BILL NUMBER: SB 345 AMENDED
BILL TEXT
AMENDED IN SENATE JANUARY 4, 2012
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Wolk
FEBRUARY 15, 2011
An act to amend Sections 9701, 9712, 9714,
9710.5, 9711, 9712, 9714, 9714.5, 9716, 9717, 9719, 9720,
9722, 9724, 9726, and 9726.1 of, to repeal Sections 9713
and 9714.5 of, to add Sections
9711.10, 9716.10, and 9716.11 to, and to repeal Article 5
(commencing with Section 9740) of Chapter 11 of Division 8.5 of,
and to repeal and add Sections 9710,
9710.5, and 9711 of, the Welfare and Institutions Code,
relating to public social services.
LEGISLATIVE COUNSEL'S DIGEST
SB 345, as amended, Wolk. Office of the State Long-Term
Care Ombudsman Program. Ombudsman.
Existing law, as part of the Mello-Granlund Older Californians
Act, establishes the Office of the State Long-Term Care Ombudsman,
under the direction of the State Long-Term Care Ombudsman, in the
California Department of Aging. Existing law provides for the
Long-Term Care Ombudsman Program under which funds are allocated to
local ombudsman programs to assist elderly persons in long-term
health care facilities and residential care facilities by, among
other things, investigating and seeking to resolve complaints against
these facilities.
This bill would, instead, require the department to contract with
a qualified nonprofit organization selected by a panel established by
the department, as specified, to operate as the Office of the State
Long-Term Care Ombudsman, and would require the contracting nonprofit
organization to hire a qualified person to serve as the State
Long-Term Care Ombudsman after consulting with the department's
director and other stakeholders on the selection. This bill would
provide that the office shall carry out all the duties prescribed by
the federal Older Americans Act and would make other conforming
changes.
This bill would, among other things, revise the appointment
procedure of the State Long-Term Care Ombudsman, require the office
to submit an annual advocacy plan and an annual report, as specified,
and would require the office to comply with specified provisions of
federal law. This bill would also require certain individuals to be
free of conflicts of interest and would require the office and
approved organizations, as defined, to protect the identity of a
complainant or resident when providing ombudsman services.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Long-Term Care Ombudsman Program Independence and Improvement Act of
2011.
SEC. 2. The Legislature finds and declares all of the following:
(a) The protection of residents in California's long-term care
facilities is of paramount importance to the citizens of California.
(b) The Office of the State Long-Term Care Ombudsman was
established pursuant to the federal Older Americans Act of
1965 and the Mello-Granlund Older Californians Act to
investigate and endeavor to resolve complaints made by, or on behalf
of, individual residents in long-term care facilities.
(c) The Office of the State Long-Term Care Ombudsman is operated
by the California Department of Aging, a division of the California
Health and Human Services Agency.
(d) The California Health and Human Services Agency also oversees
the State Department of Public Health and the State Department of
Social Services, which are the state agencies that administer the
licensing and certification of long-term care facilities in
California.
(e) To guard against conflicts of interest, the federal Older
Americans Act expressly prohibits the Office of the State Long-Term
Care Ombudsman from being operated by any state agency that is
responsible for licensing or certifying long-term care facilities.
(f) A conflict of interest currently exists with the placement of
the Office of the State Long-Term Care Ombudsman under the aegis of
the California Health and Human Services Agency.
(g) The State Long-Term Care Ombudsman is a political appointee,
constrained in his or her responsibilities to advocate for changes in
policy, legislation, or funding that directly impact residents of
long-term care facilities. Further compromising independence, the
State Long-Term Care Ombudsman is exempt from civil service and can
be dismissed without cause or notice.
(h)
(d) The vulnerable residents of long-term care
facilities rely on the State Long-Term Care Ombudsman to advocate on
their behalf in the long-term care system and at state and federal
levels of government.
(i)
(e) The federal Older Americans Act requires the State
Long-Term Care Ombudsman to represent the interests of long-term care
facility residents before governmental agencies, and seek
administrative, legal, and other remedies to protect the health,
safety, welfare, and rights of the residents.
