BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 145
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|AUTHOR: |Pan |
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|VERSION: |January 27, 2015 |
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|HEARING DATE: |April 15, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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SUBJECT : Health facilities: patient transporting
SUMMARY : Prohibits hospitals from causing a patient with a blood
alcohol content of 0.08 percent or greater to be transported to
another location, except when the patient is medically
stabilized or transferred to another licensed health facility,
and provides for enforcement of repeat violators by the Attorney
General or by local district attorneys, including civil
penalties of $150,000 for a second violation, and $300,000 for
subsequent violations.
Existing law:
1.Requires, under both the federal Emergency Medical Treatment
and Active Labor Act (EMTALA) and also under state law, that
anyone who comes into a hospital emergency room to be provided
with a medical screening examination, regardless of the
patient's ability to pay, to determine if the patient is
suffering from an emergency medical condition, and if so,
requires the patient to be treated until the patient is
medically stabilized.
2.Defines "emergency medical condition" as a condition
manifesting itself by acute symptoms of sufficient severity
that the absence of immediate medical attention could
reasonably be expected to result in placing the patient's
health in serious jeopardy, serious impairment to bodily
functions, or serious dysfunction of any bodily organ or part.
3.Defines "stabilization" as when, in the opinion of the
treating physician, the patient's medical condition is such
that, within reasonable medical probability, no material
deterioration of the patient's condition is likely to result
from, or occur during, the release or transfer of the patient.
SB 145 (Pan) Page 2 of ?
4.Provides for a civil penalty of up to $25,000 for hospitals
found by the Department of Public Health (DPH) to have
violated the state law version of EMTALA, and penalties of up
to $5,000 for physicians whom the Medical Board of California
found violated these provisions of law. Additionally, permits
a person who suffers personal harm as a result of a violation
of these provisions of law to recover damages and other
appropriate relief in a civil action (known as a private right
of action).
5.Establishes a structure under which DPH is permitted to assess
administrative fines to general acute care hospitals, acute
psychiatric hospitals, and special hospitals for violation of
any of their licensing laws and regulations. Requires DPH to
promulgate regulations establishing the criteria to assess
these administrative penalties, and requires these criteria to
include, but not be limited to, the following:
a. The patient's physical and mental condition;
b. The probability and severity of the risk that
the violation presents to the patient;
c. The actual financial harm to patients, if any;
d. The nature, scope, and severity of the
violation;
e. The facility's history of compliance with
related state and federal statutes and regulations;
f. Factors beyond the facility's control that
restrict the facility's ability to comply with state
law;
g. The demonstrated willfulness of the violation;
and
h. The extent to which the facility detected the
violation and took steps to immediately correct the
violation and prevent the violation from recurring.
6.Permits DPH to assess an administrative penalty against a
general acute care hospital, acute psychiatric hospital, and
special hospital, for a deficiency constituting an immediate
jeopardy violation, as defined, up to a maximum of $75,000 for
the first administrative penalty, up to $100,000 for the
second administrative penalty, and up to $125,000 for the
third and every subsequent administrative penalty. Defines
"immediate jeopardy" as a situation in which the licensee's
noncompliance with one or more requirements of licensure has
SB 145 (Pan) Page 3 of ?
caused, or is likely to cause, serious injury or death to the
patient.
7.Permits DPH to assess an administrative penalty of up to
$25,000 per violation for those not deemed to constitute
immediate jeopardy.
This bill:
1.Prohibits a general acute care hospital, acute psychiatric
hospital, or special hospital from causing a patient with a
blood alcohol content (BAC) of 0.08 percent or greater to be
transported to another location, including, but not limited
to, policy custody, a correctional facility, or a county jail,
except when the patient is medical stabilized or appropriately
transferred to another licensed health facility pursuant to
another law.
