BILL NUMBER: SB 345 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 27, 2012
PASSED THE ASSEMBLY AUGUST 23, 2012
AMENDED IN ASSEMBLY AUGUST 21, 2012
AMENDED IN ASSEMBLY JUNE 28, 2012
AMENDED IN ASSEMBLY JUNE 20, 2012
AMENDED IN ASSEMBLY MAY 14, 2012
AMENDED IN ASSEMBLY MAY 7, 2012
AMENDED IN ASSEMBLY APRIL 26, 2012
AMENDED IN SENATE JANUARY 12, 2012
AMENDED IN SENATE JANUARY 4, 2012
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Wolk
(Principal coauthor: Senator Alquist)
(Coauthor: Senator Strickland)
FEBRUARY 15, 2011
An act to amend Sections 9701, 9710.5, 9712, 9713, 9714, 9714.5,
9716, 9717, 9719, 9722, 9724, 9726, and 9726.1 of, to add Sections
9712.5 and 9716.11 to, and to repeal Section 9720 of, the Welfare and
Institutions Code, relating to public social services.
LEGISLATIVE COUNSEL'S DIGEST
SB 345, Wolk. Office of the State Long-Term Care 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, among other things, require the office to submit
an annual advocacy report to the Legislature and others in accordance
with specified provisions of federal law, would require the office
to perform specified duties relating to protecting the health,
safety, welfare, and rights of residents in long-term care
facilities, and would require the office to maintain an Internet Web
presence, as prescribed. This bill would also make conforming changes
and technical, nonsubstantive changes to these provisions.
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
2012.
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 and the
Mello-Granlund Older Californians Act to identify, investigate, and
endeavor to resolve complaints made by, or on behalf of, residents of
long-term care facilities.
(c) The Office of the State Long-Term Care Ombudsman is operated
by the California Department of Aging, a department within the
California Health and Human Services Agency.
(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.
(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.
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 or residents of long-term
care facilities relating to matters that may affect the health,
safety, welfare, and rights of these patients or residents.
(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) "Office" means the Office of the State Long-Term Care
Ombudsman, including approved organizations.
(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.
(e) "Resident" or "patient" means an individual living in a
long-term care facility.
(f) "State Ombudsman" means the State Long-Term Care Ombudsman.
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.
(2) The position of State Ombudsman is extremely important to the
successful coordination of ombudsman services at the local level.
(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.
(4) Remuneration for the position of State Ombudsman should be
commensurate with the demands of the position.
(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 the department
pursuant to Section 9740, for the purpose of obtaining the advice,
consultation, and recommendations of the council regarding the
selection of a candidate.
SEC. 5. 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 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. Within the first year of appointment, the State Ombudsman
shall complete the training described in subparagraph (B) of
paragraph (1) of subdivision (a) of Section 9719, and a 10-hour
internship performing ombudsman services in a long-term care
facility.
(b) The State Ombudsman shall be located in Sacramento. Other
staff employed by the office may be located elsewhere in the state.
(c) (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 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).
(d) 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.
(e) 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 care facilities.
SEC. 6. Section 9712.5 is added to the Welfare and Institutions
Code, to read:
9712.5. The State Ombudsman shall, personally or through
representatives of the office, do all of the following:
(a) (1) Identify, investigate, and resolve complaints that are
made by, or on behalf of, residents of long-term care facilities that
relate to actions, inactions, or decisions of providers or
representatives of providers of long-term care services, public
agencies, or health and social services agencies that may adversely
affect the health, safety, welfare, or rights of residents, including
the welfare and rights of residents with respect to the appointment
and activities of conservators, guardians, and representative payees.
(2) The requirement described in paragraph (1) 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.
(3) At the conclusion of any investigation of a complaint, the
findings shall be reported to the complainant. If the office does not
investigate a complaint, the complainant shall be notified in
writing of the decision not to investigate and the reasons for the
decision.
(b) Provide services to assist residents in the protection of
their health, safety, welfare, and rights.
(c) Inform residents about the means of obtaining services
delivered by the providers or agencies described in paragraph (1) of
subdivision (a) or services described in subdivision (b).
(d) (1) Ensure that residents have regular and timely access to
the services provided through the office and that the residents or
other complainants receive timely responses from representatives of
the office to complaints.
(2) To the extent permitted under federal law, paragraph (1) shall
be implemented only to the maximum extent possible within available
resources.
(e) Represent the interests of the residents before governmental
agencies and seek administrative, legal, and other remedies to
protect the health, safety, welfare, and rights of the residents.
(f) Provide administrative and technical assistance to entities
designated as local ombudsman programs, to assist the entities in
participating in the program.
(g) 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,
without interference from the office of the Governor, any state
agency, or other entity.
