BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 542
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          Date of Hearing:   April 28, 2009

                            ASSEMBLY COMMITTEE ON HEALTH
                                  Dave Jones, Chair
                     AB 542 (Feuer) - As Amended:  April 22, 2009
           
                              AS PROPOSED TO BE AMENDED
          
          SUBJECT  :   Adverse medical events.

           SUMMARY  :   Requires the Department of Managed Health Care (DMHC)  
          to adopt regulations establishing uniform policies and practices  
          governing the nonpayment of hospitals for substantiated adverse  
          events by public and private payers, consistent with those  
          developed by the federal Centers for Medicare and Medicaid  
          Services (CMS), and revises and expands the existing  
          requirements for hospitals to report specified adverse events.   
          Specifically,  this bill  :  

          1)Requires DMHC, in collaboration with Department of Public  
            Health (DPH), Department of Health Care Services (DHCS), the  
            California Public Employees' Retirement System (CalPERS), and  
            the California Department of Insurance (CDI) to adopt and  
            implement regulations that establish uniform policies and  
            practices governing the nonpayment of hospitals for  
            substantiated adverse events, as follows:

             a)   On or before September 1, 2010, adopt regulations for  
               nonpayment polices and practices consistent with those  
               developed by CMS pursuant to the Deficit Reduction Act of  
               2005 (DRA), that have the following characteristics:

               i)     Are high cost, high volume, or both;
               ii)    Are not present on admission; and,
               iii)   Could reasonably have been prevented through the  
                 application of evidence-based guidelines.

             b)   Synchronize definitions, coding, and practices, to the  
               extent feasible, with CMS regarding nonpayment for  
               substantiated adverse events; and,

             c)   By January 1, 2012, and annually thereafter, update  
               payment policies and practices regarding nonpayment for  
               substantiated adverse events to reflect changes made to  
               those developed and implemented by CMS.








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          2)Authorizes DMHC and other departments involved to consult with  
            individuals with relevant clinical expertise to assist in the  
            development of the regulations.

          3)Following the adoption of the regulations by DMHC, requires  
            the collaborating agencies listed in 1) above to adopt  
            regulations that are identical or substantially similar to  
            those promulgated by DMHC.

          4)In accordance with the DMHC regulations, prohibits a hospital  
            from charging a patient or payer and exempts a patient or  
            payer from being required to pay for substantiated adverse  
            events.

          5)Requires contracts between hospitals, and health plans and  
            health insurers, to be consistent with the DMHC nonpayment  
            regulations.

          6)Requires the adoption of the nonpayment policies by the  
            Healthy Families Program (HFP) administered by the Managed  
            Risk Medical Insurance Board, and by Medi-Cal, administered by  
            DHCS, and to the extent feasible, all other programs  
            administered by DHCS, but limits the implementation of the  
            nonpayment policies for state and local government programs to  
            the extent federal financial participation for those programs  
            is not jeopardized.

          7)Prohibits a hospital from billing a HFP enrollee, a Medi-Cal  
            recipient, or an enrollee of a health plan or health insurer  
            for care and services denied as a result of the nonpayment  
            regulations.

          8)Requires a hospital to exclude from specified Medi-Cal cost  
            reports costs related to adverse events subject to the  
            nonpayment regulations.

          9)Revises the existing adverse event reporting requirements  
            applicable to hospitals, adds additional reportable events in  
            compliance with reportable events developed by CMS,  applies  
            the reporting requirements to surgical clinics, and requires  
            DPH to determine whether an adverse event reported by a  
            hospital was substantiated or not.

          10)Requires hospitals to report annually to the hospital board  








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            of directors, or other similar governing body, the following:  
            a) The number of adverse events that occurred in the facility  
            in the most recent 12-month period; b) The outcomes for each  
            patient involved; and c) A comparison to comparable  
            institutions of rates of adverse events, if this data exists  
            and is publicly available.

           EXISTING LAW  :

          1)Establishes state licensing and federal Medicare and Medicaid  
            program certification requirements for health facilities,  
            including general acute care hospitals.  Requires DPH to  
            administer licensing and certification requirements for  
            California health facilities.  Requires health facilities to  
            pay annual licensing fees, describes specified hospital fees,  
            and requires the fees to be adjusted annually, as directed by  
            the Legislature in the annual Budget Act.

