BILL ANALYSIS Ó AB 848 Page 1 Date of Hearing: April 14, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair AB 848 (Mark Stone) - As Amended April 6, 2015 NOTE: Double Referral. This bill is double referred, and if passed by this Co0mmittee, it will be referred to the Assembly Health Committee. SUBJECT: Alcoholism and drug abuse treatment facilities. SUMMARY: Authorizes alcoholism and drug treatment facilities to allow a licensed physician, or other health care practitioner, to provide incidental medical services to a resident of the facility and requires the Department of Health Care Services (DHCS) to conduct an evaluation of the program on or before January 1, 2019, and to report the results of the evaluation to the appropriate fiscal and policy committees of the Legislature. AB 848 Page 2 EXISTING LAW 1)Provides for the licensure of physicians and surgeons, and the enforcement of the disciplinary and criminal provisions of the Medical Practice Act, by the Medical Board of California (MBC) located within the Department of Consumer Affairs (DCA). (BPC § 2000; 2004) 2)Defines a "licensee" as the holder of a physician and surgeons certificate who is engaged in the professional practice authorized by the certificate under the jurisdiction of the MBC. (BPC § 2041) 3)Defines an "alcoholism or drug abuse recovery or treatment facility" (facility) as a facility that provides 24-hour residential non-medical services, defined as recovery services, treatment services and detoxification services, to adults who are recovering from problems related to alcohol, drug, or alcohol and drug misuse or abuse. (HSC § 11834.02) 4)Specifies that a licensee shall not operate such a facility beyond the conditions of the license and if it does, the facility is subject civil penalties, suspension or revocation of the license. (HSC §§ 11834.15, 11834.16) 5)Specifies that a license for a drug abuse recovery or treatment facility is valid for two (2) years. (HSC § 11834.16) THIS BILL AB 848 Page 3 1)Specifies that a health care practitioner should submit a signed certification form to a facility licensed by the DHCS where they plan to provide alcoholism or drug abuse recovery or treatment services. 2)Defines "health care practitioner" as a healing arts professional, licensed under BPC § 500, and who is acting within the scope of practice of his or her license or certificate. 3)Specifies that the DHCS shall develop a standard certification form, for use by a health care practitioner, that: a) describes the alcoholism and drug abuse recovery or treatment services provided, and b) certifies that the health condition or medical or psychiatric history of the applicant does not require a level of care that is higher than the level of care that may legally be provided by a licensed facility. 4)Specifies that on or before January 1, 2017, the DHCS shall adopt emergency regulations that are exempt from review by the Office of Administrative Law and shall be submitted for filing with the Secretary of State. 5)Defines "incidental medical services" as services to address the physical and mental health issues associated with either detoxification from alcohol or drugs or the provisions of alcoholism or drug abuse recovery or treatment services, that in the opinion of a physician are not required to be performed in a licensed clinic or health facility. AB 848 Page 4 6)Specifies that a facility may permit incidental medical services to be provided to a resident at the facility by one or more independent physicians and surgeons licensed by the MBC or the Osteopathic Medical Board who are knowledgeable about addiction medicine, or one or more other health care practitioners acting within the scope of practice of his or her license and under the direction of a physician and surgeon, and are also knowledgeable about addiction medicine. 7)States that the facility must comply with all other applicable laws and regulations to meet the needs of a resident receiving incidental medical services from a physician. 8)Specifies that the physician and surgeon and any other health care practitioner has signed an acknowledgment on a form provided by the DHCS that he or she has been advised of and understands the statutory and regulatory limitations on the services that may legally be provided by the facility, and the statutory and regulatory requirements and limitations for the physician and surgeon or other health care professional and for the facility. 9)Requires that there is an agreed-upon written protocol between the physician and surgeon and the facility signed by the physician and surgeon and the licensee. 10)Specifies that the facility, in its admissions agreement with a client, shall clearly identify the individual financially responsible for incidental medical services that are provided. AB 848 Page 5 11)States there should be ongoing communication between the physician and the facility about the services provided to the resident by the physician and surgeon and the frequency and duration of incidental medical services to be provided. 12)Requires initial and ongoing communication between the physician and surgeon or other health care practitioner and the resident's health plan or health insurer prior to the provision of incidental medical services to ensure coordination of care. 13)Specifies that the facility will not provide incidental medical services and will not assist with or interfere with the physician and surgeon or other health care practitioner providing incidental medical services. 