(h) Facilitate public comment on relevant laws, regulations,
policies, and actions.
(i) Recommend changes to relevant laws, regulations, policies, or
actions that the office determines to be appropriate.
(j) Provide information that the office determines to be necessary
to public and private agencies, legislators, and other persons,
regarding the problems and concerns of residents of long-term care
facilities and recommendations relating to resolving these problems
and concerns.
(k) Provide for training representatives of the office.
(l) Promote the development of citizen organizations to
participate in the program.
SEC. 7. 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 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. 8. 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
and the operations of the foundation. 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. 9. 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 March 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 the operations and programs of the office and the
operations of the foundation. Foundation funds may only be
appropriated for the support of the operations and programs of the
office and the operations of the foundation.
(f) The members of the board shall be free from conflicts of
interest and shall be subject to the same conflict of interest
provisions that apply to the State Ombudsman under Section 3058g(f)
(3) of Title 42 of the United States Code.
SEC. 10. 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
Administration on Aging.
(b) Notwithstanding Section 10231.5 of the Government Code,
beginning September 30, 2013, and annually thereafter, the office
shall prepare and submit an annual advocacy report in accordance with
Section 3058g(h)(1) of Title 42 of the United States Code. The
annual advocacy report shall do all of the following:
(1) Describe the activities carried out by the office in the year
for which the report is prepared, including, but not limited to,
actions taken to carry out the advocacy duties of the office
described in Sections 9712.5 and 9726.1 and prescribed by the federal
Older Americans Act in Section 3058g(a)(3)(E) and (G) of Title 42 of
the United States Code.
(2) Contain and analyze the data collected pursuant to Section
3058g(c) of Title 42 of the United States Code.
(3) Evaluate the problems experienced by, and the complaints made
by or on behalf of, residents.
(4) Contain recommendations for both of the following:
(A) Improving quality of the care and life of residents.
(B) Protecting the health, safety, welfare, and rights of
residents.
(5) (A) Analyze the success of the ombudsman program, including
success in providing services to residents of long-term care
facilities and other similar adult care facilities.
(B) Identify barriers that prevent the optimal operation of the
program.
(6) Provide policy, regulatory, and legislative recommendations to
solve identified problems, to resolve complaints, to improve the
quality of care and life of residents, to protect the health, safety,
welfare, and rights of residents, and to remove the barriers
identified in subparagraph (B) of paragraph (5).
(c) The office shall promptly post the annual advocacy report on
its Internet Web site and shall submit it to the Assistant Secretary
of the federal Administration on Aging, the Governor, the
Legislature, the State Department of Public Health, the State
Department of Social Services, local ombudsman programs, and other
appropriate governmental entities.
(d) The State Ombudsman shall consult with the local ombudsman
programs in developing the report.
SEC. 11. 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, links to local ombudsman programs, the annual advocacy report
described in Section 9716, and other information relevant to
long-term care facility residents and consumers.
SEC. 12. 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 Office of Human Rights within the State Department of
Mental Health, the Office of Patients' Rights, Disability Rights
California, and the Department of Rehabilitation's 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 and
residents 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. 13. 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
that is approved by the office and offered by an approved
organization.
(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. 14. Section 9720 of the Welfare and Institutions Code is
repealed.
SEC. 15. Section 9722 of the Welfare and Institutions Code is
amended to read:
9722. (a) Representatives of the office shall have the right to
enter long-term care facilities and to unescorted, unhindered
movement within them for the purposes of identifying, hearing,
investigating, and resolving complaints, observing and monitoring
conditions of residents and facilities, speaking confidentially with
residents, and providing services to assist residents in protecting
their health, safety, welfare, and rights. Entry shall be provided at
any time deemed necessary and reasonable by the State Ombudsman to
effectively carry out this chapter, for any of the purposes described
in this subdivision.
(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.
(d) Notwithstanding any other provision of law, a long-term care
facility, upon request by a representative of the office, shall
provide a roster, census, or other list of the names and room numbers
or room locations of all current residents or patients residing in
the facility.
SEC. 16. Section 9724 of the Welfare and Institutions Code is
amended to read:
9724. Notwithstanding Part 2.6 (commencing with Section 56) of
Division 1 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.
SEC. 17. 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 telephone hotline 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 telephone hotline number. The posting shall,
at a minimum, include the purpose of the toll-free telephone hotline
number.
(b) The office shall respond to telephone hotline 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 organizations 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. 18. Section 9726.1 of the Welfare and Institutions Code is
amended to read:
9726.1. (a) 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 care
facilities within its service area.
(2) Promote visitation programs to long-term 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 care
facilities.
(5) Present community education and training programs to long-term
care facilities, human service workers, families, and the general
public, about long-term care and residents' rights issues.
(b) 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.