(1)Existing law requires a health facility that maintains and operates an emergency department to provide emergency services and care to any person requesting the services or care for any condition in which the person is in danger of loss of life, or serious injury or illness, as specified. If a licensed health facility does not maintain an emergency department, its employees are nevertheless required to exercise reasonable care to determine whether an emergency exists and to direct the person seeking emergency care to a nearby health facility that can render the needed services, as specified. Existing law makes a violation of these provisions a crime.

This bill would specify that a psychiatric unit within a general acute hospital care hospital, a psychiatric health facility, or an acute psychiatric hospital, excluding certain state hospitals, regardless of whether it maintains operates an emergency department, is required to provide emergency care and services to relieve or eliminate services and care to treat a person with a psychiatric emergency medical condition who has been accepted by the facility, as specified, if the hospital facility has appropriate facilities and qualified personnel. The bill would make conforming changes to related provisions. The bill would also prohibit a general acute care hospital or an acute psychiatric hospital, as a condition to accepting a transfer of the a patient from another health facility, from requiring that a the patient be in custody as a result of a mental health disorder causing him or her to be a danger to others or himself or herself, or is gravely disabled. By expanding these duties, this bill would expand the scope of a crime, thereby imposing a state-mandated local program.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law requires a health facility that maintains and operates an emergency department to provide emergency services and care to any person requesting the services or care for any condition in which the person is in danger of loss of life, or serious injury or illness, as specified. If a licensed health facility does not maintain an emergency department, its employees are nevertheless required to exercise reasonable care to determine whether an emergency exists and to direct the person seeking emergency care to a nearby health facility that can render the needed services, as specified. Existing law makes a violation of these provisions a crime.

This bill would specify that a psychiatric unit within a general acute hospital or an acute psychiatric hospital, excluding certain state hospitals, regardless of whether it maintains an emergency department, is required to provide emergency care and services to relieve or eliminate a psychiatric emergency medical condition if the hospital has appropriate facilities and qualified personnel and the patient is being transferred from a general acute care hospital. personnel. The bill would prohibit a general acute care hospital or an acute psychiatric hospital, as a condition to accepting a transfer of the patient from another health facility, from requiring that a patient be in custody as a result of a mental health disorder causing him or her to be a danger to others or himself or herself, or is gravely disabled. By expanding these duties, this bill would expand the scope of a crime, thereby imposing a state-mandated local program.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law requires a health facility that maintains and operates an emergency department to provide emergency services and care to any person requesting the services or care for any condition in which the person is in danger of loss of life, or serious injury or illness, as specified. If a licensed health facility does not maintain an emergency department, its employees are nevertheless required to exercise reasonable care to determine whether an emergency exists and to direct the person seeking emergency care to a nearby health facility that can render the needed services, as specified. Existing law makes a violation of these provisions a crime.

This bill would specify that an acute psychiatric hospital, excluding certain state hospitals, regardless of whether it maintains an emergency department, is required to provide emergency care and services to relieve or eliminate a psychiatric emergency medical condition. condition if the hospital has appropriate facilities and qualified personnel and the patient is being transferred from a general acute care hospital. The bill would prohibit a general acute care hospital or an acute psychiatric hospital, as a condition to accepting a transfer of the patient from another health facility, from requiring that a patient be in custody as a result of a mental health disorder causing him or her to be a danger to others or himself or herself, or is gravely disabled. By expanding these duties, this bill would expand the scope of a crime, thereby imposing a state-mandated local program.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law requires a health facility that maintains and operates an emergency department to provide emergency services and care to any person requesting the services or care for any condition in which the person is in danger of loss of life, or serious injury or illness, as specified. If a licensed health facility does not maintain an emergency department, its employees are nevertheless required to exercise reasonable care to determine whether an emergency exists and to direct the person seeking emergency care to a nearby health facility that can render the needed services, as specified.

This bill would specify that an acute psychiatric hospital, regardless of whether it maintains an emergency department, is required to provide emergency care and services to relieve or eliminate a psychiatric emergency medical condition. The bill would prohibit a general acute care hospital or an acute psychiatric hospital, as a condition to accepting a transfer of the patient from another health facility, from requiring that a patient be in custody as a result of a mental health disorder causing him or her to be a danger to others or himself or herself, or is gravely disabled.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

AB 451 (Arambula) - Health facilities: emergency services and care

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 451 would require acute psychiatric hospitals, psychiatric units within general acute care hospitals, and psychiatric health facilities to provide emergency services to a person with a psychiatric emergency medical condition.

Fiscal Impact:

• No significant enforcement costs are anticipated by the Department of Public Health, which licenses hospitals, including acute psychiatric hospitals (Licensing and Certification Fund).
• Unknown increase in licensing costs to the Department of Health Care Services, which licenses psychiatric health facilities (Mental Health Facility Licensing Fund). Under the bill, psychiatric health facilities would likely be required to provide additional medical services than is current practice. Doing so would likely require a revision to existing regulations and additional licensing and enforcement activity by the Department of Health Care Services.
• Unknown additional Medi-Cal specialty mental health costs (General Fund). Psychiatric health facilities are primarily operated by or for counties and largely serve a Medi-Cal population, providing specialty mental health services. By imposing new requirements on psychiatric health facilities, the bill may result in increased costs to county mental health plans. Under current law, the state would be responsible for any increased costs to county mental health plans. See below.

Background:

Under current federal law (the Emergency Medical Treatment and Active Labor Act or EMTALA) hospitals that provide services to Medicare patients are required to provide emergency screening and stabilization services without regard to an individual’s ability to pay. There is a parallel requirement in state law, however state law only applies to hospitals that have an emergency department.

Under current law, a peace officer, member of the attending staff of a facility designated by a county, or a professional person designated by a county may place a “5150 hold” on a person who is gravely disabled or a danger to him/herself or others.

Psychiatric health facilities are designed to provide non-medical psychiatric treatment. They are prohibited from providing treatment for substance abuse or eating disorders. Current regulations prohibit psychiatric health facilities from admitting patients who need greater than an outpatient level of care.

Proposed Law:

AB 451 would require acute psychiatric hospitals, psychiatric units within general acute care hospitals, and psychiatric health facilities to provide emergency services to a person with a psychiatric emergency medical condition. The bill would apply regardless of whether a facility operates an emergency department, if the facility has appropriate facilities and qualified personnel. The bill would exempt state hospitals from this requirement.

The bill would also prohibit a general acute care hospital or acute psychiatric hospital from requiring a person to be in custody pursuant to a “5150 hold” as a condition of accepting a transfer from another facility.

Related Legislation:

AB 1300 (Ridley-Thomas, 2016) would have made numerous changes to the process for placing a “5150 hold”. That bill was held in the Senate Rules Committee.

Staff Comments:

Under current law and practice, psychiatric health facilities are primarily non-medical facilities. Although they are staffed by psychiatrists (amongst other mental health professionals), they often do not have other types of physicians on-site. These facilities also do not have the kinds of medical infrastructure that would be needed to screen a patient for non-psychiatric medical needs. For example, in some cases medical screening and testing is necessary to rule out physical health issues that can present similarly to psychiatric conditions.

By imposing new requirements on psychiatric health facilities, the bill may result in additional staff costs to those facilities. For example, the facilities may incur additional costs to have more physicians and nurses on staff to provide screening services for transferred patients.

Under current practice, psychiatric health facilities are primarily operated by or for counties and see a patient population largely made up of Medi-Cal enrollees. Under current law, Medi-Cal specialty mental services have been realigned to the counties. To the extent that the bill would increase costs to operate psychiatric health facilities, much of that cost is likely to be borne by county mental health plans that provide Medi-Cal specialty mental health services.

