BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                   AB 641|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  AB 641
          Author:   Feuer (D), et al.
          Amended:  8/23/11 in Senate
          Vote:     21

           
           SENATE HEALTH COMMITTEE  : 6-3, 07/06/11
          AYES: Hernandez, Alquist, De León, DeSaulnier, Rubio, Wolk
          NOES: Strickland, Anderson, Blakeslee

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           SENATE HEALTH COMMITTEE  :  6-3, 08/29/11 (pursuant to Senate 
            Rule 29.10)
          AYES:  Hernandez, Alquist, De León, DeSaulnier, Rubio, Wolk
          NOES:  Strickland, Anderson, Blakeslee

           SENATE APPROPRIATIONS COMMITTEE  :  6-3, 08/31/11 (pursuant 
            to Senate Rule 29.10)
          AYES:  Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
          NOES:  Walters, Emmerson, Runner

           ASSEMBLY FLOOR  :  52-24, 05/23/11 - See last page for vote


           SUBJECT  :    Long-term care:  civil penalties

           SOURCE  :     Author


           DIGEST  :    This bill eliminates the citation review 
          conference (CRC) process from the citation appeals process 
          for long-term care (LTC) facilities, and allows fines to be 
                                                           CONTINUED





                                                                AB 641
                                                                Page 
          2

          levied from both state and federal agencies when an 
          incident violates both state and federal laws.

           Senate Floor Amendments  of 8/23/11 (1) impose specified 
          requirements pertaining to the transfer of specified assets 
          for same sex spouses and registered domestic partners, (2) 
          extend financial protections that are currently provided to 
          opposite-sex spouses to same-sex spouses and registered 
          domestic partners, and (3) implement federal Centers for 
          Medicare and Medicaid Services guidance on same sex spouse 
          and registered domestic partner spousal asset protections, 
          which was issued in June 2011. 

           ANALYSIS  :    Existing law:

          1.Provides for the inspection and licensure of LTC 
            facilities by the California Department of Public Health 
            (DPH).

          2.Establishes the Long-Term Care, Health, Safety, and 
            Security Act of 1973, which permits DPH to assess 
            penalties against LTC facilities for violation of 
            prescribed state statutes, regulations, and federal 
            standards pertaining to patient care.  

          3.Prohibits the issuance of both a citation pursuant to 
            state laws and the recommendation that a federal civil 
            monetary penalty be imposed for the same action.

          4.Establishes a citation and appeals process that includes 
            a CRC.

          This bill:

          1.Revises state law to enable DPH to recommend that the 
            federal Centers for Medicare and Medicaid Services impose 
            a federal civil monetary penalty when DPH's Licensing and 
            Certification Division determines that a LTC facility is 
            out of compliance with both state and federal 
            requirements.

          2.Eliminates the CRC appeals process for all levels of 
            state citations.  


                                                           CONTINUED





                                                                AB 641
                                                                Page 
          3

          3.Repeals existing law requesting DPH to develop 
            recommendations to address the findings published in the 
            June 2010 State Auditor report entitled, "Department of 
            Public Health:  It Reported Inaccurate Financial 
            Information and Can Likely Increase Revenues for the 
            State and Federal Health Facilities Citation Penalties 
            Accounts."

          4.Requires the Department of Health Care Services (DHCS) to 
            consider, at the initial application or upon 
            redetermination for the Medi-Cal long-term care benefit, 
            whether an undue hardship exists prior to finding a 
            person ineligible for medical assistance for home and 
            facility care.

          5.Defines an undue hardship to exist under the following 
            conditions:

             A.   The applicant has transferred all or any portion of 
               ownership interest in the shared principal residence 
               to his or her same-sex spouse or registered domestic 
               partner.

             B.   The applicant has transferred interest in resources 
               other than the shared principal residence to his or 
               her same-sex spouse or registered domestic partner to 
               the extent the value of those resources do not exceed 
               the community spouse resource allowance that would be 
               available to that person if he or she was an 
               opposite-sex spouse.  