          2)Requires every health facility for which a license or special  
            permit has been issued to be periodically inspected by a  
            representative or representatives appointed by DPH, depending  
            upon the type and complexity of the health facility or special  
            service to be inspected.  Requires inspections to be conducted  
            no less than once every two years and as often as necessary to  
            insure the quality of care being provided.

          3)Requires general acute care hospitals, acute psychiatric  
            hospitals, and special hospitals to report an adverse event,  
            as defined, to DPH no later than five days after the event has  
            been detected or in the case of an urgent or emergent threat,  
            no later than 24 hours after the adverse event has been  
            detected.  




            Reportable adverse events are:

              a)   Surgical
                i)     Surgery performed on the wrong body part;
               ii)    Surgery performed on the wrong patient;
               iii)   Retention of a foreign object in a patient after  
                 surgery or other procedure; and, 
               iv)    Intraoperative or immediately post-operative death  
                 in a normal, healthy patient.








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              a)   Product or device  
               i)     Patient death or serious disability associated with  
                 the use of contaminated drugs, devices, or biologics  
                 provided by the health care facility;
               ii)    Patient death or serious disability associated with  
                 the use or function of a device in patient care in which  
                 the device is used or functions other than as intended;  
                 and, 
               iii)   Patient death or serious disability associated with  
                 intravascular air embolism that occurs while being cared  
                 for in a health care facility.

              b)   Patient protection  
               i)     Infant discharged to the wrong person;
               ii)    Patient death or serious disability associated with  
                 patient disappearance for more than four hours; and, 
               iii)   Patient suicide or attempted suicide resulting in  
                 serious disability while being cared for in a health care  
                 facility.

              c)   Care management  
               i)     Patient death or serious disability associated with  
                 a medication error;
               ii)    Patient death or serious disability associated with  
                 a hemolytic reaction due to the administration of  
                 ABO-incompatible blood or blood products;
               iii)   Maternal death or serious disability associated with  
                 labor or delivery on a low-risk pregnancy while being  
                 cared for in a health care facility;
               iv)    Patient death or serious disability associated with  
                 hypoglycemia, the onset of which occurs while the patient  
                 is being cared for in a health care facility;
               v)     Death or serious disability associated with failure  
                 to identify and treat hyperbilirubinemia in neonates; 
               vi)    Stage 3 or 4 pressure ulcers acquired after  
                 admission to a health care facility; and, 
               vii)   Patient death or serious disability due to spinal  
                 manipulative therapy.

              d)   Environmental  
               i)     Patient death or serious disability associated with  
                 an electric shock while being cared for in a health care  
                 facility;
               ii)    Any incident in which a line designated for oxygen  








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                 or other gas to be delivered to a patient contains the  
                 wrong gas or is contaminated by a toxic substance;
               iii)   Patient death or serious disability associated with  
                 a burn incurred from any source while being cared for in  
                 a health care facility; 
               iv)    Patient death associated with a fall while being  
                 cared for in a health care facility; and,
               v)     Patient death or serious disability associated with  
                 the use of restraints or bedrails while being cared for  
                 in a health care facility.



              e)   Criminal  
               i)     Any instance of care ordered by or provided by  
                 someone impersonating a physician, nurse, pharmacist, or  
                 other licensed health care provider;
               ii)    Abduction of a patient of any age; 
               iii)   Sexual assault on a patient within or on the grounds  
                 of a health care facility; and,  
                iv)    Death or significant injury of a patient or staff  
                 member resulting from a physical assault that occurs  
                 within or on the grounds of a health care facility.  
           
           FISCAL EFFECT  :   This bill has not been analyzed by a fiscal  
          committee.

           COMMENTS  :   

           1)PURPOSE OF THIS BILL  .  The author states this bill is  
            necessary to improve health care practices and protect  
            patients by shielding them from having to pay for medical  
            errors.  The author states that while California passed  
            legislation (SB 1301 (Alquist), Chapter 647, Statutes of 2006)  
            making California the 24th state to require reporting of  
            "never events," California did not join with the 11 other  
            states where billing for such events is prohibited.  The  
            author argues that this bill will protect patients who have  
            been harmed by medical errors from also being responsible for  
            paying the bill for those errors.  The author contends that  
            making health care providers financially responsible for the  
            commission of medical errors will provide a greater incentive  
            to ensure such grievous and devastating errors never occur.

