BILL ANALYSIS �
AB 961
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 961 (Levine) - As Introduced: February 22, 2013
SUBJECT : Health facilities: investigations: public disclosure.
SUMMARY : Requires the Department of Public Health (DPH) to
complete its investigation of a long-term health care (LTC)
facility and issue a citation, if any, within specified time
frames. Authorizes DPH and the Department of Social Services
(DSS) to publicly notice facility investigation and evaluation
information as long as the facility has a license capacity of 16
beds or more and the name and personally identifiable
information of any person with developmental disabilities or who
is involuntarily detained is not included. Specifically, this
bill :
1)Requires DPH to complete its investigation and issue a
citation, if any, to a LTC facility:
a) Within 90 days if the violation was likely the direct
proximate cause of death of a patient or resident;
b) Within 120 days if the violation presented an imminent
danger of death or serious harm to a patient or resident or
a substantial probability of death or serious harm to a
patient or resident; and,
c) Within 180 days if the violation has a direct or
immediate relationship to the health, safety, or security
of a patient or resident.
2)Allows the time periods described in 1)a) through 1)c) to be
extended by 30 days if DPH is unable to complete its
investigation due to extenuating circumstances beyond its
control. Requires DPH to document these extenuating
circumstances in its final determination.
3)Authorizes public notice of the following information, if the
information relates to a facility with a license capacity of
16 beds or more and does not include the name or personally
identifiable information of any person with a developmental
disability:
a) Survey and licensing reports, and all class "AA," "A,"
or "B" violations issued by DPH; and,
b) Facility evaluation, deficiency, and complaint
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investigation reports issued by DSS.
4)Prohibits DPH and DSS from including "other identifiable
information" of a person with a developmental disability or
who is involuntarily detained in any confidential information,
except as necessary to the performance of their duties to
inspect, license, and investigate health facilities and
community care facilities, as specified. Permits 3) above
notwithstanding provisions in existing law relating to
confidential information related to these individuals.
EXISTING LAW :
1)Provides for the licensure and regulation of long-term health
care facilities by the DPH, and community care facilities by
DSS. Long-term health care facilities include skilled nursing
facilities, intermediate care facilities, congregate living
health facilities, nursing facilities, and pediatric day
health and respite facilities. Community care facilities
include nonmedical residential facilities and adult day
programs.
2)Requires DPH upon receipt of a written or oral complaint
against a long-term health care facility, to notify the
complainant of the name of the assigned inspector within two
working days of receipt of the complaint and to make an onsite
inspection or investigation of the complaint within ten
working days of receipt of the complaint. If a complaint
involves the threat of imminent danger of death or serious
bodily harm, DPH is required to make an onsite inspection or
investigation of the facility within 24 hours of receipt of
the complaint.
3)Requires DPH, when conducting an onsite inspection or
investigation, to collect and evaluate all available evidence,
and allows DPH to issue a citation based upon specified
factors, including observed conditions, statements of
witnesses, and facility records.
4)Establishes a classification system for violations that meet
specified criteria as follows:
a) Class "AA" violations are 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 LTC facility, and are subject to a civil
penalty in the amount of not less than $5,000 and not
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exceeding $25,000 for each citation. Requires DPH to prove
all of the following:
i) The violation was a direct proximate cause of death
of a patient or resident;
ii) The death resulted from an occurrence of a nature
that the regulation was designed to prevent; and,
iii) The patient or resident suffering the death was
among the class of persons for whose protection the
regulation was adopted.
b) Class "A" violations are violations DPH determines
present either imminent danger that death or serious harm
to the patients or residents of the LTC facility would
result therefrom, or substantial probability that death or
serious physical harm to patients or residents of the LTC
facility would result therefrom and are subject to a civil
penalty in an amount not less than $1,000 and not exceeding
$10,000 for each and every citation.
c) Class "B" violations are violations that DPH determines
have a direct or immediate relationship to the health,
safety, or security of LTC facility patients or residents,
other than class "AA" or "A" violations. Class "B"
violations include violations of a patient's rights that is
determined by DPH to cause or under circumstances likely to
cause significant humiliation, indignity, anxiety, or other
emotional trauma to a patient. A class "B" citation is
subject to a civil penalty in an amount not less than $100
and not exceeding $1,000 for each and every citation.
