BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 145 (Pan)
Version: April 23, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Health facilities: patient transporting
DESCRIPTION
This bill would prohibit hospitals from causing a patient whose
blood alcohol content is at a level which, in the judgment of
the attending physician, is at risk of serious injury or death
as a result of clinical alcohol intoxication, to be transported
to another location, except when the patient is medically
stabilized or transferred to another licensed health facility.
This bill would allow the Attorney General, the city attorney,
or local district attorneys to enforce the above provisions and
seek civil penalty of $150,000 for a second violation, and
$300,000 for subsequent violations.
BACKGROUND
The Emergency Medical Treatment and Active Labor Act (EMTALA)
requires that anyone who comes into a hospital emergency room be
provided with a medical screening evaluation, regardless of that
patient's ability to pay. EMTALA was passed to address the
problem of hospitals refusing to treat indigent, uninsured, or
Medicaid patients, or transferring these patients to county or
other charity hospitals. Hospitals are also required to provide
stabilizing treatment for patients with an emergency medical
condition.
SB 275 (Cedillo, 2007) was intended to address the practice
known as "homeless dumping" where indigent patients were
discharged and transported away from the hospital. In some
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cases, these patients were abandoned in an unfamiliar
neighborhood. SB 275 was vetoed by Governor Schwarzenegger, who
explained that "hospitals already must meet specific discharge
planning requirements and make appropriate arrangements for
post-hospital care. Federal and state laws already provide
sanctions, including potential loss of licensure and funding,
against hospitals that violate licensing or certification
requirements. [While] enforcement of existing laws is critical,
? additional penalties are premature."
This bill would employ similar enforcement provisions to address
the issue of physicians transferring intoxicated patients into
police custody rather than treating them in emergency medical
facilities.
CHANGES TO EXISTING LAW
Existing federal and state law requires 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. (Health & Saf. Code
Sec. 1317 et seq.; 42 U.S.C. Sec. 1395dd.)
Existing law 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. (Health & Saf.
Code Sec. 1317.1.)
Existing law 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.
(Health & Saf. Code Sec. 1317.1.)
Existing law 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. (Health & Saf. Code Sec.
1317.6.)
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Existing law allows DPH 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 based on criteria including:
the patient's physical and mental condition;
the probability and severity of the risk that the violation
presents to the patient;
the actual financial harm to patients, if any;
the nature, scope, and severity of the violation;
the facility's history of compliance with related state and
federal statutes and regulations;
factors beyond the facility's control that restrict the
facility's ability to comply with state law;
the demonstrated willfulness of the violation; and
the extent to which the facility detected the violation and
took steps to immediately correct the violation and prevent
the violation from recurring. (Health & Saf. Code Sec.
1280.3.)
Existing law authorizes 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, defined as a situation in which
the licensee's noncompliance with one or more requirements of
licensure has caused, or is likely to cause, serious injury or
death to the patient, 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. (Health & Saf. Code
Sec. 1280.3.)
Existing law authorizes DPH to assess an administrative penalty
of up to $25,000 per violation for those not deemed to
constitute immediate jeopardy. (Health & Saf. Code Sec. 1280.3.)
This bill would prohibit a general acute care hospital, acute
psychiatric hospital, or special hospital from causing a patient
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 or appropriately transferred to another
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licensed health facility pursuant to another law.
This bill would require the Department of Public Health (DPH),
if it determines that a hospital has violated the provisions of
this bill, to consider assessment of an administrative penalty,
and referral to the appropriate authorities for consideration of
misdemeanor criminal penalties for a violation of any of the
provisions of law governing hospitals, as specified.
This bill would subject a hospital to a civil penalty of
$150,000 upon a second violation of this bill, and would
authorize the Attorney General, a district attorney, a city
attorney as specified, 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.
This bill would provide 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.
This bill would require the court, in determining the civil
penalty to be imposed upon a second or subsequent violation, to
consider all relevant facts, including, but not limited to:
whether the violation exposed the patient to a risk of death
or serious physical harm;
whether the violation has a direct or immediate relationship
to the health, safety, or security of the patient;
evidence, if any, of willfulness;
the number of repeated violations; and
the presence or absence of good faith efforts by the defendant
to prevent the violation.
This bill would provide that 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, be recoverable from the hospital.
This bill would require that any civil penalty collected from an
action brought by the Attorney General be paid into the General
Fund of the county or city where the judgment was entered, and
would require all civil penalties collected be used exclusively
for the provision of post-hospital recuperative beds,
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transitional housing, and mental health counseling programs for
the homeless.
This bill would exempt a number of situations from the
provisions of the bill including:
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;
patients who remain under the jurisdiction of the Department
of Corrections and Rehabiliation; and
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 Disability Services Act, as specified.
