BILL ANALYSIS Ó SB 145 Page 1 Date of Hearing: June 23, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair SB 145 (Pan) - As Amended May 5, 2015 SENATE VOTE: 21-15 SUBJECT: Health facilities: patient transporting. SUMMARY: Prohibits a general acute care hospital, acute psychiatric hospital, or special hospital from transporting 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 any other location including but not limited to, police custody, a correctional facility, or a county jail, unless the patient is medically stable or appropriately transferred to another licensed health facility. Allows the State Department of Public Health (DPH) to determine if a violation of this bill constitutes an immediate jeopardy violation and if so, to assess penalties accordingly. 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. EXISTING LAW: SB 145 Page 2 1)Establishes DPH which, among other things, licenses, inspects, and regulates health facilities. 2)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 (ER) 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. 3)Provides for a civil penalty of up to $25,000 for hospitals who violate the state version of EMTALA, and penalties of up to $5,000 for physicians who violate these provisions. 4)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: 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; SB 145 Page 3 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. 5)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. 6)Permits DPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, certain hospitals are transferring patients admitted to their ER for acute alcohol poisoning to police departments, corrections facilities, and county jails by calling 911. The author states this bill stops a practice that poses a risk to patient safety, prevents the cost and liabilities of the treating hospitals' emergency patients from being wrongly shifted to the police and correction facilities, and preserves 911 calls for true emergencies. SB 145 Page 4 2)BACKGROUND. a. Blood alcohol concentration. The amount of alcohol in a person's body is measured by the weight of the alcohol in a certain volume of blood. This is called the blood alcohol concentration, or BAC. It is illegal to drive with a BAC of .08 or higher. A driver also can be arrested with a BAC below .08 when a law enforcement officer has probable cause, based on the driver's behavior. BAC may be affected by age, gender, physical condition, amount of food consumed, and any drugs or medication. According to information provided by the author and the Service Employees International Union - United Healthcare Workers West (SEIU-UHW), for the first three months of 2014, 124 emergency 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 BACs. 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 (these incidents occurred in 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 SB 145 Page 5 BAC." b. EMTALA. The Emergency Medical Treatment and Active Labor Act, (EMTALA) is an act of the United States Congress, passed in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act. It requires hospitals that accept payments from Medicare to provide emergency health care treatment to anyone needing it regardless of citizenship, legal status, or ability to pay. There are no reimbursement provisions. Participating hospitals may not transfer or discharge patients needing emergency treatment except with the informed consent or stabilization of the patient or when their condition requires transfer to a hospital better equipped to administer the treatment. EMTALA applies to "participating hospitals." The statute defines participating hospitals as those that accept payment from the Department of Health and Human Services, Centers for Medicare and Medicaid Services under the Medicare program. Because there are very few hospitals that do not accept Medicare, the law applies to nearly all hospitals. 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. 1)SUPPORT. SEIU-UHW writes there is substantial evidence that one of California's largest hospital chains - 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 this practice by a for-profit health care provider poses a risk to patient safety and improperly shifts costs and liabilities to the police and corrections facilities. SB 145 Page 6 United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) states that discharging patients with high blood alcohol levels and transferring them to jail in a police car is dangerous to patients. Hospitals are required to provide stabilizing treatment for patients experiencing an emergency medical condition, and 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 concludes any practice or policy of transferring patients prior to stabilization is unconscionable. The California State Council of the Service Employees International Union (SEIU California) writes this bill would prohibit a hospital from transporting a patient who, in the judgment of the attending physician is at risk for serious injury or death as a result of alcohol intoxication until they have been medically stabilized. SEIU California concludes this important patient safety measure would uphold the hospital's duty to provide appropriate medical treatment rather than shift this responsibility onto the criminal justice system. 2)OPPOSITION. The California Hospital Association (CHA) is opposed to this bill and states the current version of this bill restates a prohibition that is already in both state and federal law. CHA notes that, initially, this bill would have established prescriptive clinical criteria that would have overridden the judgment of physicians, nurses and other medical staff in California's emergency departments. CHA concludes that the current version of this bill now creates a duplicative mandate on hospitals and authorizes DPH to issue penalties it already has the authority to impose. 3)PREVIOUS LEGISLATION. a) SB 275 (Cedillo), of 2007, would have prohibited a SB 145 Page 7 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 significant penalties for doing so. 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 arrangements for post-hospital care. b) 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. 4)DOUBLE REFERRAL. This bill is double referred; upon passage in this Committee, this bill will be referred to the Assembly Judiciary Committee. 5)POLICY COMMENT. After significant amendments in the Senate, the provisions of this bill now appear to essentially restate existing law regarding illegal transfer of patients, while highlighting the condition of alcohol poisoning. The Committee may wish to consider whether or not it is necessary. REGISTERED SUPPORT / OPPOSITION: Support SEIU-UHW (co-sponsor) SB 145 Page 8 UNAC/UHCP (co-sponsor) California State Council of the Service Employees International Union Opposition California Hospital Association Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097