BILL ANALYSIS                                                                                                                                                                                                    






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          |SENATE RULES COMMITTEE            |                        SB 145|
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                                   THIRD READING 


          Bill No:  SB 145
          Author:   Pan (D)
          Amended:  5/5/15  
          Vote:     21  

           SENATE HEALTH COMMITTEE:  5-2, 4/22/15
           AYES:  Hernandez, Mitchell, Monning, Pan, Roth
           NOES:  Nguyen, Nielsen
           NO VOTE RECORDED:  Hall, Wolk

           SENATE JUDICIARY COMMITTEE:  4-1, 4/28/15
           AYES:  Jackson, Hertzberg, Leno, Monning
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach, Wieckowski

          SENATE APPROPRIATIONS COMMITTEE:  Senate Rule 28.8

           SUBJECT:   Health facilities:  patient transportingHealth  
                     facilities: patient transporting.


          SOURCE:    Author


          DIGEST:  This bill prohibits hospitals from causing a patient  
          who, 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.


          ANALYSIS:   








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          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.

          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:








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             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  
            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 who, in  
            the judgment of the attending physician or other licensed  
            health care professional, is at risk of serious injury or  
            death as a result of clinical alcohol intoxication, to be  







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            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, as defined, or  
            appropriately transferred to another licensed health facility  
            pursuant to another law.

          2)Permits DPH, if it determines that a hospital has violated the  
            provisions of this bill, to determine that the violation is an  
            immediate jeopardy violation, as specified, and to assess  
            penalties accordingly.

          3)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.

          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)History of the problem.  According to information provided by  
            the author and the Service Employees International Union -  
            United Healthcare Workers West (SEIU-UHW), a co-sponsor of  
            this bill, for the first three months of 2014, 124 emergency  







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            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 six per month.

          SEIU-UHW also cited some Shasta emergency call summaries that  
            described requests for patients to be picked up with very high  
            blood alcohol concentration (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 BAC levels, is typical of many such  







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            charts. At a BAC of .07 to .09, this 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.

          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 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 to patient dumping, hospitals must already meet  
          specific discharge planning requirements and make appropriate  







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          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.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          SUPPORT:   (Verified5/19/15)


          SEIU-UHW (co-source)
          United Nurses Associations of California/Union of Health Care  
            Professionals (co-source)
          American Federation of State, County, and Municipal Employees,  
          AFL-CIO
          California Medical Association
          SEIU California


          OPPOSITION:   (Verified5/19/15)


          California Hospital Association
          California Nurses Association


          ARGUMENTS IN 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  







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          patient. SEIU-UHW states that discharging patients with BACs  
          higher than 0.3% 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 prioritize saving a dollar to saving a life. 

          ARGUMENTS IN OPPOSITION: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 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.


          Prepared by:Vince Marchand / HEALTH / 
          5/20/15 11:58:23








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