Posts Tagged 'justice'

Andy Lopez case: Sonoma DA used pro-police expert witness to justify not charging deputy who shot Andy

The Sonoma, California DA who refused to charge the deputy who murdered Andy Lopez used a pro-police expert witness to justify her decision.  The deputy has a history of violence and lying.

UPDATE: to get an idea of the atmosphere of intimidation in Santa Rosa about the Andy Lopez case, the July 11 2014 “Stop Mass Incarceration Bay Area” email list, (, reports: “Three of Andy’s Youth, ages 13 and 14, were roughed up by the police after leaving the Tuesday rally. The activists in Santa Rosa have been working on get the facts of the story organized. I have been working through last night and this morning to see if lawyers can file a complaint against “sexual assault”. The behavior of the SR police was Extremely inappropriate. As the 3 young women begged the cops for a female officer to search them – the were told to “spread your legs. Spread your legs wide” followed by the officer kicking their legs out to a wide stance. The MALE office then ran his hands over the girls and into their pockets as they protested pleading to not be hurt and for a woman officer. If the plan goes right – There will be a press release tomorrow morning and they will file a claim with the City.”

SF Chronicle, Friday, July 11, 2014

Expert witness in toy-gun case has history of siding with police

Bob Egelko

Called on to investigate the fatal shooting of a toy-gun carrying 13-year-old boy by a sheriff’s deputy, Sonoma County District Attorney Jill Ravitch chose a consultant she described as “an independent, outside expert on human performance in high-stress encounters, such as officer-involved shootings.”

One quality of William Lewinski that Ravitch didn’t mention was his reliability to side with police.

Lewinski, whose website describes him as “one of the nation’s foremost authorities on reaction times and shooting dynamics,” divides his time between training police officers, researching their conduct and testifying on their behalf, usually to dispute accusations of wrongful shootings.

Since 1990, he has testified for police in more than 75 cases in the United States and several in Canada and Great Britain. The Police Firearms Officers Association in Britain honored him in 2009 with its first life-member award for his “commitment to firearms officers in the U.K.,” particularly two he helped to exonerate of murder charges.

One courtroom adversary, Pasadena attorney John C. Burton, who has clashed with Lewinski in two police-shooting cases, describes him as “an uncredentialed police expert who will say whatever they need to justify the situation.”

Had to keep firing

In the Sonoma County case, Deputy Erick Gelhaus shot Andy Lopez seven times on Oct. 22 as the teenager walked near his Santa Rosa home, carrying a plastic AK-47 rifle, its distinctive orange tip removed by a friend.

In his 14-page report, Lewinski found Gelhaus’ explanation supportable “to a high degree of scientific certainty.”

The rifle, he wrote, looked like the real thing from a distance, and Gelhaus had good reason to think his life was in danger when the boy started to turn toward him after being told to drop his gun. “From a behavioral science perspective and an action/reaction paradigm,” Lewinsky said, Gelhaus couldn’t wait until the gun was pointed at him, but had to fire, and keep firing, until the perceived threat was removed.

Lewinski said he reviewed statements by other witnesses, but interviewed only Gelhaus.

Likewise, he interviewed only one person – former BART police Officer Johannes Mehserle – before testifying at Mehserle’s murder trial for fatally shooting unarmed passenger Oscar Grant on an Oakland transit platform in January 2009.

Brought in as an expert witness on police psychology, Lewinski wasn’t allowed to say whether he thought the shooting was justified. But he told the jury in 2010 that factors such as “inattentional blindness” and “muscle memory”can cause an officer under stress like Mehserle to mistake his gun for a Taser, carried on the opposite hip, and to perceive that his captive may be armed and dangerous, even though he was lying face down with another officer kneeling on his shoulder.

The jury acquitted Mehserle of murder and convicted him of involuntary manslaughter. Lewinski also testified for Mehserle last month before a federal jury in San Francisco that found the officer had not violated Grant’s civil rights.

Weighed against other evidence in the two cases, Lewinski’s opinions don’t appear to be extreme. While protesters in Sonoma County continue to demand criminal charges against Gelhaus, they haven’t come up with evidence to contradict Lewinski’s conclusion that the officer thought Andy Lopez was carrying a real gun.

Stacking the deck?

The question that’s now being raised is whether Ravitch, the district attorney, was trying to stack the deck with her choice of consultants.

“He’s an opportunist who will say whatever is expedient to get the cop off, so why in the world would any reputable district attorney’s office rely on someone like him?”asked Oakland attorney Michael Haddad, who tangled with Lewinski over a 2000 police shooting in Oakland. Haddad is president of the National Police Accountability Project, a group of lawyers who sue police, often with the aid of their own experts.

Ravitch responded to an inquiry by listing Lewinski’s academic credentials.

Lewinski didn’t respond to requests for comment, but he’s replied to similar criticisms in the past, most recently after an office that reviews complaints against police in British Columbia said it would stop using him as an expert consultant. One official said Lewinski’s reports seemed biased.

“The science I share in the context of my work is held in the highest regard by top experts in the legal, academic and criminal justice communities worldwide, “Lewinski said in an August 2013 e-mail quoted by CBC News.

Pioneered the field

A native of Canada, Lewinski earned a doctorate from Union Institute, taking his courses online. He then pioneered – or, his critics would say, invented – the field of police psychology, founding a research center now called the Force Science Institute at the University of Minnesota at Mankato, where Lewinski was also a professor for 28 years.

Asked at last month’s Mehserle trial about the fees he charges as an expert witness, Lewinski did not give an exact figure, but said the payments include $475 an hour that goes to the institute.

He regularly testifies that police are justified in opening fire as soon as they perceive a potential threat and can’t wait until they see a gun pointed at them. If Gelhaus, in the Santa Rosa case, had waited until Andy Lopez had fully turned toward him, Lewinski wrote, “he could be shot at multiple times before he could respond.”

‘Shoot-first doctrine’

Lewinski’s shoot-first doctrine led to what he described as a major victory in the case of Anthony Dwain Lee, a Hollywood actor who was fatally shot in the back by a Los Angeles police officer at a Halloween party in 2000 after showing up in costume and pulling out a real-looking toy gun. After Lewinski’s research on reaction times showed that the officer could have been acting in self-defense, he said on his website, the family’s $100 million suit against the officer and the Los Angeles Police Department was settled for $225,000.

