BILL ANALYSIS                                                                                                                                                                                                    



                                                                     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) 








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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