The Justice Report Summer 1999 An update from the Foundation for Taxpayer and Consumer Rights

The Foundation’s Consumers For Quality P RESIDENT’ S M ESSAGE Care Project Fuels the National HMO Help Wanted: Patients’ Rights Movement Patriots hen Senators and group; no ads, just a fax a day to keep By , President of the Foundation President Clinton held press the HMO’s at bay.” By late 1998, Wconferences across the nation President Clinton declared that a right Our democracy is in July 1999 to promote the Patients’ without a remedy is not a right—noting swarming with Bill of Rights, they turned to the he would not sign patients’ rights legis- mighty special interests. Lobbyists Foundation's Consumers For Quality lation that did not include reform of for the insurance Care (CQC) for patients to stand beside ERISA. companies, HMOs, them and tell personal stories of HMO In 1999, CQC has focused on edu- banks, utilities and abuses. Every day for five months in cating the public about the plight of other financial titans work hard to 1998, CQC sent 1,000 legislators and patients with no remedy and the ability protect their privileges and profits. media contacts a different story and pic- of states to enact HMO liability mea- At their hands, our nation’s tradi- ture of HMO medicine casualties who sures that bypass ERISA. A model tional values of justice, individual did not have a remedy due to the Texas law allows patients to sue HMOs prosperity and respect for the envi- ronment and human dignity are too Employee Retirement Income Security for quality of care violations. CQC has easily undermined. Moreover, many Act of 1974 or ERISA. CNN said of the worked with groups and legislators in elected officials are beholden to Casualty of the Day Campaign, “Far 23 states who have introduced legisla- these interests. So who is looking more effective [than HMO industry ads] tion based on the Texas law. That law out for the public’s interest? is this shoestring California consumer resulted in deterrence of HMO abuses We are. continued on page 4 The Foundation for Taxpayer and Consumer Rights is one of the nation’s largest non-profit, non-par- Auto Insurance Update tisan consumer protection organiza- tions. Based in California, with mod- est offices in New York, San FTCR Spearheads “Lifeline” Insurance For California’s Poor Francisco, and Washington, D.C., our mission is to counter-balance the or most Californians, getting to work means driving to work. Auto insurance lobbyists, the interest groups and F is mandatory and can be very expensive. While a “lifeline” for the poor exists their political allies. We’ve chal- for other necessities such as telephone and electricity service, low-income con- lenged them in the legislature, in court, and at the ballot box. We've sumers do not have a similar option for auto insurance. saved taxpayers and consumers liter- Without an affordable auto insurance policy, millions of Californians are forced ally billions of dollars. to drive uninsured. Yet, at no cost to taxpayers or other insured Californians - and a continued on page 6 likely reduction in car insurance costs across the board - the state can enact a low- continued on page 7 In This Issue:

¢ The Oaks Project Teaches FTCR Study Sparks Major Insurance Industry Accountability Legislation Citizens How to Become Leaders

March 1999 report published by FTCR, “The Low-Balling of the California ¢ Foundation Sues Aetna For A Insurance Claim,” has become the centerpiece of an effort by consumer Racketeering, Kaiser for groups to restore civil justice protections to innocent accident victims. Californians Advertising Fraud who are injured by reckless drivers are often further victimized by unscrupulous ¢ Foundation Announces New insurers that deny, delay or undervalue payment on a claim. Project to Protect Integrity and The report found that since 1988, when the California Supreme Court took Impartiality of the Judicial Process away innocent accident victims’ right to sue at-fault drivers’ insurers for bad faith ¢ and more... continued on page 7 Why Don't We Learn This Stuff in High School? The Oaks Project Teaches Citizens How to Become Leaders — Over 11,000 Letters Delivered to State Capitol