(j) The State Long-Term Care Ombudsman is unable to effectively
advocate for the needs of residents of long-term care facilities in
California.
(k) The federal Older Americans Act authorizes states to contract
with a private nonprofit organization to operate the Office of the
State Long-Term Care Ombudsman.
(l) It is, therefore, the intent of the Legislature to enact
legislation that would establish an independent state long-term care
ombudsman office within a qualified nonprofit organization, under
contract with the California Department of Aging, to operate the
office in accordance with the federal Older Americans Act of 1965 and
the Mello-Granlund Older Californians Act, with the office having
the full power and authority to advocate for residents of long-term
care facilities on all matters relating to their care and well-being.
SEC. 3. Section 9701 of the Welfare and Institutions Code is
amended to read:
9701. Unless the contrary is stated or clearly appears from the
context, the following definitions shall govern the interpretation of
this chapter:
(a) "Approved organization" means any public agency or other
appropriate organization that has been designated by the Office of
the State Long-Term Care Ombudsman to hear, investigate, and resolve
complaints made by or on behalf of patients, residents, or clients of
long-term care facilities relating to matters that may affect the
health, safety, welfare, and rights of these patients, residents, or
clients.
(b) "Long-term care facility" means any of the following:
(1) Any nursing or skilled nursing facility, as defined in Section
1250 of the Health and Safety Code, including distinct parts of
facilities that are required to comply with licensure requirements
for skilled nursing facilities.
(2) Any residential care facility for the elderly as defined in
Section 1569.2 of the Health and Safety Code.
(c) "Nonprofit organization" means the organization that contracts
with the California Department of Aging to operate the Office of the
State-Long-Term Care Ombudsman.
(d)
(c) "Office" means the Office of the State Long-Term
Care Ombudsman, including approved organizations.
(e)
(d) "Ombudsman coordinator" means the individual
selected by the governing board or executive director of the approved
organization to manage the day-to-day operation of the ombudsman
program, including the implementation of federal and state
requirements governing the office.
(f)
(e) "Resident," "patient," or "client" means an
older or elderly individual residing in a
long-term care facility.
(g)
(f) "State Ombudsman" means the State Long-Term Care
Ombudsman.
SEC. 4. Section 9710 of the Welfare and
Institutions Code is repealed.
SEC. 5. Section 9710 is added to the Welfare
and Institutions Code, to read:
9710. (a) The Legislature finds and declares all of the
following:
(1) The Office of the State Long-Term Care Ombudsman has an
extremely important role in protecting and advocating for the rights
and health and safety of long-term care facility residents, and in
providing leadership, direction, and support to local long-term care
ombudsman programs.
(2) In order to comply with the federal Older Americans Act (42
U.S.C. Sec. 3001 et seq.) and to effectively carry out its duties,
the office must be operated by a qualified nonprofit organization
that has no conflicts of interest.
(b) The department shall do all of the following:
(1) Establish a five-member selection panel, as described in
Section 9710.5, to select a qualified private nonprofit organization
to operate the Office of the State Long-Term Care Ombudsman.
(2) (A) Contract with the qualified private nonprofit organization
selected by the selection panel to operate the office as specified
under, and consistent with, the federal Older Americans Act (42
U.S.C. Sec. 3001 et seq.) and state law.
(B) The initial contract with the selected nonprofit organization
shall take effect on July 1, 2012. The department shall provide
assistance to and fully cooperate with the nonprofit organization to
ensure a successful transition for the Office of State Long-Term Care
Ombudsman, including the transfer of the statewide uniform reporting
system and collected data described in Section 9716.
(C) The term of the contract with the nonprofit organization shall
be three years and may be extended by the selection panel at its
discretion.
(3) Provide the support necessary for the selection panel to carry
out its duties as specified in Section 9710.5.
(4) Allocate federal and state funds that are appropriated for the
Office of the State Long-Term Care Ombudsman to the office, except
that the department may reserve funds to cover reasonable, actual
administrative costs for contracting and oversight purposes.
