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The day before she went on strike, Jenny Butera checked her schedule. Butera, a marriage and family therapist, had a backlog of adult outpatients needing to be seen through her Kaiser Permanente office in downtown Sacramento. Despite days in which she counseled nearly a dozen of them in individual sessions, one after the other, nothing was easing the crunch.

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The date on Butera’s calendar was August 14th.

“My earliest next appointment,” Butera said, “was mid-October. For anybody.”

To Butera and many of the roughly 2,000 members of the National Union of Healthcare Workers whose strike began more than five weeks ago, the job action felt righteous. It wasn’t about money, she said; it was about improving a chronically understaffed workplace that often leaves patients waiting weeks or months between mental health appointments.

But NUHW’s members are running into the same wall that many Kaiser mental health patients may already know too well. The tools they have to effect change are limited — and Kaiser’s staying power is real.

As of mid-week, Kaiser and the union were at a stalemate in negotiations. 

A Kaiser spokesman, Marc Brown, told Capital & Main that 50% of the striking mental health clinicians have returned to the job, numbers the union said it could not confirm because so many of them work remotely. (Disclosure: NUHW is a financial supporter of Capital & Main.)

“We know we’re going to have more people cross the picket line, and that’s exactly why they’re waiting us out,” said Chelsea Wise-Diangson, an initial access coordinator in the child and adolescent psychiatry department at Kaiser’s Santa Clara Homestead Medical Center. “I’ve been able to hold out, but I recognize my [financial] privilege in being able to do so.”

Sources say the sides long ago agreed on a modest wage increase. But one of the remaining sticking points is huge: Striking health workers want Kaiser to agree in writing to a plan that improves patient-staff ratios and ensures that patients can be seen sooner in follow-up therapy sessions. So far, that’s a nonstarter.

It isn’t just a wish; it’s the law. 

When Senate Bill 221 took effect on July 1st, it closed a critical loophole in California’s mental health care systems. Companies like Kaiser are now required to schedule a patient’s follow-up appointment within 10 days of their last visit, unless the professional treating the patient believes that a longer wait won’t be detrimental.

Before the bill became law, the 10-day rule applied only to those requesting their first visit; there was no requirement to schedule a timely next session. The rule applies to all health insurers and plans in the state, but it’s clearly aimed at behemoths like Kaiser, which has a long history of insufficient mental health services and has paid millions of dollars in fines for overbooking its therapists.

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Still, almost nothing has changed, with wait times for follow-up appointments routinely falling in the four- to eight-week range, therapists say. While Kaiser officials blame the pandemic for vastly increasing the need for such services, the company performed poorly in this area for years before COVID-19 came along, according to industry experts.

As the striking workers are finding out, it takes a lot to move Kaiser. Once the NUHW’s job action began, the company painted the union members as demanding to spend less time with patients — “Our patients cannot afford a proposal that significantly reduces the time available to care for them and their mental health needs,” Brown said in a statement — while contracting with outside providers to take up some of their long-delayed appointments. Butera has been told that Kaiser has offered extremely high rates of pay for short-term outside help, although Capital & Main could not confirm the figures.

“Our position right now is clear. We will not sign a contract if Kaiser doesn’t put in writing that it will abide by the law,” Butera said. “They can do that. There are plenty of therapists who are working and available — they just won’t work for Kaiser.”

The crisis in Kaiser’s mental health services is hardly a new story. In May, the state’s Department of Managed Health Care (DMHC) announced a “nonroutine survey” to investigate the extent of the company’s shortfalls in providing such services to its patients. Kaiser has about 9.4 million Californians enrolled in health plans.

In the end, it may take a combination of state and worker action to bring about enough pressure for Kaiser to improve its outreach to its own mental health patients, because the numbers themselves don’t add up for an HMO that is profit-driven through its separate medical groups. It’s far cheaper, health economists say, for Kaiser to absorb occasional fines, which it can handle easily; the company posted $8.1 billion in net revenue last year and has $52 billion in reserves.

If Gov. Gavin Newsom signs SB 858, which increases penalties from $2,500 to $25,000 for individual violations of things like timely access to care and adequate network standards, the pressure could ratchet up. Beyond that, the DMHC conducts audits of health providers every three years. It also handles individual complaints about access — but in this case, those depend upon patients contacting the state agency themselves while in the midst of trying to deal with their own pressing mental health issues.

The department is also empowered to move on to enforcement, including “requiring corrective actions, assessing administrative penalties, using cease and desist orders, or suspending/revoking a license,” said DMHC spokeswoman Rachel Arrezola. But those are extreme measures that would evolve over a period of years, hardly conducive to the urgent need for improved mental health services right now.

It all raises the question of what can be done to get Kaiser to act like the health provider its advertisements proclaim it to be. At Wise-Diangson’s office, “We can’t keep staff to save our lives,” she said. “We’ve been pretty perpetually understaffed, and especially so these past two years.”

The toll on Kaiser patients can’t be calculated. 

For the therapists and clinicians who work with and try to help them, burnout is rampant. Wise-Diangson said that in her Santa Clara department, five striking workers recently returned to their offices — two of them so that they could complete paperwork to resign from the company.

On September 30th, she will join them. “I can’t ethically, morally go back to Kaiser,” Wise-Diangson said. In the meantime, the strike grinds on, no resolution in sight. Just as it has done with state sanctions and fines in the past, Kaiser can afford to stand pat.

This article was originally published on Capital & Main.