BILL ANALYSIS                                                                                                                                                                                                    



          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 22, 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.







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          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  








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            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  








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            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 Rehabilitation; 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 remove the BAC level. In  
                 response to concerns from CalACEP and CMA regarding the  
                 appropriateness of setting a specific BAC threshold and  
                 interfering with physician judgment, the author will  
                 offer the following amendment in committee:









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               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   who, in the judgment  
                        of the attending physician or other licensed  
                        health care professional acting within his or her  
                        scope of practice, is at risk of serious injury or  
                        death as a result of clinical alcohol  
                        intoxication,  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,  as defined in Section 1317.1(j),  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


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