Proposition 30 of 2012 provides that any legislation enacted after September 30, 2012 that has an overall effect of increasing the costs already borne by a local agency for realigned services applies to local agencies only to the extent that the State provides annual funding for the cost increase. Local agencies are not be obligated to provide programs or levels of service required by legislation above the level for which funding has been provided.

To the extent that the requirements of this bill increase county Medi-Cal specialty mental health services, the state would be obligated under Proposition 30 to reimburse those costs. Neither the state constitution or statute create a process for adjudicating issues where the state has increased county costs relating to a realigned program. To date, there is no case law on this issue. Therefore, it is not yet clear how this issue will be adjudicated, with respect to this bill or other bills that increase county costs.

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SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: AB 451

SUBJECT: Health facilities: emergency services and care

SUMMARY:

Requires an acute psychiatric hospital, and a psychiatric unit of a general acute care hospital, to comply with provisions of law requiring emergency services to be provided regardless of a patient’s ability to pay in order to treat a psychiatric emergency medical condition, as defined, regardless of whether the facility operates an emergency department, consistent with provisions of law requiring patients with emergency medical conditions to be stabilized, including a transfer when necessary to appropriate facilities.

Existing law:

1. Licenses and regulates hospitals, including a general acute care hospital and an acute psychiatric hospital (APH), by the Department of Public Health (DPH). Permits general acute care hospitals, in addition to the basic services all hospitals are required to offer, to be approved by DPH to offer special services, including, among other services, an emergency department (ED), and psychiatric services.
2. Requires hospital EDs, under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) and also under similar provisions of state law (state EMTALA), to provide emergency screening and stabilization services without regard to the patient’s insurance status or ability to pay. Federal EMTALA imposes this requirement on any hospital that participates in Medicare. State EMTALA imposes this requirement on any hospital that operates an ED.
3. Defines “emergency services and care,” under state EMTALA, as medical screening, examination, and evaluation by a physician to determine if an emergency medical condition or active labor exists and, if it does, the care, treatment, and surgery, if within the scope of that person’s license, necessary to relieve or eliminate the emergency medical condition, within the capability of the facility.
4. Further defines “emergency services and care,” under state EMTALA, to also mean an additional screening, examination, and evaluation by a physician, or other personnel to the extent permitted by the scope of their licensure and clinical privileges, to determine if a psychiatric emergency medical condition exists, and the care and treatment necessary to relieve or eliminate the psychiatric emergency medical condition, within the capability of the facility. Specifies that the care and treatment necessary to relieve or eliminate a psychiatric emergency medical condition may include admission or transfer to a psychiatric unit within a general acute care hospital, or to an APH.
5. Prohibits a person needing emergency services and care from being transferred from a hospital to another hospital for any nonmedical reason (such as the person’s inability to pay for any emergency service or care) unless certain conditions are met, including that the person has been provided with emergency services so that it can be determined, within reasonable medical probability, that the transfer will not create a medical hazard to the person.
6. Establishes the Lanterman-Petris-Short (LPS) Act and declares the intent of the Legislature to end the inappropriate, indefinite, and involuntary commitment of persons with mental health disorders, developmental disabilities, and chronic alcoholism, as well as to safeguard a person’s rights, provide prompt evaluation and treatment, and provide services in the least restrictive setting appropriate to the needs of each person.
7. Authorizes, under Section 5150 of the Welfare and Institutions Code, a peace officer, member of the attending staff of a “designated facility,” as defined, member of the attending staff of a designated facility, or other professional person designated by the county, upon probable cause, to take a person with a mental disorder who is a danger to self or others, or is gravely disabled, into custody (a “5150” hold) and place him or her in a designated facility.
8. Defines “designated facility” or “facility designated by the county for evaluation and treatment” as a facility that is licensed or certified as a mental health treatment facility or a hospital, as defined, and includes, but is not limited to, a licensed psychiatric hospital, a licensed psychiatric health facility, and a certified crisis stabilization unit.

This bill:

1. Applies the state EMTALA requirement to provide emergency services and care to treat a psychiatric emergency medical condition, as defined, to a psychiatric unit within a general acute care hospital, and an APH, regardless of whether the facility operates an ED, consistent with provisions of state EMTALA that define emergency care for psychiatric emergency medical conditions to include admission or transfer to an APH or psychiatric unit of a general acute care hospital, if the facility has appropriate facilities and qualified personnel available to provide the services. Exempts state hospitals from this requirement.
2. Prohibits a general acute care hospital or an APH from requiring, as a condition of accepting a transfer, that a patient be in custody pursuant to a Section 5150 hold, for purposes of provisions of the state EMTALA requirements permitting the transfer of a patient with a psychiatric emergency medical condition to a psychiatric unit within a general acute care hospital or to an APH.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, costs to DPH are expected to be minor and absorbable in the course of DPHs existing enforcement of federal and state regulation of hospital standards (Licensing and Certification Fund).

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, this bill was introduced to help individuals in a mental illness crisis obtain access to appropriate care. Like many others, individuals in a mental health crisis may seek care at the nearest ED. After an evaluation by an ED physician some individuals need additional psychiatric services and require a transfer by ambulance to a psychiatric hospital.  However, emergency physicians have experienced trouble trying to transfer patients to private psychiatric facilities that do not maintain an ED.  It’s been reported that some facilities will not accept a Medi-Cal or uninsured patient.  There have also been instances of facilities not accepting a patient because the patient is not on a 5150 hold, when the patient needs more intense psychiatric services the ED cannot provide. This bill specifies an APH, regardless of whether it maintains an emergency department, is required to provide emergency services to relieve or eliminate a psychiatric emergency medical condition. It also clarifies hospitals may not require a patient be on a 5150 hold in order to be transferred from the ED to a general acute care hospital or APH. 
2. Background on the LPS Act and designated vs nondesignated facilities. The LPS Act was enacted in the 1960s to develop a statutory process under which individuals could be involuntarily held and treated in a county-designated facility in a manner that safeguarded their constitutional rights. The LPS Act was intended to balance the goals of maintaining the constitutional right to personal liberty and choice in mental health treatment. Since its passage in 1967, the field of mental health has continued to evolve toward even greater legal rights for mentally disordered persons. Welfare and Institutions Code Section 5150, part of the LPS Act, allows peace officers, staff members of county-designated facilities, or other county-designated professional persons to take an individual into custody and place him or her in a facility for 72-hour treatment and evaluation to determine if, due to a mental disorder, the individual is a danger to self or others, or is gravely disabled. The LPS Act imposes strict conditions relating to the detention, assessment and treatment of the detainee. Provided that specified conditions are met, the peace officer and the medical director of the facility, as well as the professional staff responsible for the evaluation and treatment of the person, are granted immunity from civil and criminal liability for releasing the detainee at any time prior to the end of the 72-hour hold or for any actions of the person released before or after the 72-hour hold.

Individual counties are responsible for determining whether general acute care hospitals, psychiatric health facilities, acute psychiatric hospitals, and other licensed facilities qualify to be designated facilities. While the intent of the LPS Act is for authorized individuals to take a person who has been placed on a 5150 hold to a designated facility, if one does not exist, or a person is suffering from another condition that requires immediate emergency medical services, the person is transported to the nearest facility, which is often a non-designated facility with an ED, which under both federal and state EMTALA is required to provide emergency medical services to any individual who presents and requires emergency medical attention.

