California DOJ Allows Catholic Hospital Groups to Merge, Raising Questions About Patient Access

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Commentary Human Rights

California DOJ Allows Catholic Hospital Groups to Merge, Raising Questions About Patient Access

Amy Chen & Hayley Penan

Each one of these mergers raises critical questions about how to help preserve access to care for patients who are treated at these facilities, and how to help ensure that the care they receive is based on medical training, expertise, and standards of care.

Imagine lying in an operating room, bright fluorescent lights shine in your eyes as a blur of health providers move around you preparing the room for emergency surgery. In the midst of this chaos, a nurse asks you why your chart says female when you present as male. The reality sinks in that you have to “out” yourself as transgender to this stranger. The nurse looks you up and down and starts in with warnings about your endangered soul and singing religious hymns at every opportunity. Later, as you are waking after surgery, you hear a nurse say to your spouse, “We don’t treat your kind here. You’re making the staff and other patients uncomfortable.” Your spouse is escorted out by security; the nurse shoves a pain pill down your throat and puts you, groggy and nauseated, into a wheelchair to send you home.

In the car home, you feel feverish and begin vomiting so violently that your stitches burst open. The hospital will not let you return, telling your insurance company, “We don’t know what he, she, it—whatever the f*** it calls itself wants or needs from us. We’re done. We did our job.” Eventually an ambulance takes you to a hospital 40 miles away for treatment of life-threatening complications.

This really happened to Dannie Ceseña at a Dignity Health hospital in California. Dannie bravely shared this experience in his public testimony at one of the California attorney general’s 17 hearings statewide on the impact of the merger between Dignity and Catholic Healthcare Initiatives (CHI).

Today’s health-care landscape is rapidly shifting. Medical systems are increasingly consolidating care into larger and larger merged entities. All signs point to the likelihood that we will see more of these mergers over time, with religiously affiliated health systems merging with either secular or other religiously affiliated health systems.

Roe is gone. The chaos is just beginning.

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Each one of these mergers raises critical questions about how to help preserve access to care for patients who are treated at these facilities, and how to help ensure that the care they receive is based on medical training, expertise, and standards of care. Barring that, Catholic and other religiously affiliated health facilities should at the very least be required to affirmatively disclose these facts ahead of time to a potential patient. Only in this way can patients make informed choices about whether they want to continue receiving care at a facility that is basing its patient care at least in part on religious or moral doctrine rather than the medical standard.

Dignity has 39 hospitals in three states, while CHI has 103 hospitals in 18 states. Our organization, the National Health Law Program, along with many reproductive health, health consumer, LGBTQ organizations, and others, raised concerns about this merger both at the public meetings as well as in a coalition letter signed by 22 organizations.

California Attorney General Xavier Becerra approved the merger on November 21, paving the way for the creation of a new entity called CommonSpirit Health to become the largest nonprofit hospital system in the nation. Sean McCluskie, a chief deputy to Becerra, said in a statement about the merger that the California Department of Justice “is committed to improving the well-being and health of families across the state by increasing the accessibility and availability of care in our communities. Our office carefully reviewed this transaction to protect patients and our communities here in California, and our office will monitor compliance with the conditions.”

Those conditions, according to the statement, include requiring CommonSpirit to “preserve the accessibility and availability of health care services to communities who have been served by Dignity Health hospitals.” They also require CommonSpirit to maintain emergency services and women’s health-care services for ten years. If CommonSpirit officials want to change these services in the second half of those ten years, they must notify the California Department of Justice so regulators can assess the impact such moves would have on health care in the region.

The National Health Law Program’s analysis found that the decision includes strong language prohibiting discrimination against LGBTQ patients and requiring hospital policies to explicitly include language prohibiting discrimination based on sexual orientation or gender identity. Becerra’s decision to include provisions prohibiting the affected hospitals from discriminating against LGBTQ patients is commendable. We will see whether this provides sufficient protections to prevent patients like Dannie from horrible discrimination moving forward.

Whether these stipulations alone will be sufficient to preserve women’s health-care services for the long term, let alone allow for advancements in medical care, is unclear. As has been covered by Rewire.News, Catholic hospitals have a long history of routinely denying patients critical life-saving care, including abortion care, access to birth control, and medication for individuals living with HIV. In one widely publicized lawsuit, the American Civil Liberties Union of California sued Dignity Health for withholding medical care because of a patient’s gender identity when they refused to allow a transgender man to receive a hysterectomy upon discovering his gender identity.

Many Catholic hospitals and health systems follow the Ethical and Religious Directives (ERDs), a series of rules promulgated by the U.S. Conference of Catholic Bishops. The ERDs are intended to govern health-care delivery in Catholic health systems, including Catholic hospitals, clinics, and managed care organizations. Among other things, the ERDs forbid many reproductive health services, including birth control, sterilization, some miscarriage management, abortion, the least invasive treatments for ectopic pregnancies, and some infertility treatments. The ERDs provide no exceptions for risks to a patient’s health or even life. The ERDs were recently updated to include more restrictive provisions related to mergers and transactions between Catholic hospitals and other entities.

The full impact the provisions could have on these types of transactions is unclear, and the new provisions have the potential to make it even harder for these services to be maintained in future business arrangements involving Catholic entities. Despite these changes, however, the Catholic Church signed off on the Dignity Health and CHI merger.

The Conference of Catholic Bishops is not a trained medical provider; it is group of religious leaders from the Catholic Church. Thus, the ERDs are grounded not in medical knowledge and understanding, but on a particularly conservative strain of Catholic religious doctrine. In spite of the fact that the ERDs fly in the face of medical standards of care, doctors, nurses, and other health-care workers employed at many Catholic hospitals are required to follow them.

The problem is that most patients who receive care at Catholic facilities have no idea about the existence of these restrictions, and indeed are not told about them until it is too late. For example, pregnant people have gone or been taken by ambulance to Catholic hospitals while miscarrying, but hospital officials have refused to take action to terminate the pregnancy until there is no fetal heartbeat or until the pregnant patient’s life is in serious jeopardy due to infection or other complication. In other instances, patients have gone to a Catholic hospital for labor and delivery and have requested a postpartum sterilization but have been told the hospital will not conduct the procedure.

On the face of it, it seems reasonable for patients to expect that they will receive at least the same medical standard of care regardless of the hospital where they are treated. So too, it is reasonable for doctors, nurses, and other medical providers to expect to be able to make decisions about the care of their patients based on their medical training and experience and accepted medical standards of care in their fields of practice. But this is not the case at Catholic hospitals that follow the ERDs. At these facilities, it is instead a set of conservative religious doctrines that can ultimately guide life-or-death decisions about patient care.

There is no question that we will continue to see hospital mergers in the future, both between Catholic health systems as well as between Catholic and secular or other religiously affiliated health systems. In the face of these Catholic hospital mergers, it remains to be seen how effectively we will be able to protect patient access to care. Health advocates and community members should continue to push Attorney General Becerra to ensure that any future proposed mergers involving Catholic or other religiously affiliated health systems be approved only with enforceable conditions in place that will truly preserve access to the full range of health-care services, including reproductive health services, and ensure these services are provided equally to all with dignity and respect.