             C.   The applicant has transferred his or her right to 
               receive income to his or her same-sex spouse or 
               registered domestic partner and the amount of that 
               income does not exceed the maximum monthly spousal 
               income allowance that would be available to that 
               person if he or she was an opposite-sex spouse.  

          1.Defines specified terms.

          2.Requires DHCS to request federal approval and receive 
            federal financial participation prior to implementation.

          3.Authorizes implementation by all-county letter or similar 

                                                           CONTINUED





                                                                AB 641
                                                                Page 
          4

            instructions, without regulatory action.

           Background
           
          At the request of the Joint Legislative Audit Committee, 
          the California State Auditor produced an audit report in 
          June of 2010, examining DPH.  According to the State 
          Auditor report, state law specifies that LTC facilities are 
          not required to pay monetary penalties on contested 
          citations that have not been resolved.  LTC facilities may 
          contest a monetary penalty by requesting an appeal through 
          the CRC process in which an independent hearing officer 
          from DPH's Office of Legal Services makes a determination 
          on whether to uphold, modify, or dismiss the citation.  
          Because of DPH's staffing issues and workload priorities, 
          more than 600 citations, with corresponding monetary 
          penalties amounting to nearly $5 million, were awaiting a 
          CRC as of February 2010.  According to DPH, delays in the 
          CRC process may encourage LTC facilities to appeal 
          citations and request CRCs as a way to delay paying their 
          monetary penalties.

          SB 853 (Budget and Fiscal Review Committee), Chapter 717, 
          Statutes of 2010, required DPH, in consultation with 
          stakeholders, to develop recommendations to address this 
          report, and provide recommendations to the Legislature no 
          later than March 1, 2011.  In January 2011, DPH solicited 
          input from stakeholders and issued recommendations in April 
          2011.  AB 641 reflects the revised recommendations of DPH.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

           SUPPORT  :   (Verified  8/15/11)

          Advocacy, Inc.
          Alzheimer's Association, California Council
          Bet Tzedek Legal Services
          California Advocates of Nursing Home Reform
          California Alliance of Retired Americans
          California Long-Term Care Ombudsman Association
          California Senior Legislature
          Catholic Charities of California United
          Congress of California Seniors

                                                           CONTINUED





                                                                AB 641
                                                                Page 
          5

          Council on Aging, Orange County
          Disability Rights California
          Foundation Aiding the Elderly
          National Senior Citizens Law Center
          Ombudsman and HICAP Services of Northern California


           ARGUMENTS IN SUPPORT  :    Supporters state that this bill 
          allows for both state and federal penalties to be levied 
          when both state and federal violations occur and gives DPH 
          the necessary discretion when finding serious and blatant 
          violations.  Supporters argue the CRC process is 
          inefficient and redundant and by removing the CRC process, 
          nursing home oversight will be streamlined.  Supporters 
          write AB 641 will strengthen the oversight protection for 
          the vulnerable residents in skilled nursing facilities.


           ASSEMBLY FLOOR  :  52-24, 05/23/11
          AYES:  Alejo, Allen, Ammiano, Atkins, Beall, Block, 
            Blumenfield, Bonilla, Bradford, Brownley, Buchanan, 
            Butler, Charles Calderon, Campos, Carter, Cedillo, 
            Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes, 
            Furutani, Galgiani, Gatto, Gordon, Hall, Hayashi, Roger 
            Hernández, Hill, Huber, Hueso, Huffman, Lara, Bonnie 
            Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan, Perea, V. 
            Manuel Pérez, Portantino, Skinner, Solorio, Swanson, 
            Torres, Wieckowski, Williams, Yamada, John A. Pérez
          NOES:  Achadjian, Conway, Donnelly, Fletcher, Beth Gaines, 
            Garrick, Grove, Hagman, Halderman, Harkey, Jeffries, 
            Jones, Knight, Logue, Mansoor, Miller, Morrell, Nestande, 
            Nielsen, Olsen, Silva, Smyth, Valadao, Wagner
          NO VOTE RECORDED:  Bill Berryhill, Cook, Gorell, Norby


          CTW:nl  8/31/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****





                                                           CONTINUED





                                                                AB 641
                                                                Page 
          6














































                                                           CONTINUED