But there have also been defeats, like the case of Willie Wilkins, an undercover Oakland police officer shot to death by fellow officers as he tried to arrest a suspect in 2001.

Lewinski, hired as an expert by the city in a damage suit by Wilkins’ family, cast doubt on the testimony of other officers who claimed to have heard Wilkins identify himself before he was shot. Stress, he asserted, may have confused them or clouded their memories. Haddad, the family’s lawyer, challenged Lewinski at a lengthy deposition and said the witness wound up admitting that his confusion-under-stress theory would apply equally to the officers who fired the fatal shots.

The city settled the suit for $3.5 million.

Lewinski is “charming,” Haddad said in a recent interview, but “his opinions can be pretty flaky.”

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: Twitter: @egelko

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SF Chronicle, Tuesday, January 7, 2014

New accusations against Santa Rosa deputy who shot boy

Henry K. Lee

SANTA ROSA — The Sonoma County sheriff’s deputy who shot and killed a 13-year-old boy after mistaking the youth’s replica gun for an assault rifle has a history of excessive force and questionable judgment, the teenager’s family said Tuesday in an amended lawsuit.

Deputy Erick Gelhaus had been involved in several controversial incidents long before he encountered and shot dead eighth-grader Andy Lopez in October, the suit said.

In 1996, Gelhaus pointed his gun at a woman “carrying her young son” after she had called for help in connection with a dispute with a neighbor, the suit said. “He chased her around her vehicle, causing her great fear and anxiety,” the complaint said.

Around that same year, Gelhaus and his partner were accused of falsifying police reports in a domestic violence matter, the suit said. The other deputy, whose name wasn’t released, was fired, according to the suit.

The suit also cites an incident in August, two months before the teenager was killed, in which Gelhaus allegedly pulled a gun on motorist Jeffrey Westbrook two times during a traffic stop on Highway 101 in Cotati. Westbrook told The Chronicle that the interaction troubled him so much that he recalled asking the deputy at one point, “Sir, is there something wrong with you?”

Sheriff’s officials “were long aware of the propensity of defendant Gelhaus to recklessly draw his firearm and to use excessive force,” said the suit, which the family first filed in November. The new allegations were added to the suit Tuesday.

Sheriff’s officials have not responded to the fresh allegations in court.

On Oct. 22, Gelhaus and a deputy he was training pulled up behind Andy, who was holding what turned out to be a replica AK-47 pellet gun in his left hand near his home outside Santa Rosa. A witness heard Gelhaus yell at the boy twice to drop the weapon, police said. Gelhaus has told investigators that he fired when the boy turned and the barrel of the rifle rose toward the deputies, he said.

An attorney for Gelhaus has said that the deputy “absolutely believed it was a real AK-47 and absolutely feared for his life.”

Gelhaus, an Iraq War veteran and frequent contributor to law enforcement magazines and online forums in which he promotes officer safety, “instructed and advised others on the use of questionable tactics, including recommendations as to how an officer must respond to justify shooting a kid with a toy gun,” the suit said.

After shooting the boy, Gelhaus deleted his online comments “in an effort to conceal his beliefs,” the suit said.

Gelhaus had not previously not fired on anyone in his 24 years with the Sheriff’s Office, where he has served as a field training officer for new recruits and trains colleagues to shoot at the department’s gun range. But the suit cites an incident in 1995 in which he accidentally shot himself in the leg while on duty, reportedly while holstering a gun.

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Report on the Speak-Out in Oakland following the Mehserle verdict

Report on the Speak-Out in Oakland following the Mehserle verdict

I joined many hundreds at a speak-out at Broadway and 14th St. from 6-8 PM the night of the manslaughter verdict in BART policeman Johannes Mehserle’s straight-out murder of Oscar Grant. The speak-out was organized by One Fam and the New Year’s Movement for Justice for Oscar Grant, and was done as an opportunity for young people to express their feelings at seeing yet another murder of a young black man by a police officer who is barely slapped on the wrist. (See video of press conference several days earlier, announcing the speak out.) The people were largely young people and older family members or older people who responded to a call to be present to protect the younger people from the police. There were a substantial number of younger white people.

You can see Bill Carpenter’s video of part of the speak-out here. You can also read a complete and non-sensational account of protest activities that evening here. This account is good because it describes the frustration people felt after the speak-out at being penned in by the police and not allowed the right to march, which would have been a reasonable expression of political outrage.

The speak-out itself took place in a very threatening situation. The stretch of Broadway between 12th and 14th Streets is an intersection of several major streets, and all of the streets were blocked off by formations of police in riot gear several rows deep. Police snipers looked down from the tops of the huge office buildings, and police helicopters circled overhead. In contrast, the atmosphere of the speak-out was very warm, with barely, barely contained rage at the system on one hand, and big support for the people, mostly young, who spoke and with hugs and profuse thanks to everyone for being there.

This is a report on what people said in their short turns at the microphone.

Virtually everyone gave their condolences to Oscar Grant’s family; many had some connection with the family or with Oscar himself.

Everyone was outraged that a killing of a young black man by a white policeman that was documented beyond any denial, and that was laced such obvious racism by some of the BART police should have been judged involuntary manslaughter, the least severe offence short of outright acquittal.

Virtually everyone said that the police and justice system were racist to the core, that there was no way minorities could get justice from the system, and that black and other minority young people were regularly killed by police with impunity.

Many said that only thing different about this case was that it was so completely documented and publicized, that nobody could deny or try to make us forget that this was a police killing of a black man who was lying down with his hands behind him with two police officer’s full weight on his back and neck. And still the police officer that shot him got only a slap on the wrist.

Some people pointed out that of all the police shootings in Oakland (45 reported between 2004-2008, 80% with black male victims) none had resulted in police being tried, let alone convicted, so there was a small victory in this verdict. People also expressed hope that a federal investigation would lead to federal charges against Mehserle.

