BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 1177             
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          |AUTHOR:        |Gomez                                          |
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          |VERSION:       |July 8, 2015                                   |
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          |HEARING DATE:  |July 15, 2015  |               |               |
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          |CONSULTANT:    |Vince Marchand                                 |
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           SUBJECT  :  Primary care clinics: written transfer agreements.

           SUMMARY  :  Prohibits a primary care clinic, notwithstanding current  
          regulations or any other law, from being required to enter into  
          a written transfer agreement with a nearby hospital as a  
          condition of licensure. 

          Existing law:
          1)Licenses and regulates primary care clinics and specialty  
            clinics by the Department of Public Health (DPH). Primary care  
            clinics are either "community clinics" or "free clinics,"  
            while specialty clinics include surgical clinics, chronic  
            dialysis clinics, rehabilitation clinics, and alternative  
            birth centers.

          2)Defines "alternative birth center" as a clinic that is not  
            part of a hospital and that provides comprehensive perinatal  
            services and delivery care to pregnant women who remain less  
            than 24 hours at the facility. Alternative birth centers can  
            be specifically licensed as a specialty clinic, or can be  
            provided as a permitted service by a licensed primary care  
            clinic.

          3)Prohibits physicians from performing procedures in an  
            outpatient setting using anesthesia, except local anesthesia  
            or peripheral nerve blocks, or both, complying with the  
            community standard of practice, in doses that, when  
            administered, have the probability of placing a patient at  
            risk for loss of the patient's life-preserving protective  
            reflexes, unless in one of the following outpatient settings:

                  a)        An ambulatory surgical center that is  
                    CMS-certified;







          AB 1177 (Gomez)                                    Page 2 of ?
          
          
                  b)        A tribal clinic, as specified;
                  c)        A clinic operated directly by the United  
                    States or any of its departments;
                  d)        A clinic licensed by DPH;
                  e)        A health facility licensed as a general acute  
                    care hospital;
                  f)        A dental office using anesthesia pursuant to  
                    specified provisions of law; or,
                  g)        An outpatient setting that has been accredited  
                    by an accreditation agency that is approved to issue  
                    certificates of accreditation to outpatient settings  
                    by the Medical Board of California (MBC).

          4)Requires MBC to adopt standards for accreditation and, in  
            approving accrediting agencies to perform accreditation of  
            outpatient settings, to ensure that the certification program,  
            at a minimum, includes specified standards, including  
            requiring the accredited outpatient setting to do one of the  
            following:

                  a)        Have a written transfer agreement with a local  
                    hospital;
                  b)        Permit surgery only by a licensee who has  
                    admitting privileges at a local hospital, with the  
                    exception that licensees who may be precluded from  
                    having admitting privileges by their professional  
                    classification are required to have a written transfer  
                    agreement with licensees who have admitting privileges  
                    at a local hospital; or
                  c)        Submit for approval by an accrediting agency a  
                    detailed procedural plan for handling medical  
                    emergencies that is required to be reviewed at the  
                    time of accreditation, and prohibits any reasonable  
                    plan from being disapproved by the accrediting agency.

          5)Defines "conscious sedation," in the Dental Practice Act, as a  
            minimally depressed level of consciousness produced by a  
            pharmacologic or nonpharmacologic method, or a combination  
            thereof, that retains the patient's ability to maintain  
            independently and continuously an airway, and respond  
            appropriately to physical stimulation or verbal command.

          Existing Title 22 regulations: 
          1)Requires primary care clinics to maintain written transfer  
            agreements, which include provisions for communication and  








          AB 1177 (Gomez)                                    Page 3 of ?
          
          
            transportation, with one or more nearby hospitals and other  
            inpatient health facilities as appropriate to meet medical  
            emergencies. Requires essential personal, health and medical  
            information to either accompany the patient upon transfer or  
            be transmitted immediately by telephone to the receiving  
            facility.

          2)Permits primary care clinics, except for those providing  
            abortion or birthing services, to request that DPH waive the  
            written transfer agreement requirement above. Requires the  
            clinic to demonstrate to DPH that all nearby hospitals and  
            other inpatient health facilities, as appropriate to meet  
            medical emergencies have refused to enter into transfer  
            agreements.

          This bill:
          1)Prohibits primary care clinics, notwithstanding a current  
            regulation or any other law, from being required to enter into  
            a written transfer agreement with a nearby hospital as a  
            condition of licensure, except as provided in 2) below.