2.Requires DPH, if it determines that a hospital has violated
the provisions of this bill, to consider, at a minimum, all of
the following actions:
a. Assessment of an administrative penalty, as
provided for in specified provisions of existing law;
and,
b. Referral to the appropriate authorities for
consideration of commencing an action to enforce
misdemeanor criminal penalties for a violation of any
of the provisions of law governing hospitals, as
specified.
3.Requires a hospital to be subject to a civil penalty of
$150,000 upon a second violation of this bill, and permits the
Attorney General, a district attorney, a city attorney of a
city having a population in excess of 750,000, or a city
attorney of a city and county, to bring a civil action seeking
civil penalties, preventive relief, including an application
for a permanent or temporary injunction, restraining order, or
other order against the health facility.
4.Specifies that a hospital that has been criminally convicted
of a violation of this bill, which has been previously
penalized for two separate violations of this bill, may be
subject to civil penalties of no less than $300,000.
5.Requires the court, in determining the civil penalty to be
SB 145 (Pan) Page 4 of ?
imposed upon a second or subsequent violation, to consider all
relevant facts, including, but not limited to, all of the
following:
a. Whether the violation exposed the patient to a
risk of death or serious physical harm;
b. Whether the violation has a direct or
immediate relationship to the health, safety, or
security of the patient;
c. Evidence, if any, of willfulness;
d. The number of repeated violations; and,
e. The presence or absence of good faith efforts
by the defendant to prevent the violation.
6.Requires any investigative costs incurred in the enforcement
of the civil penalty remedies, including, but not limited to,
expert's and attorney's fees incurred by the Attorney General,
district attorney, or city attorney in carrying out this
subdivision, to be recoverable from the liable hospital.
7.Requires the civil penalty collected to be paid into the
General Fund for any action brought by the Attorney General,
to the county treasurer where the judgment was entered for any
action brought by a district attorney, and to the city
treasurer for any action brought by a city attorney. Requires
all civil penalties collected to be used exclusively for the
provision of post-hospital recuperative beds, transitional
housing, and mental health counseling programs for the
homeless.
8.Specifies that this bill does not apply to any of the
following:
a. Patients in state hospitals operated and
administered by the Department of State Hospitals who
are civilly or criminally committed and subject to
transfer to the Department of Corrections and
Rehabilitation, the Forensic Conditional Release
Program, or to a court for further proceedings;
b. Patients who remain under the jurisdiction of
the Department of Corrections and Rehabiliation; and,
c. Residents of state developmental centers
operated and administered by the Department of
Developmental Services who are discharged to the
community pursuant to the Lanterman Developmental
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Disability Services Act, and in accordance with an
individual program plan, as defined, developed
specifically for the resident.
9.Specifies that nothing in this bill precludes criminal
prosecution or civil action under any other law, nor does
anything in the bill limit or abridge the authority of any
city or county to adopt an ordinance authorizing
investigations or inspections, or implementing and enforcing
restrictions dealing with patient transportation.
10.Prohibits anything in this bill from being construed to
contradict any other law related to workplace violence
prevention, including, but not limited to, workplace violence
standards adopted by the Occupational Safety and Health
Standards Board.
FISCAL
EFFECT : This bill has not been analyzed by a fiscal committee.
COMMENTS :
1.Author's statement. According to the author, SB 145 stops a
practice that poses a risk to patient safety, prevents the
cost and liabilities of treating hospital's emergency patients
from being wrongly shifted to the police and correction
facilities and preserves 911 calls for true emergencies. Some
of the hospitals in California routinely call 911 and have
patients with potentially lethal levels of alcohol in their
systems taken to jail. It goes against everything we stand for
in healthcare and it has to stop. Substantial evidence reveals
that Prime Healthcare (Prime) services are transferring
patients, admitted to the Emergency Room (ER) for acute
alcohol poisoning, to police departments, corrections
facilities, and county jails by calling 911. Despite being one
of the largest hospital chains in the state, Prime has an
unusually high number of cases where the police are called on
patients in the ER. Prime calls the police on patients with
acute alcohol poisoning and requests the patients be arrested
and transferred to a jail before the patient has been treated
and stabilized. Acute alcohol poisoning is a medical
emergency.