Many people called for charges against ex-BART police Tony Pironi and Marysol Domenici, especially for Pironi’s role in (barely) leading police operations at Fruitvale BART that morning, in singling out and punching Oscar Grant as Grant tried to calm the other detainees as they sat along the wall prior to the shooting, and for his racist outbursts (“bitch-ass nigger”) shortly before the shooting, arguably the incitement leading Mehserle to murder Grant.

Several people spoke about how the mass incarceration of black youth was a slow form or police murder, and how the prison-like school system and lack of jobs was shuttling minority kids from school to prison.

Many people applauded when several speakers said that capitalism and racism were partners in crime, that they depended on each other, and that the only way to get rid of racism permanently was to get rid of capitalism.

Finally, on the subjects of violence and rebellion, which could not help but be foremost in peoples’ minds, there was a diversity of feelings.

Absolutely everyone agreed that tonight was NOT the night for violent rebellion. Oakland had assembled 6,000 police and tens of thousand National Guard and had been training them for weeks for tonight. People repeatedly warned about plainclothes police agents that would probably try to incite crowds to violence that night.

Some speakers said violence and rebellion were intrinsically bad, and for us to engage in violent rebellion would make us in as bad as them.

Some speakers said Oakland is our city, and please don’t trash it.

Many people said tonight was no night for rebellion, but we need to hold onto our anger and our determination, and keep coming back, coming back, demanding our rights, and not stop until we got them.

Other people said that although it was imperative to be cool tonight in view of the overwhelming odds against us, it’s also essential to remember that it was only the January rebellions that resulted in Mehserle being taken into custody and charged. Before the January rebellions, the City and BART police had dithered around doing nothing, allowing Mehserle to lay low, get his strategy together, and hope things cooled down.

Finally, to put this all in context, I’d like to print part of an IndyBay posting:

According to Oakland’s December 11, 2008 Citizens’ Police Review Board’s Policy Forum on Officer-Involved Shootings, an estimated 45 reported officer-involved shootings occurred from 2004-2008 in Oakland. Victims’ ages ranged from 16-50 years old; of these victims, 36 were African American males, 7 were Hispanic males, and the remaining 2 were an Asian male and an African American female. All of the shootings were “deemed to be in compliance with Departmental policy.” In 2008/2009 the Oakland City Attorney’s office paid out $3,755,698 for documented claims and lawsuits on police matters. These payouts were founded in claims and litigation about excessive police force and fatal/non-fatal police shootings. These claims do not reflect the thousands of complaints brought to the Oakland Police Department’s Internal Affairs Department, nor does it reflect experiences of harassment, violence and racism of residents at the hands of the police that go undocumented .

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Schwarzenegger threatens to eliminate IHSS if he’s not given complete freedom to slash programs

“The Governor in his letter specifically cited recent federal court decisions that has blocked the State from implementing budget reductions impacting the State’s contribution (participation) toward IHSS worker wages; blocked a 10% reduction in reimbursements to foster family agency providers, blocked a 10% and 5% reduction for most Medi-Cal providers; stopped a reduction in the number of days Adult Health Care Centers could provide services; stopped major reduction in elgibility and services  based on a little known assessment tool (called the functional index scores and rankings) that would have eliminated or reduced services to over 130,000 children and adults in the IHSS program. The federal courts have said those reductions that the State wanted to make in order to close a budget gap of over $60 billion, violated federal law.

San Francisco and Sacramento Gray Panthers were among the plaintiffs in the successful suits against reductions to Medi-Cal providers.  Schwarzenegger has refused to consider single-payer healthcare, which could eliminate billions of state healthcare expenses.  He has also refused any serious attempts to raise revenue from corporations or rich Californians who could afford to pay the revenue the state needs to provide needed services in health, welfare, education, housing,  and many other vital services.

CDCAN Report, #326-2009, December 22, 2009

State Budget Crisis:



SACRAMENTO, CALIF (CDCAN) [Updated 12/22/09 07:50 PM  (Pacific Time)]  – Citing an increasing heavy burden of costs imposed on the states at a time when most are experiencing enormous budget shortfalls, Governor Arnold Schwarzenegger early this evening released a letter addressed to House Speaker Nancy Pelosi (Democrat – San Francisco) urging that Congress not impose increased Medicaid program costs on states through new unfunded federal requirements (mandates) and allow states the flexibility to reduce reimbursement rates and benefits to recipients, in the pending health care reform bills.  The Governor said in his letter that the latest health care reform bills would increase California’s unfunded mandate costs through new Medicaid and other health requirements by over $3 billion, adding to the state’s budget woes.

But the Governor also mentioned in his letter what will likely be an politically explosive proposals of the possible elimination of the entire In-Home Supportive Services (IHSS) program that provides in-home supports and services to over 462,000 children and adults with disabilities (including developmental), mental health needs, the blind, persons with traumatic brain and other injuries, low income seniors.

The Governor, in his letter that also went to all members of California’s congressional delegation, said that the combination of recent court decisions blocking many of the state budget cuts to Medicaid funded services including and lack of “flexibility” in current federal Medicaid rules to allow the states to reduce services or provider reimbursement rates when necessary, will mean that “California is now faced with a decision to eliminate the entire IHSS program”

The Governor did not firmly say that the proposed elimination of the entire IHSS program would be in his proposed 2010-2011 State Budget, expected to be releasd January 8, 2010 – but today’s letter was the strongest indication that it would be.

Any such proposal however would require approval by both the Assembly and State Senate – and advocates and advocacy organizations, representing disability, mental health, the blind, low income seniors, IHSS workers are certain to  raise major protests to have such a proposal rejected immediately.

Both houses of the Legislature are in recess and are not scheduled to return to the State Capitol to begin the 2010 legislative session until Monday, January 4.

Governor Says Health Reform Bill Must Give States “Flexibility”

The Governor, in his letter to Pelosi, wrote that  “…For health care reform to succeed, Congress must first and foremost give states the flexibility to meet our current obligations within the revenues available to states…Congress must either let states reduce their costs to live within limited resources or treat states equally by fully funding all Medicaid populations above a certain eligibility level…”

The Governor said in his letter that “Congress has a chance to make history with this legislation,” but that  “the current structure and the proposed expansion of Medicaid under health care reform are unsustainable for California. Governors in every part of the country have raised similar concerns. “

He said that “California stands ready to help achieve successful health care reform, and I look forward to continuing to work with you as the final comprehensive bill is negotiated in Congress”.