5)Requires DPH to notify the complainant and the facility
licensee, in writing, of its determinations within 10 days of
the completion of the inspection or investigation. If a
complainant is dissatisfied with DPH's determinations,
requires DPH to notify the complainant of his or her right to
an informal conference, and provides the complainant five
business days to request such a conference.
6)Requires DPH to prepare an annual staffing and systems
analysis to, among other things, ensure the effective and
efficient utilization of licensing and certification fees, and
proper allocation of department resources to licensing and
certification activities. The analysis must contain specified
information, including the number and timeliness of complaint
investigations.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
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committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill will
improve public access to information regarding incidents of
abuse, neglect, and other health and safety violations in
LTCs, most notably incidents involving individuals with
developmental and psychiatric disabilities. DPH issues
citations to LTC facilities when a facility's failure to meet
state regulations results in actual harm to a resident or
jeopardizes a resident's health, safety, or security. The
author states that existing law provides heightened
confidentiality protections for information pertaining to
individuals with psychiatric and developmental disabilities.
Although no names are included in a citation report
(pseudonyms such as "Resident A" or "Staff 1" are used),
according to the author, DPH has taken the position that all
information it obtains during the course of a complaint
investigation is protected under the law. The author argues
this bill would authorize public notice of survey and
licensing reports and all citations issued by DPH or DSS, if
the information related to a facility with a license capacity
of 16 beds or more and does not include the name or personally
identifiable information of any resident or person with a
developmental or psychiatric disability.
Additionally, the author explains that currently, there is no
timeframe within which DPH must complete complaint
investigations and issue citations. On average, a year or
more elapses between when the incident occurred and when DPH
issues a citation. During this period of time, the deficient
facility is not required to take any corrective action to
ensure the incident will not recur, thereby endangering other
residents. According to the author, this bill would require
DPH to complete its investigation and issue a citation within
specified time periods, allowing for an extension of up to 30
days if DPH is unable to complete its investigation due to
extenuating circumstances.
2)BACKGROUND . California LTC facilities are subject to an
extensive body of State and federal requirements. DPH has
over 965 Licensing and Certification Division (L&C) field
survey staff, an additional 112 L&C headquarters management
staff, and over a $55 million fee-supported budget dedicated
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to monitoring facility compliance with applicable laws,
regulations, and policies. The L&C staff conducts federal
recertification surveys, extended annual facility surveys, and
detailed complaint investigations to ensure continuous
compliance throughout the State. Of the total L&C division
workload, 71% are dedicated to LTC facility oversight. Staff
is often focused on opening an investigation, but current law
does not set a time frame to complete the investigation.
3)OFFICE OF INSPECTION GENERAL REPORT . In late February 2012,
the federal Department of Health and Human Services Office of
Inspection General (OIG) released a report entitled, "Federal
Survey Requirements Not Always Met for Three California
Nursing Homes Participating in the Medicare and Medicaid
Programs." The OIG reviewed deficiencies and correction plans
for standard, complaint, and followup surveys conducted by
DPH's L&C Division from 2006 through 2008 at three California
nursing homes. The report found that the L&C Division, in its
surveys of facilities, understated deficiency ratings for 23
of 178 deficiencies (13%), including nine deficiencies that
involved actual harm to resident health and safety. The OIG
also found that in 40 of 52 (77%) of cases requiring
corrective-action plans, California inspectors accepted plans
that did not meet federal standards requiring detailed
explanations, and inspectors did not verify that homes
corrected problems in four out of nine surveys (44%). In
those four cases, inspectors determined that the homes were in
compliance with federal requirements without making a
follow-up visit or seeking evidence of changes.
4)SUPPORT . Disability Rights California (DRC), sponsor of this
bill, writes in support that this bill authorizes DPH and DSS
to publish unredacted citations involving facilities larger
than 15 beds, without reporting client specific information.
