BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  July 14, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          145 (Pan) - As Amended May 5, 2015


          SENATE VOTE:  21-15


          SUBJECT:  HEALTH FACILITIES: PATIENT TRANSPORTING


          KEY ISSUE:  SHOULD state law be CLARIFIed to provide THAT A  
          HOSPITAL THAT TRANSPORTS OUT A PATIENT who IS MEDICALLY UNSTABLE  
          DUE TO ALCOHOL POISONING is SUBJECT TO ENHANCED ADMINISTRATIVE  
          PENALTIES BY THE DEPARTMENT OF PUBLIC HEALTH FOR COMMITTING AN  
          "IMMEDIATE JEOPARDY" VIOLATION?


                                      SYNOPSIS


          Existing federal law, the Emergency Medical Treatment and Active  
          Labor Act (known as EMTALA), and state law (largely mirroring  
          EMTALA) both require 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.  These hospitals may not transfer or discharge patients  
          needing emergency treatment, except after stabilization of the  
          patient's condition, with his or her informed consent, or when  
          the patient's condition requires transfer to another hospital  
          that is better equipped to administer the treatment.   








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          Nevertheless, according to the author, there is evidence that  
          Prime Healthcare, one of the largest hospital chains in  
          California, engages in the practice of calling 911 to have some  
          patients who are awaiting treatment for acute alcohol poisoning  
          in its emergency rooms to be transported away to police  
          departments, corrections facilities, and county jails before the  
          patient has been treated and stabilized.


          This bill, sponsored by unions of healthcare workers, seeks to  
          address this reported pattern of conduct by prohibiting  
          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 appropriately transferred to another licensed  
          health facility.  The bill also specifically permits the  
          Department of Public Health (DPH) to determine if a violation of  
          this prohibition constitutes an "immediate jeopardy" violation,  
          as defined under existing law, and if so, to assess penalties  
          accordingly.  Proponents contend that this bill is helpful  
          because it clarifies which conduct is prohibited under EMTALA,  
          authorizes harsher penalties for these specific violations, and  
          further deters hospitals from transporting intoxicated, unstable  
          persons.  The bill is opposed by the California Hospital  
          Association and the California Nurses Association.  These  
          opponents contend that the bill is unnecessary because it  
          restates a prohibition that is already in both state and federal  
          law, and authorizes DPH to impose fines that it already has the  
          authority to impose.  They also contend that the statistics  
          cited by the author as justification for the bill are  
          unsubstantiated and are not suggestive of either statewide  
          EMTALA violations, or a systematic problem of patient dumping  
          involving unstable patients with alcohol poisoning.  This bill  
          previously passed the Assembly Health Committee by a 13-5 vote  
          and will be referred to the Appropriations Committee should it  
          pass this Committee.










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          SUMMARY:  Clarifies the prohibition in existing law against  
          hospitals transporting patients to another location, except when  
          the patient is medically stabilized, and the authority for  
          enhanced administrative penalties against a hospital for  
          transporting patients who are severely intoxicated and medically  
          unstable.  Specifically, 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 acting within his or her scope of  
            practice, 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  
            appropriately transferred to another licensed health facility.

          2)Allows the Department of Public Health (DPH) to determine if a  
            violation of this prohibition constitutes an immediate  
            jeopardy violation and if so, to assess penalties accordingly.

          3)Clarifies that nothing in this bill should be construed to  
            contradict any other law related to workplace violence  
            prevention.

          EXISTING LAW:   

          1)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.  
             (Health & Safety Code Section 1317.1(b).  All further  
            references are to this code unless otherwise stated.)

          2)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  








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            deterioration of the patient's condition is likely to result  
            from, or occur during, the release or transfer of the patient.  
             (Section 1317.1(j).)

          3)Requires that anyone who comes into a hospital emergency room  
            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.  (Sections 1317 and 1317.1.)

          4)Establishes a civil penalty of up to $25,000 for hospitals  
            determined by the Department of Public Health (DPH) to have  
            violated the above requirement and other provisions of state  
            law relating to the transfer and discharge of emergency  
            patients.  Further provides for penalties of up to $5,000 for  
            physicians determined by the Medical Board of California (MBC)  
            to have violated these same provisions of law.  (Section  
            1317.6, subd. (a) and (c).)