Congress is expected to take final action on a reform package sometime early next year – but the Governor stressed in his letter to Speaker Pelosi that the reform effort “…will only succeed if Congress gives states, like California, the flexibility to meet current obligations within the revenues available to states.”

Governor Says Court Decisions and Federal Rules Hampering Efforts To Control Costs

The Governor in his letter specifically cited recent federal court decisions that has blocked the State from implementing budget reductions impacting the State’s contribution (participation) toward IHSS worker wages; blocked a 10% reduction in reimbursements to foster family agency providers, blocked a 10% and 5% reduction for most Medi-Cal providers; stopped a reduction in the number of days Adult Health Care Centers could provide services; stopped major reduction in elgibility and services  based on a little known assessment tool (called the functional index scores and rankings) that would have eliminated or reduced services to over 130,000 children and adults in the IHSS program.

The federal courts have said those reductions that the State wanted to make in order to close a budget gap of over $60 billion, violated federal law.

The Governor said those lawsuits, and also what he termed lack of “flexibility” in federal Medicaid laws that make it difficult for the states to make changes or reductions in services and eligibility and provider reimbursements will have serious consequences on the state’s Medi-Cal program and related services in the coming year.

The Governor in his letter wrote that “Ironically, while federal courts have ruled that California cannot reduce provider rates for optional benefits such as dental services or IHSS, they have ruled that completely eliminating those same optional benefits is perfectly legal. Adult dental was eliminated as part of our effort to close a $62 billion budget gap earlier this year.”

The Governor noted that “If states had more flexibility to reduce rates and benefits under Medicaid rules, we might have been able to save a portion of that program. Similarly, we reduced services to specified populations in our In-Home Supportive Services program, but federal court decisions have prevented those reductions from occurring.” and warned that “ California is now faced with a decision to eliminate the entire IHSS program.”


December 22, 2009

The Honorable Nancy Pelosi

Speaker of the House

U.S. House of Representatives

Washington, DC 20515

Dear Madam Speaker,

As one of the few governors in the nation who attempted to pass comprehensive health care reform at the state level, I have great appreciation for the historic effort you are leading in Congress.  In fact, I am one of the only Republican elected officials in the country to publicly support the President’s health care reform efforts.

When asked for my support, I was assured that federal legislation would not increase costs to California or include new unfunded mandates. Unfortunately, under nearly every scenario we can predict, the federal health care reform legislation being debated would cost California’s General Fund an additional $3 billion to $4 billion annually. This crushing new burden will be added to a safety net that is already shredding under billions of dollars in unfunded federal mandates that we are struggling to meet. Medicaid is a partnership program between the federal government and the states. As the partner responsible for implementing this program, I am telling you that our Medicaid program is already at the breaking point, and if federal health care reform is passed without addressing the underlying faults in the system, health care reform will fail.

Let me be clear: I continue to support federal health care reform and believe that the current reform efforts could provide a historic achievement that will benefit all Americans. However, if Congress fails to address the existing unfunded mandates and adds yet another layer, federal health care reform could collapse the very safety net system it seeks to expand.

For health care reform to succeed, Congress must first and foremost give states the flexibility to meet our current obligations within the revenues available to states.

Giving California Flexibility to Manage Its Current Medicaid Budget

Under federal rules, California is locked into eligibility standards and benefit levels that are far more expansive and costly than other states’. For instance, Texas’s Medicaid program covers parents with incomes up to 27 percent of the Federal Poverty Level (FPL); Pennsylvania covers those earning up to 34 percent of FPL and Florida up to 53 percent. California has expanded coverage over the years and now covers parents with incomes up to 106 percent of FPL. Federal rules for accepting American Reinvestment and Renewal Act funding prevent California from rolling back eligibility to 70 percent of the FPL to adjust our budget for lower revenues during the recession. Reducing eligibility to 70 percent of FPL in California would save more than $500 million General Fund dollars and would still cover more people than many other states.

Federal rules actually punish California twice for expanding our safety net. First, maintenance of effort rules prevent us from targeting limited resources toward the neediest populations as described above. Second, under health care reform, the federal government will shoulder almost the entire cost for states like Texas to expand their coverage from 27 percent of FPL up to whatever the federal mandated coverage level is, while California must continue to pay half the cost for populations below 106 percent. Thus, states that made little or no effort to expand coverage to low-income families are rewarded with either 82 percent or 91 percent federal funding, and states that did expand coverage, like California, are punished with costs that other states never incurred. Congress must either let states reduce their costs to live within limited resources or treat states equally by fully funding all Medicaid populations above a certain eligibility level.

Federal Medicaid rules also restrict California’s ability to modify its program to reduce costs by reducing provider rates, establishing utilization controls on benefits and requiring greater financial participation by Medicaid recipients. Once again, California has over the years expanded services beyond those offered by other states including In-Home Supportive Services (IHSS), adult day health care, adult dental, pharmacy, hospice, family planning, medical supplies and so on.  Over the past two years, California has reduced spending in virtually every program area, and, in more than a dozen lawsuits filed in federal court, judges have enjoined nearly every effort to reduce rates, modify optional benefits or limit eligibility. In these lawsuits, federal judges cite Medicaid rules requiring studies on the impact of those reductions on the communities served. The cumulative impact of these federal lawsuits contributes more than $1.4 billion toward our current year deficit alone.  Should the state fail to ultimately win these legal challenges, the impact on future budgets will be in the billions. Congress must authorize states to reduce costs by lowering provider rates, limiting benefits and increasing co-pays as needed to live within limited resources.

