BILL ANALYSIS �
AB 2374
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 2374 (Mansoor) - As Amended: April 8, 2014
SUBJECT : Substance abuse: recovery and treatment services.
SUMMARY : Requires alcoholism and drug abuse recovery or
treatment (ADART) program licensees to report deaths and other
unusual events to the Department of Health Care Services (DHCS)
and requires licensees working in ADART programs to be
registered with or certified by an organization approved by DHCS
to register and certify counselors, as specified. Specifically,
this bill :
1)Requires the death investigation policy of DHCS to be designed
to ensure that a resident's death is reported by the licensee
and addressed by DHCS in a timely manner.
2)Requires the licensee to make a telephonic report to DHCS
within one working day for any of the following events or
incidents: a) death of any resident for any cause, even if the
death did not occur at the facility; b) any facility-related
injury of any resident that requires medical treatment by a
physician at a licensed health care facility; c) poisonings;
d) natural disasters that affect the facility premises; and,
e) fires or explosions that occur in or on the facility
premises which necessitate action by a fire department or
other emergency response unit.
3)Requires the licensee to follow with a written report to DHCS,
in a form prescribed by DHCS, within seven days of reporting
the events or incidents in 2) a) through e) above.
4)Requires the telephonic and written reports to include a
description of the event or incident, including the time,
location, and nature of the event or incident, a list of
immediate actions that were taken, including persons
contacted, and a description of the followup action that is
planned, including steps taken to prevent a recurrence of the
event or incident.
5)Requires DHCS to require alcohol and other drug (AOD)
counselors working within ADART programs to register with an
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organization approved by DHCS to certify counselors.
6)Requires approved certification organizations to consult with
available electronic databases of other department-approved
certification organizations, prior to registering or
certifying a counselor, to determine whether the person has
ever had his or her registration or certification as a
counselor revoked.
EXISTING LAW :
1)Eliminates the Department of Alcohol and Drug Programs (DADP)
as of July 1, 2013, and transfers its functions to other
departments within the California Health and Human Services
Agency (CHHSA), including the transfer of responsibility for
licensing and certification of ADART facilities and personnel
to DHCS.
2)Gives DHCS sole authority in state government to license adult
ADART facilities and determine the qualifications of personnel
working within the facilities.
3)Defines an ADART facility as any premises, place, or building
that provides 24-hour residential nonmedical services to
adults who are recovering from problems related to alcohol,
drug, or alcohol and drug misuse or abuse, as specified.
4)Prohibits the operation of an ADART program, except for
facilities operated by a state agency, without first obtaining
a current, valid license from DHCS, as specified, and requires
ADART licensees to provide at least one of the following
nonmedical services: recovery services, treatment services, or
detoxification services.
5)Requires in regulations applicable to ADART facilities
(California Code of Regulations (CCR), Title 9, Division 4,
Chapter 5, Section 10561(b)) nearly identical reporting of
specified incidents in this bill: telephone reports within one
working day; a written report within seven working days;
reports of deaths and injuries that require treatment;
reportable communicable diseases; poisonings; catastrophes
(natural disasters); and, fires/explosions.
6)Requires, in regulations (CCR, Title 9, Division 4, Chapter 8,
Sections 9846-13075), the following related to staff in ADART
facilities:
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a) Staff providing counseling services must be licensed,
certified, or registered with one of seven private
accrediting organizations specifically approved by DHCS,
and requires DHCS to only approve accrediting organizations
approved by a national accreditor.
b) Within five years of registering with a certification
organization, requires counselors (not otherwise
grandfathered as of April 1, 2005) to meet education,
training, and testing requirements of the certifying
organization and become certified, unless the counselor
demonstrates hardship and seeks an extension of up to two
years.
c) Requires certifying organizations under 6) a) above to
impose specific requirements on applicants, including
specified education, work experience, and testing
requirements, and the applicant to sign a statement as to
whether his/her prior certification as an AOD counselor has
ever been revoked.
d) Requires an approved certifying organization, prior to
certification of any registrant (but not at the point of
registration) to contact all other DHCS-approved certifying
organizations to determine if a registrant's certification
was ever revoked.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
intended to ensure that a resident's death is promptly
reported by an ADART facility and addressed by DHCS in a
timely manner. The author acknowledges that DHCS recently
took over the responsibilities previously held by DADP but
states that there have been rising concerns that current
regulations and enforcement remain inadequate. Finally, the
author states this bill will implement the recommended reforms
in a 2012 report by the California Senate Office of Oversight
and Outcomes (SOOO) as to improve the quality of care provided
in ADART residential facilities and ensure that proper
oversight is established.
