BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2374
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          Date of Hearing:   April 22, 2014

                            ASSEMBLY COMMITTEE ON HEALTH
                                 Richard Pan, Chair
                    AB 2374 (Mansoor) - As Amended:  April 8, 2014
           
          SUBJECT  :  Substance abuse: recovery and treatment services.

           SUMMARY :  Requires alcoholism and drug abuse recovery or  
          treatment (ADART) program licensees to report deaths and other  
          unusual events to the Department of Health Care Services  (DHCS)  
          and requires licensees working in ADART programs to be  
          registered with or certified by an organization approved by DHCS  
          to register and certify counselors, as specified.  Specifically,  
           this bill  :  

          1)Requires the death investigation policy of DHCS to be designed  
            to ensure that a resident's death is reported by the licensee  
            and addressed by DHCS in a timely manner.

          2)Requires the licensee to make a telephonic report to DHCS  
            within one working day for any of the following events or  
            incidents: a) death of any resident for any cause, even if the  
            death did not occur at the facility; b) any facility-related  
            injury of any resident that requires medical treatment by a  
            physician at a licensed health care facility; c) poisonings;  
            d) natural disasters that affect the facility premises; and,  
            e) fires or explosions that occur in or on the facility  
            premises which necessitate action by a fire department or  
            other emergency response unit.

          3)Requires the licensee to follow with a written report to DHCS,  
            in a form prescribed by DHCS, within seven days of reporting  
            the events or incidents in 2) a) through e) above.

          4)Requires the telephonic and written reports to include a  
            description of the event or incident, including the time,  
            location, and nature of the event or incident, a list of  
            immediate actions that were taken, including persons  
            contacted, and a description of the followup action that is  
            planned, including steps taken to prevent a recurrence of the  
            event or incident.

          5)Requires DHCS to require alcohol and other drug (AOD)  
            counselors working within ADART programs to register with an  








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            organization approved by DHCS to certify counselors.

          6)Requires approved certification organizations to consult with  
            available electronic databases of other department-approved  
            certification organizations, prior to  registering or  
            certifying  a counselor, to determine whether the person has  
            ever had his or her registration or certification as a  
            counselor revoked. 

           EXISTING LAW  : 

          1)Eliminates the Department of Alcohol and Drug Programs (DADP)  
            as of July 1, 2013, and transfers its functions to other  
            departments within the California Health and Human Services  
            Agency (CHHSA), including the transfer of responsibility for  
            licensing and certification of ADART facilities and personnel  
            to DHCS.

          2)Gives DHCS sole authority in state government to license adult  
            ADART facilities and determine the qualifications of personnel  
            working within the facilities.
          3)Defines an ADART facility as any premises, place, or building  
            that provides 24-hour residential nonmedical services to  
            adults who are recovering from problems related to alcohol,  
            drug, or alcohol and drug misuse or abuse, as specified.

          4)Prohibits the operation of an ADART program, except for  
            facilities operated by a state agency, without first obtaining  
            a current, valid license from DHCS, as specified, and requires  
            ADART licensees to provide at least one of the following  
            nonmedical services: recovery services, treatment services, or  
            detoxification services.

          5)Requires in regulations applicable to ADART facilities  
            (California Code of Regulations (CCR), Title 9, Division 4,  
            Chapter 5, Section 10561(b)) nearly identical reporting of  
            specified incidents in this bill: telephone reports within one  
            working day; a written report within seven working days;  
            reports of deaths and injuries that require treatment;  
            reportable communicable diseases; poisonings; catastrophes  
            (natural disasters); and, fires/explosions.

          6)Requires, in regulations (CCR, Title 9, Division 4, Chapter 8,  
            Sections 9846-13075), the following related to staff in ADART  
            facilities:








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             a)   Staff providing counseling services must be licensed,  
               certified, or registered with one of seven private  
               accrediting organizations specifically approved by DHCS,  
               and requires DHCS to only approve accrediting organizations  
               approved by a national accreditor.

             b)   Within five years of registering with a certification  
               organization, requires counselors (not otherwise  
               grandfathered as of April 1, 2005) to meet education,  
               training, and testing requirements of the certifying  
               organization and become certified, unless the counselor  
               demonstrates hardship and seeks an extension of up to two  
               years.

             c)   Requires certifying organizations under 6) a) above to  
               impose specific requirements on applicants, including  
               specified education, work experience, and testing  
               requirements, and the applicant to sign a statement as to  
               whether his/her prior certification as an AOD counselor has  
               ever been revoked.

             d)   Requires an approved certifying organization, prior to  
                certification  of any registrant (but not at the point of  
               registration) to contact all other DHCS-approved certifying  
               organizations to determine if a registrant's certification  
               was ever revoked. 