Treat States Equally in Medicaid Reimbursement Rates

The Federal Medical Assistance Percentage (FMAP), the formula that determines federal reimbursement rates for states in the Medicaid program, is flawed and forces California to subsidize the Medicaid costs of other states. The current formula relies on per capita income over other indices, particularly poverty rates. California’s relatively small number of high wage earners distorts our per capita income, masking the large number of low-income individuals we cover in Medicaid.  This flawed formula results in California receiving the lowest possible Medicaid reimbursement rate in the country.  In a 2003 U.S. Government Accountability Office report titled “Differences in Funding Ability among States Often are Widened,” California was specifically called out as one of three states in the nation with one of the largest populations in poverty, while ranking 49th in per-capita costs (the second leanest Medicaid program in the U.S.). Other large states have much higher reimbursement rates: Florida receives 56.83 percent; Michigan 58.10 percent; Ohio 60.79 percent; Pennsylvania 54.08 percent; Texas 60.53 percent. The bottom line is that this flawed FMAP formula is forcing California to subsidize Medicaid costs in other states. If California received an FMAP rate equal to the average of the 10 largest states, it would be 57 percent – a difference of $2.2 billion.

Fixing the flawed FMAP rate is even more urgent in the context of national health reform. If this flawed methodology is locked into the federal health reform bill, it will be impossible for California to meet the mandatory Medicaid expansion anticipated in either the House or Senate legislation.

Enhanced Federal Matching Rates for Providers Must Extend Beyond Primary Care

Both federal health reform proposals require states to expand Medicaid to new populations. For California, that means adding almost two million people to the program.  California will need to increase provider rates significantly in order to attract and retain providers willing to serve Medi-Cal patients.

This is not a theoretical problem. In 1990, a federal district court held that California’s Medi-Cal reimbursement rates for certain services were so low that they violated the equal access provision of the Medicaid Act, which requires states to set reimbursement rates at a level sufficient to enlist enough providers so that services are available equally to recipients and to the insured general population.  California lost its appeals in that case, and the judge ordered the state’s Department of Health Services to raise the rate to 80 percent of average billing. This decision dramatically affected dental rates and increased California’s dental expenditures from $167 million in 1990 to more than $800 million in 1995 – more than a four-fold increase. In large part due to California’s lower-than-average FMAP rate, our state has been forced to reduce other provider rates even further to balance our budget.

Ironically, while federal courts have ruled that California cannot reduce provider rates for optional benefits such as dental services or IHSS, they have ruled that completely eliminating those same optional benefits is perfectly legal. Adult dental was eliminated as part of our effort to close a $62 billion budget gap earlier this year. If states had more flexibility to reduce rates and benefits under Medicaid rules, we might have been able to save a portion of that program. Similarly, we reduced services to specified populations in our In-Home Supportive Services program, but federal court decisions have prevented those reductions from occurring. California is now faced with a decision to eliminate the entire IHSS program.

While some argue that California’s low provider rates are self-inflicted, the fact is that if California was not subsidizing other states through a notoriously flawed FMAP rate at a loss of more than $2.2 billion, we would have the resources to increase our Medi-Cal rates to more reasonable levels.

The House version of federal health reform does provide enhanced federal funding match for Medicaid provider rate, but it must be expanded to all provider groups providing outpatient services, not just primary care.  Without addressing the flawed FMAP rate or adequately funding an increase in provider rates, the mandated expansion of Medicaid coverage becomes an empty promise to millions of individuals as well as an unfunded mandate for California of more than $3 billion.

Paying California Funds it is Owed

Before adding new responsibilities on states to expand Medicaid coverage, the federal government should reimburse the amount that it owes states for past errors with other safety net programs. For example, California has paid for individuals in Medi-Cal while they awaited their Medicare disability determination. This error by the Social Security Administration was acknowledged in 2001. States have never been paid back. The amount owed to California on this issue alone is nearly $700 million.

Comprehensive health care reform is essential and long overdue.  As I wrote in October, I believe that the elements of successful reform have been proposed in one form or another by Congress, but additional work is required to ensure the reform package contains the necessary balance to ensure success.  Congress has a chance to make history with this legislation.  The current structure and the proposed expansion of Medicaid under health care reform are unsustainable for California. Governors in every part of the country have raised similar concerns.  California stands ready to help achieve successful health care reform, and I look forward to continuing to work with you as the final comprehensive bill is negotiated in Congress.


Arnold Schwarzenegger

/cc:   Members of the California Congressional Delegation

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Hey, Health Legislators: Want to reduce Medicare spending? Reduce poverty!

Physicians and Health Care Reform, December 25, 2009

Dear Leader Reid and Speaker Pelosi

Provisions in the Senate and House health care reform bills propose to reallocate resources based on geographic differences in Medicare spending. While well intended, they will penalize providers who care for the poor and impair access for these vulnerable patients.

A reallocation of resources to lower-cost states has been endorsed by members of Congress from states with lower Medicare spending who believe that, by receiving less from Medicare, their states are currently being penalized for being “efficient.” However, it is not efficiency that accounts for their lower spending. It is less poverty and better health status.

The map shows (in blue) the ten states represented by members of Congress who have publicly endorsed reallocation plans based on geographic differences. Six neighboring states with similar characteristics are lightly shaded. On average, the Medicare spending in these 16 states is 20% less than in the rest of the country.

The “low-cost” states cover almost 40% of the land mass of the US but encompass only 14% of the population and only 3% of the African-American population. While they include many prominent cities, there are no major urban centers with the dense zones of poverty, as are found in Chicago, Los Angeles and New York. Nor are there broad bands of poverty, as are found in Louisiana, Mississippi, Alabama and southern Texas. Yet it is in “poverty ghettos” and broad “poverty regions” that health status is poorest and health care spending is greatest.

We must not confuse the added costs of caring for the poor with inefficiency in health care. The greatest “inefficiency” is poverty. The US will never slow the growth of health care spending unless it addresses the special needs of its most disadvantaged citizens. Health care reform should assist the hospitals and physicians who care for them. Unfortunately, a number of sections of the current bills do just the opposite.

Hospital re-admissions. Section 3025 of the Senate bill (Hospital Readmissions Reduction Program) and its companion Section 1151 of the House bill (Reducing Potentially Preventable Hospital Readmissions) would penalize hospitals that have higher rates of re admissions. While increased rates may reflect substandard care in some hospitals, the more common reason for higher rates is more patients who have complex diseases processes and little social support, most of whom are poor. Indeed, when fully adjusted for severity of disease, most inter-hospital differences in readmission rates disappear.

