BILL ANALYSIS �
AB 973
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Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 973 (Quirk-Silva) - As Amended: April 11, 2013
SUBJECT : Long-term health facilities: culture change.
SUMMARY : Requires the Department of Public Health (DPH) to use
specified funds from the state and federal Health Facilities
Citation Penalty Accounts to contract with a nonprofit
organization that meets specified criteria to promote culture
change and person-centered care in long-term care (LTC)
facilities. Specifically, this bill :
1)Makes various legislative findings and declarations relating
to federal civil money penalties (CMPs), including the
following:
a) CMPs are one of the sanctions established by the federal
government to encourage nursing homes to comply with
federal requirements and to prevent poor quality of care;
b) The federal government contracts with state licensing
and certification agencies to inspect nursing homes and
issue CMPs for violations of federal conditions of
participation;
c) These CMPs offer an opportunity to better the lives of
nursing home residents by providing additional resources to
the state to improve the quality of care and quality of
life for residents; and,
d) The federal Affordable Care Act (ACA) allows a portion
of the federal CMP funds to be used to support activities
that promote quality of care and the well-being of nursing
home residents in certified nursing homes. Specifically,
federal regulations allow these funds to be used for the
promotion of culture change.
2)Requires moneys from the State Health Facilities Penalty
Account (state penalty account) to be continuously
appropriated rather than subject to appropriation by the
Legislature, except with regard to the existing LTC Ombudsman
Program.
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3)Deletes existing law prohibiting the balance in the state
penalty account from exceeding $10 million dollars.
4)Requires no more than $150,000 from the state penalty account
to be used for the general promotion of culture change and
person-centered care in the state's LTC facilities.
5)Provides that if the amount of money in the state penalty
account falls below $8 million dollars, funding for the
existing LTC Ombudsman Program must receive priority over
funding for the purpose of culture change and person-centered
care required by this bill.
6)Requires no more than $250,000 from the Federal Health
Facilities Citation Penalties Account (federal penalty
account) each fiscal year to be used for specific projects as
directed by the federal government for the improvement of
quality of care and quality of life for LTC residents,
including the promotion of person-centered care and culture
change.
7)Requires the Director of DPH to contract with a nonprofit
organization that meets both of the following requirements, in
order to promote culture change as specified in 4) above:
a) The organization has a proven record of experience in
providing information, technical assistance, and direct
services to LTC facilities and other stakeholders; and,
b) The organization includes on its board of directors,
advisory council, or both, the following persons:
i) Residents or their family members;
ii) Personnel and representatives of LTC facilities and
facility personnel;
iii) LTC facility resident advisory organizations;
iv) Representatives of state licensing agency personnel;
and,
v) The state ombudsman and a representative from the
California LTC Ombudsman Association.
8)Establishes the various responsibilities of the nonprofit
organization in implementing person-centered care and culture
change in LTC facilities.
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9)Requires, pursuant to 6) above, projects undertaken by the
nonprofit organization under the direction of the state and
federal government to specify the desired outcomes,
deliverables, and how the project is to be evaluated.
10)Directs the state, pursuant to 6) above, to post on its
Internet Website a description of the project to be undertaken
and information about the outcome of the project, as
specified.
11)Requires the nonprofit organization to submit annual progress
reports containing specified information on its activities as
required by the Director of DPH.
12)States that it is recognized that, in order for the nonprofit
organization to conduct the duties specified in this bill,
these funds will support core operations of the organization,
such as staffing salaries and operational expenses.
13)Specifies that nothing in this bill prohibits the nonprofit
organization from seeking additional funding through
charitable contributions, fees for conferences and training,
and grants made from foundations or other organizations,
including other governmental agencies, for the purpose of
disseminating the principles of culture change.
14)Defines, for purposes of this bill, "culture change" to mean
the national movement for the transformation of older adult
services, based on person-centered values and practices where
the voices of elders and those working with them are
considered and respected. Core person-centered values are
choice, dignity, respect, self-determination, and purposeful
living, as specified.
EXISTING LAW :
1)Requires DPH to inspect and license health facilities,
including LTC facilities, which are defined as skilled nursing
facilities, intermediate care facilities, congregate living
facilities, nursing facilities, and pediatric day health and
respite facilities.
2)Requires DPH to promote improvement of quality of care and
quality of life for residents, clients, and patients in LTC
facility services through specific activities that include,
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but are not limited to, both of the following:
a) Research and evaluation of innovative LTC facility
resident care models; and,
b) Provision of statewide training on effective LTC
facility practices, including topics related to the
provision of quality of care and quality of life for LTC
facility residents.