1. APHs, psychiatric health facilities, and crisis stabilization units. Generally speaking, inpatient beds for acute psychiatric patients are either provided in a distinct behavioral health unit of a general acute care hospital, in a freestanding APH, or in a psychiatric health facility (PHF). All of these can be, and most are, designated LPS facilities. There are 33 licensed APHs in California, and 31 PHFs. APHs are licensed by DPH, and are required to provide medical, nursing, rehabilitative, pharmacy and dietary services, in addition to psychiatric services. PHFs are licensed by the Department of Health Care Services (DHCS), and while not a hospital, are licensed to provide inpatient acute psychiatric care similar to a psychiatric hospital. However, the requirements for PHFs are not the same as those for APHs. For example, PHFs are not required to provide general medical services. While a PHF is required to have a physician be on-call at all times, a patient can only be admitted to a PHF if the individual’s physical health care could otherwise be managed on an outpatient basis. An APH, on the other hand, is required to provide a medical service as part of their basic services, which must include a general medicine component. The general medicine component is required to provide all incidental medical services necessary for the care and support of patients, including general medicine and surgery. PHFs historically are county-run, or under contract by counties, to provide inpatient care to Medi-Cal beneficiaries through a county mental health plan.
   
   In addition to inpatient facilities, counties can designate certain outpatient facilities under the LPS Act, such as crisis stabilization units. A crisis stabilization unit is generally open 24 hours a day, seven days a week, and provides up to 23 hours of psychiatric urgent care intended to stabilize a patient suffering from psychiatric distress, with the goal of stabilizing the patient and avoiding the need for inpatient care.
2. EMTALA. 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. Federal EMTALA obligates Medicare-participating hospitals that offer emergency services to provide a medical screening and treatment for an emergency medical condition, including active labor, regardless of an individual's ability to pay. State EMTALA imposes its obligation on any hospital that operates an ED, and has similar requirements to federal EMTALA. Hospitals are required to provide stabilizing treatment for patients with an emergency medical condition. A patient is “stabilized” when the patient’s medical condition is such that, within reasonable medical probability, no material deterioration of the patient’s condition is likely to result from the release or transfer of the patient. If a hospital is unable to stabilize a patient within its capability, then a patient is required to be transferred to an appropriate facility with the necessary specialized treatment services. Once a patient is stabilized, if the patient needs post-stabilization care, the hospital will typically seek more information about the medical history of the patient, including whether the patient has insurance.
3. Existing requirement to accept emergency psychiatric transfers? One of the questions raised by this bill is to what extent existing law governing emergency treatment already requires APHs and psychiatric units of general acute care hospitals to accept transfers of patients with psychiatric emergency medical conditions. Federal EMTALA seems clear on this point: a hospital participating in Medicare (which includes nearly all licensed hospitals) that has “specialized capabilities or facilities…shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual”. State EMTALA, on the other hand, only applies to hospitals with EDs. For hospitals without EDs, there is an obligation to direct the person to a nearby facility that can render the needed services, and to assist the person in obtaining the services, including transportation services, in every reasonable way. Similar to federal EMTALA, state EMTALA also extends its emergency treatment obligations to include transferring patients, if necessary to stabilize the patient’s emergency condition. In the definition of “emergency services and care,” state EMTALA specifically states that emergency treatment “may include admission or transfer to a psychiatric unit of a general acute care hospital…or to an APH.” However, because acute psychiatric hospitals do not include EDs, it is unclear if the obligation extends to an APH as a receiving hospital under state EMTALA.
4. Insufficient inpatient psychiatric beds. According to the California Hospital Association (CHA), since 1995 the state has lost 43 facilities, either through the elimination of psychiatric inpatient care, or complete hospital closure, representing a nearly 24% drop. CHA states that while there has been an increase in psychiatric beds over the past several years, according to 2013 data, California has lost nearly 30% of the psychiatric beds it had in 1995, a drop of almost 2,700 beds, making the state’s psychiatric bed rate one bed for every 5,572 people, compared to a national average of one bed for every 4,953 people. A County Behavioral Health Directors Association of California (CBHDA) Governing Board Policy Brief from November 2015 cites specific challenges that contribute to the lack of crisis and inpatient care capacity, including:
   1. The federal Medicaid Institution for Mental Disease exclusion (IMD exclusion), which prohibits states from receiving federal matching funds for inpatient services they provide to adult Medicaid enrollees aged 18-65 years in a hospital, nursing home, or other inpatient care setting with more than 16 beds;
   2. Stigma and discrimination, due to negative attitudes and myths about the dangerousness of people with mental illness. Counties and providers often face substantial community opposition when attempting to construct or repurpose a facility intended to be used for individuals in psychiatric crisis or in need of inpatient care; and,
   3. Divestment in acute psychiatric care and competing demands on hospitals, as, according to a report by the California HealthCare Foundation, hospitals have focused more in the last decade on general acute care services (both adult and newborn intensive care capacity) over skilled nursing and acute psychiatric services. According to the American Hospital Association, hospitals have been closing psychiatric units because of low payments from public and private payers, uncompensated care for uninsured patients, and a dearth of psychiatrists willing to work in hospitals.
5. Related legislation. AB 1372 (Levine) permits a certified crisis stabilization unit, as specified, to provide medically necessary crisis stabilization services to individuals beyond the service time of 24 hours, as required in current law, in cases where an individual needs inpatient psychiatric care or outpatient care, and inpatient psychiatric beds or outpatient services are not reasonably available. AB 1372 passed the Senate Health Committee by a vote of 9-0 on June 21, 2017.

AB 1136 (Eggman) requires DPH to develop and submit a proposal to solicit a grant under the federal 21st Century Cures Act to develop a real-time, Internet-based database to collect, aggregate, and display information about beds in inpatient psychiatric facilities, crisis stabilization units, residential community mental health facilities, and licensed residential substance use disorder treatment facilities. Requires DPH to confer with stakeholders to inform the development of the proposal and to submit an evaluation to the federal Health and Human Services Secretary and to the Legislature. AB 1136 is set for hearing on July 5, 2017, in this Committee.

SB 237 (Herzberg) permits law enforcement to transport a person suffering from a mental illness to a therapeutic health care facility, including a mental health urgent care center, emergency room, or other location providing acute substance use disorder detoxification for persons who suffer from co-occurring mental health disorders. SB 237 passed the Assembly Public Safety Committee by a vote of 7-0 on June 13, 2017.

1. Prior legislation. AB 1300 (Ridley-Thomas of 2016) would have made numerous changes to the 5150 process, including allowing non-designated facilities to place 5150 holds. AB 1300 would also have required a designated facility to accept, within its clinical capability and capacity, all categories of persons for whom it is designated without regard to insurance or financial status. AB 1300 was held in the Senate Rules Committee.

SB 364 (Steinberg, Chapter 567, Statutes of 2014) broadened the types of facilities that can be used for purposes of a 5150 hold to include facilities licensed or certified as mental health treatment facilities by the DHCS or DPH, and permitted county mental health directors to develop procedures for the designation and training of professionals who will be designated to perform functions under Section 5150.

SB 743 (Committee on Health, Chapter 612, Statutes of 2009) extended the amount of time, up to 24 hours, a non-designated hospital can detain persons who meet criteria for a 5150 hold and also extended civil and criminal liability protection to non-designated hospitals and specified staff.

SB 916 (Yee, Chapter 308, Statutes of 2007) extended to APHs civil and criminal immunity related to the detention and release of individuals that are a harm to themselves or others or gravely disabled, and extended from 8 to 24 hours the period of time that individuals can be detained in such hospitals, providing the hospital has not been designated by a county pursuant to the LPS Act.