(5) Oversee the contract with the selected nonprofit organization
to ensure that the office effectively carries out its duties under
state and federal laws. The department shall not interfere with the
Office of the State Long-Term Care Ombudsman or its parent
organization carrying out its duties under state and federal law.
(c) Nothing in this section shall be construed to change the
relationship of area agencies on aging and local long-term care
ombudsman programs. Area agencies on aging shall continue to contract
with approved organizations to operate local long-term care
ombudsman programs using funds designated for this purpose.
SEC. 6. Section 9710.5 of the Welfare and
Institutions Code is repealed.
SEC. 7. Section 9710.5 is added to the Welfare
and Institutions Code, to read:
9710.5. (a) (1) The five-member selection panel established by
the department pursuant to subdivision (b) of Section 9710 shall be
chaired by the President of the California Long-Term Care Ombudsman
Association or member designee.
(2) Additional members of the selection panel shall include the
Director of the California Department of Aging or his or her
designee, the Director of the California Association of Area Agencies
on Aging or his or her designee, a representative of the California
Senior Legislature, and a long-term care ombudsman coordinator
selected by the other members of the panel.
(3) Selection panel participation shall be voluntary and members
of the panel shall serve without compensation.
(b) The selection panel shall do both of the following:
(1) Identify the qualifications of the nonprofit organization
consistent with Section 9711 and the federal Older Americans Act (42
U.S.C. Sec. 3001 et seq.).
(2) Notwithstanding any other provision of law, establish a
bidding process to facilitate the selection of the nonprofit
organization, solicit applications from nonprofit organizations
consistent with that process, and select the most qualified applicant
to operate the office.
(c) The selection panel may consult with other stakeholders in
making the selection of the nonprofit organization to operate the
office.
(d) The initial selection panel shall be established by January
31, 2012. Subsequent selection panels shall be convened in a timely
manner as needed to make determinations about the selection or
continuation of a nonprofit organization to operate the Office of the
State Long-Term Care Ombudsman.
SEC. 8. Section 9711 of the Welfare and
Institutions Code is repealed.
SEC. 9. Section 9711 is added to the Welfare
and Institutions Code, to read:
9711. A nonprofit organization shall meet the following
qualifications to operate as the Office of the State Long-Term Care
Ombudsman:
(a) Have not less than five years of successful operation as a
nonprofit organization.
(b) Have relevant experience in some or all of the following:
(1) Service to persons who are aged and individuals with
disabilities.
(2) Advocacy.
(3) Long-term care ombudsman services.
(4) Legal services to persons who are aged and individuals with
disabilities.
(5) Leadership to a network of advocacy, aging, or human service
organizations.
(c) Be free of conflicts of interest consistent with the
requirements of this chapter and the federal Older Americans Act (42
U.S.C. Sec. 3001 et seq.).
(d) Be able and willing to carry out all of the duties of the
office established by this chapter and the federal Older Americans
Act (42 U.S.C. Sec. 3001 et seq.), including, but not limited to, the
duties to engage in legislative advocacy on behalf of long-term care
facility residents and to provide or arrange necessary legal support
to local long-term care ombudsman programs.
(e) Be in compliance with state and federal laws governing
nonprofit organizations.
(f) Have adequate resources and be of sound financial status to
operate the office.
SEC. 4. Section 9710.5 of the Welfare
and Institutions Code is amended to read:
9710.5. (a) The Legislature finds and declares as follows:
(1) The Office of the State Long-Term Care Ombudsman has an
extremely important role in protecting and advocating for the rights
and health and safety of long-term care facility residents, and in
providing leadership, direction, and support to local long-term care
ombudsman programs.
(1)
(2) The position of State Ombudsman is extremely
important to the successful coordination of ombudsman services at the
local level.
(2)
(3) The position of State Ombudsman requires both an
extensive background in social or health services programs, and an
ability to manage and motivate individuals and groups.
(3)
(4) Remuneration for the position of State Ombudsman
should be commensurate with the demands of the position.
(b) The Legislature, therefore, encourages the Director of the
California Department of Aging, to do all of the following:
(b) The Director of the California Department of Aging shall do
all of the following:
(1) Provide widespread notification of the availability of the
position of State Long-Term Care Ombudsman in order to reach the
greatest number of qualified candidates and hire the most capable
individual for the position.
