BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: AB 773
A
AUTHOR: Lieu
B
AMENDED: June 24, 2009
HEARING DATE: July 8, 2009
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CONSULTANT:
7
Bain/
3
SUBJECT
Health facilities: citations: notifications
SUMMARY
Requires a long-term care (LTC) facility to send a written
notification to all current residents and patients, and to
the primary contacts listed on the admission agreement of
each resident and patient, of the issuance of a citation
for a Class "AA" or Class "A" violation.
CHANGES TO EXISTING LAW
Existing law:
Existing law requires citations issued pursuant to the
Long-Term Care, Health, Safety, and Security Act of 1973
Act (the Act) to be classified according to the nature of
the violation. The Act is enforced by the Department of
Public Health (DPH). Under existing law, long-term health
care facilities are defined to include skilled nursing
facilities, intermediate care facilities, congregate living
facilities, nursing facilities, pediatric day health and
respite facilities and the distinct part of the hospital
that provides skilled nursing facility, intermediate care
facility, or pediatric day health and respite care facility
services.
Continued---
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Existing law defines, under the Act, Class "A" violations
as violations which DPH determines present either (1)
imminent danger that death or serious harm to the patients
or residents of the long-term health care facility would
result; or (2) substantial probability that death or
serious physical harm to patients or residents of the
long-term health care facility would result. A Class "A"
citation is subject to a civil penalty of at least $2,000
and not more than $20,000 for each citation.
Existing law defines, under the Act, Class "AA" violations
as violations that meet the criteria for a Class "A"
violation and that DPH determines to have been a direct
proximate cause of death of a patient or resident of a
long-term health care facility. A Class "AA" citation is
subject to a civil penalty of at least $25,000 and not more
than $100,000 for each citation.
This bill:
This bill requires a LTC facility to send written
notification to all current residents and patients and to
the primary contacts listed on the admission agreement of
each resident and patient of the issuance of a citation for
a Class "AA" or Class "A" violation within 30 days of
issuance of the citation. The written notice must disclose
the violation for which the citation was issued, the date
of the citation, and a telephone number or Internet Web
site address for the DPH where more information on the
citation can be accessed. If the facility fails to send
the notification, DPH is authorized to assess an
administrative penalty of $1,000 for each day following the
end of the 30-day period.
Under this bill, DPH would be required to waive the penalty
if the facility can demonstrate that it has mailed written
notification to all current residents and patients and to
the primary contacts listed in the admission contract of
each resident and patient. DPH would be required to accept
a copy of the written notice and a copy of the list of
individuals and mailing addresses to whom the facility sent
the notification as satisfactory evidence that the facility
provided the required written notification.
FISCAL IMPACT
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According to the Assembly Appropriations Committee,
unknown, likely absorbable, impacts to skilled nursing
facilities (SNF) to comply with notification requirements
established by this bill. The serious events requiring
notice are uncommon, with fewer than two dozen each year
issued for an "AA" citation (patient death) and fewer than
150 issued for "A" citations (serious harm).
BACKGROUND AND DISCUSSION
According to the author, this bill is a balanced step that
will provide transparency to the violation process by
requiring LTC facilities to notify the primary contact for
all residents when a Class "A" or "AA" violation occurs at
their facility. Class "A" and "AA" citations are
considered immediate jeopardy violations and represent the
most severe cases of elder abuse and neglect. A Class "A"
citation is a violation that presents imminent danger and
could result in death or serious harm to the patient. A
Class "AA" citation is the highest fine for LTC violations
and is levied for an action DPH determines to have been the
direct proximate cause of death of a patient. Class "A" or
"AA" violations are accompanied by various penalties and
requirements, including a fine and public notification.
The author states that although public notification is
provided for Class "A" and "AA" violations, nothing in
current law requires a SNF to notify residents or their
loved ones when serious violations occur, leaving many
patients and residents vulnerable and unaware of the
current conditions at a facility.
Current public notification requirements
As part of the Act, DPH is required to establish a
centralized consumer response unit within its Licensing and
Certification Division to respond to consumer inquiries and
complaints, which includes offering assistance to consumers
in resolving concerns about the quality of care and the
quality of life in LTC facilities. DPH is also required to
develop and establish a consumer information service system
to provide updated and accurate information to the general
public and consumers regarding LTC facilities in their
communities. The consumer information service system must
include an on-line inquiry system accessible through a
statewide toll-free telephone number and the Internet.