1. Support. This bill is sponsored by the California Chapter of the American College of Emergency Physicians (California ACEP), which states that this bill improves patient access to psychiatric transfers. According to California ACEP, when people with mental illnesses are in a crisis, they seek care in the same way patients with other urgent health conditions do, by going to the nearest ED. After an evaluation by an emergency physician, some patients need additional psychiatric services and require transfer by ambulance to a psychiatric hospital to receive a higher level of mental health care. However, California ACEP states that a survey of emergency physicians revealed that, almost universally, hospitals require patients to be on a 5150 hold or they will not accept the transfer, which places an unnecessary barrier to care for patients. California ACEP states that emergency physicians also report that psychiatric hospitals routinely ask for the insurance status of a patient before determining whether to accept a transfer, despite the fact this violates the spirit, if not the letter, of current law. California ACEP states that psychiatric beds should be available to all patients facing an emergency medical condition, regardless of their ability to pay.
   
   The National Alliance on Mental Illness (NAMI) California supports this bill to require an APH, regardless of whether it maintains an ED, to provide emergency care and services to relieve a psychiatric emergency medical condition. NAMI California states that after an evaluation by an emergency physician, some individuals need additional psychiatric services and require a transfer to a psychiatric hospital. NAMI California states that there is concern that some psychiatric hospitals are using provisions of law that only require hospitals with EDs to treat all emergency patients as a way to not accept all patients. The American Academy of Pediatrics, California (AAP-CA) states that about one in 20 Californians, including one in 13 children, suffer from a serious mental illness. Many of these Californians present to hospital emergency rooms when they sense that their symptoms are becoming especially threatening to their safety and wellbeing. However, AAP-CA states it is often difficult for those who voluntarily seek emergency mental health care to receive effective treatment because many hospitals require a patient to be placed on an involuntary 5150 hold before they can be transferred to a psychiatric hospital. This discourages people who suffer from mental illness from seeking treatment before this dangerous point is reached. The Steinberg Institute states in support that under current law, physicians face barriers in their attempts to seek appropriate mental health care for their patients, and that this bill aims to overcome the challenges faced by physicians by facilitating access to care for people experiencing mental health emergencies.
2. Opposition. CBHDA states in opposition that federal EMTALA governs the requirements for emergency stabilization, transfer, and treatment in federally certified hospitals. CBHDA states that EMTALA prevents hospitals from transferring uninsured or Medicaid patients without providing a medical screening exam to ensure they are medically stable for transfer. CBHDA states that this bill risks bypassing EMTALA requirements related to medical clearance by requiring psychiatric hospitals without EDs to provide care for psychiatric emergency medical conditions. CBHDA states that failure to complete medical clearance may violate EMTALA requirements. CBHDA also notes that a variety of substance use disorder treatment needs that may co-occur when emergency psychiatric conditions are not readily available at psychiatric hospitals. The California Association of Social Rehabilitation Agencies (CASRA) also opposes this bill, stating that it does not address the underlying problem of inadequate care for persons in a psychiatric crisis who present at EDs. CASRA states that this bill follows the lead of AB 1300 from 2016, which also sought to place the responsibility for psychiatric emergency care away from private hospitals onto LPS designated hospitals which are, by and large, county operated or funded facilities. CASRA states that it understands that general EDs do not feel capable of providing the necessary services when an individual presents to an ED in psychiatric distress. Therefore CASRA states that it has provided, and will continue to provide, technical assistance on best practice care for a psychiatric crisis. CASRA states that best practice care in an ED where an individual first presents can and often does result in the patient stabilizing and returning home. CASRA argues that shifting the burden of care to a specific category of hospital undermines the intent of EMTALA.
3. Oppose unless amended. CHA and Tenet Healthcare both oppose this bill unless amended to include PHFs. According to CHA, this bill is duplicative of requirements already in place for APHs under federal law. CHA notes that federal EMTALA governs the obligations of hospitals that participate in the Medicare program with respect to patients with emergency medical conditions, and APHs participate in Medicare. CHA states that under federal EMTALA, APHs are already required to accept patients with a psychiatric emergency condition, including patients transferred from an ED, whether or not they maintain their own ED. However, CHA states the PHFs provide the same level of acute psychiatric care as that of freestanding APH, but unlike APHs, they are not bound by EMTALA. CHA supports the goals of this bill to improve access to care for all individuals in a psychiatric crisis, and believes all providers of acute inpatient psychiatric care should be included in any legislation intended to achieve this goal. Tenet Healthcare states that if passed, this bill may help reduce the psychiatric patient stays in EDs, but will compound the problem with the shortage of inpatient psychiatric beds. As a matter of equity, Tenet states that it opposes this bill unless PHFS are added to allow the appropriate transfer of patients to all available psychiatric beds in the community.
   
   The California State Council of the Service Employees International Union (SEIU California) also opposes this bill unless amended to remove the provision that prohibits a psychiatric hospital from requiring an individual to be on a 5150 hold as a condition of transfer. SEIU California states that it believes this provision, while well-intentioned, could have some grave unintended consequences, and fails to fully grasp the purpose of the LPS Act in protecting the rights of individuals who are deemed a threat to themselves and others. For example, SEIU California states that an individual may have initially provided voluntary consent, but later removes that consent, or the receiving facility believes that the individual may not be able to properly consent, and these transfers may be inappropriate, exposing the receiving facility to liability. SEIU California states that while it understands the author is concerned with the availability of treatment beds for those seeking voluntary treatment, simply prohibiting, under any circumstance, a psychiatric hospital from requiring a certain legal threshold to be met, where appropriate, would not fix these problems.

SUPPORT AND OPPOSITION:

Support: California Chapter of the American College of Emergency Physicians (sponsor)

American Academy of Pediatrics

California Medical Association

National Alliance on Mental Illness California

Steinberg Institute

Oppose: California Association of Social Rehabilitation Agencies

California Hospital Association (unless amended)
County Behavioral Health Directors Association

SEIU California (unless amended)
Tenet Healthcare (unless amended)

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ASSEMBLY THIRD READING

ATR Bill Id:AB 451

Author:(Arambula)

As Amended Ver:April 6, 2017

Majority vote

SUMMARY: Requires an acute psychiatric hospital (APH) that does not maintain an emergency department (ED) to provide emergency services and care necessary to relieve or eliminate a psychiatric emergency medical condition (EMC). Prohibits a general acute care hospital or APH, as a condition of accepting a transfer, from requiring a person to be in custody due to a mental disorder that makes that person a danger to himself/herself, others and/or gravely disabled (commonly referred to as a "5150" hold).

FISCAL EFFECT: According to the Assembly Appropriations Committee, costs to the Department of Public Health (DPH) are expected to be minor and absorbable in the course of DPHs existing enforcement of federal and state regulation of hospital standards (Licensing and Certification Fund).

COMMENTS: According to the author, this bill was introduced to help individuals with a mental illness in crisis obtain access to needed services and care. The author notes that some individuals are brought to the ED after being placed on a 5150 hold by law enforcement because they are a danger to themselves or others, and other patients go voluntarily seeking help or are brought by a family member. The author explains that after an evaluation by an emergency physician some individuals need additional psychiatric services and require a transfer by ambulance to an APH. However, emergency physicians have experienced trouble transferring patients to private APHs that do not maintain an ED. The author contends that it has been reported that some facilities will not accept patient that are enrolled in Medi-Cal or uninsured and that there have also been instances of facilities not accepting a patient because the patient is not on a 5150 hold, even though the patient needs more intense psychiatric services that the ED cannot provide. The author concludes that this bill removes barriers in current law so an individual with a mental health condition has timely access to additional care and services that may be needed by specifying that an APH, regardless of whether it maintains an ED, is required to provide emergency care and services to relieve or eliminate a psychiatric EMC, and may not require that the patient be on a 5150 hold.