This bill would not preclude criminal prosecution or civil
action under any other law, nor does the bill limit or abridge
the authority of any city or county to adopt an ordinance
authorizing investigations, inspections, or
implementation/enforcement restrictions dealing with patient
transportation.
This bill would prohibit anything in the 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.
COMMENT
1.Stated need for the bill
According to the author:
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
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patient has been treated and stabilized. Acute alcohol
poisoning is a medical emergency.
Although EMTALA and State law are supposed to prevent this, it
is still occurring. Our bill is applying harsher penalties and
putting stricter policies on hospitals to further deter the
transportation of severely intoxicated individuals.
2.Enforcement penalties arguably excessive
Hospitals, under existing law may be subject to a civil penalty
of up to $25,000, for violation of the Emergency Medical
Treatment and Active Labor Act (EMTALA), which requires that all
persons who seek emergency medical care must be provided with a
medical screening examination, regardless of the person's
ability to pay. If a patient is indeed suffering from an
emergency medical condition, EMTALA requires that the patient to
be treated until medically stabilized. The Department of Public
Health (DPH) is authorized to fine a hospital up to $25,000 for
any violations of EMTALA. In addition, DPH is permitted to
assess administrative fines upon hospitals for any action which
creates an "immediate" jeopardy, defined as a situation in which
the licensee's noncompliance with one or more requirements of
licensure has caused, or is likely to cause serious injury or
death. The fines may be up to $75,000 for a first violation of,
up to $100,000 for a second violation, and up to $125,000 for a
third violation. For situations that do not constitute
"immediate jeopardy," DPH may levy a fine up to $25,000 per
violation.
This bill would give enforcement authority to the Attorney
General (AG), district attorneys, and city attorneys and create
a penalty structure that is six times the current penalties for
an EMTALA violation, and twice as much as the existing structure
for immediate jeopardy situations. The author argues these
heightened penalties are necessary because existing state and
federal laws are not preventing the transfer of patients with
life-threatening blood alcohol levels. However, giving multiple
authorities the ability to penalize an organization for the same
violation, could subject that organization to multiple,
inconsistent judgments. Accordingly, even if DPH found that a
hospital was not in violation for a particular transfer of a
patient, the city attorney or district attorney may still bring
an action and the court may find that the hospital impermissibly
transferred the patient. Further, any penalty would be paid to
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the treasurer of the city or county of the jurisdiction in which
the judgment was ordered. Finally, with regard to the
particular situation this bill seeks to address, the author has
provided no evidence that DPH has failed to investigate Prime's
transfer of intoxicated patients.
The California Hospital Association (CHA) writes in opposition
"there is no evidence whatsoever of a rampant statewide problem
of inappropriate transfers of patients with serious alcohol
intoxication? In actual practice, however, it is often law
enforcement officers who bring intoxicated patients to EDs for
medical clearance. ... It appears that the only purpose of the
bill is to increase penalties and punish hospitals if the
judgment of a physician regarding a particular intoxicated
patient is deemed incorrect by regulators or lawyers. CHA
believes the established, well-functioning penalty process works
well as is. "
Staff notes that this bill would create enforcement authority in
the Attorney General, district attorney, or city attorney, by
authorizing these individuals to bring a civil action for
alleged violations of the bill. Under existing law, the
Department of Public Health (DPH) has the authority to assess
administrative fines and civil penalties for these same
violations. By not precluding prosecution or action under any
other law, this bill could make hospitals vulnerable to
simultaneous penalties and fines from multiple entities, which
could have the unintended effect of compromising, through
financial hardship, the quality of services the hospital can
provide to the community.
In addition, arguably, as a matter of public policy, setting
higher penalties for the impermissible transfer of intoxicated
patients over the impermissible transfer of all other types of
patients suffering from an emergency medical condition could
imply that the Legislature views the transfer of an intoxicated
patient more egregious than the impermissible transfer of a
patient who is suffering from any other life-threatening
condition. This is further exacerbated by the fact that a
family, whose loved one died after an impermissible transfer,
could have their non-economic damages capped at only $250,000 in
a wrongful death suit under Medical Injury Compensation Reform
Act (MICRA), but under this bill the community could recover far
more than that amount.
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In opposition, the California Nurses Association writes that
"this bill is a solution in search of a problem, [because] the
discharge or transfer of an unstable patient is already illegal
in California. If passed, [this bill] 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."
Support : American Federation of State, County, and Municipal
Employees, AFL-CIO; California State Council of the Service
Employees International Union
Opposition : California Hospital Association; California Nurses
Association
HISTORY
Source : United Nurses Associations of California/Union of
Health Care Professionals; SEIU-UHW
Related Pending Legislation : None Known
Prior Legislation : SB 275 (Cedillo, 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. This bill was vetoed by
Governor Schwarzenegger.
Prior Vote : Senate Health Committee (Ayes 5, Noes 2)
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