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