BILL ANALYSIS �
AB 961
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 961 (Levine) - As Introduced: February 22, 2013
PROPOSED CONSENT
SUBJECT : HEALTH FACILITIES: INVESTIGATIONS: PUBLIC DISCLOSURE
KEY ISSUE : SHOULD THE PUBLIC HAVE GREATER AND MORE TIMELY
ACCESS TO CITATION REPORTS ISSUED BY THE DEPARTMENT OF PUBLIC
HEALTH TO LONG-TERM CARE FACILITIES THAT DOCUMENT HEALTH OR
SAFETY VIOLATIONS INVOLVING RESIDENTS WITH DEVELOPMENTAL OR
PSYCHIATRIC DISABILIITES?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, sponsored by Disability Rights
California, seeks to improve public access to meaningful
information regarding complaints or health and safety violations
in long-term care facilities, particularly with respect to
incidents involving persons with developmental or psychiatric
disabilities. First, the bill seeks to require the Department
of Public Health (DPH) to complete an investigation and issue
any citation within specified time periods, depending on the
nature of the violation, and allows for an extension of up to 30
days if DPH is unable to complete its investigation due to
extenuating circumstances. In addition, this bill seeks to
authorize public notice of survey or licensing reports, or all
citations issued by the Department of Social Services (DSS) or
DPH, 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. This bill
previously was approved by the Assembly Health Committee by a
17-0 vote, and has no known opposition.
SUMMARY : Requires the Department of Public Health to complete
an investigation of a complaint against a long-term care
facility and issue any citation within a certain timeframe, and
allows public access to citation reports and other DSS or DPH
records that meet specified confidentiality protections.
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Specifically, this bill :
1)Requires DPH to complete its investigation of a LTC facility
and issue a citation, if any, within the following time
periods:
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.
d) Within an additional 30 days of all these time periods
if DPH is unable to complete its investigation due to
extenuating circumstances beyond its control, so long as
the extenuating circumstances are documented by DPH in its
final determination.
2)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 patient:
a) Survey and licensing reports, and all class "AA," "A,"
or "B" violations issued by DPH.
b) Facility evaluation, deficiency, and complaint
investigation reports issued by DSS.
3)Provides that confidential information in the possession of
DPH and DSS shall not contain the name of a person with a
developmental or psychiatric disability or other personally
identifiable information.
EXISTING LAW :
1)Provides for the inspection and licensure of LTC facilities by
DPH. (Health and Safety Code Section 1254. Unless stated
otherwise, all further statutory references are to this code.)
2)Establishes the Long-term Care, Health, Safety, and Security
Act of 1973 (LTC Safety Act), which allows DPH to assess
penalties against LTC facilities for violation of state laws
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and regulations and applicable federal law and regulations
pertaining to patient care. (Chapter 2.4 of Division 2,
commencing with Section 1417.)
3)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. (Section 1420(a)(1).)
4)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. (Section
1420(a)(3).)
5)Requires DPH to notify any complainant who is dissatisfied
with DPH's determinations of the right to an informal
conference, and provides the complainant five business days to
request such a conference. (Section 1420(b).)
6)Defines three classifications of citations, 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.
b) Class "A" violations are violations which DPH determines
present either (1) imminent danger that death or serious
harm to the patients or residents of the LTC facility would
result therefrom, or (2) substantial probability that death
or serious physical harm to patients or residents of the
LTC facility would result therefrom.
c) Class "B" violations are violations that the state
department determines have a direct or immediate
relationship to the health, safety, or security of
long-term health care facility patients or residents, other
than class "AA" or "A" violations. (Section 1424.)
COMMENTS : This non-controversial bill, sponsored by Disability
Rights California, seeks to improve public access to meaningful
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information regarding complaints or health and safety violations
in long-term care facilities, particularly with respect to
incidents involving persons with developmental or psychiatric
disabilities.
Background on LTC oversight. California long-term care
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 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.
This bill establishes time-certain timelines for investigations
to be completed. 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. According to the author, on average, a year or
more elapses between when an alleged incident occurred and when
DPH issues a citation because, problematically, there is no
deadline by which DPH must complete complaint investigations and
issue citations. During the interim, however, the deficient
facility is not required to take any corrective action to ensure
the incident will not recur, thereby endangering other
residents.
To address this safety issue, this bill would require DPH to
complete an investigation and issue a citation within different
specified time periods, allowing for an extension of up to 30
days if DPH is unable to complete its investigation due to
extenuating circumstances. By imposing a reasonable deadline
for completing investigations, this bill furthers the laudable
public policy of identifying and correcting problems as soon as
possible to protect the safety of all residents.
This bill balances public right of access to information with
the privacy rights of disabled persons. Existing law provides
heightened confidentiality protections for information and
records associated with individuals receiving services who have
developmental or psychiatric disabilities. Citation reports do
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not include names of residents or staff, typically employing
pseudonyms such as "Resident X" or "Staff Y" instead. However,
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. Consequently, DPH
entirely redacts citations pertaining to people with a
developmental or psychiatric disability, including basic
information about the nature of the violation and the events
preceding or contributing. This is problematic, however,
because many facilities, such as state developmental centers,
state psychiatric hospitals, and intermediate care facilities,
serve only people with psychiatric or developmental
disabilities. By completely redacting citations issued to these
facilities, contends the author, family members and the public
at large are essentially precluded from obtaining meaningful
information about a facility's track records of regulatory
violations, and have no other means to access information
contained in this nominally public record.
This bill seeks to balance the public right of access with
important confidentiality protections that people with
disabilities deserve. First, this bill would expressly
authorize public notice of specified DPH and DSS records,
including citations, survey licensing reports, complaint
investigation reports, and others, as long as personally
identifiable information of any patient is redacted, in addition
to the individual's name. The bill also authorizes such public
notice only to information relating to a facility with a license
capacity of 16 beds or more. This limitation is intended to
ensure the confidentiality of residents in small facilities of
less than 16 beds, because simple descriptive characteristics of
a person that would not otherwise be identifying may effectively
reveal that person's identity in a facility where there are less
than 16 residents.
REGISTERED SUPPORT / OPPOSITION :
Support
Disability Rights California (sponsor)
The Evans Law Firm
Opposition
None on file
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Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334