(2) Within 10 days of the occurrence of a vacancy, publicly
announce the vacancy and solicit candidates for the position.
(3) Within 30 days of the occurrence of a vacancy, convene a
meeting with the advisory council established by Section
9740, the director pursuant to Section 9712, for
the purpose of obtaining the advice, consultation, and
recommendations of the council regarding the selection of a
candidate.
SEC. 5. Section 9711 of the Welfare and
Institutions Code is amended to read:
9711. (a) The office shall be under the direction of a chief
executive officer who shall be known as the State Long-Term Care
Ombudsman. The State Ombudsman shall be appointed by the director
from a selection of two or more candidates selected by a
five-member hiring panel established pursuant to Section 9711.10
and shall report directly to the director. He or she shall
devote his or her entire time to the duties of his or her position,
and shall receive the salary otherwise provided by law.
(b) Any vacancy occurring in the position of State Ombudsman shall
be filled in the same manner as the original appointment
manner described in subdivision (a) . Whenever
the State Ombudsman dies, resigns, becomes ineligible to serve for
any reason, or is removed from office, the director shall appoint an
acting State Ombudsman within 30 days, who shall serve until the
appointment and qualification of the State Ombudsman's successor, but
in no event longer than four months from the occurrence of the
vacancy. The acting State Ombudsman shall exercise during this period
all the powers and duties of the State Ombudsman pursuant to this
chapter.
SEC. 6. Section 9711.10 is added to the
Welfare and Institutions Code , to read:
9711.10. (a) The five-member hiring panel described in Section
9711 shall consist of all the following:
(1) Two local ombudsman program coordinators or their designees,
one of whom shall be appointed by the Senate Committee on Rules, and
one of whom shall be appointed by the Speaker of the Assembly.
(2) Two directors of senior advocacy organizations or their
designees.
(3) One resident of a long-term care facility, appointed by the
Governor.
(b) Panel members shall be free from conflicts of interest in
accordance with all of the following:
(1) Members shall not have a direct involvement in the licensing
or certification of long-term care facilities or be a provider of
long-term care facility services.
(2) Members shall not have an ownership or investment interest,
represented by an equity, debt, or other financial relationship, in a
long-term care facility or a long-term care service.
(3) Members shall not be employed by, or participate in the
management of, a long-term care facility.
(4) Members shall not receive, or have the right to receive,
directly or indirectly, remuneration in cash or in kind, under a
compensation arrangement with an owner or operator of a long-term
care facility.
(c) Panel members may meet in person, via conference call, or by
video conference.
(d) Participation on the panel shall be voluntary and members of
the panel shall serve without compensation, but shall be reimbursed
for all reasonable travel expenses. Reimbursement shall be paid from
the Office of the State Long-Term Care Ombudsman budget.
SEC. 10. SEC. 7. Section 9712 of the
Welfare and Institutions Code is amended to read:
9712. (a) The office shall be headed by an individual, to be
known as the State Long-Term Care Ombudsman, who shall be a certified
ombudsman, meet the qualifications established by the federal Older
Americans Act (42 U.S.C. Sec. 3001 et seq.), and be selected from
among individuals with expertise and experience in the fields of
long-term care and advocacy.
(b) The nonprofit organization shall hire a qualified person to
serve as the State Ombudsman after consulting with the department's
director and other stakeholders on the selection.
(c)
(b) The State Ombudsman shall be located in Sacramento.
Other staff employed by the office may be located elsewhere in the
state.
(d) The State Ombudsman may employ technical experts and other
employees who, in his or her judgment, are necessary to conduct the
business of the office.
(e) The
(c) (1) No later
than June 30, 2013, the State Ombudsman shall establish an
advisory council to obtain advice and consultation on operation of
the ombudsman program and on issues of concern to long-term care
facility residents and local long-term care ombudsman programs.
(2) The advisory council shall include, at a minimum, two local
ombudsman program representatives chosen in consultation with the
California Long Term Care Ombudsman Association.
