BILL ANALYSIS Ó
SB 145
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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:
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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;
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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.
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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
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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.
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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
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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
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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