2.Background on problem. According to information provided by
the author and the Service Employees International Union -
United Healthcare Workers West (SEIU-UHW), a co-sponsor of
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this bill, for the first three months of 2014, 124 emergency
calls came from Shasta Regional Medical Center, a Prime
Healthcare hospital in Redding, California, which averages to
about 41 such calls per month. In comparison, a hospital
operated by Dignity Health about two miles away from Shasta
Regional Medical Center only made 53 emergency calls in the
first nine months of 2014, or about 6 per month.
SEIU-UHW also cited some Shasta emergency call summaries that
described requests for patients to be picked up with very high
BAC levels. According to SEIU-UHW, the following call
summaries are examples where the patient was booked after the
emergency call was made and the officer responded (each of
these incidents were from February and March of 2010):
"Subject has BAC of .48 and needs to be picked up."
"Intoxicated subject cleared for release. Still has
BAC of .44"
"Patient medically cleared with .40 BAC"
1.EMTALA. Sometimes referred to as the "Patient Anti-Dumping
Law," EMTALA was passed to address the problem of hospitals
refusing to treat indigent, uninsured, or Medicaid patients,
or "dumping" these patients by transferring them to county
hospitals or other charity hospitals. According to the
federal Centers for Medicare and Medicaid Services, in 1986,
Congress enacted EMTALA to ensure public access to emergency
services regardless of ability to pay. Section 1867 of the
Social Security Act imposes specific obligations on
Medicare-participating hospitals that offer emergency services
to provide a medical screening examination when a request is
made for examination or treatment for an emergency medical
condition, including active labor, regardless of an
individual's ability to pay. Hospitals are then required to
provide stabilizing treatment for patients with an emergency
medical condition. If a hospital is unable to stabilize a
patient within its capability, or if the patient requests, an
appropriate transfer should be implemented. As an enforcement
mechanism, EMTALA also established a private right of action.
2.Effects of BAC. A chart from Stanford University's Office of
Alcohol Policy and Education, which describes the physical and
mental effects of various blood alcohol concentration levels,
is typical of many such charts. At a BAC of .07 to .09, this
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chart states that the effect is mild impairment of balance,
speech, vision and control, and that in California, you will
test as legally impaired to drive. At a BAC of .16 to .20,
dysphoria predominates, nausea may appear, and the drinker has
the appearance of a "sloppy drunk." At .25 to .30, the person
is severely intoxicated, needs assistance walking, has mental
confusion, and there is vomiting. At .35 to .40, loss of
consciousness and brink of coma, and at .40 and up, onset of
coma with likelihood of death due to respiratory failure.
Another chart, describing wider ranges, broke BAC levels into
categories such as .18 to .30 being the "confusion" stage,
with various symptoms; .25 to .40 the "stupor" stage; .35 to
.50 the "coma" stage (which includes possible death as a
symptom); and .45 and above "death from respiratory arrest."
In a study published in EMS World in March of 2014 entitled
"Acute Alcohol Poisoning," the authors included a similar
chart, which listed "coma in the non-habituated drinker" at a
BAC of .25-.30. However, this study stated that "it should be
noted there is a poor correlation between BAC and clinical
exam findings in patients with alcohol habituation."
According to the study, "respiratory depression and subsequent
death may occur in the non-habituated patient at
concentrations of 0.4-0.5, but it is not uncommon for a
chronic alcoholic to appear minimally intoxicated with a BAC
as high as 0.4." The study also noted that another factor that
affects a patient's clinical exam is whether the patient's BAC
is increasing or decreasing. According to this study, it is a
known phenomenon, termed the Mellanby effect, that the
clinical manifestations of alcohol intoxication are more
prominent when BAC is rising.