he Oaks Project began two The Oaks’ grassroots campaign to executives, testified at public hearings years ago with the purpose of pass Prop 9 was unprecedented. As and staged numerous successful press T building an organization com- part of a tightly organized effort, the events. prised of volunteer citizen leaders who, Oaks volunteers, going door-to-door Historic as the Oaks’ Prop 9 enter- as stated, prise was, the utilities anti-Prop would be “as strong and 9 campaign prevailed by out- sturdy and as well root- spending the grassroots team ed in communities, as by nearly 200 to 1. The utilities the oaks that line hid behind paid spokespeople California.” The Project and fictitious “committee” set out to teach the citi- names as they broadcast over zen “Oaks” all of the eight thousand TV commer- political and organizing cials to defeat Prop 9. The pub- skills that are too often lic never knew that utility com- withheld from the citi- panies were behind the ads. zenry. Right after the November Last year, the Oaks loss, the Oaks went back to Project, still in its infan- work. They began laying the cy, did what most orga- FTCR president Harvey Rosenfield and Oaks at Bonnie Raitt concert bene- groundwork for a campaign to nizations will never do: fit on Prop 9. bring “truth in advertising” to they placed a statewide the initiative process. initiative on the ballot. The Oaks col- and in front of supermarkets, personal- Their work turned into this year’s lected over one hundred thousand sig- ly spoke to nearly 1,000,000 voters! In educational campaign and legislative natures to sponsor Proposition 9, which addition to direct voter contact, Oaks bill, SB 1220 (Schiff). SB 1220 would have stopped the multi-billion placed opinion pieces in newspapers, requires that all ads for or against ini- dollar taxpayer bailout of the giant util- appeared as guests on TV and radio tiatives plainly disclose the real names ity companies. talk shows, debated utility company of the sponsors. If SB 1220 passes, continued on next page

The Oaks in Action

Why the People Must Be Vigilant Teaching the Pros…

aks volunteers—in Sacramento to the senator listened as the Oaks ou could hear snickering under O support Foundation bills—stood painstakingly explained that she had Y the breath of the professionals on open-mouthed as they watched the her facts wrong and that her vote a May day when two dozen Oaks in first Senate roll call vote on SB 1220, endangered the bill. The senator was t-shirts declaring “Stop Insurance the Oaks’ Truth in Initiative stunned to learn that her vote was Low-balling” filled the corridor out- Advertising Act. They were shocked needed. “This is a 2/3 [vote of all leg- side the California State Senate to see one prominent “No” vote, from islators] bill?” she asked. Every Oak chamber, the province of lobbyists in Senator Jackie Speier, in a sea of nodded. “Oh,” was her response. $500 suits and tassled, Gucci loafers. Democratic “Ayes.” When SB 1220 came up for a sec- But the chuckles stopped minutes Forty Oaks volunteers quickly ond vote, the Oaks held their breath as later when Senator Debra Bowen stormed into Senator Speier’s office. Speier’s name was called: “No to walked right past the pros and They did not budge when they were Aye” came the response — allowing straight up to Oak Mytyl Glomboske, told to speak to the senator’s staff. the bill to pass and proving once again assuring Mytyl that the Oaks would They wanted to speak to her. She that citizens in the Capitol can make a have Bowen's vote on all three agreed. They asked her to change her difference. ¢ Foundation bills being heard that day. vote. ¢ Faced with forty informed citizens,

2 OAKS - continued corporate polluters, for example, will delivered to members of the Assembly manent pursuits. And they are having a not be allowed to hide behind names and State Senate. They lobbied scores of great time giving the state's special like, “Californians for the representatives and testified at Capitol interests something to worry about. Environment.” The Oaks have turned hearings. They organized press events Stay tuned.... ¢ their Prop 9 experience into a larger and had over a dozen opinion fight to ensure the integrity of the initia- pieces published in major tive process itself. papers such as the San The Oaks organized a letter writing Francisco Chronicle and the drive that resulted in over 6,300 person- Orange County Register. al, hand-written letters and post cards SB 1220 cleared the Senate with a two-thirds vote. In a true showing of citizen power, one California Senator changed her vote from a NO to a YES after meeting with a group of Oaks Project Volunteers. The bill now moves to the Oaks don life jackets outside an Insurance Assembly. Committee hearing to dramatize the need The Oaks have also generated for “Lifeline” auto insurance for low- income drivers. over 5,600 letters and postcards on other Foundation issues, including HMO and auto insurance reform. Oaks meet with SB 1220 author, Senator The Oaks, strong and sturdy, understand Adam Schiff, after successful committee hearing. that citizenship and democracy are per-