           FISCAL EFFECT  :   This bill has not been analyzed by a fiscal  
          committee.

           COMMENTS  :

           1)PURPOSE OF THIS BILL  .  According to the author, this bill is  
            intended to ensure that a resident's death is promptly  
            reported by an ADART facility and addressed by DHCS in a  
            timely manner.  The author acknowledges that DHCS recently  
            took over the responsibilities previously held by DADP but  
            states that there have been rising concerns that current  
            regulations and enforcement remain inadequate.  Finally, the  
            author states this bill will implement the recommended reforms  
            in a 2012 report by the California Senate Office of Oversight  
            and Outcomes (SOOO) as to improve the quality of care provided  
            in ADART residential facilities and ensure that proper  
            oversight is established.  








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           2)BACKGROUND  .   The state's residential ADART facilities are  
            authorized to provide nonmedical services to individuals  
            recovering from alcohol and drug addiction.  ADART programs  
            must be licensed by DHCS, with licensing criteria that are  
            focused on health and safety rather than treatment program  
            content.  DHCS conducts site visits every two years to check  
            for compliance with regulations, including: staff tuberculosis  
            tests; health questionnaires for residents; staff First Aid  
            and cardiopulmonary resuscitation training; and, adequate food  
            for residents. 

          Licensing of ADART programs was shifted from the Department of  
            Social Services (DSS) to DADP in the 1980s because ADART  
            programs required less intensive services than other  
            facilities licensed by DSS.  At the time, the dominant model  
            of treatment for substance abuse recovery was the social  
            model, a peer-oriented program based on the 12th step in the  
            Alcoholics Anonymous process: reaching out to help other  
            alcoholics as a way of sustaining sobriety.  The social model  
            is essentially nonmedical; accordingly, the ADART programs  
            were defined in statute as programs that provide nonmedical  
            services.  

          In 2013, DADP was eliminated and responsibility for ADART  
            programs was shifted from DADP to DHCS.  DHCS administers the  
            ADART programs under the same statutory and regulatory  
            standards previously administered by DADP.

           3)SOOO REPORTS  .  SOOO issued two investigative reports relating  
            to oversight of ADART facilities and staff by the DADP,  
            responsible for ADART oversight at that time, as summarized  
            below.  

             a)   Oversight of Drug and Alcohol Facilities.  The September  
               2012 SOOO report, "Rogue Rehabs: State Failed to Police  
               Drug and Alcohol Homes, with Deadly Results," identified  
               two serious problems in DADP oversight of ADART programs:  
               first, a pattern, over the past decade, of DADP failing to  
               identify potentially dangerous problems and, when it did,  
               neglecting to follow up and assure that the problems were  
               corrected; and, second, evidence of the widespread  
               provision of medical treatment by ADART programs, in direct  
               violation of state law.









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             SOOO cited several incidents where DADP's enforcement and  
               investigation activities following resident deaths at ADART  
               facilities were inconsistent.  At one facility where four  
               patient deaths occurred over a span of two and a half  
               years, DADP was slow to respond: one death was only  
               investigated a year and a half after the fact, upon DADP  
               learning of another death in the same facility.  By the  
               time DADP suspended the facility's license, the home had  
               already been closed due to foreclosure.  At other  
               facilities, patients who were too sick to receive care at  
               an ADART facility died after being admitted with the  
               expectation that they would receive medical care.   
               According to the 2012 report, DADP indicated it was being  
               more aggressive in halting practices that could lead to  
               injury or death, and DADP was revoking and suspending  
               licenses more frequently.  DADP implemented new policies  
               intended to focus limited resources on cases that pose the  
               greatest risk to the public.  The 2012 report recommends  
               that DADP's improved death investigation policy be used as  
               a template for statutory death investigation requirements,  
               if the policy is found to be effective.