Many people with mental illnesses do not receive treatment. According to a 2013 California HealthCare Foundation report (CHCF report), "Mental Health Care in California: Painting a Picture," more than 60% of adults with any mental illness and 40% of those with a serious mental illness did not receive outpatient care, inpatient care or medication treatment to address their condition. The CHCF report notes that the number of acute psychiatric beds per capita in California decreased by 40% in the 15 years from 1995 to 2010. The number of facilities with psychiatric beds decreased, either due to the elimination of psychiatric units or complete hospital closure. According to the CHCF report, California would need an additional 1,029 beds to reach the national average of 20.5 beds per 100,000 in population.

Acute psychiatric facilities in California. Three major types of psychiatric facilities provide inpatient care for mental health patients. State hospitals, APHs, and psychiatric health facilities (PHFs). State hospitals only treat patients mandated for treatment by a criminal or civil court judge. APHs are licensed to provide acute inpatient hospital service. They provide a combination of services such as psychiatric and alcohol-drug rehabilitation services. PHFs are not hospitals; however, they provide 24-hour inpatient care for people with mental health disorders including psychiatry, clinical psychology, psychiatric nursing, social work, and rehabilitation.

According to data from the Office of Statewide Health Planning and Development (OSHPD) inpatient psychiatric beds in California are distributed as follows:

A County Behavioral Health Directors Association of California Governing Board Policy Brief from November 2015 cites specific challenges that contribute to the lack of crisis and inpatient care capacity, including stigma and discrimination due to negative attitudes and myths about the dangerousness of people with mental illness. Counties and providers often face substantial community opposition when attempting to construct or repurpose a facility intended to be used for individuals in psychiatric crisis or in need of inpatient care; and, divestment in acute psychiatric care and competing demands on hospitals, as, according the CHCF report, hospitals have focused more in the last decade on general acute care services (both adult and newborn intensive care capacity) over skilled nursing and acute psychiatric services.

According to 2015 OSHPD data for the first three quarters of the year, regarding ED visits and admits for mental health, 42% of patients treated at the ED for an acute mental health condition were enrolled in Medi-Cal, 21% were Medicare beneficiaries, 25% had private coverage and 9% had no coverage. Of the almost 300,000 individuals who visited an ED, only 14% were admitted; 49% were Medi-Cal beneficiaries, and 13% had private coverage.

EMTALA (The Emergency Medical Treatment and Labor Act). EMTALA governs when and how a patient may be: 1) refused treatment; or, 2) transferred from one hospital to another when he or she is in an unstable medical condition. Generally, EMTALA applies to virtually all hospitals in the United States (U.S.), with the exception of the Shriners' Hospital for Crippled Children and many military hospitals. The provisions of EMTALA apply to all patients, and not just to Medicare patients. Under EMTALA, any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition" must be provided with "an appropriate medical screening examination" to determine if the patient is suffering from an "emergency medical condition." If he or she is in an emergency, then the hospital is obligated to either provide the patient with treatment until the patient is stable or to transfer the patient to another hospital in conformance with the statute's directives. A transfer to another facility before the patient has become stable can only take place if it is an "appropriate transfer." A transfer after the patient has become stable is permitted and is not restricted by EMTALA in any way. The statute's restrictions apply only to transfers before the patient has become stable, either on his or her own or as a result of medical treatment. EMTALA also provides that a pre-authorization requirement imposed by a managed care organization or a health insurer may not be allowed to prevent or delay the performance of a medical screening evaluation, or the institution of necessary stabilizing treatment, once it is determined that an EMC exists.

The California Chapter of the American College of Emergency Physicians is the sponsor of this bill and states that it will improve patient access to psychiatric transfers by requiring all hospitals, including stand-alone-psychiatric hospitals, to accept higher level psychiatric transfers regardless of the patients' ability to pay.

The National Alliance on Mental Illness, California (NAMI California) supports this bill because it will improve patient access to psychiatric transfers by requiring all hospitals, including stand-alone-psychiatric hospitals, to accepts higher level psychiatric transfers regardless of the patient's ability to pay.

The County Behavioral Health Directors Association of California (CBHDA) opposes this bill and states that the bill risks bypassing EMTALA requirements related to medical clearance by requiring acute psychiatric hospitals without EDs to provide care of psychiatric EMCs. CBHDA also notes that a variety of substance use disorder treatment needs that may co-occur with an emergency psychiatric condition are not readily available at many acute psychiatric hospitals.

California Hospital Association (CHA) and Tenet Healthcare (Tenet) are opposed to this bill unless it is amended to include PHFs. The organizations contend that, at their inception, PHFs were designed to be acute psychiatric inpatient units for individuals with major mental disorders without concomitant medical illness, or serious physical condition. CHA states that it supports the goals of the author and sponsor to improve access to care for all individuals in a psychiatric crisis, and believes that all providers of inpatient psychiatric care should be included in any bill intended to achieve this goal. Tenet applauds the author's efforts to better utilize clinical resources for mentally ill patients as EDs are not the best environment for such patients after they have been examined and found medically stable. Tenet asserts that as such, PHFs give providers another health care option for patient transfers and ensure EDs remain available for medical emergencies for the communities they serve.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 FN: 0000248

Date of Hearing: May 3, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 451

Author:(Arambula) – As Amended Ver:April 6, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill establishes new requirements for psychiatric emergency care. Specifically, this bill:

1. Requires acute psychiatric hospitals that do not maintain an emergency department to nevertheless provide emergency care to treat a psychiatric emergency medical condition, if the following criteria are met: (1) the acute psychiatric hospital has appropriate facilities and qualified personnel available to provide services or care; and (2) the patient is being transferred from a general acute care hospital.
2. Prohibits general acute care hospitals or acute psychiatric hospitals from requiring a person to be in custody pursuant to Section 5150 of the Welfare and Institutions Code as a condition to accepting a transfer of that person.

FISCAL EFFECT:

Costs to the California Department of Public Health are expected to be minor and absorbable in the course of the department's exiting enforcement of federal and state regulation of hospital standards (Licensing and Certification Fund).

COMMENTS:

1. Purpose. The author indicates this bill is intended to alleviate problems that arise when emergency physicians wish to transfer patients with psychiatric emergency conditions from an emergency department to a higher level of care. Specifically, the bill is intended to require private acute psychiatric hospitals that do not maintain an emergency department (ED) to nevertheless accept a patient, provided certain criteria are met. It is also intended to address a separate issue physicians have in transferring patients from EDs to other hospitals that can provide higher-level emergency psychiatric care: emergency physicians indicate some hospitals refuse to accept patients who are not on a "5150 hold" (in custody pursuant to Welfare and Institutions Code section 5150). This bill is sponsored by the California Chapter of the American College of Emergency Physicians (Cal/ACEP).
2. Transfer of Patients to Acute Psychiatric Hospitals. The federal Emergency Medical Treatment and Labor Act (EMTALA) forms the basis of the expectation that EDs accept all patients who have an emergency condition, regardless of ability to pay. EMTALA requires all hospitals with an ED that participate in Medicare (generally all hospitals with an ED) to screen and provide stabilizing treatment for patients with emergency medical conditions. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. California law also has similar requirements with respect to with hospitals that maintain EDs. CDPH enforces EMTALA on behalf of the federal government, as well as state law. This bill would provide that acute psychiatric hospitals must accept a transfer from a hospital for treatment of a psychiatric emergency condition if they have the capacity to take the patient, regardless of whether the hospital has an ED.