Foundation Sues Aetna For Racketeering, Kaiser for Advertising Fraud

n the first federal class action lawsuit taining and improving quality while, in care at the company. The unfair business I against an HMO for racketeering fact, there is a systemic and coordinated practices lawsuit alleges that Kaiser, since the U.S. Supreme Court allowed effort by the company to undermine contrary to its advertising claims, has such lawsuits earlier this year, Aetna quality medical care in order to cut implemented systemic policies and prac- was sued for wide-spread fraud in its costs. tices based on monetary and profitability advertising, marketing and membership In March, the Foundation also filed a concerns that interfere with the medical materials. The suit was brought in con- first-of-its-kind lawsuit on behalf of judgment of Kaiser doctors. junction with the private law firm of Kaiser Permanente patients alleging that The case seeks monetary and injunc- Milberg Weiss Bershad Hynes & a $60 million per-year, mass-market tive relief, including an order to remove Lerach, LLP. advertising campaign by the HMO has the television ads from the air and to The case was filed on behalf of recruited nearly one half million new implement a corrective advertising cam- patients under the Racketeer Influenced members through misrepresentation. paign. and Corrupt Organizations Act (RICO) According to the complaint, the Both cases have received national in the United States Court for the HMO advertises that only doctors, not media attention, including articles pub- Eastern District of Pennsylvania on administrators, make decisions at the lished in the New York Times and April 16th. It alleges that Aetna consis- HMO and that only medical need and Washington Post. ¢ tently advertises and represents that all independent medical judgment, not of its policies are committed to main- financial concerns, determine a patient’s

3 Aetna CEO Attacks “Weeping Widow” avid Goodrich, a district attorney ing his resignation. “If Aetna is dedicat- California Congressman Pete Stark, the D who risked his life by prosecuting ed to making things better for its ranking Democrat on the House of gang violence, died of stomach cancer patients, Mr. Huber does not belong as Representatives Ways and Means Sub- after a two and one-half year ordeal try- your C.E.O,” Committee on Health, went on the ing to obtain Aetna’s approval of cancer they wrote. “The record in the February 10th treatment recommended by his Aetna true travesty of Congressional record. “Is this really the doctors. In January, a San Bernardino justice would be kind of CEO we would want as head of County jury issued a $120 million if Mr. Huber the nation’s largest health insurance rebuke of Aetna’s handling of remains at the company?” Stark stated in a section of Goodrich's treatment. Aetna’s CEO helm of Aetna the record headed “What Aetna Isn’t Richard Huber responded: “This is a and company pol- Telling You About The Goodrich Case.” travesty of justice. You had a skillful icy continues to Printed in the record also is the ambulance-chasing lawyer, a politically be indifference to Foundation’s letter to Aetna’s Board of motivated judge and a weeping widow.” its dying patients David and Teresa Directors, a letter to Congress, and the (The Hartford Courant, January 22, and to juries that Goodrich point-by-point refutation of Aetna's mis- 1999) condemn such policies.” statements. Times columnist Ken After a barrage of press, Aetna Finally, Huber was forced to apolo- Reich reported that Huber, “expanded issued a very misleading statement to gize to Mrs. Goodrich. “I want to assure his complaints, telling me that juries are Congress defending its conduct toward you that I did not intend for the com- customarily not intelligent enough to the Goodriches to which the Foundation ment to minimize in any way the devas- consider complicated contractual issues responded with a point-by-point refuta- tation you feel at the loss of a loved and that this one in particular was too tion and these comments: “Aetna's lack one,” Huber wrote. ill-informed, as a result of the judge’s of remorse and the unwillingness to While she appreciated the note, evidentiary rulings, to render a sound accept responsibility in this case is a Teresa Goodrich said: “He did not apol- verdict.” symptom of the company’s larger defi- ogize for what Aetna did to my hus- Foundation president Harvey ance of civil society’s mandates. Such a band, and that is really what I would Rosenfield and advocacy director Jamie company should not be entitled to feder- like to have an apology for.” ¢ Court wrote Aetna’s board of directors al contracts.” citing Huber’s lack of remorse and seek- Seizing on the Foundation's letter,