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Current law also requires DPH to develop a method under
which information is provided to the public and consumers
on LTC facilities that includes, at minimum, all of the
following elements:
Substantiated complaints, including the action taken and
the date of the action.
State citations assessed, including the status of any
citation and whether an appeal has been filed.
State actions, including license suspensions,
revocations, and receiverships.
Federal enforcement sanctions imposed, including any
denial of payment, temporary management, termination, or
civil money penalty of $500 or more.
Any information or data beneficial to the public and
consumers.
DPH currently posts information on citations on its web
site. Data from DPH indicates the "A" and "AA citations"
issued are as follows:
Fiscal Year "A""AA"
2007-08 24 135
2006-07 24 123
Existing law requires each Class "AA" and Class "A"
citation that has become final to be prominently posted at
the facility until the violation is corrected to the
satisfaction of DPH, up to a maximum of 120 days. The
citation or copy must be posted in a place or places in
plain view of the patients or residents in the LTC
facility, persons visiting those patients or residents, and
persons who inquire about placement in the facility.
Arguments in support
The California Retired Teachers Association writes in
support that individuals who are in SNFs are some of the
most vulnerable populations in California. Because they
are vulnerable, CRTA argues they need to be guaranteed they
will have appropriate care that will not result in
increasing their vulnerability, and this measure will make
SNFs more sensitive to their patients and ensure
appropriate services. The Congress of California Seniors
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writes in support that continuing dangerous practices would
be less likely because the facility could no longer expect
to keep their actions a secret.
Arguments in opposition
The California Hospital Association (CHA) writes that there
are approximately 125 hospital-based SNFs in its
membership, and because of the nature of care provided in
hospital-based distinct part SNFs (DP-SNFs), the proposed
written notification by mail is impractical and
unnecessary. CHA states that, as compared to free-standing
SNFs, which provide a great deal of long-term residential
care, most hospital based DP-SNFs provide short-term
transitional care with a shorter length of stay. CHA
states that given the time frames for investigating and
issuing a citation by the state and developing
communication to the primary contact and mailing it out, it
is more likely that many residents will have already left
the facility. CHA states that notifying them of the
citation serves no purpose and will create unnecessary
confusion. CHA indicates SNFs are already subject to
extensive federal and state regulation, and the current
program of oversight and sanctions provides a robust and
effective program to support the provision of quality care
in SNFs and to identify and punish instances of
non-compliance.
Previous legislation
AB 893 (Alquist), Chapter 430, Statutes of 1999, required
the Department of Health Care Services (now DPH) to post
information on LTC facilities on the Internet, and required
additional information about facilities to be provided,
including whether the facility accepts Medi-Cal and
Medicare, the number of beds and information regarding
state citations assessed, including the status of state
citations, the facility's plan of correction and
information as to whether an appeal has been filed.
SB 535 (Kuehl) of 2008 would have required the DPH website
to include additional information about health facilities,
including information describing federal enforcement
sanctions imposed, including, but not limited to, any
denial of payment, temporary management, termination, or
any civil monetary penalty imposed and information on
compliance with staffing ratio requirements. SB 535 was
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vetoed by Governor Schwarzenegger. In his veto message,
the Governor stated the bill was duplicative of successful
efforts already underway at DPH, the DPH website currently
provides information to the public on licensed facilities,
their performance and all enforcement actions, and
additional information required by this bill can already be
added administratively.
AB 398 (Feuer) of 2008 would have required the DPH website
to include additional information about long-term care
facilities, including a categorical representation of the
percentile ranking of the facility compared to all other
comparable facilities in regard to staffing, deficiencies
and complaints (based on state and federal deficiencies),
spending on resident care per day and the financial status
of the facility. AB 398 was vetoed by Governor
Schwarzenegger. In his veto message, the Governor stated
the bill was premature, overly prescriptive, and would
result in increased state costs. The Governor continued
that efforts underway by DPH will produce a consumer
website so the public can easily access facility licensing
violations, and he directed DPH to consider expanding the
website under development to include data required by this
bill unless doing so would substantially increase costs or
delay development of the website.
PRIOR ACTIONS
Assembly Floor: 56-19
Assembly Appropriations:12-5
Assembly Health: 16-1
POSITIONS
Support: California Retired Teachers Association
Congress of California Seniors
Service Employees International Union
Support (prior version):
Area Agency on Aging
California Advocates for Nursing Home Reform
Professional Fiduciary Association of California
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Oppose: California Hospital Association
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