             The second major problem identified by the September 2012  
               report is that DADP interprets its mission as overseeing  
               non-medical care in residential homes, yet the industry  
               routinely offers services that include medications and care  
               by doctors and other medical professionals. Though many  
               programs continue to adhere to the "social model," much of  
               the industry has abandoned that model in favor of a  
               "comfortable" model that provides medicine to help with  
               detoxification.  The 2012 report notes that California is  
               unusual among populous states in prohibiting medical care  
               in residential treatment programs, and recommends that the  
               Legislature consider legislation to allow medical care in  
               residential treatment facilities, given that many experts  
               believe that medical care is an integral part of successful  
               treatment.  However, the 2012 report adds that it would not  
               be enough to simply lift the ban; the state may have to  
               strengthen other laws and regulations to make sure that  
               medical care in the facilities would be safe and effective.

             b)   Oversight of AOD Counselors.  In May 2013, SOOO released  
               a second report, "Suspect Treatment: State's lack of  
               scrutiny allows unscreened sex offenders and unethical  
               counselors to treat addicts," SOOO reported that about  








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               36,000 registered or certified AOD counselors work in 2,534  
               private and publicly funded AOD programs.  The 2013 report  
               concluded that California's system of AOD counselor  
               oversight allows residents to be treated by registered sex  
               offenders and other serious felons, counselors facing  
               current drug and alcohol charges, and those whose  
               certification already was revoked for misconduct.  SOOO  
               also concluded that AOD counselors can easily flout  
               existing education and training requirements.  The 2013  
               report pointed out California is one of only two states  
               (and Pennsylvania) among the 15 largest states making no  
               attempt to review counselor criminal backgrounds and that  
               AOD counselors are the only health-related profession in  
               California not subject to such background checks.  In the  
               absence of the certifying organizations not being required  
               to check with other state health licensing boards in  
               California, SOOO found instances where doctors, nurses, and  
               certified nurse assistants had been banned from their  
               fields before becoming AOD counselors. 

             The 2013 report also pointed out that for three decades, the  
               state and AOD treatment industry have been unable to agree  
               on a framework to give the state authority to credential  
               counselors but concluded that California's public-private  
               hybrid system precludes criminal background checks and  
               leaves gaps that can be exploited by counselors who move  
               between seven private organizations that register and  
               certify them.  While the 2013 report acknowledged that many  
               counselors draw from their own struggles with AOD addiction  
               to excel at jobs with not much pay, others come to the  
               profession with serious criminal backgrounds that raise  
               questions about their fitness to treat clients, who are  
               often at the most vulnerable time of their lives.  

             Among other things, the 2013 report recommends that the  
               Legislature reconsider past efforts to give the state  
               authority to license/certify AOD counselors and conduct  
               background checks.  Alternatively, SOOO offers that the  
               state could authorize the accrediting organizations to  
               conduct the background checks and set guidelines for  
               circumstances and convictions that would preclude certain  
               individuals from working as counselors.  The 2013 report  
               also recommends that DHCS or the accrediting organizations  
               check applicants against the National Practitioner Data  
               Bank, and require certifying organizations to check with  








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               the other counterpart organizations at the time of  
               registration, not just at the point of certification,  
               because certification may occur five to seven years later,  
               or longer if the person moves between certifying  
               organizations and re-registers starting the five-year clock  
               over.

           4)SUPPORT  .  California Association of Addiction Recovery  
            Resources (CAARR) writes in support of this bill, as it was  
            amended to make clarifying changes to the incident reporting  
            section, including deleting reporting of communicable diseases  
            and limiting the types of  injuries and fires that must be  
            reported.  CAARR also recommends that the author consider  
            expanding counselor registration/certification to include  
            counselors in outpatient settings.  California Narcotic  
            Officers Association supports this bill because it will  
            provide for greater oversight of ADART facilities. 

           5)RELATED LEGISLATION  .  

             a)   AB 40 (Mansoor) of 2013 would have required ADART  
               program licensees to report deaths and other unusual events  
               to DADP and would have required licensees that provide  
               medical detoxification services to provide those services  
               under the supervision of a medical doctor.  AB 40 was held  
               on the Assembly Appropriations Suspense file.   

             b)   AB 395 (Fox) would have expanded the types of facilities  
               licensed by DHCS as ADART facilities to include facilities  
               that provide medical care and would have required DHCS to  
               conduct an evaluation of the ADART licensing program with a  
               report to the Legislature by January 1, 2016.  AB 395 was  
               held on the Senate Appropriations Suspense File.

             c)   AB 2335 (Mansoor) exempts a sober living home or  
               supportive housing from licensure as an alcohol and drug  
               treatment program.  AB 2335 is pending in this Committee  
               and is set for hearing April 22, 2014.

             d)   AB 2491 (Nestande) exempts from ADART licensure sober  
               living homes, defined as a residential property operated as  
               a cooperative living arrangement to provide an alcohol and  
               drug free environment for persons recovering from  
               alcoholism or drug abuse.  AB 2491 is pending in this  
               Committee and is set for hearing April 29, 2014.