(3) Participation on the advisory council shall be voluntary and
members of the advisory council shall serve without compensation, but
shall be reimbursed for all reasonable travel expenses.
(f)
(d) (1) The State Ombudsman shall possess at least a
bachelor's degree, and have a minimum of five years' professional
experience that shall include all of the following areas:
(A) Gerontology, long-term care, or other relevant social services
or health services programs.
(B) The legal system and the legislative process.
(C) Dispute or problem resolution techniques, including
investigation, mediation, and negotiation.
(D) Organizational management and program administration.
(2) The professional experience described in paragraph (1)
requires any reasonable combination of the fields described in
subparagraphs (A) to (D), inclusive, of that paragraph for a total of
five years, and does not require five years' experience in each
area. At the discretion of the nonprofit organization,
director, a master's or doctoral degree relevant
to a field described in paragraph (1) may be substituted for one or
two years, respectively, of professional experience. However, the
applicant's professional experience and field of study leading to the
master's or doctoral degree shall, nevertheless, include all of the
fields described in paragraph (1).
(g)
(e) The State Ombudsman may not have been employed by
any long-term care facility within the three-year period immediately
preceding his or her appointment.
(h)
(f) Neither the State Ombudsman nor any member of his
or her immediate family may have, or have had within the past three
years, any pecuniary interest in long-term health care facilities.
SEC. 11. Section 9713 of the Welfare and
Institutions Code is repealed.
SEC. 8. Section 9713 of the Welfare and
Institutions Code is amended to read:
9713. (a) Upon request of the office, the Attorney General shall
represent the office or the department and the state in litigation
concerning affairs of the office, unless the Attorney General
represents another state agency, in which case the agency or the
office shall be authorized to employ other
counsel.
(b) The State Ombudsman may employ technical experts and other
employees that, in his or her judgment, are necessary for the conduct
of the business of the office.
SEC. 12. SEC. 9. Section 9714 of the
Welfare and Institutions Code is amended to read:
9714. The office shall solicit and receive funds, gifts, and
contributions to support the operations and programs of the office.
The office may form a foundation eligible to receive
tax-deductible contributions to support the operations and programs
of the office. The office shall not solicit or receive any
funds, gifts, or contributions where the solicitation or receipt
would jeopardize the independence and objectivity of the office.
SEC. 13. Section 9714.5 of the Welfare and
Institutions Code is repealed.
SEC. 10. Section 9714.5 of the Welfare
and Institutions Code is amended to read:
9714.5. (a) The foundation formed pursuant to Section 9714 shall
be under the direction and management of a five-member board of
directors. One member shall be appointed by the Speaker of the
Assembly, one member shall be appointed by the Senate Committee on
Rules, and three members shall be appointed by the Governor. The
members of the board shall each be experienced in the management,
promotion, and funding of nonprofit charitable organizations.
(b) The board shall select from among its members a chair, a vice
chair, and any other officers as it deems necessary.
(c) The members of the board shall serve without compensation, but
shall be reimbursed for all necessary expenses actually incurred in
the performance of their duties as directors.
(d) Three members of the board shall constitute a quorum for the
purpose of conducting the board's business.
(e) By July 1 of each year, the board shall determine the amount
of funds to be appropriated from the foundation to the office for the
support of its operations and programs. Foundation funds may only be
appropriated for the support of the operations and programs of the
office.
(f) The members of the board shall be free from conflicts of
interest as described in Section 9711.10.
SEC. 14. SEC. 11. Section 9716 of
the Welfare and Institutions Code is amended to read:
9716. (a) The office shall be responsible
for activities that promote the development, coordination, and
utilization of resources to meet the long-term care needs of older
individuals, consistent with its mission. These responsibilities
shall include establishing a statewide uniform reporting system to
collect and analyze data relative to complaints and conditions in
long-term care facilities for the purpose of identifying and
resolving significant problems. The office shall submit the data to
the state agency responsible for licensing or certifying long-term
care facilities and to the federal agency on aging.