          5)Authorizes 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, 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.  (Section 1280.3(a).)

          6)Defines "immediate jeopardy" violation to mean a violation 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.  (Section 1280.3(g).)

          7)Authorizes DPH 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 based on criteria including, but not 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 its  
               ability to comply with state law;


             g)   The demonstrated willfulness of the violation;


             h)   The extent to which the facility detected the violation  
               and took steps to immediately correct the violation and  
               prevent the violation from recurring.  (Section 1280.3(b).)

          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.

          COMMENTS:  This bill seeks to address a reported pattern of  
          hospitals transporting severely intoxicated patients from  
          hospital emergency rooms back into police or correctional  
          authority in apparent violation of state and federal laws.   
          According to the author:

               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  








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               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. 

               This bill would prohibit hospitals from causing a patient  
               whose blood alcohol content is at a level which, 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.  
               Penalties that are currently in statute will be activated  
               if a patient is transferred even though they were deemed  
               medically unstable. 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.  

          Background on EMTALA.  The Emergency Medical Treatment and  
          Active Labor Act, (EMTALA) was passed by Congress in 1986,  
          requiring 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.   
          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.  Hospitals are required to provide stabilizing  
          treatment to patients with an emergency medical condition, and  
          if a hospital is unable to stabilize a patient within its  
          capability, or if the patient requests, the hospital may  
          transfer the patient to an appropriate transfer to another  
          facility should be implemented.  









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          EMTALA applies to all hospitals that accept payment from the  
          Department of Health and Human Services or 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 virtually all hospitals.  There are no reimbursement  
          provisions under EMTALA.

          According to the California Hospital Association: "EMTALA was  
          enacted in response to studies that found that indigent  
          emergency patients had been turned away from hospitals for  
          necessary services or transferred (i.e."dumped") to public and  
          charity hospitals in an unstabilized condition.  Although EMTALA  
          was passed to mandate access to emergency services by the  
          indigent, Congress applied the EMTALA requirements to all  
          patients regardless of their financial or insurance status.  In  
          general, both the federal regulatory agencies and the courts  
          have defined the primary objectives of EMTALA as twofold: to  
          enhance access by all persons to emergency services and to  
          prohibit discrimination in the provision of emergency services  
          to persons presenting with the same or similar types of  
          conditions."  (California Hospital Association, EMTALA-A Guide  
          to Patient Anti-Dumping Laws. (8th ed.) September 2012.)  

          This bill seeks to address a reported pattern of patient  
          transporting in California, but disputed by opponents, in  
          apparent violation of EMTALA.  According to the author, evidence  
          indicates that Prime Healthcare (Prime), one of the largest  
          hospital chains in California, engages in the practice of  
          calling 911 to have some patients who are admitted to its  
          emergency rooms for acute alcohol poisoning to be transported  
          away to police departments, corrections facilities, and county  
          jails before the patient has been treated and stabilized.  SEIU-  
          United Healthcare Workers West (UHW), one of the co-sponsors of  
          the bill, describes the reported evidence:

               Throughout the Prime system, our research has revealed  
               and documented significant and unusual numbers of 911  
               calls originating from Prime hospitals. In fact, in the  
               first three months of 2014 alone, 124 emergency calls  








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               were placed from Shasta Regional Medical Center (41  
               calls/month). In the first seven months of 2014, 509  
               emergency calls were placed from one hospital: Desert  
               Valley Hospital (73 calls/month). This is not a new  
               phenomenon. Between Jan. 1, 2010 and Aug. 1, 2014, a  
               total of 3,326 police or 911 calls were made from Desert  
               Valley (60 calls/month). Over the first seven months of  
               2014, 420 calls were placed from Huntington Beach  
               Hospital (60 calls/month).

               For comparison, in the first nine months of 2014, 53  
               emergency calls were placed from Mercy Medical Center, a  
               Dignity hospital less than two miles away from Shasta (6  
               calls/month). As another comparison point, Seton Medical  
               Center (Daughters of Charity) made 75 emergency calls in  
               the first seven months of 2014 (11 calls/month). And St.  
               Vincent Medical Center (also Daughters) logged 57 calls  
               in the first six months of 2014 (10 calls/month).