Aetna-Prudential Merger Challenged PATIENTS’ RIGHTS hen the U.S. Justice Department • The “campaign for patients’ rights is continued from page 1 W approved the $1 billion Aetna- an empty gesture if Federal officials but not cost increases or litigiousness. Prudential merger in June 1999, it was ignore the growing concentration of In California, the Foundation is with one big caveat—the company was the managed-care industry.” sponsoring landmark legislation, Senate forced to divest of nearly one half mil- • “The Justice Department has railed Bill 21 (Figueroa), that allows injured lion members in Texas—a recommenda- against physician unionization as a patients to receive damages against their tion of the Foundation’s Consumers for threat to free-market competition, but HMO both for quality of care violations Quality Care project and, no doubt, a the Administration has failed to break and if the HMO does not live up to the disappointment for Aetna CEO, Huber, up a single H.M.O. merger.” obligations in its insurance contract. who had called Texas “the filet mignon” • “If Aetna is allowed to buy Prudential The San Francisco Chronicle editorial- of the deal. CQC had urged federal and Health Care, the resulting company ized for SB 21, “the remedy for the state regulators to stop the pending would be in a powerful position to injustice of allowing the HMOs to merger. Before the modifications, the grind its payment rates so low that remain unaccountable must be state company was to insure one out of every physicians could not adequately care law.” The bill passed the California ten Americans; now it will insure one of for patients.” Senate in May on a vote of 21-16 and eleven. The Foundation’s opposition the Assembly Judiciary Committee in Letters and full testimony are online was noted repeatedly in the New York June with Republican support. at www.consumerwatchdog.org. ¢ Times, including these observations in CQC continues to serve as a national an April 30th article: clearinghouse of information about patient problems with HMO medicine continued on next page

4 The Bills Project Exposes Fraud and Errors in Consumer Billing he Bills Project is currently produc- the following actions: minute national long-distance call, T ing a landmark consumer report • Garnering national media attention, without giving any prior notice of the entitled, We All Pay The Price: The including an article in U.S. News and higher charges. The FCC has since Prevalence of Misbilling in America, World report, by publicizing the ille- ruled that MCI’s imposition of these that will be issued this year. The report gal practices of Chevy Chase Bank charges is illegal. documents fraudulent, erroneous and and First USA in raising cardholder • Contesting the lobbying efforts by deceptive billing practices in the med- interest rates to levels as high as the cable industry to institutionalize ical, financial, utility, retail and services 30%, organizing consumers to file late charges of $5.00 or greater on sectors. It also documents the billions of complaints with federal regulators cable bills in Illinois and Oklahoma. dollars of overcharges paid by the U.S. and elected officials, and working government each year and will include • Combating erroneous and fraudulent with attorneys to file class action liti- charges on medical patient bills and proposed “Truth in Billing Legislation” gation against these companies. that will offer consumers numerous pro- recently presenting preliminary find- tections. • Publicizing the practice by MCI and ings from its report at the Medical The Bills Project has also actively Sprint of charging their customers Billing Advocates of America’s first ¢ combated billing abuses involving credit so-called “casual rates,” which can annual conference. card, utility, and medical bills through result in a $2.50+ charge for a one-

