Props. 45 and 46: How Will You Vote?

From The Floor

Props. 45 and 46: How Will You Vote?

Healthcare issues are on the November 4 ballot

By Genevieve M. Clavreul, RN, Ph.D.
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Last month, I talked about pending legislation in Sacramento and Washington that could impact how we practice. With the November election only weeks away, I want to turn your attention to two ballot initiatives that have piqued the interest of the healthcare community.

PROP. 45

First up is Proposition 45, the Insurance Rate Public Justification and Accountability Act. This measure would authorize the state insurance commissioner to regulate health insurance rate increases and impose fines on insurers who are charging excessive rates. Prop. 45 would also require public disclosure of proposed rate changes.

Prop. 45 is modeled on Prop. 103, passed back in 1988 to regulate automobile and homeowner’s insurance rates. The new measure would extend those rules to include health insurance plans. Large group policies — the kind larger businesses offer employees — would be exempt.

The measure isn’t limited to future rates. Under Prop. 45, the commissioner could order changes to any health insurance rates proposed after Nov. 6, 2012.


Supporters of Prop. 45 argue that Prop. 103 has been very successful in controlling auto insurance rates and say that consumers deserve the same protection from price gouging by the medical insurance industry, especially now that coverage is mandatory.

Opponents say the measure would add yet another layer to our state’s already bureaucratic government, drive up administrative costs and spark expensive lawsuits. Insurance companies have spent more than $37 million campaigning against Prop. 45.

Probably the biggest point of contention is the measure’s potential impact on the state’s health insurance exchange, Covered California, whose board is responsible for negotiating rates and benefits for plans offered through the exchange.

Under Prop. 45, the insurance commissioner would be able to overrule the board and even force changes to previously agreed rates, which opponents say could undermine Covered California’s authority and potentially lead insurers to withdraw from the exchange. Several board members told the L.A. Times that Prop. 45 would seriously hamper implementation of the Affordable Care Act in California.

The measure’s supporters counter that Covered California doesn’t really have the authority to control health insurance premiums — the exchange can’t function effectively if too many plans are rejected or withdraw — and argue that regulation is the only effective way to limit rate increases.


Even our state’s nursing associations and unions are divided on Prop. 45. The California Nurses Association and Labor United for Universal Healthcare support the measure, but the American Nurses Association California (ANA-C) and the Association of California Nurse Leaders  are opposed.

My personal stand on Prop. 45 is mixed. On one hand, I don’t think it’s a bad idea to allow public input on potential rate hikes, which this measure would allow. However, I also haven’t forgotten the resignation of former Insurance Commissioner Chuck Quackenbush in 2000 over allegations that he had accepted contributions from several insurance companies in exchange for not fining them.

That sordid affair makes me hesitant to give future insurance commissioners sole authority to approve or disapprove rate changes — especially since Covered California, whose meetings are open to the public, already exists to do just that.

PROP. 46

The second measure is Proposition 46: Medical Malpractice Lawsuits Cap and Drug Testing of Doctors, a.k.a. the Troy and Alana Pack Patient Safety Act of 2014. This proposition includes three provisions:

1. Malpractice cap increase: The measure would raise the cap on non-economic damages for malpractice suits set by the Medical Injury Compensation Reform Act (MICRA) back in 1975 from $250,000 to more than $1.1 million and link the cap to inflation.

2. Mandatory drug testing for doctors: The measure would require the medical board to conduct random drug testing of hospital-based physicians, suspend doctors who test positive and discipline physicians found to be impaired while on duty.

3. Prescription drug monitoring: Prop. 46 would require doctors to consult our state’s Controlled Substance Utilization Review and Evaluation System (CURES) before prescribing Schedule II or Schedule III controlled substances.


Many of the arguments for or against Prop. 46 focus on the first provision. Supporters, which include consumer groups and personal injury attorneys, say it’s unfair that the MICRA cap hasn’t been adjusted in 39 years, which has meant patients may receive only token compensation for pain and suffering.

Opponents, which include the ANA-C, the California Association of Nurse Anesthetists and the California Association for Nurse Practitioners, point out that MICRA doesn’t cap economic damages — only punitive, non-economic damages — and argue that the higher cap will drive up malpractice insurance rates and healthcare costs.

I think tying the non-economic damage cap to inflation is a worthy goal. One can’t help but feel sympathy for individuals struggling to get just compensation for suffering caused by medical malpractice. If you’ve lost a loved one to hospital or doctor error, being told your family’s loss is only worth $250,000 is a bitter pill.


What gives me pause are the other two provisions. Each has its pros and cons, but it confounds me that the authors of this measure have tied these unrelated issues to the MICRA cap increase. Opponents of Prop. 46 claim the drug testing provision was added as a way of tricking voters into supporting the malpractice provision, but I think it’s more likely that folks who disagree with one part of the measure will vote no even if they support the other provisions.

Mandating random drug testing of physicians and penalizing those who work impaired (especially if it causes an adverse event) seems like a reasonable move, but I have to wonder why this provision is limited to hospital-based physicians. Why not also mandate testing for other members of the healthcare team, such as pharmacists, nurse anesthetists or even RNs? Isn’t their impairment just as much of a risk to patients?


The final provision, requiring doctors to use the CURES database before prescribing controlled substances, is a conundrum.

The idea of a statewide prescription drug monitoring program is sound; 48 states already have such databases. However, in most states, the database is overseen by the public health department. In California, CURES is a Department of Justice program, which makes it more a mechanism for punitive action than a preventive tool.

At present, only about 12,000 of California’s more than 104,000 licensed physicians use CURES, which has struggled since its inception due to inadequate staff and limited funding. Program Manager Mike Small, who opposes Prop. 46, reminded the State Board of Pharmacy in February that CURES was technically defunded in 2011. Other Prop. 46 opponents have also raised questions about the system’s security.

This provision strikes me as a noble idea, but for CURES to be effective in stopping “pill shopping,” the system would need a major overhaul. One of Prop. 46’s principal authors, Bob Pack, says CURES would be upgraded if the measure passes, but it’s interesting to note that Pack is the software developer who designed CURES, which strikes me as a conflict of interest.


My intention here isn’t to sway you one way or the other, but to help you understand the issues so you can make an informed choice when you step into the voting booth on November 4. Wherever you stand, be sure to read more about both initiatives and get out to vote!   


Props. 45 & 46: For and Against

To further research these ballot initiatives, visit the following sites:

Official Voter Information Guide: You can download the official voter guide in PDF format here.   

Ballotpedia: This neutral “interactive almanac” includes complete descriptions of both propositions and a summary of supporters and opponents.

The page for Prop. 45

The page for Prop. 46

League of Women Voters: The League of Women Voters provides neutral descriptions of each ballot referendum here

PROP. 45

Consumer Watchdog Campaign’s pro-45 page

Californians Against Higher Healthcare Costs (with major funding from Blue Shield of California, Kaiser Foundation Health Plan, and Wellpoint) presents the opposition view

PROP. 46

Yes on Prop. 46 (funded by Consumer Attorneys of California) presents its case

Opposition (funded by the California Medical Association, the Cooperative of American Physicians, The Doctors Company and several insurance companies) counters here.

Geneviève M. Clavreul, RN, Ph.D., is a hospital and nursing management consultant.

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