Data provided by CDPH does not indicate a pervasive problem with respect to violations of the federal EMTALA; data shows 5 violations across all Psychiatric Hospitals statewide over the last 10 years, with a maximum of one in any given year. The extent of any violations the similar state law is unknown.

1. 5150. Pursuant to Welfare and Institutions Code 5150, an officer or clinician may involuntarily detain a person who, as a result of a mental disorder, is a danger to others, or to himself or herself, or gravely disabled. This criteria for a "5150 hold" is quite similar to the definition in statute of a psychiatric emergency condition, namely, " a mental disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient as being either of the following: (A) An immediate danger to himself or herself or to others. (B) Immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental disorder." This bill would prohibit hospitals from requiring a patient to be on a 5150 hold in order to accept them as a transfer. The intent is that the emergency physician would be able to designate the patient as having an emergency psychiatric condition that necessitates a transfer, without having the patient in custody via 5150.
2. Prior Legislation. AB 1300 (Ridley-Thomas), of the 2015-16 Legislative Session, proposed significant changes to the "5150 hold" process. AB 1300 was held in the Senate Rules Committee.
3. Support. Emergency physicians, pediatricians, and National Alliance on Mental Illness-California supports this bill, arguing it improves access to transfers to higher levels of psychiatric care for patients regardless of the patients' ability to pay.
4. Opposition. The County Behavioral Health Directors of Association of California opposes this bill, stating it risks bypassing EMTALA requirements related to medical clearance by requiring acute psychiatric hospitals without emergency departments to provide treatment for psychiatric emergency conditions. The California Hospital Association and Tenet oppose this bill unless amended to require psychiatric health facilities to also accept transfers for psychiatric emergency care.
5. Staff Comments. For context, it may be helpful to realize tension between stakeholders in this space—hospitals, physicians, county behavioral health departments— appears related to the underlying lack of fiscal viability for the private provision of these services and an associated shortage of beds. This leads to a tug-of-war over which entity appropriately bears responsibility for, and has the capacity to treat, patients with psychiatric emergency conditions and who incurs the associated costs and workload. EDs are particularly impacted by this issue since they must assess and treat all patients. This inability to individuals to access and facilities to provide optimal care appears to be a source of frustration for all stakeholders, and the solutions proposed by different stakeholders depend on their definition of the problem. This bill addresses one problem definition from the perspective of emergency physicians.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 26, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 451

Author:(Arambula) – As Amended Ver:April 6, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill establishes new requirements for psychiatric emergency care. Specifically, this bill:

1. Requires acute psychiatric hospitals that do not maintain an emergency department to nevertheless provide emergency care to treat a psychiatric emergency medical condition, if the following criteria are met: (1) the acute psychiatric hospital has appropriate facilities and qualified personnel available to provide services or care; and (2) the patient is being transferred from a general acute care hospital.
2. Prohibits general acute care hospitals or acute psychiatric hospitals from requiring a person to be in custody pursuant to Section 5150 of the Welfare and Institutions Code as a condition to accepting a transfer of that person.

FISCAL EFFECT:

Costs to the California Department of Public Health are expected to be minor and absorbable in the course of the department's exiting enforcement of federal and state regulation of hospital standards (Licensing and Certification Fund).

COMMENTS:

1. Purpose. The author indicates this bill is intended to alleviate problems that arise when emergency physicians wish to transfer patients with psychiatric emergency conditions from an emergency department to a higher level of care. Specifically, the bill is intended to require private acute psychiatric hospitals that do not maintain an emergency department (ED) to nevertheless accept a patient, provided certain criteria are met. It is also intended to address a separate issue physicians have in transferring patients from EDs to other hospitals that can provide higher-level emergency psychiatric care: emergency physicians indicate some hospitals refuse to accept patients who are not on a "5150 hold" (in custody pursuant to Welfare and Institutions Code section 5150). This bill is sponsored by the California Chapter of the American College of Emergency Physicians (Cal/ACEP).
2. Transfer of Patients to Acute Psychiatric Hospitals. The federal Emergency Medical Treatment and Labor Act (EMTALA) forms the basis of the expectation that EDs accept all patients who have an emergency condition, regardless of ability to pay. EMTALA requires all hospitals with an ED that participate in Medicare (generally all hospitals with an ED) to screen and provide stabilizing treatment for patients with emergency medical conditions. If a hospital is unable to stabilize a patient within its capability, or if the patient requests, an appropriate transfer should be implemented. California law also has similar requirements with respect to with hospitals that maintain EDs. CDPH enforces EMTALA on behalf of the federal government, as well as state law. This bill would provide that acute psychiatric hospitals must accept a transfer from a hospital for treatment of a psychiatric emergency condition if they have the capacity to take the patient, regardless of whether the hospital has an ED.

Data provided by CDPH does not indicate a pervasive problem with respect to violations of the federal EMTALA; data shows 5 violations across all Psychiatric Hospitals statewide over the last 10 years, with a maximum of one in any given year. The extent of any violations the similar state law is unknown.

1. 5150. Pursuant to Welfare and Institutions Code 5150, an officer or clinician may involuntarily detain a person who, as a result of a mental disorder, is a danger to others, or to himself or herself, or gravely disabled. This criteria for a "5150 hold" is quite similar to the definition in statute of a psychiatric emergency condition, namely, " a mental disorder that manifests itself by acute symptoms of sufficient severity that it renders the patient as being either of the following: (A) An immediate danger to himself or herself or to others. (B) Immediately unable to provide for, or utilize, food, shelter, or clothing, due to the mental disorder." This bill would prohibit hospitals from requiring a patient to be on a 5150 hold in order to accept them as a transfer. The intent is that the emergency physician would be able to designate the patient as having an emergency psychiatric condition that necessitates a transfer, without having the patient in custody via 5150.
2. Prior Legislation. AB 1300 (Ridley-Thomas), of the 2015-16 Legislative Session, proposed significant changes to the "5150 hold" process. AB 1300 was held in the Senate Rules Committee.
3. Support. Emergency physicians, pediatricians, and National Alliance on Mental Illness-California supports this bill, arguing it improves access to transfers to higher levels of psychiatric care for patients regardless of the patients' ability to pay.
4. Opposition. The County Behavioral Health Directors of Association of California opposes this bill, stating it risks bypassing EMTALA requirements related to medical clearance by requiring acute psychiatric hospitals without emergency departments to provide treatment for psychiatric emergency conditions. The California Hospital Association and Tenet oppose this bill unless amended to require psychiatric health facilities to also accept transfers for psychiatric emergency care.
5. Staff Comments. For context, it may be helpful to realize tension between stakeholders in this space—hospitals, physicians, county behavioral health departments— appears related to the underlying lack of fiscal viability for the private provision of these services and an associated shortage of beds. This leads to a tug-of-war over which entity appropriately bears responsibility for, and has the capacity to treat, patients with psychiatric emergency conditions and who incurs the associated costs and workload. EDs are particularly impacted by this issue since they must assess and treat all patients. This inability to individuals to access and facilities to provide optimal care appears to be a source of frustration for all stakeholders, and the solutions proposed by different stakeholders depend on their definition of the problem. This bill addresses one problem definition from the perspective of emergency physicians.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

ABPCA Bill Id:AB 451

Author:(Arambula) – As Introduced Ver:February 13, 2017

SUBJECT: Health facilities: emergency services and care.