           2)FEDERAL PAYMENT POLICY FOR ADVERSE EVENTS  .  The federal  








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            Centers for Medicaid and Medicare Services (CMS) are  
            implementing a provision of the DRA dealing with nonpayment  
            for specified adverse events.  The DRA required hospitals to  
            begin reporting secondary diagnoses that are present on  
            admission, starting with discharges on or after October 1,  
            2007.  Since October 2008, CMS will not reimburse hospitals  
            for the added cost of care for ten conditions including three  
            serious preventable events, unless the conditions are present  
            on admission.  The categories are:

             a)   Foreign object retained after surgery;
             b)   Air embolism; 
             c)   Blood incompatibility;
             d)   Stage III and IV pressure ulcers;
             e)   Falls and trauma;
             f)   Manifestations of poor glycemic control;
             g)   Catheter-associated urinary tract infection;
             h)   Vascular catheter-associated infection;
             i)   Surgical site infection following coronary artery bypass  
               graft (CABG), mediastinitis, bariatric surgery and  
               orthopedic procedures; and,
             j)   Deep vein thrombosis (DVT)/pulmonary embolism (PE)  
               following total knee replacement and hip replacement.

           3)HEALTH INSURRER PAYMENT POLICIES FOR MEDICAL ERRORS  .  On April  
            3, 2008, Anthem Blue Cross (the new trade name for Blue Cross  
            of California) along with other regional licensees of the Blue  
            Cross and Blue Shield Association nationwide, announced steps  
            that it said are aimed at reducing serious medical errors at  
            its hospital network.  According to Anthem, the policy is  
            aimed at ensuring that members will not be charged if any of  
            these three events occur: a) Surgery performed on the wrong  
            body part; b) Surgery performed on the wrong patient; and, c)  
            Wrong surgery performed on a patient.  In addition, Anthem  
            announced steps to ensure that "only the appropriate payment  
            is made and no additional charges [will be] incurred" if any  
            of eight other events occur.  Aetna also recently announced  
            that it will not pay for charges directly and solely related  
            to eight serious reportable events, including an extended  
            length of stay in the hospital due to the event.  

           4)INSTITUTE OF MEDICINE REPORT  .  In 1999, the Institute of  
            Medicine (IOM) released a call to action in the report titled,  
            "To Err Is Human:  Building a Safer Health System."  The  
            report is well known for its release of startling statistics,  








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            such as that between 44,000 and 98,000 Americans die each year  
            as a result of medical errors, that more people die in a given  
            year as a result of medical errors than from motor vehicle  
            accidents (43,458), breast cancer (42,297), or AIDS (16,516),  
            and that total costs of preventable adverse events are  
            estimated to be between $17 billion and $29 billion, half of  
            which are health care costs.  The report addresses patient  
            safety and quality, and establishes a national agenda for the  
            reduction of medical errors.  The report contains several  
            recommendations including the following:

             a)   Establishing national focus to enhance the knowledge  
               base about safety;
             b)   Identifying and learning from errors through immediate  
               and strong mandatory reporting efforts and encouraging  
               voluntary efforts;
             c)   Raising standards and expectations for improvements in  
               safety through oversight, actions by purchasers and  
               professional organizations; and,
             d)   Creating safety systems inside health care  
               organizations.    

          5)NATIONAL QUALITY FORUM  .  In 2003, The National Quality Forum  
            (NQF) published a consensus report titled "Serious Reportable  
            Events in Healthcare."  In that report, the NQF noted the  
            historic lack of any national reporting system of health care  
            errors and adverse events, and the lack of a standard  
            definition of what constitutes an error or adverse event.   
            Consequently, the objective of the project the NQF undertook  
            was to "establish agreement on a set of serious preventable  
            adverse events that might form the basis for a national  
            state-based event reporting system and that could lead to  
            substantial improvements in patient care."  The NQF report  
            identified 27 serious adverse events, that are serious,  
            largely preventable and of concern to both the public and  
            health care providers.  The "Never 27" events are grouped into  
            six categories-surgical events, product or device events,  
            patient protection events, care management events,  
            environmental events, and criminal events.