14)States that the resident must be authorized by the physician and surgeon as medically appropriate to receive the incidental medical services at the facility. 15)Requires that before a facility resident receives incidental medical services, the resident has signed an acknowledgment and consent to receive those services on a form provided by the DHCS. 16)Specifies that once incidental medical services are initiated for a resident, the physician and surgeon and the facility shall continuously monitor the resident to ensure that the AB 848 Page 6 services remain appropriate for the resident. 17)Requires the facility to maintain in its files a copy of the physician and surgeon's license or other written evidence of licensure to practice medicine in the state. 18)Requires the facility to report, in a timely manner, to the DHCS, any violation or suspected violation by the physician and surgeon of the regulations relating to providing incidental medical services. 19)Indicates that the DHCS shall not evaluate or have any responsibility or liability with respect to evaluating incidental medical services provided. 20)States that a facility licensed and approved by the DHCS to allow for the provision of incidental medical services shall not be considered a clinic or health facility. 21)Specifies that, other than incidental medical services, minor first aid, or in the case of a life threatening emergency, provision of medical or health care services or services that require a higher level of care than the care that is permitted to be provided at a facility, is not permitted at a facility. 22)Indicates that if an applicant for facility licensure intends to permit incidental medical services, the applicant shall AB 848 Page 7 submit a copy of a valid license of the physician and surgeon who will provide those services, and any other information the DHCS deems appropriate, including, but not limited to, a copy of the facility's accreditation by a nationally recognized accrediting organization. 23)Allows the DHCS to establish an additional licensure fee for an application that includes a request for a facility to provide detoxification services. 24)Requires the DHCS to conduct an evaluation of the program licensing those facilities and to submit a report to the appropriate policy and fiscal committees of the Legislature on or before January 1, 2019. 25)Permits the director of DHCS to temporarily suspend any license prior to any hearing when, in the opinion of the director, the action is necessary to protect residents of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety. 26)Makes other findings and declarations. FISCAL EFFECT: Unknown. This bill is keyed fiscal by the Legislative Counsel. AB 848 Page 8 COMMENTS 1)Purpose. This bill is co-sponsored by the California Society of Addiction Medicine , Elements Behavioral Health and JANUS of Santa Cruz . According to the author, "AB 848 protects the physical and mental health of people seeking alcohol and drug rehabilitation services in residential treatment facilities. Under AB 848, physicians and other appropriate medical personnel can be available on-site to provide 24-hour medical services related to clients' addictions. Clients of these facilities often have a variety of medical needs related to their addictions. Because clients' medical needs can affect and even interfere with their recovery, they may have better recovery outcomes when they have on-site access to medical care including vital sign monitoring, seizure risk assessment, medication management, and psychiatric therapy?The measure requires that facilities seeking licensure adhere to protocol that protect client privacy, notify clients of financial responsibility for medical care, and clearly define the level of medical care to be provided. The measure requires DHCS to promulgate final regulations by July 1, 2017 to implement the policy. Additionally, the measure requires that DHCS perform an evaluation of the law's effectiveness by 2019." 2)Background. Alcoholism or drug abuse recovery or treatment facilities provide 24-hour non-medical care and specialize in providing services to chemically dependent adults who do not require treatment in an acute-care medical facility on an inpatient, intensive outpatient, outpatient, and partial hospitalization basis. These facilities range in size from six-bed facilities in residential neighborhoods to centers that accommodate more than 100 beds (California Senate Office of Oversight and Outcomes report, Rogue Rehabs: State failed to police drug and alcohol homes, with deadly results, September, 2012). AB 848 Page 9 The basic services provided by facilities include group, individual and educational sessions, alcoholism or drug abuse recovery and treatment planning. Detoxification services are also provided and are defined by the DHCS as, "? a service to support and to assist and individual in the alcohol and/or drug withdrawal process and to explore plans for continued service." These services can be provided by a variety of health care providers such as alcohol and drug counselors, mental health therapists, social workers, psychologists, nurses and physicians. Currently, the only medical care that facilities are allowed to provide to clients is first aid and emergency care. If a patient requires medical care, they must leave the facility to receive care from a medical professional and the patient must pay the medical professional directly for services. Facility Licensing and Oversight. Prior to July 1, 2013, the Department of Alcohol and Drug Programs (ADP) was responsible for oversight of alcoholism or drug abuse recovery or treatment facilities. Effective with the