SUMMARY: Requires an acute psychiatric hospital (APH) that does not maintain an emergency department (ED) to provide emergency services and care necessary to relieve or eliminate a psychiatric emergency medical condition (EMC). Prohibits a general acute care hospital (GACH) or APH, as a condition of accepting a transfer, from requiring a person to be in custody due to a mental disorder that makes that person a danger to himself/herself, others and/or gravely disabled (commonly referred to as a “5150” hold).

EXISTING LAW:

1. Requires any health facility that maintains and operates an ED to provide emergency services and care to any person requesting the services or care, or for whom services or care is requested, for any condition in which the person is in danger of loss of life, serious injury or illness, when the health facility has appropriate facilities and qualified personnel available to provide the services or care.
2. Prohibits the provision of emergency services and care from being based upon, or affected by, the person's ethnicity, citizenship, age, preexisting medical condition, insurance status, economic status, or ability to pay for medical services.
3. Requires emergency services and care to be rendered without first questioning the patient or any other person as to his or her ability to pay. Requires the patient or his or her legally responsible relative or guardian to execute an agreement to pay or otherwise supply insurance or credit information promptly after the services are rendered.
4. Exempts a health facility, its employees, any physician, dentist, clinical psychologist, or podiatrist from liability in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination that the person is not suffering from an EMC, or that the health facility does not have the appropriate facilities or personnel available to render those services.
5. Specifies that if a health facility does not maintain an ED, its employees must exercise reasonable care to determine whether an emergency exists and direct the persons seeking emergency care to a nearby facility that can render the needed services.
6. Defines emergency services and care as medical screening, examination, and evaluation by a physician and surgeon, or other appropriate licensed person under the supervision of a physician and surgeon, to determine if an EMC or active labor exists, and if it does, the care, treatment, and surgery necessary to relieve or eliminate the EMC, within the capability of the facility.
7. Defines emergency services and care to also mean an additional screening, examination, and evaluation by a physician, or other personnel within the scope of their licensure and clinical privileges, to determine if a psychiatric EMC exists, and the care and treatment necessary to relieve or eliminate the psychiatric medical condition, within the capability of the facility.
8. Specifies that the care and treatment necessary to relieve or eliminate a psychiatric EMC may include admission or transfer to a psychiatric unit within a GACH, or transfer to a psychiatric unit within a GACH.
9. Defines a psychiatric health facility (PHF), as a health facility licensed by the California Department of Health Care Services (DHCS) that provides 24-hour inpatient care for people with mental health disorders. Specifies that this care must include, but not be limited to, the following basic services: psychiatry; clinical psychology; psychiatric nursing; social work; rehabilitation drug administration; and, appropriate food services for those persons whose physical health needs can be met in an affiliated hospital or in outpatient settings.
10. Provides for the involuntary commitment and treatment of individuals with specified mental disorders and for the protection of committed individuals, with the declared goal of ending inappropriate, indefinite, and involuntary commitment of mentally disordered persons, developmentally disabled persons, and persons impaired by chronic alcoholism.
11. Establishes the Lanterman Petris Act (LPS Act) which creates a process for a person to be taken into custody and transferred to a designated health facility, upon probable cause that person is a danger to self, to others, or gravely disabled as a result of a mental health disorder, for a period of up to 72 hours, as specified.
12. Defines “designated facility” or “facility designated by the county for evaluation and treatment” as a facility that is licensed or certified as a mental health treatment facility or a hospital, as specified, and may include, but is not limited to, a licensed psychiatric hospital, a licensed PHF, and a certified crisis stabilization unit.
13. Permits a non-designated health facility to detain an individual beyond eight hours but less than 24 hours, known as a "1799 hold," if the following conditions are met:
    
    1. A transfer for appropriate mental health treatment for the person has been delayed because of the need for continuous and ongoing care, observation, or treatment that the hospital is providing; and,
    2. In the opinion of the treating physician and surgeon, or other specified licensed mental health professional, the person, as a result of a mental disorder, is still a danger to himself or herself, or others, or is gravely disabled.
       
14. Requires under state regulations that hospitals have written admission, transfer, and discharge policies, as specified. Requires patients to be admitted only upon the order and under the care of a member of the medical staff of the hospital who is a licensed health care practitioner acting within the scope of his or her professional licensure. Requires the patient's condition and provisional diagnosis to be established at time of admission by the member of the medical staff who admits the patient subject to the rules and regulations of the hospital and current law.
    
15. Establishes under federal law the Emergency Medical Treatment and Active Labor Act (EMTALA) which requires a hospital with an ED to treat any individual who comes through the ED with an EMC, whether or not this individual has medical insurance. Requires that hospitals provide appropriate medical screening examination within the hospital's capability. Specifies under EMTALA regulations that an EMC includes psychiatric disturbances and/or symptoms of substance abuse and defines a psychiatric EMC as a patient that is a danger to self or others or there is risk of danger to self or others.

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, this bill was introduced to help individuals with a mental illness in crisis obtain access to needed services and care. The author states that today, when individuals with a mental illness are in crisis, they seek care in the same way patients with other urgent health conditions do, they go to the nearest ED. The author notes that some individuals are brought to the ED after being placed on a 5150 hold by law enforcement because they are a danger to themselves or others, and other patients go voluntarily seeking help or are brought by a family member. The author explains that after an evaluation by an emergency physician some individuals need additional psychiatric services and require a transfer by ambulance to an APH. However, emergency physicians have experienced trouble transferring patients to private APHs that do not maintain an ED. The author contends that it has been reported that some facilities will not accept patient that are enrolled in Medi-Cal or uninsured and that there have also been instances of facilities not accepting a patient because the patient is not on a 5150 hold, even though the patient needs more intense psychiatric services that the ED cannot provide. The author concludes that this bill removes barriers in current law so an individual with a mental health condition has timely access to additional care and services that may be needed by specifying that an APH, regardless of whether it maintains an ED, is required to provide emergency care and services to relieve or eliminate a psychiatric EMC, and may not require that the patient be on a 5150 hold.
   
2. BACKGROUND. Many people with mental illnesses do not receive treatment. According to a 2013 California HealthCare Foundation report (CHCF report), “Mental Health Care in California: Painting a Picture,” more than 60% of adults with any mental illness and 40% of those with a serious mental illness did not receive outpatient care, inpatient care or medication treatment to address their condition. The CHCF report notes that the number of acute psychiatric beds per capita in California decreased by 40% in the 15 years from 1995 to 2010. The number of facilities with psychiatric beds decreased, either due to the elimination of psychiatric units or complete hospital closure. According to the CHCF report, California would need an additional 1,029 beds to reach the national average of 20.5 beds per 100,000 in population.
   1. Acute psychiatric facilities in California. Three major types of psychiatric facilities provide inpatient care for mental health patients. State hospitals, APHs, and PHFs. State hospitals only treat patients mandated for treatment by a criminal or civil court judge. APHs are licensed to provide acute inpatient hospital service. They provide a combination of services such as psychiatric and alcohol-drug rehabilitation services. PHFs are not hospitals; however, they provide 24-hour inpatient care for people with mental health disorders including psychiatry, clinical psychology, psychiatric nursing, social work, and rehabilitation.
      
      According to data from the Office of Statewide Health Planning and Development (OSHPD) inpatient psychiatric beds in California are distributed as follows:

A County Behavioral Health Directors Association of California (CBHDAC) Governing Board Policy Brief from November 2015 cites specific challenges that contribute to the lack of crisis and inpatient care capacity, including stigma and discrimination due to negative attitudes and myths about the dangerousness of people with mental illness. Counties and providers often face substantial community opposition when attempting to construct or repurpose a facility intended to be used for individuals in psychiatric crisis or in need of inpatient care; and, divestment in acute psychiatric care and competing demands on hospitals, as, according the CHCF report, hospitals have focused more in the last decade on general acute care services (both adult and newborn intensive care capacity) over skilled nursing and acute psychiatric services.