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2)BACKGROUND . The state's residential ADART facilities are
authorized to provide nonmedical services to individuals
recovering from alcohol and drug addiction. ADART programs
must be licensed by DHCS, with licensing criteria that are
focused on health and safety rather than treatment program
content. DHCS conducts site visits every two years to check
for compliance with regulations, including: staff tuberculosis
tests; health questionnaires for residents; staff First Aid
and cardiopulmonary resuscitation training; and, adequate food
for residents.
Licensing of ADART programs was shifted from the Department of
Social Services (DSS) to DADP in the 1980s because ADART
programs required less intensive services than other
facilities licensed by DSS. At the time, the dominant model
of treatment for substance abuse recovery was the social
model, a peer-oriented program based on the 12th step in the
Alcoholics Anonymous process: reaching out to help other
alcoholics as a way of sustaining sobriety. The social model
is essentially nonmedical; accordingly, the ADART programs
were defined in statute as programs that provide nonmedical
services.
In 2013, DADP was eliminated and responsibility for ADART
programs was shifted from DADP to DHCS. DHCS administers the
ADART programs under the same statutory and regulatory
standards previously administered by DADP.
3)SOOO REPORTS . SOOO issued two investigative reports relating
to oversight of ADART facilities and staff by the DADP,
responsible for ADART oversight at that time, as summarized
below.
a) Oversight of Drug and Alcohol Facilities. The September
2012 SOOO report, "Rogue Rehabs: State Failed to Police
Drug and Alcohol Homes, with Deadly Results," identified
two serious problems in DADP oversight of ADART programs:
first, a pattern, over the past decade, of DADP failing to
identify potentially dangerous problems and, when it did,
neglecting to follow up and assure that the problems were
corrected; and, second, evidence of the widespread
provision of medical treatment by ADART programs, in direct
violation of state law.
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SOOO cited several incidents where DADP's enforcement and
investigation activities following resident deaths at ADART
facilities were inconsistent. At one facility where four
patient deaths occurred over a span of two and a half
years, DADP was slow to respond: one death was only
investigated a year and a half after the fact, upon DADP
learning of another death in the same facility. By the
time DADP suspended the facility's license, the home had
already been closed due to foreclosure. At other
facilities, patients who were too sick to receive care at
an ADART facility died after being admitted with the
expectation that they would receive medical care.
According to the 2012 report, DADP indicated it was being
more aggressive in halting practices that could lead to
injury or death, and DADP was revoking and suspending
licenses more frequently. DADP implemented new policies
intended to focus limited resources on cases that pose the
greatest risk to the public. The 2012 report recommends
that DADP's improved death investigation policy be used as
a template for statutory death investigation requirements,
if the policy is found to be effective.
The second major problem identified by the September 2012
report is that DADP interprets its mission as overseeing
non-medical care in residential homes, yet the industry
routinely offers services that include medications and care
by doctors and other medical professionals. Though many
programs continue to adhere to the "social model," much of
the industry has abandoned that model in favor of a
"comfortable" model that provides medicine to help with
detoxification. The 2012 report notes that California is
unusual among populous states in prohibiting medical care
in residential treatment programs, and recommends that the
Legislature consider legislation to allow medical care in
residential treatment facilities, given that many experts
believe that medical care is an integral part of successful
treatment. However, the 2012 report adds that it would not
be enough to simply lift the ban; the state may have to
strengthen other laws and regulations to make sure that
medical care in the facilities would be safe and effective.