passage of the 2013-2014 Budget Act and associated legislation, all ADP programs and staff, except the Office of Problem Gambling, transferred to the DHCS. Now, the DHCS is responsible for oversight. The DHCS licenses the facilities and conducts reviews of their operations every two years. As part of the review process, the DHCS checks for compliance with a variety of requirements including, whether staff has passed AB 848 Page 10 tuberculosis tests, that residents have completed health questionnaires and if at least one staff member is certified in first aid and CPR. The DHCS's Substance Use Disorder (SUD) Compliance Division investigates complaints against facilities. The SUD Compliance Division also investigates violations of the code of conduct of registered or certified alcohol and drug counselors. Additionally, facilities licensed or certified by DHCS are required to report counselor misconduct to DHCS within 24 hours of the violation. Facilities that do not comply with existing requirements are subject to civil penalties and license suspension or revocation. Facility Accreditation. Two national organizations, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and the Joint Commission on Accreditation of Rehabilitation Facilities (CARF), accredit facilities that provide behavioral health care services such as addiction treatment, opioid treatment and maintenance programs, crisis stabilization, case management and care coordination, employment services and vocational rehabilitation. JCAHO and CARF each require facilities to demonstrate that their programs meet the accrediting organizations' quality standards in order to obtain accreditation. These quality standards evaluate functions relating to client care and program management, including administrative requirements, financial management, personnel qualifications, client services, performance outcomes, client safety and information AB 848 Page 11 privacy and security. JCAHO requires accredited organizations to reapply for accreditation every three years while CARF accreditation ranges from one to five years, depending on the type of facility. Senate Office of Oversight and Outcomes Report. In 2012, the Senate Office of Oversight and Outcomes (SOOO) published a report, Rogue Rehabs: State failed to police drug and alcohol homes, with deadly results. The report focused on "gaps" in the ADP's regulation of residential programs as well as a review of the state's ban on medical care at residential drug and alcohol programs. The SOOO advised that state law be changed to "better reflect current treatment practices?[there is a] mismatch between the department's regulation and the industry's prevalent practices." The SOOO recommended, "?lifting the ban on medical care as long as it is accompanied with more extensive oversight." Other States. As part of the SOOO's aforementioned investigation in 2012, it contacted nine (9) other highly populous states. The SOOO found, "California is unusual among populous states in prohibiting medical care." All but one of the nine states allowed physicians and other medical professionals to work in residential rehabilitation facilities. --------------------------------------------------------------------------------------------------- | |Illinois |Indiana |Massachus|New York |North |Ohio |Pennsylva|Texas |Washingto| | | | |etts | |Carolina | |nia | |n | | | | | | | | | | | | AB 848 Page 12 | | | | | | | | | | | |---------+---------+---------+---------+---------+---------+---------+---------+---------+---------| |Allows |Y |Y |N* |Y |Y |Y |Y |Y |Y | |medical | | | | | | | | | | |care in | | | | | | | | | | |residenti| | | | | | | | | | |al | | | | | | | | | | |rehabilit| | | | | | | | | | |ation | | | | | | | | | | |facilitie| | | | | | | | | | |s | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | --------------------------------------------------------------------------------------------------- NOTE: This data is from the SOOO report: Rogue Rehabs: State failed to police drug and alcohol homes, with deadly results, September, 2012. http://sooo.senate.ca.gov/sites/sooo.senate.ca.gov/files/Rogue%20 Rhab%209_4_12.pdf *Rehabilitation homes refer clients to local doctors; nurses are available at homes 3)Prior Related Legislation. AB 395 (Fox) of 2013, would have expanded the types of facilities licensed by the ADP to include any facility that has a nationally accredited program that uses a multidisciplinary team to provide 24-hour residential medical services to adults recovering from alcohol and drug abuse problems. NOTE: This bill died on the Senate Appropriations Committee suspense file. AB 972 (Butler and Beall) of 2011, would have expanded, until January 1, 2017, the category of residential treatment facilities licensed by the ADP to include facilities that provide limited medical services to adults recovering from alcohol and drug abuse, provided that the facility is not AB 848 Page 13 otherwise required to have a separate health facility license. Would have established a fee for facilities that provide limited medical services and makes other changes to the licensing fees for residential treatment facilities. NOTE: This bill was held in the Senate Appropriations Committee. AB 2221 (Beall) of 2010, would have permitted 24-hour residential treatment facilities that provide services to adults recovering from alcohol and drug abuse that are licensed by the ADP to provide unspecified medical services and would have provided that such a facility would not require a health facility license. NOTE: This bill died on the Senate Appropriations Committee suspense file. AB 1055 (Chesbro) of 2009, would have expanded the ADP licensure authority for alcohol and drug treatment facilities to include 24-hour facilities that do not require a health facility license. NOTE: This bill died on the Assembly Appropriations Committee suspense file. ARGUMENTS IN SUPPORT The California Society of Addiction Medicine also writes in support and notes in its letter, "Passage of this bill will make it clear that physicians may provide appropriate medical services to persons undergoing withdrawal in residential treatment facilities?