Value and efficiency. Because providers in counties where poverty is prevalent have higher per-beneficiary spending, they would be classified as “inefficient” under Section 1123 of the House bill (Payments for Efficient Areas), while providers in the 20% of counties that have the lowest Medicare expenditures would receive a 5% bonus. In like manner, Section 3001 of the Senate bill (Hospital Value-Based Purchasing Program) would reward hospitals that have lower per-beneficiary costs for certain defined conditions (acute MI, congestive health failure, pneumonia, etc.), although it is known that expenditures for such conditions are much greater among low-income patients. I am hopeful that the Senate bill will not include the Finance Committee’s call for penalties for physicians whose resource use is in the highest decile, which would mainly affect those whose practices include poor patients with multiple comorbidities.

IOM study of geographic variation.
The same logic pattern that has been applied to readmission policy and to “value-based purchasing” exists in Sections 1159 and 1160 of the House bill, which instructs the Institute of Medicine to develop payment policies based on geographic differences in health care, with the assumption that differences in the Dartmouth Atlas are relevant to cost containment. Yet MedPAC has shown that, even without adjusting for income, much of the variation disappears with adjustment for health status. But even though the bill instructs the IOM to consider income and other social determinants, there are no standards that can be applied nationally to adjust adequately for these factors. On the other hand, there are partial remedies for their effects, such as the wider use of interpreters and transitional care coordinators, as Section 1151(8) of the House bill proposes to support.

Efficiency and value are important goals, but variation in their geographic distribution is principally a reflection of variation in poverty and the prevalence of disease. That should not be a surprise. We all know that poverty varies geographically, and we know that the care of the poor is expensive. If health care costs are to be constrained, it must be through addressing the needs of low-income patients; not through penalizing the providers who care for them.


Also see
Crusading Professor Challenges Dartmouth Atlas On Claims Of Wasteful Health Care Spending
Unbiased studies dispute Obama, say more healthcare gives better outcomes.

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U.S. Income Inequality Is Frightening–And Much Worse Than We Thought

The Business Insider, September 30, 2009

U.S. Income Inequality Is Frightening–And Much Worse Than We Thought

The newest economic inequality numbers, which ran counter to the expectations of almost all experts, are frightening.

The Associated Press released an article titled, US income gap widens as poor take hit in recession. The opening paragraph of the article, based on recent census data, reads:

The recession has hit middle-income and poor families hardest, widening the economic gap between the richest and poorest Americans as rippling job layoffs ravaged household budgets.

The article, which then discussed the Census statistics that led to this conclusion, failed to mention that the Census Bureau considered the differences between 2007 and 2008, with regard to economic inequality, statistically insignificant.

But, whether the Census Data shows a meaningful increase, or not. is irrelevant. The Census Data reports that, contrary to the almost universal expectations of economists, economic inequality most likely did not decrease in 2008. Experts had anticipated that the declines in income of the rich would lead to a reversal in this groups ever–widening share of our national income. Instead, the Census reported that the 2008 income losses by the top 10% of Americans were offset by larger losses among middle class and poorer Americans.

MIT economist Simon Johnston appears to have been one notable exception to this expectation of a shrinking income gap.

Let’s review what we know about the measurement of income inequality before discussing the disturbing implications of this newest government report.

About two weeks ago, I critiqued a Sept 10, 2009 front page story in the Wall Street Journal titled, Income Gap Shrinks in Slump at the Expense of the Wealthy. My critique had three central points:

First, economists have, with few exceptions, agreed that Census Data is inappropriate for measuring income inequality because it consistently understates the income of the wealthiest families. To protect the privacy of reporting individuals, the Census “top-codes” income, which means that no one is ever recorded as making more than about $1.1 million in a single year. So, oil traders, hedge fund executives and anyone else at the super-high end of the income strata who might earn $100, $50 or $5 million in a single year, always earn $1.1 million or less in this Census Data. In addition, the Census Data does not include capital gains income, which is typically a large source of income for the wealthiest Americans.

Two economists, Professors Emmanuel Saez and Thomas Piketty, developed a method for measuring income inequality using IRS data, which avoided the problems inherent in using Census Data. This data was recently updated in response to the IRS release of 2007 information, and found that: Economic inequality in 2006 was, by some measures at the highest levels, ever found in the data available for the past 95 years. In 2007, these same measure showed a further jump further bringing America to it it’s highest levels of economic inequality in recorded history.

As a consequence of Census top-coding and the lack of capital gains data, the Saez-Piketty methodology has consistently shown that the Census substantially understates the extent of economic inequality in the nation. This means that, there is a real possibility that the the new Census Data understated the extent to which income inequality grew in 2008, and that the relative losses of the wealthiest families, versus less fortunate Americans, will be more than statistically insignificant.

It is possible that losses in reported capital income by the wealthiest Americans, if captured by the Saez-Piketty methodology, will be larger than the the incomes above $1.1 million that were not reported and offset the Census findings, leading as economists anticipated to a decline in the share of income going to the rich. However, I view this as unlikely. In considering this possibility, its important to remember that the IRS works on reported income gains, not gains which were never captured as taxable income. For income reporting purposes, the question is not whether the market value of capital assets declined but whether they were sold at an actual loss from their purchase price.

We will not know the answer to this question until July or August 2010, but in weighing the available evidence my working hypothesis is that as demonstrated by this new Census Report, income inequality did not decrease from 2008 to 2007.

Second, the original Journal article expressed a strong expectation that, as a result of the Great Recession, the ongoing growth of income inequality would decline substantially through 201o. My critique indicated that this was “far from clear.” The conventional economic wisdom, based on historical data, is that income inequality decreases, at least temporarily, as the richest Americans lose income faster than less-well-off Americans during a downturn. In contrast, this new data suggests that the dangerous cycle toward increasing income at the top of America has become even more self-reinforcing than previously recognized. We are now at the point where the pure market forces, which many economists told us would eliminate this issue, are no longer effective.

Third, the Journal article implied that the decrease in economic inequality it incorrectly predicted might be the start of a long-term trend. Instead, I demonstrated that, even if income inequality did decline in 2008 and 2009, it would almost certainly be “temporary.” The historical evidence shows that economic inequality frequently declines in a downturn, in the absence of strong government action, but that it will almost inevitably rebound and continue its march forward.