          2)Requires a primary care clinic where anesthesia is used in  
            compliance with the community standard of practice, in doses  
            that when administered have the probability of placing a  
            patient at risk for loss of the patient's life-preserving  
            protective reflexes, to do one of the following:

                  a)        Have a written transfer agreement with a local  
                    accredited or licensed acute general care hospital;
                  b)        Permit procedures requiring this level of  
                    anesthesia to be performed only by a licensee who has  
                    admitting privileges at a local accredited or licensed  
                    general acute care hospital, except that a licensee  
                    who may be excluded from having admitting privileges  
                    due to his or her professional classification or other  
                    administrative limitations is required to have a  
                    written transfer agreement with a licensee who has  
                    admitting privileges at a local accredited or licensed  
                    acute care hospital; or,
                  c)        Submit for approval from an accrediting agency  
                    a detailed procedural plan for handling medical  
                    emergencies that is required to be reviewed at the  
                    time of accreditation. Prohibits a reasonable plan  
                    from being disapproved by the accrediting agency.









          AB 1177 (Gomez)                                    Page 4 of ?
          
          
          3)Exempts a primary care clinic from the requirement in 2) above  
            if it submits to DPH any competent evidence that demonstrates  
            to DPH that at least one nearby hospital, as defined, or other  
            inpatient health facility has elected to not enter into a  
            transfer agreement with that primary care clinic. Defines  
            "competent evidence" as evidence that is relevant and of such  
            a nature that it can be received by a court of law, and  
            includes an affidavit of someone with the legal authority to  
            bind the clinic operation.

          4)Specifies that primary care clinics are not required to have a  
            hospital transfer agreement with a nearby hospital, if that  
            clinic provides only the following types of analgesia and  
            sedation services: 

                  a)        Local anesthesia;
                  b)        Peripheral nerve blocks;
                  c)        A combination of both local anesthesia and  
                    peripheral nerve blocks; or,
                  d)        Conscious sedation, as defined in existing  
                    law.

          5)Requires DPH to repeal, no later than July 1, 2016, specified  
            Title 22 regulations that require primary care clinics to have  
            a written transfer agreement with a hospital.

           FISCAL  
          EFFECT  :  According to the Assembly Appropriations Committee  
          analysis of the introduced version of this bill, it would have  
          negligible state fiscal effect.

           PRIOR  
          VOTES  :  
          
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          |Assembly Floor:                     |51 - 28                     |
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          |Assembly Appropriations Committee:  |12 - 5                      |
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          |Assembly Health Committee:          |14 - 5                      |
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          COMMENTS  :
          1)Author's statement.  According to the author, under current  








          AB 1177 (Gomez)                                    Page 5 of ?
          
          
            California law, clinics are obliged to obtain a hospital  
            transfer agreement (HTA) from a nearby hospital as a condition  
            of licensure in order to begin performing services.  DPH  
            regulations allow clinics who cannot get an HTA from a nearby  
            hospital to apply for a waiver to this requirement. However,  
            clinics that provide abortions or birthing services are not  
            allowed to apply for a waiver, even if a local hospital won't  
            agree to enter into an HTA.  The author states that this  
            effectively allows a hospital that does not want to enter into  
            an HTA to prevent an abortion clinic from opening.  The author  
            notes that if this bill is enacted, this regulation will be  
            repealed and unenforceable, and will give Californians equal  
            access to reproductive services and the ability to choose. 
          
          2)Hospital transfer agreements.  The requirement for a written  
            transfer agreement between primary care clinics and a local  
            hospital, which is the subject of this bill, is contained in  
            the Title 22 regulations governing primary care clinics. There  
            are also a handful of places where written transfer agreements  
            are statutorily required, and would not be affected by this  
            bill. For example, a rural general acute care hospital that  
            does not provide surgical and anesthesia services is required  
            to maintain a written transfer agreement with one or more  
            general acute care hospitals that provide surgical and  
            anesthesia services. A mobile health care services unit  
            (generally speaking, a bus outfitted as a mobile clinic that  
            is operated by a licensed clinic or hospital) is required to  
            maintain written transfer agreements that include provisions  
            for communication with, and transportation to, one or more  
            nearby hospitals as needed to meet medical emergencies.  
            Finally, as discussed in existing law above, an accredited  
            outpatient surgical setting, which uses general anesthesia, is  
            required to either have a written transfer agreement with a  
            hospital, only permit surgery by physicians who have admitting  
            privileges at a hospital, or have a "detailed procedural plan  
            for handling medical emergencies" that is approved by the  
            accrediting agency.
          While written transfer agreements can vary by hospital, DPH  
            provides on its website an example of a transfer agreement  
            that meets its requirements. This form is two pages long, with  
            11 itemized requirements, such as a requirement that  
            transferring institutions send with the patient forms that  
            include information on the medical course of treatment  
            followed by the transferring institution and other pertinent  
            medical, administrative, and social information. Other  








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            requirements include ensuring that the hospital make available  
            its diagnostic and therapeutic services, and to be accountable  
            for the recognition of need for social services. The form also  
            specifies that charges for services performed are to be  
            collected by the institution rendering services, and that  
            neither facilities has any liability to the other for such  
            charges.