b) Oversight of AOD Counselors. In May 2013, SOOO released
a second report, "Suspect Treatment: State's lack of
scrutiny allows unscreened sex offenders and unethical
counselors to treat addicts," SOOO reported that about
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36,000 registered or certified AOD counselors work in 2,534
private and publicly funded AOD programs. The 2013 report
concluded that California's system of AOD counselor
oversight allows residents to be treated by registered sex
offenders and other serious felons, counselors facing
current drug and alcohol charges, and those whose
certification already was revoked for misconduct. SOOO
also concluded that AOD counselors can easily flout
existing education and training requirements. The 2013
report pointed out California is one of only two states
(and Pennsylvania) among the 15 largest states making no
attempt to review counselor criminal backgrounds and that
AOD counselors are the only health-related profession in
California not subject to such background checks. In the
absence of the certifying organizations not being required
to check with other state health licensing boards in
California, SOOO found instances where doctors, nurses, and
certified nurse assistants had been banned from their
fields before becoming AOD counselors.
The 2013 report also pointed out that for three decades, the
state and AOD treatment industry have been unable to agree
on a framework to give the state authority to credential
counselors but concluded that California's public-private
hybrid system precludes criminal background checks and
leaves gaps that can be exploited by counselors who move
between seven private organizations that register and
certify them. While the 2013 report acknowledged that many
counselors draw from their own struggles with AOD addiction
to excel at jobs with not much pay, others come to the
profession with serious criminal backgrounds that raise
questions about their fitness to treat clients, who are
often at the most vulnerable time of their lives.
Among other things, the 2013 report recommends that the
Legislature reconsider past efforts to give the state
authority to license/certify AOD counselors and conduct
background checks. Alternatively, SOOO offers that the
state could authorize the accrediting organizations to
conduct the background checks and set guidelines for
circumstances and convictions that would preclude certain
individuals from working as counselors. The 2013 report
also recommends that DHCS or the accrediting organizations
check applicants against the National Practitioner Data
Bank, and require certifying organizations to check with
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the other counterpart organizations at the time of
registration, not just at the point of certification,
because certification may occur five to seven years later,
or longer if the person moves between certifying
organizations and re-registers starting the five-year clock
over.
4)SUPPORT . California Association of Addiction Recovery
Resources (CAARR) writes in support of this bill, as it was
amended to make clarifying changes to the incident reporting
section, including deleting reporting of communicable diseases
and limiting the types of injuries and fires that must be
reported. CAARR also recommends that the author consider
expanding counselor registration/certification to include
counselors in outpatient settings. California Narcotic
Officers Association supports this bill because it will
provide for greater oversight of ADART facilities.
5)RELATED LEGISLATION .
a) AB 40 (Mansoor) of 2013 would have required ADART
program licensees to report deaths and other unusual events
to DADP and would have required licensees that provide
medical detoxification services to provide those services
under the supervision of a medical doctor. AB 40 was held
on the Assembly Appropriations Suspense file.
b) AB 395 (Fox) would have expanded the types of facilities
licensed by DHCS as ADART facilities to include facilities
that provide medical care and would have required DHCS to
conduct an evaluation of the ADART licensing program with a
report to the Legislature by January 1, 2016. AB 395 was
held on the Senate Appropriations Suspense File.
c) AB 2335 (Mansoor) exempts a sober living home or
supportive housing from licensure as an alcohol and drug
treatment program. AB 2335 is pending in this Committee
and is set for hearing April 22, 2014.
d) AB 2491 (Nestande) exempts from ADART licensure sober
living homes, defined as a residential property operated as
a cooperative living arrangement to provide an alcohol and
drug free environment for persons recovering from
alcoholism or drug abuse. AB 2491 is pending in this
Committee and is set for hearing April 29, 2014.
