Court Declares Schwarzenegger Violated Law in Attack on RN-to-Patient Ratios

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For Immediate Release June 7, 2005
Contact: Charles Idelson, 510-273-2246 or 415-559-8991 (cell)

Final Judgment: Court Declares Schwarzenegger
Violated Law in Attack on RN-to-Patient Ratios

It’s final and official. In a final judgment issued today, Superior Court Judge Judy Hersher ruled that Gov. Arnold Schwarzenegger acted illegally in seeking to overturn key portions of the state’s landmark law requiring safe registered nurse-to-patient hospital ratios.

In upholding a lawsuit by the California Nurses Association, Judge Hersher issued a permanent injunction overturning two emergency regulations by Gov. Schwarzenegger to suspend key portions of the ratio law.

The emergency regulations, she found, exceeded the administration’s scope of authority and were made without sufficient evidence. The administration, said Judge Hersher, “abused its discretion and failed to follow the procedures established by law in determining the regulations were necessary for the immediate preservation of public health and safety.”

“Today’s decision sends a compelling, unmistakable message that this governor is not above the rule of law, and that a law enacted to protect patients may not be sabotaged simply to financially benefit his hospital corporate donors,” said CNA President Deborah Burger, RN.

Burger also criticized past comments by administration and hospital industry officials of plans to appeal any final decision by Judge Hersher. “Given this governor’s supposed concern about the state budget, it would be a disgraceful waste of public funds if he continues with his obsessive crusade to make hospitals less safe,” said Burger.

The full decision may be read on line at http://www.saccourt.com/courtrooms/trulings/dept16/d16-04cs01725-06.07.05.doc.

In addition to tossing out the emergency regulations, the comprehensive ruling casts doubt on the legality of any other backdoor regulatory initiatives, including permanent regulations the Schwarzenegger administration may seek to undermine the CNA-sponsored ratio law.

“CNA will be watching,” said Burger. “Any new regulatory actions which seek to weaken the current ratio regulation will be immediately challenged, enforcement by the DHS will be scrutinized to insure the governor's special interest deregulation plan is not carried out through an underground policy of non-enforcement, and if discovered, swift, appropriate action will be taken.”

The 1999 law was “unambiguous” in its purpose, Judge Hersher noted. The law stated that the “quality of patient care is jeopardized because of staffing changes implemented in response to managed care” and directed the executive branch carry out remedial action, establishing “minimum staffing ratios to enhance the quality of care, i.e. to protect the health and safety of patients in acute care hospitals in California.”

In the emergency regulations, evidence submitted to the court, and repeated public claims made in advertisements and media statements, Gov. Schwarzenegger and the hospital industry have sought to roll back the ratio law on the pretext of the nursing shortage and claims that safer care in hospitals poses a financial burden on hospitals.

Judge Hersher, however, cited numerous examples of statements by the state Department of Health Services under former Gov. Gray Davis confirming that “considerations of nursing shortages and economic impacts are outside the scope of DHS rulemaking authority.”

“The only difference today is the new occupant of the governor’s office,” said Burger, the “arrival of a governor who believes he has unlimited power and the ability to usurp the role of the legislation to reverse laws he and his corporate allies don’t like.”

Additionally, Judge Hersher again repudiated the “evidence” submitted by the administration and the California Hospital Association to substantiate its claims.

“DHS did not offer any new data, studies or other evidence” to support claims that the results of the law were “more severe than originally anticipated. The ‘evidence’ that DHS relies on for its decision to proceed by emergency regulation consists almost entirely of second hand ‘reports’,” wrote Judge Hersher in a withering critique.

AB 394, the ratio law, was signed by former Gov. Davis in October, 1999. It required the DHS to establish minimum ratios for every hospital unit. After years of research, hearings, and public testimony, the DHS established minimum ratios of no more than five patients per RN in most hospital units. Those ratios went into effect in January, 2004.

In November, 2004, Gov. Schwarzenegger issued the first of two emergency regulations to suspend the ratios in emergency rooms, and delay for three years safer staffing in general medical units. CNA filed its lawsuit to overturn the emergency regulations in December, 2004, and has held close to 60 public protests against the governor over the past six months.