          3)Related legislation. SB 396 (Hill), would require a surgical  
            clinic to be eligible for licensure by DPH regardless of  
            physician ownership, deems a surgical clinic to have met  
            licensure requirements if they are federally certified,  
            requires inspections of accredited outpatient surgical  
            settings to be unannounced, and requires both accredited and  
            federally certified surgical settings to be subject to the  
            same reporting requirements to the Office of Statewide Health  
            Planning and Development as licensed surgical clinics. SB 396  
            passed the Senate Health Committee by a vote of 9-0 on April  
            29, 2015, and is pending in the Assembly Appropriations  
            Committee.
            
            AB 941 (Wood), would exempt, from licensure and regulation, by  
            DPH any clinic operated by a federally recognized Indian tribe  
            under a contract with the United States pursuant to the Indian  
            Self-Determination and Education Assistance Act, regardless of  
            the location of the clinic. AB 941 passed the Senate Health  
            Committee by a vote of 8-0 on June 24, 2015, and is pending in  
            the Senate Appropriations Committee.

            AB 1130 (Gray), would expand the licensure exemption for  
            intermittent clinics that are operated by licensed clinics on  
            separate premises by permitting these intermittent clinics to  
            be open for up to 30 hours per week, instead of only 20 hours  
            per week. AB 1130 passed the Senate Health Committee by a vote  
            of 8-0 on June 24, 2015, and is pending in the Senate  
            Appropriations Committee.
            
          4)Prior legislation. AB 980 (Pan, Chapter 663, Statutes of  
            2013), required the California Building Standards Commission  
            (CBSC) to adopt emergency regulations to delete a provision of  
            the 2013 California Building Standards Code that established  
            building standards for primary care clinics that provide  
            abortion services, and prohibited the CBSC from adopting any  
            building code standards for clinics providing medication or  
            aspiration abortion services that differ from construction  








          AB 1177 (Gomez)                                    Page 7 of ?
          
          
            standards applicable to other primary care clinics.  Required  
            DPH, no later than July 1, 2014, to repeal or revise  
            regulations relating to abortion services in primary care  
            clinics to ensure that any requirements specific to abortion  
            services are consistent with applicable law and medical  
            standards of care.

          5)Support.  This bill is sponsored by Planned Parenthood  
            Affiliates of California (PPAC), which states that this bill  
            would delete an obsolete regulation that restricts abortion  
            clinics from obtaining an exemption if they cannot enter into  
            a transfer agreement with a local hospital. PPAC states that  
            the Legislature vested DPH with the authority to regulate and  
            license clinics, but by requiring hospital transfer agreements  
            as a condition of licensure, DPH has essentially delegated  
            some of its licensure authority to the hospitals. PPAC states  
            that any hospital corporation with either a moral objection or  
            a desire to secure a competitive edge can refuse to sign a  
            transfer agreement and bring a clinic's license application to  
            a halt. PPAC states that the existing regulations around the  
            hospital transfer agreement acts like a targeted restriction  
            on abortion providers, or a TRAP law. Community clinics that  
            provide abortion services, like Planned Parenthood, are  
            singled-out and in this case are unable to file for an  
            exemption from the hospital transfer agreement requirement.  
            According to PPAC, although California's laws and regulations  
            tend to be progressive around abortion and comprehensive  
            reproductive health care, this bill will address some of the  
            last remaining policies that single out abortion providers.  
            The California Family Health Council also supports this bill,  
            stating that this bill would expand access to essential sexual  
            and reproductive health care by removing barriers to primary  
            clinics from getting licenses to operate. The Community Clinic  
            Association of Los Angeles County states in support that the  
            decision of whether to grant a license to a clinic should rest  
            exclusively with  the state and should not hinge upon securing  
            an agreement with an independent entity that, for a variety of  
            reasons, may or may not be cooperative.