          In addition to the general 911 call volume data detailed above,  
          UHW also describes more specific evidence of calls seeking to  
          have patients with alcohol poisoning transported and removed  
          from Prime-owned hospitals.  They contend: 

               More specifically, Prime calls the police on patients  
               with acute alcohol poisoning and requests the patients be  
               booked into jail. At its Shasta facility, for example,  
               the hospital routinely calls 911 on patients with  
               medically dangerous levels of blood alcohol, and the  
               Redding Police take many of those patients to the county  
               jail. In just the first three months of 2014 alone,  
               patients were arrested at Shasta for alcohol-related  
               problems 11 times. In the first 6 months of 2010, Shasta  
               did this an astonishing 59 times.  

               In a number of cases, the reporting party inside Shasta  
               reports blood alcohol levels associated with death and  
               comas but still requests an arrest be made on the  
               patient. For example, here are some Shasta call summaries  








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               where the patient was booked after the emergency call was  
               made and the officer responded: (1) "Subject has BAC of  
               .48 needs to be picked up." (2) "Intoxicated subject  
               cleared for release. Still has BAC of .44." (3) "Patient  
               medically cleared with .40 BAC."

               By contrast, over the course of a full year, Dignity  
               Health's Mercy Medical Center (Mercy) patients were  
               booked just 11 times following a call to 911 or the  
               police department. However, many of the Mercy cases  
               involved patients who were assaultive or violent, whereas  
               most of the Shasta instances did not.

          The Committee notes that, if these reports are true, it would  
          appear that the conduct described above would already constitute  
          a violation of EMTALA.  The author contends, however, that such  
          conduct is still occurring, even though EMTALA and the state law  
          implementing EMTALA (Health & Safety Code Sections 1317 et seq.)  
          are supposed to prevent it.  According to the author, the bill  
          simply clarifies the conduct which is prohibited under EMTALA,  
          authorizes harsher penalties for these particular violations,  
          and further deters transportation of intoxicated, unstable  
          persons in violation of the law.

          The California Nurses Association (CNA) opposes the bill,  
          asserting that the bill is in response to a problem that cannot  
          be substantiated.  According to CNA:

               Emergency room discharge and transfer data is reported by  
               hospitals and collected by the Office of Statewide Health  
               Planning and Development.  It is possible from this date  
               to compare the rate of ER discharge/transfer to courts  
               and law enforcement for any number of counties in  
               California.  The percentage of patients discharged or  
               transferred to courts or law enforcement in Shasta County  
               in 2013 is 0.22 % which is lower than the state average  
               of 0.39%, and is lower than the vast majority of other  
               counties in California.  In fact, Sacramento and Yolo  
               Counties, which are included in Senate District 6, have  








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               higher ER discharge/transfers to courts and law  
               enforcement at 0.40% and 0.92%, respectively.

               We do not believe that any of these county statistics are  
               suggestive of either statewide EMTALA violations or of a  
               systematic problem with patient dumping of unstable  
               patients with alcohol poisoning.  We believe this  
               legislation is a "solution" in search of a problem.  In  
               fact, some of the highest statistics are from counties  
               with only one hospital.  We do not believe the statistics  
               cited are evidence of any improper handling of inebriated  
               patients in hospital emergency rooms.

          In response, the United Nurses Associations of California/ Union  
          of Health Care Professionals (UNAC/UHCP), co-sponsors of the  
          bill, contend that the bill is not a restatement of existing law  
          and is in fact needed to address a real problem of "patient  
          dumping" that continues, despite EMTALA being in effect since  
          1986 and laws in 43 states that have enacted statutes mirroring  
          or supplementing the federal EMTALA provisions.  These  
          proponents state:

               Despite these laws, a four year study in the American  
               Medical Association Journal of Ethics found violations in  
               527 hospitals across 46 states.  Of the 527 hospitals,  
               117 had violated EMTALA more than once. ("Refusal of  
               Emergency Care and Patient Dumping"; AMA Journal of  
               Ethics, Vol. 11, No. 1: 49-53 (Jan. 2009).)  Moreover,  
               the study found that for-profit hospitals were  
               "significantly more likely" to violate the act multiple  
               times.  It is believed that the refusal adhere to the  
               mandates of EMTALA is due to the ambiguity of the  
               statutory provisions, poor enforcement mechanisms, and  
               divergent judicial interpretations of the law.