The minimum size limitation of 16 beds or more is to further
ensure the confidentiality of the individuals involved in the
citation. According to the sponsor, DPH entirely redacts
citations issued to facilities for incidents involving people
with psychiatric and developmental disabilities, including
basic information about the nature of the violation and the
events proceeding or contributing, citing confidentiality
restrictions. This prevents the public from being informed
about quality of care issues in facilities such as
Intermediate Care Facilities and Institutes for Mental
Disease. DRC argues that there are no similar restrictions on
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release of information involving people with other types of
disabilities or seniors. By redacting citations issued to
these facilities, the public, consumers, and family members
are entirely uninformed about a facility's track records of
regulatory violations and have no means to access information
contained in this public record. This bill also requires DPH
to issue survey findings and citations within an established
timeframe, with more critical incidents (those involving death
or serious injury) receiving priority. DRC states this bill
improves the timeliness of investigations and better informs
the public of incidents of abuse and neglect. Prior to June
of 2009, DPH had an internal policy for completing
investigations within 40 working days. Too often, years have
elapsed before DPH issues a citation, imposes a fine, and
requires a facility to take appropriate corrective action.
This leaves other residents at risk for similar incidents
during the intervening time period.
5)DOUBLE REFERRAL . This bill is double referred. Should it
pass out of this Committee, it will be referred to the
Assembly Judiciary Committee.
6)RELATED LEGISLATION .
a) AB 973 (Quirk-Silva) requires, among other things, the
Director of DPH to contract with a nonprofit community
agency to act as the Statewide Culture Change Consultant.
Requires the Statewide Culture Change Consultant to serve
LTC facilities stakeholders, residents, and LTC facility
personnel, to perform a variety of tasks, including serving
as the centralized information and technical assistance
clearinghouse for best practices in LTC facilities for
implementing person-centered care and culture change.
b) SB 651 (Pavley) requires designated investigators of
developmental centers and state hospitals to ensure that a
resident of a developmental center or a resident of a state
hospital who is a victim or suspected victim of sexual
assault is provided a medical evidentiary examination
performed at an appropriate facility off the grounds of the
developmental center or state hospital in accordance with
specified provisions. Makes a developmental center's
failure to report to local law enforcement a class "B"
violation and subject to the penalties applicable.
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7)PREVIOUS LEGISLATION .
a) SB 799 (Negrete McLeod) of 2011 would have required DPH
to complete a LTC facility complaint investigation in 90
days. SB 799 was held in the Senate Appropriations
Suspense File.
b) SB 895 (Alquist) would have proposed to reduce the
frequency of licensing inspections for LTC facilities
conducted by DPH. SB 895 dies in the Senate Health
Committee.
c) AB 641 (Feuer), Chapter 641, Statutes of 2011,
eliminates the citation review conference process from the
citation appeals process for LTC facilities, and allows
fines to be levied from both state and federal agencies
when an incident violates both state and federal laws.
d) AB 399 (Feuer) of 2007 would have established a 40-day
timeframe in which DPH must complete a long-term care
facility complaint investigation. AB 399 was vetoed by
Governor Schwarzenegger.
e) SB 1312 (Alquist) Chapter 895, Statutes of 2006,
requires inspections and investigations of long-term care
facilities certified by the Medicare or Medicaid program to
determine compliance with federal standards and California
statutes and regulations.
f) AB 1629 (Frommer), Chapter 875, Statues of 2004,
provides for the imposition of a quality assurance fee on
each skilled nursing facility.
g) AB 358 (Jackson) of 2003 would have required the
Department of Health Services (now DPH) to complete a final
determination of each LTC facility complaint within 65
working days of receipt of the complaint with a 30-day
extension for good cause. The provisions of AB 358 were
deleted and replaced with new provisions unrelated to LTC
facilities.
h) AB 1731 (Shelley), Chapter 451, Statutes of 2000,
increases nursing home oversight and enforcement, including
specific procedures and timeframes relating to handling of
complaints.
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REGISTERED SUPPORT / OPPOSITION :
Support
Disability Rights California (sponsor)
The Evans Law Firm
Opposition
None on file.
Analysis Prepared by : Patty Rodgers / HEALTH / (916) 319-2097