• 1. Designated vs. Non Designated Facilities. California requires that individuals under a 5150 hold must be transported to a designated facility. Individual counties, with DHCS approval, are responsible for determining whether GACHs, PHFs, APHs and other licensed facilities qualify to be designated facilities and therefore meet the necessary standards to accept patients with an acute mental health condition. If an individual is transported under a 5150 hold to a non-designated facility, the facility can only hold the individual for up to eight hours while determining the appropriate placement for that individual to a designated facility. DHCS is responsible for the approval of designated facilities as determined by the counties. According to the California Hospital Association, 25 of 58 counties have no inpatient psychiatric services or beds available to serve their populations. While peace officers and other authorized individuals are required to take an individual first to a designated facility, if one does not exist, individuals are transported to a non-designated facility, which is also any facility participating in Medicare that is therefore required by federal EMTALA laws to provide medical services to any individual who shows up requiring medical attention.
  2. Payment. In California, public spending on mental health services (outside the criminal justice system and Medicare) was estimated to be $5.7 billion in fiscal year 2012-13. Counties administer about 90% of the revenue dedicated to public mental health services in the state.
     
     According to 2015 OSHPD data for the first three quarters of the year, regarding ED visits and admits for mental health, 42% of patients treated at the ED for an acute mental health condition were enrolled in Medi-Cal, 21% were Medicare beneficiaries, 25% had private coverage and 9% had no coverage. Of the almost 300,000 individuals who visited an ED, only 14% were admitted; 49% were Medi-Cal beneficiaries, and 13% had private coverage

Emergency Department Visits and Admits for Mental Health by Payor

• 1. EMTALA. EMTALA governs when and how a patient may be: i) refused treatment; or, ii) transferred from one hospital to another when he or she is in an unstable medical condition. Generally, EMTALA applies to virtually all hospitals in the U.S., with the exception of the Shriners' Hospital for Crippled Children and many military hospitals. The provisions of EMTALA apply to all patients, and not just to Medicare patients. Under EMTALA, any patient who "comes to the emergency department" requesting "examination or treatment for a medical condition" must be provided with "an appropriate medical screening examination" to determine if the patient is suffering from an "emergency medical condition." If he or she is in an emergency, then the hospital is obligated to either provide the patient with treatment until the patient is stable or to transfer the patient to another hospital in conformance with the statute's directives. A transfer to another facility before the patient has become stable can only take place if it is an "appropriate transfer." A transfer after the patient has become stable is permitted and is not restricted by EMTALA in any way. The statute's restrictions apply only to transfers before the patient has become stable, either on his or her own or as a result of medical treatment. EMTALA also provides that a pre-authorization requirement imposed by a managed care organization or a health insurer may not be allowed to prevent or delay the performance of a medical screening evaluation, or the institution of necessary stabilizing treatment, once it is determined that an EMC exists.

1. SUPPORT. The California Chapter of the American College of Emergency Physicians is the sponsor of this bill and states that it will improve patient access to psychiatric transfers by requiring all hospitals, including stand-alone-psychiatric hospitals, to accept higher level psychiatric transfers regardless of the patients' ability to pay.
   
   The National Alliance on Mental Illness, California (NAMI California) supports this bill because it will improve patient access to psychiatric transfers by requiring all hospitals, including stand-alone-psychiatric hospitals, to accepts higher level psychiatric transfers regardless of the patient's ability to pay.
2. OPPOSITION. The County Behavioral Health Directors Association of California (CBHDA) opposes this bill and states that the bill risks bypassing EMTALA requirements related to medical clearance by requiring acute psychiatric hospitals without EDs to provide care of psychiatric EMCs. CBHDA also notes that a variety of substance use disorder treatment needs that may co-occur with an emergency psychiatric condition are not readily available at many acute psychiatric hospitals.
3. OPPOSE UNLESS AMENDED. CHA and Tenet Healthcare (Tenet) are opposed to this bill unless it is amended to include PHFs. The organizations contend that, at their inception, PHFs were designed to be acute psychiatric inpatient units for individuals with major mental disorders without concomitant medical illness, or serious physical condition. CHA states that it supports the goals of the author and sponsor to improve access to care for all individuals in a psychiatric crisis, and believes that all providers of inpatient psychiatric care should be included in any bill intended to achieve this goal. Tenet applauds the author's efforts to better utilize clinical resources for mentally ill patients as EDs are not the best environment for such patients after they have been examined and found medically stable. Tenet asserts that as such, PHFs give providers another health care option for patient transfers and ensure EDs remain available for medical emergencies for the communities they serve.
4. RELATED LEGISLATION. AB 259 (Gipson) makes a non-substantive change to provisions prohibiting a health facility or its employees or health care providers from refusing to provide emergency services to a patient based upon their ability to pay or upon certain specified characteristics. AB 259 is pending referral in the Assembly Rules Committee.
5. PREVIOUS LEGISLATION.
   1. AB 1300 (Ridley-Thomas) of 2016 would have allowed an emergency physician or psychiatric professional, who is not a county-designated professional person to detain a person who is a danger to self or others, or is gravely disabled, for up to 72 hours for evaluation and treatment. AB 1300 was held in the Senate Rules Committee.
   2. AB 1357 (Roger Hernández) of 2014 would have, among other things, required funds, collected by the County of Los Angeles through a voter approved initiative for emergency rooms from properties within the San Gabriel Valley, to remain within that geographic region of the county, and required the funds to reduce ambulance diversion. AB 1357 was held in the Assembly Health Committee.
   3. SB 916 (Yee), Chapter 308, Statutes of 2007, extends to APHs civil and criminal immunity related to the detention and release of individuals that are a harm to themselves or others or gravely disabled, and extends from eight to 24 hours the period of time that individuals can be detained in such hospitals, providing the hospital has not been designated by a county to conduct psychiatric evaluations pursuant to the LPS Act, and specifies the conditions that must be met for the immunity to be granted.
6. POLICY COMMENT. As noted above, CHA and Tenet oppose this bill unless it is amended to add PHFs to the facilities required to provide emergency mental health services and accept patients whether or not they are on a 5150 hold. The sponsors contend that the PHFs are already accepting transfers from EDs. As the bill moves forward the author may want to consider whether or not adding PHFs to these provisions is appropriate.
7. SUGGESTED AMENDMENTS. As drafted, this bill requires APHs to provide emergency services and care, even though they do not maintain an ED. To ensure patient safety and prohibit transfers to state hospitals, the Committee may wish to amend the bill as follows:

(2) (a)An acute psychiatric hospital, as defined in subdivision (b) of Section 1250, which is subject to this chapter but does not maintain an emergency department, shall nevertheless provide emergency services and care as described in subparagraph (B) of paragraph (2) of subdivision (a) of Section 1317.1. under the following conditions:

i) When the health facility has appropriate facilities and qualified personnel available to provide the services or care; and,

ii) The person is being transferred from a facility licensed pursuant to Section 1250 (a).
(b)This section does not include facilities listed in Welfare and Institutions Code 4100.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chapter of the American College of Emergency Physicians (sponsor)
American Academy of Pediatrics
National Alliance on Mental Illness, California

Opposition

California Hospital Association (unless amended)
County Behavioral Health Directors Association
Tenet Healthcare (oppose unless amended)

Analysis Prepared by: Lara Flynn / HEALTH / 916/319-2097