BILL ANALYSIS Ó
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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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