BILL ANALYSIS Ó AB 2374 Page 1 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 AB 2374 Page 2 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: AB 2374 Page 3 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. AB 2374 Page 4 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. AB 2374 Page 5 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 AB 2374 Page 6 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 AB 2374 Page 7 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. AB 2374 Page 8 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 AB 2374 Page 9 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. AB 2374 Page 10 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