness. As many others before me have expressed, please accept our deepest sympathy and condolences on the loss of your beloved daughter.


Augustin R. Jimenez

cc: Edward G. Heidig, Esq., Chief Deputy Director, DMHC