(b) (1) Notwithstanding Section 10231.5 of the Government Code,
beginning July 1, 2013, and no later than July 1 annually thereafter,
the office shall submit an annual advocacy plan to the appropriate
policy and fiscal committees of the Legislature.
(2) The office shall develop the advocacy plan in coordination
with the local ombudsman programs and shall include measurable,
achievable outcomes that shall benefit long-term care facility
residents and local ombudsman programs.
(3) The office shall also provide the advocacy plan to the local
ombudsman programs.
(c) (1) Notwithstanding Section 10231.5 of the Government Code,
beginning September 30, 2014, and no later than September 30 annually
thereafter, the office shall submit a report to the appropriate
policy and fiscal committees of the Legislature on the results of the
advocacy plan submitted during the prior year and the activities
completed by the office during that prior year. The report shall
include evidence of completed activities and results.
(2) Prior to submitting the report, the office shall solicit
comments on the report from the local ombudsman programs and shall
include local ombudsman program comments as an addendum to the final
report.
SEC. 12. Section 9716.10 is added to the
Welfare and Institutions Code , to read:
9716.10. The office shall comply with Section 3058g of Title 42
of the United States Code, which, in part, requires the State
Ombudsman, directly or through the representatives of the office, to
represent the interests of long-term care facility residents before
governmental agencies and seek administrative, legal, and other
remedies to protect the health, safety, welfare, or rights of those
residents. This representation shall be done without interference by
the department or any other state departments or programs.
SEC. 13. Section 9716.11 is added to the
Welfare and Institutions Code , to read:
9716.11. (a) The Office of the State Long-Term Care Ombudsman
shall maintain an Internet Web presence.
(b) The Internet Web site shall be easily found and
prominent on the department's homepage. The Legislature finds and
declares that resources currently exist for this purpose.
(c) The Internet Web site shall be consumer driven and shall
include, but not be limited to, current long-term care trends and
issues and links to local ombudsman programs, and other information
relevant to long-term care facility residents and consumers.
SEC. 15. SEC. 14. Section 9717 of
the Welfare and Institutions Code is amended to read:
9717. (a) All advocacy programs and any programs similar in
nature to the Long-Term Care Ombudsman Program that receive funding
or official designation from the state shall cooperate with the
office, where appropriate. These programs include, but are not
limited to, the Patients' Rights Advocacy Program within the State
Department of Mental Health, Disability Rights California, and
Department of Rehabilitation Client Assistance Program.
(b) The office shall maintain a close working relationship with
the Legal Services Development Program for the Elderly within the
department.
(c) In order to ensure the provision of counsel for patients,
residents, and clients of long-term care facilities, the office shall
seek to establish effective coordination with programs that provide
legal services for the elderly, including, but not limited to,
programs that are funded by the federal Legal Services Corporation or
under the federal Older Americans Act (42 U.S.C. Sec. 3001 et seq.),
as amended.
(d) The department and other state departments and programs that
have roles in funding, regulating, monitoring, or serving long-term
care facility residents, including law enforcement agencies, shall
cooperate with and meet with the office periodically and as needed to
address concerns or questions involving the care, quality of life,
safety, rights, health, and well-being of long-term care facility
residents.
SEC. 16. SEC. 15. Section 9719 of
the Welfare and Institutions Code is amended to read:
9719. (a) (1) The office shall sponsor a training of
representatives of approved organizations at least twice each year.
The office shall provide training to these representatives as
appropriate. Prior to the certification of an ombudsman by the
office, individuals shall meet both of the following requirements:
(A) Have a criminal offender record clearance conducted by the
State Department of Social Services. A clearance pursuant to Section
1569.17 of the Health and Safety Code shall constitute clearances for
the purpose of entry to any long-term care facility.
(B) Have received a minimum of 36 hours of certification training
approved by the office.
(2) Upon receipt of an applicant's criminal record clearance and
acceptance by the office, the office shall issue a card identifying
the bearer as a certified ombudsman. Each ombudsman shall receive a
minimum of 12 hours of additional training annually.
(b) (1) The department shall contract with the State Department of
Social Services to conduct a criminal offender record information
search, pursuant to Section 1569.17 of the Health and Safety Code,
for each applicant seeking certification as an ombudsman. The State
Department of Social Services shall notify the individual and the
office of the individual's clearance or denial.