           6)HOSPITAL ADVERSE EVENT REPORTING REQUIREMENTS  .  Effective July  
            1, 2007 in California, hospitals are required to report  
            "adverse events" to DPH within five days of their discovery.   
            Events that are ongoing, urgent, or emergent threats to the  
            welfare, health, or safety of patients, personnel, or visitors  








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            must be reported within 24 hours.  California's definition of  
            "adverse events" was borrowed from the list of events  
            developed by the NQF in conjunction with CMS.  Adverse events  
            include a wide array of medical, pharmaceutical, and nursing  
            care errors, as well as criminal acts.  DPH is required to  
            investigate all adverse event reports, and if substantiated,  
            the reports and outcomes of the investigations and inspections  
            become public information.  DPH must make an onsite inspection  
            within 48 hours for ongoing urgent or emergent threats of  
            imminent danger or serious bodily harm.  DPH must complete  
            other investigations where there is no threat of imminent  
            danger or serious bodily harm within 45 days.  In addition,  
            before making the report, hospitals must inform affected  
            patients about the report.   

           7)PREVIOUS AND RELATED LEGISLATION  .  

             a)   AB 2146 (Feuer), similar to this bill, would have  
               prohibited hospitals and health care professionals from  
               billing a patient or a payer, as defined, for care or  
               services provided during which occurred or that resulted in  
               specified adverse events.  AB 2146 was held on the Senate  
               Appropriations suspense file.  

             b)   SB 1058 (Alquist) enacts the Medical Facility Infection  
               Control and Prevention Act to ensure that standards for  
               protecting patients from exposure to pathogens in health  
               facilities, including Methicillin-resistant Staphylococcus  
               aureus (MRSA), are adequate to reduce the incidence of  
               antibiotic-resistant infection acquired by patients in  
               these facilities.  SB 1058 is pending in the Senate.

             c)   SB 1301 (Alquist), Chapter 647, Statutes of 2006,  
               requires general acute care hospitals, acute psychiatric  
               hospitals, and special hospitals to report an adverse event  
               to the Department of Health Services (DHS now DPH) no later  
               than five days after the event has been detected or in the  
               case of an urgent or emergent threat, not later than 24  
               hours after the adverse event has been detected.  

             d)   SB 1312 (Alquist), Chapter 395, Statutes of 2006,  
               authorizes DHS to assess administrative penalties on  
               hospitals based on deficiencies constituting immediate  
               jeopardy to the health and safety of a patient.  Requires  
               inspections and investigations of long-term care facilities  








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               certified by the Medicare or Medicaid program to determine  
               compliance with federal standards and California statutes  
               and regulations.  Eliminates existing law that provides an  
               exemption for specified health care facilities from  
               periodic inspections by DHS. 

           8)SUPPORT  .  The Service Employees International Union (SEIU) and  
            CALPIRG support a prior version of this bill.  SEIU argues  
            that this bill operates on the simple premise that doctors and  
            hospitals should be paid for doing the right thing, not the  
            wrong thing.  CALPIRG maintains in support of the prior  
            version that this bill offers protections to the consumer and  
            will help reduce the incidence of adverse events by properly  
            placing the responsibility of cost on the party able to  
            prevent the mistakes in the first place.  Blue Shield of  
            California supports the prior version of this bill stating  
            that it seems like common sense that a provider should not  
            bill a patient or the patient's health plan for a medical  
            error, but it happens.  