CCAIR Takes on Tort Deformers he corporate-led attack on the right provide organizations and individuals PATIENTS’ RIGHTS continued from previous page T to trial by jury in civil cases—so- concerned about civil justice issues with called “tort reform”—has sunk millions useful and current information on a reg- and the lack of accountability for HMOs of dollars into hundreds of industry- ular basis. Toward this end, CCAIR reg- under the law. With a grant from the sponsored conservative groups, “think- ularly sends important “alerts” and fact Civil Justice Foundation, CQC is creat- tanks,” polling and lobbying firms, try- sheets on civil justice issues to over 300 ing a computerized directory of thou- ing to win legal immunity for companies key state-based groups, individuals and sands of patients who have suffered whose practices injure and kill innocent media outlets. HMO abuses and medical mishaps. consumers. In a major step towards CCAIR has had an extremely suc- Support from the Massachusetts-based countering this movement, last year cessful first year raising public aware- Institute For A Civil Society has allowed Citizens for Corporate Accountability & ness about the dangers of “tort reforms” the Foundation to complete a book about Individual Rights (CCAIR)—a assisting in key state battles and influ- the vices of HMO medicine and possibil- Foundation project led by Joanne encing the media in its coverage of these ities for reform. Making A Killing: Doroshow—was formed as the first issues. For example, the June 6, 1999 HMOs and the Threat to Your Health, national consumer organization dedicat- edition of the Sunday New York Times written by Jamie Court and Frank Smith, ed exclusively to reversing the momen- “Week in Review” section featured will be published by Common Courage tum for “tort reform” in this country. In Joanne and CCAIR in a story about Press this fall. ¢ August 1998, CCAIR opened a New media distortions of civil justice issues. York City office to, among other things, In July CCAIR released a new report help develop a coordinated national entitled The Failure of “Tort Reform” to Making a media focus. Cut Insurance Prices, the most exten- Killing can CCAIR is starting to steer the politi- sive review of insurance rate activity in cal debate over “tort reform” away from the wake of the liability insurance crisis be ordered lawyers and lawyer-bashing (where cor- ever undertaken. toll-free at porations have tried to put it), and For more information, contact toward issues of corporate accountabili- CCAIR at its New York office: (212) 1-800-497- ty and individual rights, where it 267-2801. ¢ 3207, or on belongs. One of CCAIR’s first priorities has been to fulfill an immediate need to the web at www.commoncouragepress.com.

5 Foundation Announces New Project to Protect Integrity and Impartiality of the Judicial Process s keepers of the official record of sitions to record summaries of the depo- and others that compromise the impar- A legal proceedings, court reporters sition as dictated by the insurer’s coun- tiality of officers of the court. The are essential to the integrity of our jus- sel. The ultimate and most serious con- Foundation staff has also provided key tice system. They must retain an impar- sequence of this trend is the undermin- educational materials as well as drafted tial role in the adversarial process. ing of the integrity of the judicial system model legislation and rules. Increasingly, however, this long-stand- in and of itself as a neutral mechanism As a result of the project’s efforts, ing principle is being undermined by for resolving disputes. there are currently over twenty states major litigation payors, largely insur- To reverse this growing national with legislation, court rules or regula- ance companies and other national cor- problem, the Foundation for Taxpayer tions pending to prohibit court reporters porations, that are contracting directly and Consumer Rights’ Fair Justice from having preferential contractual with some court reporting agencies to Project is being organized by a full-time relationships with interested parties in report all their depositions in all their staff attorney, Pam Pressley. Pressley litigation. Already this year, Indiana has cases. works with court reporters, attorneys, passed a law and the Arkansas Supreme These arrangements, at the very judges, and other concerned citizens Court has adopted a similar court rule least, undermine laws prohibiting acts across the country to plan educational that will preserve court reporter impar- by court reporters that create an appear- and judicial efforts to prohibit interested tiality. ance of partiality, and, at worst, give parties in litigation from entering into In August FTCR organized a press preferential treatment and extra services preferential agreements with members conference in Boston attended by court that threaten consumer privacy. These of the court reporting profession. reporters from around the country to abuses include compiling witness data- The Foundation will serve as a release a first-of-its kind white paper bases of deposition testimony for use in nationwide clearinghouse for documen- documenting the abuses posed by pref- later cases, providing transcripts on an tation of problems raised by improper erential insurer deals with court expedited basis, and staying after depo- relationships with insurance companies reporters. ¢