(2) An applicant for certification as an ombudsman shall not be
responsible for any costs associated with transmitting the
fingerprint images and related information or conducting criminal
record clearances.
(c) Nothing in this section shall be construed to prohibit the
Department of Justice from assessing a fee pursuant to Section 11105
of the Penal Code to cover the cost of searching for or furnishing
summary criminal offender record information.
SEC. 17. SEC. 16. Section 9720 of the
Welfare and Institutions Code is amended to read:
9720. (a) The office shall identify, investigate, and seek to
resolve complaints and concerns communicated by, or on behalf of,
patients, residents, or clients of any long-term care facility. This
requirement shall not preclude the referral of other individuals'
complaints and concerns that a representative becomes aware are
occurring in the facility to the appropriate governmental agency.
Complaint investigation shall be done in an objective manner to
ascertain the pertinent facts.
(b) At the conclusion of any investigation of a complaint, the
findings shall be reported to the complainant if consent to
share the information has been provided by the resident or his or her
responsible party . If the office does not investigate a
complaint, the complainant shall may request
to be notified in writing of the decision not to investigate
and the reasons for the decision.
SEC. 18. SEC. 17. Section 9722 of
the Welfare and Institutions Code is amended to read:
9722. (a) Representatives of the office shall have the right of
entry to long-term care facilities for the purpose of monitoring,
identifying, hearing, investigating, and resolving complaints by, or
on behalf of, and rendering advice to, individuals who are patients
or residents of the facilities at any time deemed necessary and
reasonable by the State Ombudsman to effectively carry out this
chapter.
(b) Nothing in this chapter shall be construed to restrict, limit,
or increase any existing right of any organizations or individuals
not described in subdivision (a) to enter, or provide assistance to
patients or residents of, long-term care facilities.
(c) Nothing in this chapter shall restrict any right or privilege
of any patient or resident of a long-term care facility to receive
visitors of his or her choice.
SEC. 19. SEC. 18. Section 9724 of
the Welfare and Institutions Code is amended to read:
9724. Notwithstanding Section 56 of the Civil Code, in order for
the office to carry out its responsibilities under this chapter, the
office shall have access to the medical or personal records of a
patient or resident of a long-term care facility that are retained by
the facility, under the following conditions:
(a) If the patient or resident has the ability to write, access
may only be obtained by the written consent of the patient or
resident.
(b) If the patient or resident is unable to write, oral consent
may be given in the presence of a third party as witness.
(c) If the patient or resident is under a California guardianship
or conservatorship of the person that provides the guardian or
conservator with the authority to approve review of records, the
office shall obtain the permission of the guardian or conservator for
review of the records, unless any of the following apply:
(1) The existence of the guardianship or conservatorship is
unknown to the office or the facility.
(2) The guardian or conservator cannot be reached within three
working days.
(3) The office has reason to believe the guardian or conservator
is not acting in the best interests of the ward or the conservatee.
(d) If the patient or resident is unable to express written or
oral consent and there is no guardian, conservator, or legal
representative, or the notification of the guardian, conservator, or
legal representative is not applicable for reasons set forth in
subdivision (c), inspection of records may be made by ombudsmen when
there is sufficient cause for the inspection. The licensee may, at
his or her discretion, permit other representatives of the office to
inspect records in the performance of their official duties. Copies
may be reproduced by the office. The licensee and facility personnel
who disclose records pursuant to this subdivision shall not be liable
for the disclosure. If investigation of records is sought pursuant
to this subdivision, the ombudsman shall, upon request, produce a
statement signed by the ombudsman coordinator authorizing the
ombudsman to review the records.
(e) Facilities providing copies of records pursuant to this
section may charge the actual copying cost for each page copied.
(f) Upon request by the office, a long-term care facility shall
provide to the office, within 24 hours, the name, address, and
telephone number of the conservator, legal representative, or
next-of-kin of any patient or resident.