               SB 145 seeks to eliminate some of that ambiguity by  
               making it clear that alcohol intoxication is a medical  
               issue that requires stabilization prior to transportation  
               of patients.  Whether hospitals are purposefully  








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               violating EMTALA in an effort to reduce the costs of  
               treating uninsured or underinsured patients, or whether  
               they are simply misinterpreting the law, SB 145 will  
               remove all doubt and ensure that severely intoxicated  
               patients get the care they need, and which the law  
               demands.

          Penalties for violations of EMTALA.  Under existing law, a  
          hospital may be subject to a civil penalty of up to $25,000 for  
          each violation of EMTALA.  The Department of Public Health (DPH)  
          is also authorized to fine a hospital up to $25,000 for each  
          violation of EMTALA.  In addition, DPH is permitted to assess  
          administrative fines upon hospitals for any action which creates  
          an "immediate jeopardy" to patients, defined 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.  The fines may be up to $75,000 for a first violation, up  
          to $100,000 for a second violation, and up to $125,000 for a  
          third violation.  For situations that do not constitute  
          "immediate jeopardy," DPH may levy a fine up to $25,000 per  
          violation.  

          The Committee notes that under Section 1280.3, DPH already  
          appears to have the authority to assess enhanced penalties in  
          cases where the conduct prohibited by this bill rises to the  
          level of an "immediate jeopardy" violation.  According to the  
          author, this bill simply clarifies that DPH may extend these  
          penalties in existing law to the specific practices of patient  
          transporting prohibited by this bill, namely when 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 and is transported to another location despite  
          being medically unstable.

          ARGUMENTS IN SUPPORT:  The bill is supported by AFSCME and SEIU,  
          among others, who contend the bill is needed to ensure patients  
          receive the care they need instead of being transferred away to  
          save the hospital costs.  AFSCME writes:









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               AFSCME is firmly against patient dumping: a common  
               practice among some for-profit hospital corporations.   
               These hospitals regularly call the police on  
               intoxicated patients in the emergency room in order to  
               reduce their own costs, in turn placing the  
               responsibility on our already burdened criminal justice  
               system.  Hospitals exist for the sole purpose of  
               providing care to patients that are in need.  It is  
               common sense for a hospital to treat a patient and  
               ensure that they are stabilized before transferring  
               them.  SB 145 works to protect patients from corporate  
               interests that would otherwise prioritize saving a  
               dollar to saving a life.  AFSCME implores the  
               legislature to prioritize saving lives over recklessly  
               cutting costs.

          ARGUMENTS IN OPPOSITION:  The California Hospital Association  
          (CHA) opposes the bill, arguing that the bill is unnecessary  
          because it restates a prohibition that is already in both state  
          and federal law, and authorizes DPH to impose fines it already  
          has the authority to impose.  CHA states:

               Recent amendments now create a duplicative mandate on  
               hospitals and authorize DPH to issue penalties it  
               already has the authority to issue. . . SB 145  
               authorizes these penalties when patients diagnosed with  
               alcohol intoxication are illegally transferred.  Yet  
               there is no evidence whatsoever to support the author's  
               and sponsor's claim of a "rampant" statewide problem of  
               inappropriate transfer of patients with serious alcohol  
               intoxication.  In actual practice, in fact, it is often  
               law enforcement officers who bring intoxicated patients  
               to emergency departments for medical clearance.  CHA  
               has been unable to substantiate allegations (against  
               Prime Healthcare).

          REGISTERED SUPPORT / OPPOSITION:










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          Support


          United Nurses Associations of California / Union of Health Care  
          Professionals (UNAC/


          UHCP) (co-sponsor)


          SEIU, United Healthcare Workers (co-sponsor)


          American Federation of State, County, and Municipal Employees  
          (AFSCME)


          Service Employees International Union (SEIU)


          California Medical Association (CMA)




          Opposition


          California Hospital Association


          California Nurses Association




          Analysis Prepared by:Anthony Lew / JUD. / (916)  








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          319-2334