[the current] ban precludes facilities from meeting a variety of on-site medical needs of their clients, including emergency care, psychiatric treatment, or medical AB 848 Page 14 conditions related to clients' addictions. Instead, when clients have medical needs during the course of their residential treatment, facility staff must send them to doctors' offices of hospital emergency departments, which inefficient and costly." Elements Behavioral Health , a division of Promises Treatment Centers states its concern with the implications of current statute in its letter of support, "Until very recently the state's Alcohol and Drug Program (ADP) interpreted "non-medical" licensure language to distinguish licensed residential facilities from hospitals. Patients of these facilities routinely were provided with basic medical care which, much less a house call, included the prescription ad monitoring of medicine, taking blood samples and blood pressure, the provisions of psychiatric evaluations, administration of public health inoculations and the general oversight of a patient's health conditions. A few years ago ADP began threatening loss of licensure if such basic medical care was provided." JANUS of Santa Cruz writes in support, "Alcoholism or drug abuse recovery and treatment facilities like Janus provide 24-hour residential non-medical care to clients...Under current law, DHCS cannot license facilities that provide on-site medical personnel to evaluate or provide medical care to clients?Instead, if clients have medical needs during the course of their residential treatment, facility staff must transport them to doctors' offices, clinics, or hospital emergency rooms, which can be inefficient, costly, and potentially even dangerous." The California Naturopathic Doctors Association supports the bill and writes, "The CNDA urges your support of AB 848?as a means of improving patients' access to their chosen primary care provider." AB 848 Page 15 The California Narcotic Officers' Association also writes in support, "Alcoholism or drug abuse recovery and treatment facilities?are required to offer?services that are designed to help clients taper off or quit substances in a safe environment. The challenge is that clients?often have a variety of medical needs related to their addictions. As a result, facility clients may have better recovery outcomes when they have access to medical care including vital sign monitoring, seizure risk assessment, medication management, and psychiatric therapy." Alkermes Inc. supports the bill and writes, "As you know, the treatment of substance abuse is complicated from both a logistical and clinical perspective. Additionally, the landscape surrounding substance use disorder treatment in California is in a state of transformation?AB 848 provides the opportunity to expand access to treatment and care for those receiving services." ARGUMENTS IN OPPOSITION None on file. IMPLEMENTATION ISSUES As indicated above, there have been a number of bills that have attempted to address the issue of removing the ban on provision of medical services at alcoholism or drug abuse recovery or treatment facilities. While there have been recent changes to these facilities, e.g. the licensing and oversight of these facilities was transferred to the DHCS in 2013, the Committee may wish to consider requiring additional implementation safeguards should this bill pass. AB 848 Page 16 As noted in the SOOO report, it is recommended that the DHCS, the facility and/or the accrediting organization implement regulations requiring that the credentials and malpractice insurance for medical professionals providing medical treatment be checked before they contract with the facility. It may also be beneficial to set up a system to require a yearly review of the medical professional's credentials and insurance to assure ongoing compliance and patient protection. As is consistent with practices in other states, it may also be beneficial for programs that offer any type of medical detoxification to hire a medical director to oversee the administration of this treatment. To safeguard against the state's prohibition against the corporate practice of medicine, physicians should contract with the facilities instead of working directly for them. This would necessitate that the employment contract specify that the program cannot control or interfere with the physician's practice and that the physician retains the ability to make decisions. The contract should also clearly state that the physician is not paid for the types or amount of services provided. REGISTERED SUPPORT / OPPOSITION Support: AB 848 Page 17 California Society of Addiction Medicine (co-sponsor) Elements Behavioral Health (co-sponsor) JANUS of Santa Cruz (co-sponsor) Alkermes Inc. California Naturopathic Doctors Association California Narcotic Officers' Association County Behavioral Health Directors Association Opposition: None on file. Analysis Prepared by:Le Ondra Clark Harvey, Ph.D. / B. & P. / (916) 319-3301 AB 848 Page 18