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 SB 145 (Pan) Page 2 of ? 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.) SB 145 (Pan) Page 3 of ? 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 SB 145 (Pan) Page 4 of ? 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, SB 145 (Pan) Page 5 of ? 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 SB 145 (Pan) Page 6 of ? 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 SB 145 (Pan) Page 7 of ? 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. SB 145 (Pan) Page 8 of ? 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) ************** SB 145 (Pan) Page 9 of ?