3.Double referral. This bill is double referred. Should it pass
out of this committee, it will be referred to the Senate
Judiciary Committee.
4.Prior legislation. SB 275 (Cedillo), of 2007, would have
prohibited a hospital from causing a patient to be transported
to a location other than the patient's residence or another
health facility without the patient's written consent, and
established penalties and an enforcement process that is very
similar to this bill, including civil penalties of $150,000
for a second violation, and $300,000 for subsequent
violations. SB 275 was vetoed by Governor Schwarzenegger, who
stated in his veto message that while he was strongly opposed
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to patient dumping, hospitals must already meet specific
discharge planning requirements and make appropriate
arrangements for post-hospital care. Enforcement of existing
laws is critical, however, additional penalties are premature.
SB 1312 (Alquist), Chapter 895, Statutes of 2006, among other
provisions, authorized DPH to assess administrative penalties
on hospitals based on deficiencies constituting immediate
jeopardy to the health and safety of a patient.
5.Support. This bill is co-sponsored by SEIU-UHW, and by the
United Nurses Association of California/Union of Health Care
Professionals (UNAC/UHCP). According to SEIU-UHW, there is
substantial evidence that Prime Healthcare Services is
inappropriately and dangerously transferring patients admitted
to the ER for acute alcohol poisoning to police departments,
corrections facilities, and county jails by calling 911.
SEIU-UHW states that this is immoral, poses a risk to patient
safety, and is an abuse of the 911 system, which should of
course be reserved purely for true emergencies. According to
SEIU-UHW, in a number of cases, the reporting party at Shasta
Regional Medical Center reported BAC levels associated with
death and comas but still requested an arrest be made on the
patient. SEIU-UHW states that discharging patients with BACs
higher than 0.3 percent and transferring them to jail in a
police car is dangerous, and that in the case of patients who
require emergency services because of very high BAC levels,
the hospital must stabilize the patient before attempting to
make any transfer.
UNAC/UHCP states in support that regularly calling the police on
intoxicated patients is a basic part of the Prime Healthcare
business model and helps reduce their costs by forcing these
patients into the care and custody of corrections officials,
which in turn puts unnecessary burdens on an already strained
criminal justice system. SEIU California states that
discharging a patient with a BAC of .08 into the custody of
the jail, corrections, or police should only occur if there is
a compelling public safety reason, such as in cases where
other patients and hospital staff are at risk. The American
Federation of State, County and Municipal Employees states in
support that it is common sense for a hospital to treat a
patient and ensure that they are stabilized before
transferring them, and that this bill works to protect
patients from corporate interests that would otherwise
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prioritize saving a dollar to saving a life.
6.Opposition. This bill is opposed by the California Chapter of
the American College of Emergency Physicians (CalACEP), which
states that this bill seeks to legislate the practice of
medicine with a standard that has no basis in science. The
benchmark of a .08 BAC has no basis in medicine, and that BAC
and its medical significance differs depending on each
patient's physiology. According to CalACEP, there can be no
"bright line" in statute that is medically meaningful for all
patients, and that this bill is an arbitrary and inappropriate
practice of medicine by the Legislature. CalACEP states that a
uniform standard would likely lead to life-threatening
outcomes for some patients, as disease process or events that
accompany acute alcohol withdrawal can cause significant
illness and death. CalACEP states that emergency departments
routinely treat chronic inebriates for other medical
conditions and the requirement in this bill to abruptly sober
these patients would threaten their health. According to
CalACEP, police officers routinely bring inebriated patients
to the emergency department, such as drivers involved in an
alcohol-related traffic accident, to be treated and medically
cleared before they are taken to jail. This bill would turn
the emergency department into a sobering center for these
patients, which is an inappropriate use of scarce emergency
department resources and would jeopardize the safety of other
patients waiting for life-saving care. The California Medical
Association also opposes this bill, stating that a patient's
BAC may not be relevant to their diagnosis or treatment, yet
this bill would require BAC tests on these patients despite
the fact it is not necessary, which is both unethical and an
inappropriate invasion of the patient's privacy. The
California Nurses Association (CNA) states in opposition that
this bill is a solution in search of a problem, and that the
discharge or transfer of an unstable patient is already
illegal in California. According to CNA, this bill, if passed,
might lead to the unintended consequence of creating more risk
of harm to healthcare workers by causing hospitals to hesitate
to call law enforcement for assistance despite the presence of
a violent individual who is under the influence of alcohol or
drugs. The California Hospital Association (CHA) states in
opposition that this bill will impede the clinical judgment of
physicians, nurses and other clinical staff in California's
emergency departments. According to CHA, a physician must
determine medical stability, and that this bill would
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compromise the important physician/patient relationship which
is the foundation for all medical care and may not be in the
best interest of every patient.