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           6)PREVIOUS LEGISLATION  . 

             a)   SB 1014 (Committee on Budget and Fiscal Review), Chapter  
               36, Statutes of 2012, a 2012-13 Budget trailer bill,  
               eliminates DADP and transfers the administrative and  
               programmatic functions of DHCS to departments within CHHSA.

             b)   AB 972 (Butler) of 2011 would have expanded ADART  
               licensing to facilities that provide limited medical  
               services using a multidisciplinary team.  AB 972 was held  
               on the Senate Appropriations Suspense File and later  
               amended to address a different topic.

             c)   AB 2221 (Beall) of 2010 would have expanded ADART  
               licensing to facilities that provide limited medical  
               services using a multidisciplinary team.  AB 2221 was held  
               on the Senate Appropriations Committee Suspense File. 

             d)   AB 1055 (Chesbro) of 2009 would have allowed ADART  
               facilities to include, at the sole discretion of the  
               facility, detoxification services assisted by licensed  
               physicians.  AB 1055 was held on the Assembly  
               Appropriations Committee Suspense File. 

             e)   AB 396 (Committee on Budget), Chapter 709, Statutes of  
               1992, requires that DADP, in administering the licensing of  
               ADART programs, issue new licenses for a period of two  
               years, and conduct onsite program visits for compliance at  
               least once during the license period.  AB 396 also  
               authorizes DADP to conduct unannounced onsite program  
               visits. 

             f)   SB 990 (Watson), Chapter 919, Statutes of 1989, excludes  
               ADART facilities from the California Community Care  
               Facilities Act and instead requires that these facilities  
               and programs be licensed by DHCS, as specified.

           7)POLICY COMMENT  .  The SOOO report suggested the need for  
            broader reforms than this bill embodies.  SOOO specifically  
            described a more aggressive approach to facility oversight and  
            death investigations which at the time was being newly  
            implemented by DADP and recommended that the new DADP policy  
            should be adopted in statute if found to be effective.  In  
            addition, since it assumed responsibility for the AOD facility  








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            and counselor licensing and certification programs, DHCS has  
            established a Counselor Certification Advisory Committee to  
            develop a more consistent and effective AOD counselor  
            certification program in consultation with the accrediting  
            organizations and stakeholders.  This Committee and the author  
            may wish to look to the DHCS work group process, and any  
            improved oversight approaches implemented by DADP and DHCS, to  
            identify further statutory improvements to AOD facility and  
            counselor licensure and certification processes for  
            consideration going forward.

           8)SUGGESTED AMENDMENTS  .

             a)   Need for further detail.  Section 1 of this bill  
               requires DHCS' death investigation policy to "be designed  
               to ensure" that resident deaths in ADART facilities are  
               reported and investigated in a timely manner.  The author  
               may wish to amend this bill to instead directly require  
               DHCS to investigate deaths in a timely manner, along with  
               some specificity as to what would constitute acceptable  
               timelines for such investigations.

             b)   Current version weakens existing regulations.  Section 1  
               of this bill requires ADART facilities to report specified  
               incidents, including the death of a patient, by phone  
               within one day, and to follow with a written report within  
               seven days.  Current ADART regulations impose the same type  
               of reporting requirement within the same timeframes.   
               However, the existing regulations are more comprehensive  
               than this bill in three areas and require: i) reporting of  
               communicable diseases, not included as a reportable event  
               in this bill; ii) reporting of fires or explosions that  
               occur on premises; this bill limits reporting to those  
               "that necessitate action by a fire department or other  
               emergency response unit," a limitation not in the current  
               regulations; and iii) reporting of facility-related  
               injuries of any resident that requires medical treatment,  
               which are limited by this bill to injuries "requiring  
               treatment by a physician at a [licensed health care  
               facility]".  Since the existing regulations require a more  
               comprehensive set of reportable incidents, with fewer  
               limitations, and the reporting timeframes are the same,  
               this bill should be amended to delete the reporting  
               requirement and list of reportable incidents.  









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             If the list of reporting incidents is deleted, Section 1 of  
               this bill would still expand the required information in  
               the written report, beyond what is currently required in  
               regulations, to include what immediate actions the facility  
               took when the incident occurred and the follow-up action  
               planned, including what steps are being taken to prevent a  
               recurrence. 

             c)   Clarifying amendment.  Section 2 of this bill imposes on  
               DHCS-approved certifying organizations the requirement to  
                 check with other approved certification entities regarding  
               prior revocations of a registrant.  This bill should  
               instead impose the requirement on DHCS to impose that  
               requirement on the certifying organizations it approves.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Addiction Recovery Resources
          California Narcotic Officers' Association 

           Opposition 
           
          None on file.
          
          Analysis Prepared by  :    Deborah Kelch / HEALTH / (916) 319-2097