President’s Message FTCR Offers Nation’s continued from page 1 Public Power Agencies This year, our lawyers have challenged the organizing campaign. HMOs’ dangerous medical practices in land- Lessons From California mark lawsuits to protect health care quality. We’re recruiting 1000 people who are willing We've sued to force insurance companies to to roll up their sleeves and work hard to pro- Deregulation Debacle base auto insurance premiums on a mote democracy at the neighborhood, city, motorist's driving record, rather than zip state and federal levels. These "Oaks"—so TCR staff advocate Doug Heller code. And we've gone to court to protect named, because they must be strong and spoke to representatives of the firmly rooted in their community—agree to F seniors against rip-offs in long term care nation’s public power agencies and the policies. volunteer fifteen hours a month (a nation’s largest bond investors about the FTCR’s legislative fraction of what the dire impacts of “electricity deregulation” advocates are work- average American on residential and small business con- ing to maintain the spends watching TV). independence of In exchange, FTCR sumers as well as municipal power com- the court system provides intensive panies. At the April conference in New and protect the training and hands-on York City, Heller offered lessons from integrity of the ini- experience in the California’s anti-consumer electric tiative process. We tools of citizen advo- wrote a proposal to cacy. restructuring process. “Armed with bil- lower premiums by lions of dollars in corporate welfare, the ensuring that all Over two hundred Californians have private utilities are poised to take full motorists can carry control of the utility industry,” Heller insurance. become Oaks so far. warned. “An unwillingness to stand up to Meanwhile, our Their work has researchers are developing new protections already garnered widespread national atten- the private electric monopolies could against those incomprehensible and often tion from the news media. Consumer advo- mean the death of publicly-owned utili- incorrect bills that you receive from the hos- cate Ralph Nader is a frequent lecturer at ties and result in dramatically higher pital, credit card companies and utilities. Oaks events. In the long run, nothing is more prices to electricity consumers.” ¢ To fulfill our mission, however, the crucial to the success of the Foundation's Foundation needs more than advocates, work than these citizen activists. researchers and lawyers. That’s why FTCR has undertaken an unprecedented citizen

6 LIFELINE continued from page 1 cost automobile insurance program her top legislative priorities for 1999 which will make affordable auto insur- and authored SB 171, the Lifeline Auto ance available to millions of low- Insurance Plan. FTCR has developed income Californians. tremendous consumer and low-income In 1997, FTCR testified before the group support for this proposal, which Department of Insurance to the impor- passed the Senate on a vote of 24-12. The Foundation for Taxpayer and Consumer Rights 1750 Ocean Park Blvd., #200 Santa Monica, CA 90405 310.392.0522 310.392.8874 Fax www.consumerwatchdog.org

Harvey Rosenfield President

Jamie Court Advocacy Director

Rodger Talbott Executive Director tance of developing a means for California would be the first state in the Bill Gallagher California’s working poor to obtain auto nation to enact this essential insurance Oaks Project Director insurance. During 1998, FTCR, work- reform. ¢ ing with nationally recognized actuary Doug Heller Allan Schwartz, developed the “Lifeline Consumer Advocate Automobile Insurance Plan.” This plan ACCOUNTABILITY requires auto insurers in the state to sell continued from page 1 Pam Pressley Staff Attorney/Fair Justice a basic liability policy to qualifying and improper dealing, insurance compa- Project Organizer low-income drivers at a premium of nies have: $300/year for drivers with no violation • increased profit margins by 300%, points in three years or $400 for drivers largely by cutting the percentage of Andy Pontious with one point. With the state mandat- premium returned to accident vic- Patients Rights Advocate ing the purchase of auto insurance and tims by 40%. heavily penalizing those who drive Melissa King • decreased the inflation-adjusted without it, it is essential that provisions Legal Assistant are made for those least able to afford to value of a liability claim by 29.1% insure. Furthermore, under Insurance in California. In 1998, Californians received one quarter less for a claim Paul Herzog Commissioner Quackenbush’s Ted Cahill than the national average; Proposition 213, uninsured motorists Nick Wirz • paid 26% fewer claims to California cannot collect pain and suffering dam- Staff Organizers ages when in an accident. Lifeline Auto accident victims while accident vic- Insurance will provide much needed tims nationwide saw an 8.5% increase in claims settled; Chris McGinn relief to those motorists who are now Legal Intern criminalized because they cannot afford After the report’s coverage in the auto insurance, and it will create sav- and Sacramento Patrick Wirz ings to those who already buy uninsured Bee, California State Senator Martha Webmaster/Newsletter Designer motorist coverage. Escutia introduced, SB 1237, which California State Senator Martha has passed the Senate and the Escutia made low-cost insurance one of Assembly. ¢

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