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6)PREVIOUS LEGISLATION .
a) SB 1014 (Committee on Budget and Fiscal Review), Chapter
36, Statutes of 2012, a 2012-13 Budget trailer bill,
eliminates DADP and transfers the administrative and
programmatic functions of DHCS to departments within CHHSA.
b) AB 972 (Butler) of 2011 would have expanded ADART
licensing to facilities that provide limited medical
services using a multidisciplinary team. AB 972 was held
on the Senate Appropriations Suspense File and later
amended to address a different topic.
c) AB 2221 (Beall) of 2010 would have expanded ADART
licensing to facilities that provide limited medical
services using a multidisciplinary team. AB 2221 was held
on the Senate Appropriations Committee Suspense File.
d) AB 1055 (Chesbro) of 2009 would have allowed ADART
facilities to include, at the sole discretion of the
facility, detoxification services assisted by licensed
physicians. AB 1055 was held on the Assembly
Appropriations Committee Suspense File.
e) AB 396 (Committee on Budget), Chapter 709, Statutes of
1992, requires that DADP, in administering the licensing of
ADART programs, issue new licenses for a period of two
years, and conduct onsite program visits for compliance at
least once during the license period. AB 396 also
authorizes DADP to conduct unannounced onsite program
visits.
f) SB 990 (Watson), Chapter 919, Statutes of 1989, excludes
ADART facilities from the California Community Care
Facilities Act and instead requires that these facilities
and programs be licensed by DHCS, as specified.
7)POLICY COMMENT . The SOOO report suggested the need for
broader reforms than this bill embodies. SOOO specifically
described a more aggressive approach to facility oversight and
death investigations which at the time was being newly
implemented by DADP and recommended that the new DADP policy
should be adopted in statute if found to be effective. In
addition, since it assumed responsibility for the AOD facility
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and counselor licensing and certification programs, DHCS has
established a Counselor Certification Advisory Committee to
develop a more consistent and effective AOD counselor
certification program in consultation with the accrediting
organizations and stakeholders. This Committee and the author
may wish to look to the DHCS work group process, and any
improved oversight approaches implemented by DADP and DHCS, to
identify further statutory improvements to AOD facility and
counselor licensure and certification processes for
consideration going forward.
8)SUGGESTED AMENDMENTS .
a) Need for further detail. Section 1 of this bill
requires DHCS' death investigation policy to "be designed
to ensure" that resident deaths in ADART facilities are
reported and investigated in a timely manner. The author
may wish to amend this bill to instead directly require
DHCS to investigate deaths in a timely manner, along with
some specificity as to what would constitute acceptable
timelines for such investigations.
b) Current version weakens existing regulations. Section 1
of this bill requires ADART facilities to report specified
incidents, including the death of a patient, by phone
within one day, and to follow with a written report within
seven days. Current ADART regulations impose the same type
of reporting requirement within the same timeframes.
However, the existing regulations are more comprehensive
than this bill in three areas and require: i) reporting of
communicable diseases, not included as a reportable event
in this bill; ii) reporting of fires or explosions that
occur on premises; this bill limits reporting to those
"that necessitate action by a fire department or other
emergency response unit," a limitation not in the current
regulations; and iii) reporting of facility-related
injuries of any resident that requires medical treatment,
which are limited by this bill to injuries "requiring
treatment by a physician at a [licensed health care
facility]". Since the existing regulations require a more
comprehensive set of reportable incidents, with fewer
limitations, and the reporting timeframes are the same,
this bill should be amended to delete the reporting
requirement and list of reportable incidents.
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If the list of reporting incidents is deleted, Section 1 of
this bill would still expand the required information in
the written report, beyond what is currently required in
regulations, to include what immediate actions the facility
took when the incident occurred and the follow-up action
planned, including what steps are being taken to prevent a
recurrence.
c) Clarifying amendment. Section 2 of this bill imposes on
DHCS-approved certifying organizations the requirement to
check with other approved certification entities regarding
prior revocations of a registrant. This bill should
instead impose the requirement on DHCS to impose that
requirement on the certifying organizations it approves.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Addiction Recovery Resources
California Narcotic Officers' Association
Opposition
None on file.
Analysis Prepared by : Deborah Kelch / HEALTH / (916) 319-2097