(g) The office and approved organizations shall provide ombudsman
services to assist residents in protecting the health, safety,
welfare, and rights of the residents, including residents who are
unable to communicate their wishes and have no legal representative.
In implementing this subdivision, the office and approved
organizations shall protect the identity of complainants or
residents. To implement this section, the office and approved
organizations shall do both of the following:
(1) Provide that, subject to paragraph (2), files and records
described in this section be disclosed only at the discretion of the
ombudsman or the person designated by the ombudsman to disclose the
files and records.
(2) Prohibit the disclosure of the identity of any complainant or
resident with respect to whom the office maintains the files or
records unless one of the following occurs:
(A) The complainant or resident, or the legal representative of
the complainant or resident, consents to the disclosure and the
consent is provided in writing.
(B) The complainant or resident consents orally to the disclosure
and the consent is documented contemporaneously in a writing made by
a representative of the office or an approved organization in
accordance with the requirements established by the department.
(C) The disclosure is required by court order.
SEC. 20. SEC. 19. Section 9726 of
the Welfare and Institutions Code is amended to read:
9726. (a) The office shall establish a toll-free telephone
hotline to receive telephone calls concerning any crises discovered
by any person in a long-term care facility, as defined in subdivision
(b) of Section 9701. The telephone hotline established under this
section shall be operated to include at least all of the following:
(1) The telephone hotline shall be available 24 hours a day, seven
days a week.
(2) The operator shall respond to a crisis call by contacting the
appropriate office, agency, or individual in the local community in
which the crisis occurred.
(3) The toll-free hotline telephone number shall be posted
conspicuously in either the facility foyer, lobby, residents'
activity room, or other conspicuous location easily accessible to
residents in each licensed facility by the licensee. The office shall
issue, in conjunction with the State Department of Social Services
and the State Department of Public Health, guidelines concerning the
posting of the toll-free hotline telephone number. The
posting shall, at a minimum, include the purpose of the
toll-free telephone hotline number.
(b) The office shall respond to hotline telephone calls.
(c) The toll-free telephone hotline shall be staffed in a manner
consistent with available resources in the office. The office may
contract for the services of individuals to staff the telephone
hotline. The office shall seek to provide opportunities for older
individuals to be employed to staff the hotline. The State Department
of Public Health and the State Department of Social Services, and
other appropriate departments, shall make available to the department
and the office training and technical assistance as needed.
SEC. 21. SEC. 20. Section 9726.1 of
the Welfare and Institutions Code is amended to read:
9726.1. (a) The office and approved organizations
shall carry out all of the duties prescribed by the federal Older
Americans Act in Section 3058g of Title 42 of the United States Code,
including, but not limited to, all of the following:
(1) Represent the interests of long-term care facility residents
before governmental agencies and seek administrative, legal, and
other remedies to protect the health, safety, welfare, and rights of
the residents.
(2) (A) Analyze, comment on, and monitor the development and
implementation of federal, state, and local laws, regulations, and
other governmental policies and actions, that pertain to the health,
safety, welfare, and rights of the residents, with respect to the
adequacy of long-term care facilities and services in the state.
(B) Recommend any changes in the applicable laws, regulations,
policies, and governmental actions as the office determines to be
appropriate.
(C) Facilitate public comment on the applicable laws, regulations,
policies, and governmental actions.
(b) The office and approved organizations may do any of
the following:
(1) Advise the public of any inspection report, statements of
deficiency, and plans of correction, for any long-term health care
facilities within its service area.
(2) Promote visitation programs to long-term health care
facilities within its service area.
(3) Establish and assist in the development of resident, family,
and friends' councils.
(4) Sponsor other community involvement in long-term health care
facilities.
(5) Present community education and training programs to long-term
health care facilities, human service workers, families, and the
general public, about long-term care and residents' rights issues.
(6) Those programs created under this section that are held in a
facility shall be developed in consultation with the facility. If the
facility and the ombudsman cannot agree on these programs, the State
Ombudsman may assist in resolving the dispute.
SEC. 22. SEC. 21. Article 5
(commencing with Section 9740) of Chapter 11 of Division 8.5 of the
Welfare and Institutions Code is repealed.