          6)Oppose unless amended.  The California Chapter of the American  
            College of Emergency Physicians (California ACEP) states that  
            they are opposed unless amended to make all clinics equal by  
            allowing community clinics providing birthing or abortion  
            services to apply for an exemption from the written transfer  
            agreement requirement. According to California ACEP, while it  








          AB 1177 (Gomez)                                    Page 8 of ?
          
          
            supports the goal of removing barriers to licensing for  
            clinics offering reproductive services, it is opposed to the  
            solution offered in this bill of eliminating transfer  
            agreements with a local hospital for all community clinics as  
            a condition of licensure. California ACEP states that transfer  
            agreements between community clinics and one or more nearby  
            hospitals are important to ensuring that clinics can  
            adequately coordinate care for patients facing medical  
            emergencies. California ACEP states that while it is of course  
            true that a patient can always be transported to an emergency  
            department by ambulance without accompanying medical  
            information, it is always better for the patient if the  
            treating emergency physician has access to personal, health,  
            and medical information. California ACEP notes that under  
            current law, clinics may ask DPH to waive the transfer  
            agreement requirement, as long as those clinics do not provide  
            birthing or abortion services. Rather than eliminate transfer  
            agreements for all community clinics, California ACEP states  
            that this bill should be amended to make all clinics equal by  
            allowing community clinics providing birthing or abortion  
            services to apply for an exemption. The California Medical  
            Association also opposes this bill unless amended with the  
            same amendment requested by California ACEP.

          7)Oppose. This bill is opposed by Concerned Women for America  
            (CWA), which states that operators of abortion clinics would  
            benefit from the passage of this bill since abortion  
            facilities would be able to open without the requirement of  
            having to get a transfer agreement with a local hospital. CWA  
            states that in El Centro, a Planned Parenthood recently  
            opened, and that after months of public outcry by thousands of  
            Imperial County residents to dissolve a transfer agreement  
            between El Centro Regional Medical Center, suddenly this bill  
            makes its way through the California Legislature. CWA states  
            that women will be endangered further if abortion facilities  
            are not required to have a transfer agreement with a local  
            hospital, and that loosening the reins on abortion clinics  
            will lead to serious injury and death for women. The  
            California Right to Life Committee (CRLC) also opposes this  
            bill, stating that primary care clinics are a benefit to their  
            communities, so one would assume that the medical personnel  
            would want to include transfer agreements as an important and  
            valid component of licensure. CRLC states that it has read  
            about serious situations developing when such facilities have  
            not had such transfer agreements.








          AB 1177 (Gomez)                                    Page 9 of ?
          
          



          8)Proposed amendments. 
               a)     Recent amendments to this bill generally incorporate  
                 the same transfer requirements that apply to accredited  
                 outpatient surgical settings where general anesthesia is  
                 used to those primary care clinics that use the same  
                 level of general anesthesia. These amendments were in  
                 response to a suggestion from committee staff that while  
                 most primary care clinics do not perform procedures  
                 utilizing general anesthesia, to the extent that they do,  
                 they should meet the same requirements the law imposes on  
                 accredited outpatient surgical settings. Following  
                 further discussions between committee staff, author and  
                 sponsor, the author will propose amendments that further  
                 refine these provisions by, among other things,  
                 simplifying the language, and by requiring these clinics  
                 to attempt to obtain a transfer agreement from two  
                 hospitals, instead of just one, before being exempted  
                 from the transfer requirement.

               b)     The American Congress of Obstetricians and  
                 Gynecologists, District IX (ACOG, expressed concern to  
                 the author and committee staff that in deleting the  
                 transfer agreement requirement, this bill would also  
                 apply to primary care clinics that are approved by DPH to  
                 be an alternative birth center as a special service.  
                 According to ACOG, written transfer agreements are part  
                 of the standard of care for birthing centers, and while  
                 standards of care do not always have to be written into  
                 the law, it is different when it has been the law and is  
                 being expressly deleted. To address this concern, the  
                 author has proposed amendments to specifically require  
                 alternative birth centers that are licensed as primary  
                 care clinics to maintain a written transfer agreement  
                 with a hospital.
          
           SUPPORT AND OPPOSITION  :
          Support:  
          Planned Parenthood Affiliates of California (sponsor)
          California Family Health Council
          Community Action Fund of Planned Parenthood Orange and San  
          Bernardino Counties
          Community Clinic Association of Los Angeles County








          AB 1177 (Gomez)                                    Page 10 of ?
                                                                         
          
          Planned Parenthood Action Fund of Santa Barbara, Ventura, and  
          San Luis Obispo Counties
          Planned Parenthood Action Fund of the Pacific Southwest
          Planned Parenthood Advocacy Project Los Angeles County
          Planned Parenthood Mar Monte
          Planned Parenthood Northern California Action Fund
          Planned Parenthood Pasadena and San Gabriel Valley
          
          Oppose:
          California Chapter of the American College of Emergency  
          Physicians (unless amended)
          California Medical Association (unless amended)
          California Right to Life Committee
          Concerned Women for America of California
                                          

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