Now, let’s return to our main point:

Early next week, my new book It Could Happen Here will be released by HarperCollins. The book is an in-depth look , based on a historical analysis, of the implications of our historically high levels of economic inequality for the nation’s ultimate, long-term political stability. As economic inequality grows, nations invariably become increasingly politically unstable: Should we complacently believe that America will be different?

A central conclusion of the book is that once economic inequality reaches a self-reinforcing cycle it is halted only by inevitably controversial, hard-fought, bitterly opposed government action. Senator Jim Webb encapsulated this idea, when he wrote in his book, A Time to Fight: Reclaiming A Fair and Just America:

“No aristocracy in history has decided to give up any portion of its power willingly.”

In 1928, economic inequality was near today’s levels. Franklin Roosevelt succeeded in reversing the trend toward the continuing concentration of wealth, but it was a turbulent battle. In 1936, while campaigning for his second term and speaking at Madison Square Garden, FDR told the crowd:

“Never before in all our history have these forces [Organized Money] been so united against one candidate as they stand today. They are unanimous in their hate for me and I welcome their hatred.

I should like to have it said of my first Administration that in it the forces of selfishness and of lust for power met their match. I should like to have it said, wait a minute, I should like to have it said of my second Administration that in it these forces met their master.”

In FDR’s era and in our own, money brings power: both explicitly and implicitly, in hundreds of different ways, both large and small. Today, the wealthiest Americans, together with a number of financial and corporate interests that act on their behalf, protect their ever-increasing influence through activities that include, among others, lobbying, supplying expertise to the councils of government, casual conversation at dinner parties, the potential for jobs after government service, the power to run media advertisements that influence public opinion. Indeed, MIT economist Simon Johnston, writing in The Atlantic asserted that the U.S. is now run by an oligarchy:

The great wealth that the financial sector created and concentrated [ from 1983 to 2007] gave bankers enormous political weight–a weight not seen in the U.S. since the era of J.P. Morgan (the man) … Of course, the U.S. is unique. And just as we have the world’s most advanced economy, military, and technology, we also have its most advanced oligarchy.

The new inequality data suggests that the potential problems for the nation associated with the concentration of wealth and power are even more severe than previously recognized. Two weeks ago, I wrote that “Once income concentration becomes a reinforcing cycle of the kind we are witnessing, it is never stopped by pure market forces.” This mechanism is now in full swing. The market forces associated with the Great Recession, which many economist had expected to stem the growing, corrosive gap between the rich and the poor, appear to have become ineffective.

The great strength of American democracy has always been its capacity for self-correction. However, Robert Dahl, the eminent political scientist, recognized that political power fueled by wealth may ultimately neutralize this central aspect of our democracy. In his 2006 book, On Political Equality, Dahl wrote:

As numerous studies have shown, inequalities in income and wealth are likely to produce other inequalities..

The unequal accumulation of political resources points to an ominous possibility: political inequalities may be ratcheted up, so to speak, to a level from which they cannot be ratcheted down. The cumulative advantages in power, influence, and authority of the more privileged strata may become so great that even if less privileged Americans compose a majority of citizens they are simply unable, and perhaps even unwilling, to make the effort it would require to overcome the forces of inequality arrayed against them.

In the chapter following this quote, Dahl notes “that we should not assume this future is inevitable.” He’s right. But, was clearly concerned. Three years late, we should be even more concerned.

Many current Executive Branch initiatives deserve our support and praise: However, nothing proposed to date will effectively halt growing economic inequality, and its corrosive impact on our economy and the long-term future of the nation. (In a future post, I will explicitly discuss the proposed regulatory reform of the financial sector.)

My analysis in It Could Happen Here concludes that without a vibrant middle class, the the American democracy as we know it, is not sustainable. Before the Great Recession, the middle class was in far worse shape than was generally acknowledged. In an economy with a record number of job seekers for every available job, the potential for nearly one-half of all home mortgages to be underwater, and increasing foreclosures, the collapse of the middle class will accelerate. With each job loss and each foreclosure, another family becomes a member of the former middle class.

America has never been a society sharply divided between have’s and have not’s. Unfortunately, this new data says to me we continue to head in that direction. Economists assumed that the Great Recession would be a circuit breaker that would halt this advance, at least temporarily. It did not.

With no new legislation, it appears we are potentially on course for 13 million foreclosures, almost one in every four mortgages in the nation, from the end of 2008 through 2014. Do we really believe that we can turn such huge numbers of Americans out of their homes with no consequences for the health of our system of governance? Could our democracy survive a transformation into a nation composed principally of a privileged upper class and an underclass which struggles from paycheck to paycheck and lacks basic economic security?

We will only stop the growth of economic inequality if the President and the Congress are ready to fight in the style of Franklin Roosevelt. FDR was a divider not a conciliator. Before World War II, he fought an all-out war at home. Today, “There’s class warfare, all right,” as Warren Buffett said, “but it’s my class, the rich class, that’s making war, and we’re winning.”

I fervently hoped that we have not passed the point of no return, described by Professor Dahl. The recent news shows we are one step further on this road. If we continue down it, our nation may be on the path to becoming a House divided against itself, which ultimately cannot stand.

The War on Medi-Cal

SF Gray Panthers July 2009 Newsletter

The War on Medi-Cal

Written by a SF Gray Panther member and plaintiff in an upcoming suit against termination of important Medi-Cal benefits.

Nine years ago MediCal saved my life. I was diagnosed with thyroid cancer and could not pay for my care. MediCal covered two surgeries, two hospital overnights, and examination consultation with a prominent oncologist, and the coordinative work and monitoring laboratory work of my primary care provider.

In the course of the Bush years, MediCal has fallen on evil days. MediCal recipients are finding it terminally difficult to find doctors—specialists or primary care providers—to treat them; and in the medical profession and in the media MediCal is increasingly viewed as an encumbrance. The State of California proposed to cut the program in two areas: 10% deduction in reimbursement to providers and the exclusion from coverage of “optional” categories of  MediCal treatment.

