Schwarzenegger Administration’s Use of Emergency Rules Examined
Since Gov. Arnold Schwarzenegger (R) took office, his administration has declared 79 regulatory emergencies, including some related to health care agencies or programs, the Los Angeles Times reports. By issuing emergency regulations, governors' administrations can expedite the rulemaking process and reduce the level of scrutiny below what is required through the standard review process. The standard process can take months and requires 45 days of public comment, according to the Times.
Lawmakers have argued that Schwarzenegger has made "sweeping and significant changes to the law without public scrutiny," several of which involve health care, the Times reports.
For example, the administration earlier this month issued an emergency rule to allow the state to collect assets of deceased Medi-Cal beneficiaries as repayment for services rendered, a decision that "incensed" advocates for the elderly, the Times reports.
The Schwarzenegger administration also issued an emergency order in November 2004 to delay new nurse staffing rules. A Sacramento Superior Court judge earlier this month overturned the order on the grounds that the governor's declaration of an "emergency is arbitrary and capricious and entirely lacking in evidentiary support." The administration has appealed the decision.
In addition, the Department of Veterans Affairs in October 2004 declared an emergency regarding the availability of hospital beds in its nursing homes in Yountville and Chula Vista. Thomas Johnson, the department's new director and a former hospital executive, suspended a requirement that 25% of the beds in skilled nursing rooms be kept open for assisted-living residents who could potentially need more care.
Assembly Speaker Fabian Nunez (D-Los Angeles) said, "The governor ought to use the rulemaking process strictly for emergencies." He added, "Coming from an administration that wanted the sun to shine on government, it's really making policy in the dark."
Assembly Health Committee Chair Wilma Chan (D-Alameda) said, "A lot of these things are basically power grabs." She added, "I don't see how this fits into the definition of emergency."
Chan next week will hold a hearing on the Medi-Cal rule changes.
William Gausewitz -- director of the Office of Administrative Law, which reviews state regulations -- said that "there are instances where rulemaking agencies have used emergency [regulations] where the nature of the emergency was in question."
Cabinet Secretary Terry Tammimen said each emergency regulation is reviewed carefully before being issued, and added that the Medi-Cal regulations had been planned for two years. Tammimen said that emergencies are declared only when there is a legitimate problem.
"We consider controlling the abuse of Medi-Cal to be an emergency," Stan Rosenstein, deputy director oveseeing Medi-Cal, said, referring to the estates of beneficiaries that refuse to repay the state (Salladay, Los Angeles Times, 3/31).
In related news, NPR's "All Things Considered" on Wednesday reported on protesters in the state -- including nurses --"dogging" Schwarzenegger. The segment includes comments from H.D. Palmer, a spokesperson for the Department of Finance; Schwarzenegger; and teachers in the state (Korry, "All Things Considered," NPR, 3/30). The complete segment is available online in RealPlayer.
In addition, KCET's "Life & Times" on Tuesday reported on disputes between labor unions and Schwarzenegger over his reform plan. The segment includes comments from Jerry Flanagan, director of health policy for the Foundation for Taxpayer and Consumer Rights; Joel Fox, co-chair of Citizens to Save California; Malinda Markowitz, a nurse at Good Samaritan Hospital in San Jose and secretary of the California Nurses Association; and Cheryl Obasih-Williams, a registered nurse at Fountain Valley Medical Center and staff member of the United Nurses Association of California/Union of Health Care Professionals (Guinyard, "Life & Times," KCET, 3/29). The show's transcript is available online. The segment is available online in RealPlayer.