BILL ANALYSIS                                                                                                                                                                                                    





                             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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