Cutting 10% in medical reimbursement would hasten the flight of doctors and other health professionals and cripple pharmacies, diagnostic laboratories and public hospitals. It is equally disheartening to read the list of “optional benefits”: adult dentistry, acupuncture, audiology and speech therapy, chiropractic, optometric and optician services, podiatry, psychology and incontinence creams and washes. For instance a biannual optometric examination is the only chance most people get to be screened for glaucoma, retinitis or macular degeneration. The distinction between optional and essential does not make medical sense.  Who decided that—someone in the Bush administration?

It should come as good news for those who have a partiality for agitation that more than mere hand-wringing has taken place in the community of those who deplore the cuts. In April 2008 the Independent Living Center of Southern California and a coalition of other groups, including the San Francisco Gray Panthers, sued the state in federal court to block the 10% provider cuts. The suit was won but was appealed in February of this year. Attorney Lynn Carman of the MediCal Defense Fund argued that for a state to run a poverty health program, the program must measure up to federal health standards, and that further emasculation of MediCal would render it disfunctional. The appeals court has yet to issue a ruling.

As regards the cuts in optional treatment, the Gray Panthers have filed a preliminary restraining order in a separate but complementary suit.

My escape nine years ago from a slow, quiet, and below the radar death has acquired for me visionary American themes. To be deprived of the triad of rights in the Declaration of Independence, to fail of protection of the cruel and all too usual punishment for being poor, to come short of equal treatment under the law: all these themes call up the words of Martin Luther King Jr. to the effect that, “Of all forms of inequality, injustice in health care is the most shocking and inhumane.”

Let us not accept the unacceptable  Let us insist on health justice for all.

Excerpted from a letter to the Berkeley Daily Planet by Anne Richardson, an East Bay Medicare/MediCal recipient and a San Francisco Gray Panther.

Read “Schwarzenegger Pushing Murderous Health Cuts” on the SF Gray Panthers website.

No police to be indicted for killing 12 Arab citizens of Israel in 2000 demonstration

In October 2000, Arab citizens of Israel demonstrated against discrimination against them, and what Israel was doing to Palestinians. Israeli police used live ammunition to control the demonstrators, killing 13, 12 of whom were Israeli citizens.

January 28, 2008

AG: No cops will be indicted for involvement in October 2000 riot deaths

By Yuval Yoaz and Yoav Stern, Haaretz Correspondents and Haaretz Service

Attorney General Menachem Mazuz said Sunday that he would not indict the police officers involved in the deaths of 13 Arab civilians during the riots of October 2000.

Mazuz released an official legal opinion Sunday, reinforcing a decision made by the Justice Ministry’s Police Investigations Department (PID) in September 2005 to close the investigation into the case.

Israeli Arabs were rioting in solidarity with the Palestinian Intifada which had just begun in the West Bank and Gaza Strip. During the riots, which lasted some ten days, 12 Israeli Arabs and one Palestinian resident of the Gaza Strip were shot and killed by police and security forces during violent demonstrations at the entrance to Umm al-Fahm.

In his official report, Mazuz said that in addition to many evidentiary problems that stem from the long period of time that has passed since the incident, “we had to take into consideration the fact that the incident involved the use of operational judgment in an emergency situation, under circumstances that don’t justify the casting of criminal blame, as opposed to the taking of command procedures.”

Mazuz added to the document he released a report written by the state prosecution team, headed by Assistant State Prosecutor Shai Nitzan, which details over 500 pages the evidence gathered in the case and the difficulties that arose over the course of the investigation. The team, which included five attorneys, dedicated its efforts over thousands of hours to the examination of evidence and reports compiled by the Or Commission, which was appointed to investigate the riots. Dozens of meetings were held, some attended by the attorney general.

The release of the official ruling on the proceedings in the case was delayed by approximately one year, after the The Adalah Legal Center for Arab Minority Rights in Israel, which is considered a complainant in the matter, submitted a report in late 2006 to the State Prosecution in which it claimed that PID has ignored the recommendations of the Or Commission by failing to investigate the deaths. The report called for the immediate prosecution of the officers involved.

Mazuz said Sunday that the official document he wrote includes specific responses to the claims raised by Adalah in the 2006 report.

Adalah: We will seek an international legal ruling against this decision

Adalah held a press conference Sunday evening with the families of the 13 victims and the head of the Higher Arab Monitoring Committee Shuweiki Hatib. The organization announced that they have no intention of petitioning the High Court of Justice over this matter, but rather they announced their plan to seek international legal mediation.

The General Director of Adalah Hassan Jabareen said “we won’t petition the high court. We have exhausted the proceedings in Israel. This [decision] does not stem from irritation or feelings of the heart, but rather from legal motives,” explaining that the organization has lost its faith in the Israeli legal system in this case.

Jabareen added that the organization will seek the involvement of the United Nations as well as “foreign nations which have the authority to rule on universal matters,” meaning nations whose legal system allows them to try people who committed crimes in other countries.

Jabareen said that most of the shooting toward the civilians during the riots was unjustified, and added that Arabs mustn’t be viewed as an enemy.

Hatib said in regard to Mazuz’ decision that “this is a black day for justice, human rights and the aspiration for equality and respect between peoples. Mazuz, with unprecedented inflexibility, legitimized the murder.”

Arab MKs furious over Mazuz’s decision

Israeli Arab MKs also expressed outrage over Mazuz’s decision on Sunday. MK Jamal Zahalka (Balad) suggested the Higher Arab Monitoring Committee appoint a delegation to submit an official complaint against Israel at the United Nations. He also called for a general strike in the Israeli Arab sector. “Mazuz legitimized the murders of our sons. It is our right and duty to take this to the international courts,” he said.

MK Talab el-Sana (United Arab List) said, “This is a black day for Israeli democracy. The government attorney general has joined the snipers and the assassins and is shooting at the dead body of Israeli justice. The evil decisions place the state and it institutions on the guilty bench. The Jewish state murders its Arab citizens and acquits the murderers.”

MK Ahmed Tibi (Ta’al) said in response to the report that Israeli “racism is geared toward the living Arab and the dead Arab,” and Mohammed Barakeh of Hadash said Mazuz’s decision was in line with the “shady record of the man.”

Labor Minister Raleb Majadele contributed to the criticisms, calling it “inconceivable that civilians are killed by security forces and no one is being tried… the decision will destroy the basis of trust between with Arab citizens and the state.



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