BILL ANALYSIS Ó
SB 145
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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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