7.Policy comments.
a. Are the penalties in this bill too high? The
enforcement and penalty provisions of this bill are based
on the enforcement provisions contained in SB 275
(Cedillo), which was passed by the Legislature in 2007,
but vetoed by Governor Schwarzenegger. SB 275 was
intended to address health facilities that were engaged
in a practice known as "homeless dumping," where patients
who were indigent were discharged and transported away
from the hospital and in some cases left on a sidewalk in
a foreign neighborhood. The penalties in this bill are
the same as those proposed in SB 275: $150,000 for the
second violation, and $300,000 for subsequent violations.
Also, just as in SB 275, this bill authorizes the
Attorney General, local district attorneys, and some city
attorneys to bring civil enforcement actions.
The underlying contention with this bill is that certain
hospitals are violating EMTALA by not ensuring that
patients who present with an emergency medical condition
(elevated BAC levels) are stabilized before being
transferred to a non-healthcare setting. However, current
law provides that hospitals that violate EMTALA are
subject to a $25,000 fine. Violations of any other
hospital requirement that is likely to cause serious
injury or death to a patient (immediate jeopardy
violations) are subject to a maximum penalty of $125,000,
which is reserved for repeat violators. This bill
establishes penalties that are six times the current
penalty for an EMTALA violation, and have a maximum level
that is more than twice as much as the next highest
penalty for a hospital violation that could cause serious
injury or death to the patient.
b. Proposed amendments to address the BAC level. In
response to concerns that setting the threshold for
whether a patient is medically stable to be transferred
at a BAC of .08 is too low and would turn emergency
departments into sobering centers, committee staff worked
with the author to establish a higher "bright line,"
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while applying physician judgment to BACs below this
line. The author has agreed to the following amendment:
On Page 2, beginning on line 3:
(a) A general acute care hospital, acute psychiatric
hospital, or special hospital shall not cause a
patient with a blood alcohol content of 0.08 percent
or greater to be transported to another location,
including, but not limited to, police custody, a
correctional facility, or a county jail, when that
patient's blood alcohol content is at a level which,
in the judgment of the attending physician or other
licensed health care professional acting within his or
her scope of practice, places the patient at risk of
serious injury or death, except when the patient is
medically stabilized or appropriately transferred to
another licensed health facility pursuant to another
law.
(b) Notwithstanding subdivision (a), in no event
shall a general acute care hospital, acute psychiatric
hospital, or special hospital cause a patient with a
blood alcohol content of 0.30 or greater to be
transported to another location, including, but not
limited to, police custody, a correctional facility,
or a county jail, except when the patient is medically
stabilized or appropriately transferred to another
licensed health facility pursuant to another law.
SUPPORT AND OPPOSITION :
Support: United Nurses Associations of California/Union of
Health Care Professionals (co-sponsor)
SEIU-UHW (co-sponsor)
American Federation of State, County, and Municipal
Employees, AFL-CIO
California State Council of the Service Employees
International Union
Oppose:California Chapter American College of Emergency
Physicians
California Hospital Association
California Medical Association
California Nurses Association
SB 145 (Pan) Page 12 of ?
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