For many California voters, Proposition 23 is a head-scratcher.

In a state of 40 million, about 80,000 people rely on dialysis centers for treatment of kidney failure. The vast majority of Californians have never been inside one of these clinics, let alone understand how they operate.

So why — for the second time in two years — are all Californians weighing in on kidney dialysis?

With both the “yes” and “no” campaigns pitching this as a “life or death” issue, voters surely want to get this one right.

“It’s a highly technical issue in a realm that gets into … very specific clinical concerns about the nature of care,” said Mark Peterson, a public policy and law professor at UCLA. “That is not something that any of us in the general public are trained in, we don’t know the literature and we don’t know past experiences.”

The labor union that put the initiative on the ballot says Prop. 23 is really not that complicated. Services Employees International Union – United Healthcare Workers West (SEIU-UHW) was also responsible for the dialysis proposition of 2018.

This year’s initiative aims to do four things. First, it would require that dialysis centers have at least one licensed physician on site during operating hours. SEIU says that because dialysis is a delicate procedure, a physician should always be present in case of an emergency.  Currently, federal rules require that dialysis clinics have a medical director — a physician responsible for staff training and implementing quality of care measures — but there are no rules for how much time that director must spend on site.

The proposition also would require clinics to report dialysis-related infection data to the state, obtain state permission before closing a site or reducing services, and treat patients equally regardless of their payment source — Medicare, Medicaid or private insurance.

So far, Prop. 23 is the second most expensive ballot fight this year. Dialysis companies, which are leading the opposition, are known to spend big to defend the industry against measures and legislation. The “no” side has raised more than $100 million to defeat this year’s measure, with most of the money coming from DaVita Kidney Care and Fresenius Medical Care, which own the majority of dialysis centers in the state. The “yes” side has raised just over $6 million.

Peterson of UCLA said regulations for dialysis clinics would perhaps be better addressed in the Legislature, where there is more active deliberation with room for different perspectives.

Steve Trossman, a spokesperson for SEIU-UHW, said the union is turning to voters because the ballot process is usually “cleaner” than legislation. “It’s an up or down vote on an entire policy, not subject to the horse-trading that goes on around legislation and often results in a watered-down policy that doesn’t sufficiently address the problem,” he said.

Similar to its 2018 campaign, SEIU-UHW argues that high-profit dialysis companies do not spend enough on patient care and that some clinics are filthy with bloodstains and cockroaches, which put patients at greater risk for infections.

“The dialysis industry could easily make these clinics world class if it wanted to… and still have a healthy profit,” Trossman said.

According to the most recent federal data on quality metrics, California clinics together scored above the national average in “total performance.” Clinics’ individual scores, however, varied widely.

Medicare, which pays for treatment for most dialysis patients in California, links payments to a clinic’s performance score. The score is based on such things as bloodstream infection ratios, anemia management, depression screenings and hospitalizations.

For the 2020 Medicare payment year, which is based on 2018 data, about 38% of dialysis facilities in the state saw their payments reduced by between 0.5% to 2% for not meeting minimum performance targets. (This federal data includes dialysis units in hospitals.)

“The dialysis industry could easily make these clinics world class if it wanted to… and still have a healthy profit.”

STEVE TROSSMAN, SEIU-UHW

Opponents of Prop. 23 say the driving force behind the initiative is not patient care, but rather the union’s desire to organize dialysis workers.

“If employees were unionized, there would never be another ballot measure” from SEIU-UHW on dialysis clinics, said Kathy Fairbanks, a spokesperson for the No on Prop. 23 campaign.

Fairbanks said that because many clinics operate long hours, dialysis companies would be on the hook for hiring several doctors per site if Prop. 23 passes. The Legislative Analyst’s Office estimates that this requirement would increase costs at each clinic by “several hundred thousand dollars” annually.

Clinics that can’t afford the increased costs would be forced to reduce hours or close completely, including nonprofit clinics that lack the same financial backing as larger companies, Fairbanks said.

Dr. Anjay Rastogi, a nephrologist and director of the CORE Kidney Program at UCLA, said that even if the proposition has good intentions, having a doctor on site at all hours isn’t practical. Nurses and technicians do most of the patient care in dialysis centers, and nephrologists do make rounds at dialysis centers to check on their patients, he said. (Rastogi is not involved in either campaign, but UCLA outsources its outpatient dialysis services to DaVita.)

Rastogi said the physician requirement would perhaps make sense if it specifically asked that on-site doctors be kidney specialists. However, California, like other parts of the country, is experiencing a shortage and uneven distribution of doctors, particularly specialists, he said.

Supporters say Prop. 23 acknowledges the challenge of provider availability by allowing clinics in rural communities or areas without enough doctors to fulfill this requirement with a nurse practitioner.

But even in an emergency, there is only so much an on-site physician can do, Rastogi said. “If something happens in a unit, we still have to call 911, we still have to send them to the emergency room,” he said.

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