           9)OPPOSE UNLESS AMENDED  .  The California Hospital Association  
            (CHA) is opposed to a prior version of this bill unless  
            amended.  CHA maintains that, while they agree with the  
            principles of this bill and take the position that health care  
            providers should not bill patients or other financially  
            responsible parties for charges resulting from their  
            preventable errors, CHA contends that this bill should be  
            amended so that the prohibition on provider billing applies  
            only to preventable errors that are the responsibility of the  
            provider.  Physician representatives oppose the prior version  
            of this bill stating that the list of conditions for which  
            nonpayment is proposed goes far beyond medical errors and  
            contains complications and conditions that, despite best  
            efforts, patients who are ill, frail, or otherwise compromised  
            can develop.  The California Medical Association (CMA) points  
            out in opposing the prior version of this bill that this bill  
            imposes nonpayment standards for "substantiated" events but  
            does not include a definition of what substantiated would  
            mean.  According to CMA, the prior version established a  
            framework inconsistent with federal law so that, under the  
            federal Patient Safety Act, the goal is to encourage providers  
            to voluntarily undertake efforts to identify and reduce  
            patient care risks and hazards.  CMA states that the federal  
            patient safety organizations are designed to make it clear  
            that patient safety information should not be used for  








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            external purposes.

           10)POLICY QUESTION  .  

          Scope of this bill  .  This bill would result in nonpayment of  
            unspecified adverse events or medical errors based on broad  
            criteria intended to reflect the criteria used by CMS in  
            establishing nonpayment policies for hospitals under Medicare,  
            which pays using a payment methodology based on the diagnosis  
            of the patient.  Given the wide variation in payment methods  
            among all of the public and private programs affected by this  
            bill, the author may wish to more explicitly deal with how the  
            regulations developed by DMHC should address nonpayment by  
            various payers. 
           
          REGISTERED SUPPORT / OPPOSITION  :   (Prior version)

           Support

           American Federation of State, County and Municipal Employees,  
          AFL-CIO
          Blue Shield of California
          California School Employees Association
          Congress of California Seniors
          Health Access California
          Service Employees International Union

           Opposition

           California Orthopaedic Association
          California Society of Anesthesiologists  

          Oppose Unless Amended
           
          Adventist Health
          Anaheim Memorial Medical Center
          Bakersfield Memorial Hospital
                                                                                    Barton HealthCare System
          California Association of Professional Liability Insurers
          California Chapter of the American College of Emergency  
          Physicians
          California Children's Hospital Association
          California Hospital Association
          California Medical Association
          Catholic Healthcare West








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          Centinela Hospital
          Children's Hospital Central California
          Children's Specialty Care Coalition
          Chino Valley Medical Center
          Community Hospital of the Monterey Peninsula
          Community Memorial Health System
          Cottage Health System
          Delano Regional Medical Center
          Desert Regional Medical Center
          Desert Valley Hospital
          Doctors Hospital of Manteca
          Eden Medical Center
          Enloe Medical Center
          Fountain Valley Regional Hospital & Medical Center
          Garden Grove Hospital Medical Center
          George L. Mee Memorial Hospital
          Glendale Adventist Medical Center
          Good Samaritan Hospital, San Jose
          Henry Mayo Newhall Memorial Hospital
          Hoag Hospital
          Huntington Beach Hospital
          JFK Memorial Hospital
          John Muir Health
          Kaiser Permanente
          Kaweah Delta Health Care District
          La Palma Intercommunity Hospital
          Lakewood Regional Medical Center
          Little Company of Mary Hospital
          Lodi Memorial Hospital
          Long Beach Memorial Medical Center
          Los Alamitos Medical Center
          Memorial Hospitals Association
          Mercy Hospitals of Bakersfield
          Mercy Medical Center Mt. Shasta
          Methodist Hospital of Southern California (2)
          Mission Hospital in Mission Viejo
          Montclair Hospital Medical Center
          North Sonoma County Healthcare District
          NorthBay Healthcare
          Oak Valley Hospital
          Orange Coast Memorial Medical Center
          Professional Liability Insurers
          Saddleback Memorial Medical Center
          San Dimas Community Hospital
          Sequoia Hospital








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          Sharp Grossmont Hospital
          Sharp HealthCare
          Shasta Regional Medical Center
          Sherman Oaks Hospital
          Sierra Nevada Memorial Hospital
          Sierra View District Hospital
          Sierra Vista Regional Medical Center
          Sonoma Valley Hospital
          St. Helena Hospital
          St. Joseph Hospital/Redwood Memorial Hospital
          Sutter Amador Hospital
          Sutter Delta Medical Center
          Trinity Hospital
          Twin Cities Community Hospital
          University of California
          West Anaheim Medical Center
           

          Analysis Prepared by  :    Deborah Kelch / HEALTH / (916) 319-2097