3)Authorizes DPH to assess penalties for violations of
prescribed state and federal requirements under the existing
LTC Health, Safety, and Security Act of 1973 (LTC Safety Act).
Requires money collected as a result of state and federal
civil penalties imposed under the LTC Safety Act to be
deposited into the state penalty account, which contains money
collected from violations of state law, or the federal penalty
account, which contains money collected from violations of
federal law.
4)Requires moneys collected as a result of the penalties imposed
pursuant to the LTC Safety Act to be deposited into either the
state or federal penalty accounts and used, upon appropriation
by the Legislature, for the protection of health or property
of residents of LTC facilities.
5)Requires DPH to post on its Internet Website the following
information regarding funds in both the state and federal
penalty accounts: a) sources of funds; b) amount of funds that
have not been allocated; and, c) detailed descriptions of how
funds have been allocated and expended.
6)Establishes the California State LTC Ombudsman Program at the
California Department of Aging (CDA), and requires the Office
of the State LTC Ombudsman to investigate and seek to resolve
complaints and concerns communicated by, or on behalf of,
patients, residents, or clients of any LTC facilities.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . The author notes that nearly all states
now have coalitions dedicated to promoting the values and
practices of culture change in LTC and finding pragmatic ways
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to encourage nursing homes to adopt these values. The author
states that the federal government recognizes that states need
additional funding to support and amplify the work of the
state coalitions and federal approval for states to use CMPs
represents a significant contribution to the survival of these
fledgling organizations. However, the author maintains that
additional funding is needed to sustain these efforts and such
funding is imperative in California in particular, because it
is a large, geographically and culturally diverse state with
over 1,200 nursing homes, all of which are in need of funds to
enhance the quality of life for those who live in them. The
author reports that, as of September 2012, the state penalty
account had a balance of over $11 million. According to the
author, by continuously appropriating a small portion of these
funds, this bill seeks to make California the national leader
in promoting culture change and best practices in the delivery
of long-term health care in nursing home settings.
2)CULTURE CHANGE . According to the Commonwealth Fund, the
culture change movement is intended to empower LTC facilities
to move from institutional care to individualized care.
Proponents of culture change do not recommend a specific model
or set of practices. Instead, they support principles
governing resident care practices; organizational and human
resource practices; and the design of the physical facility.
According to these principles, an ideal culture change
facility would feature the following elements:
a) Resident direction. Residents should be offered choices
and encouraged to make their own decision about personal
issues like what to wear or when to go to bed;
b) Home-like atmosphere . Practices and structures should
be more homelike and less institutional. For instance,
larger nursing units with 40 or more residents would be
replaced with smaller "households" of 10 to 15 residents,
residents would have access to refrigerators for snacks,
and overhead public address systems would be eliminated;
c) Close relationships from consistent assignment . To
foster strong bonds, the same nurse should always provide
care to a resident so the nurse is able to observe both the
resident's personal and medical needs over time;
d) Staff empowerment . Staff should have the authority, and
the necessary training, to respond on their own to
residents' needs. The use of care teams should also be
encouraged;
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e) Collaborative decision-making . The traditional
management hierarchy should be flattened, with frontline
staff given the authority to make decisions regarding
residents' care; and,
f) Quality improvement processes . Culture change should be
treated as an ongoing process of overall performance
improvement, not just as a superficial change or provision
of amenities.
According to the California HealthCare Foundation (CHCF),
recent literature shows that nursing homes embracing culture
change have improved quality outcomes and offer preliminary
evidence of positive business impacts. However, CHCF
indicates that California has lagged behind other states in
implementing culture change.
3)STATE AND FEDERAL PENALTY ACCOUNTS . Under existing law, funds
in the state and federal penalty accounts must be used, upon
appropriation by the Legislature, in accordance with state and
federal law for the protection of health or property of
residents of LTC facilities, including, but not limited to,
the following:
a) Relocation expenses incurred by DPH, in the event of a
facility closure;
b) Maintenance of facility operation pending correction of
deficiencies or closure, such as temporary management or
receivership, in the event that the revenues of the
facility are insufficient;
c) Reimbursing residents for personal funds lost;
d) The costs associated with informational meetings
required if DPH proceeds with a receivership petition; and,
e) Support for the LTC Ombudsman Program.
Additionally, money from the federal penalty account in an
amount up to $130,000 may also be used, upon appropriation by
the Legislature and in accordance with state and federal law,
for the improvement of quality of care and quality of life for
LTC facilities residents.
According to DPH, for fiscal year 2012-13, the projected fund
balance of the state penalty account is estimated to be $10.6
million and the projected balance of the federal penalty
account is estimated to be $2.1 million. DPH indicates no
minimum fund balance is required for either account.
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1)ACA PROVISIONS . In September 2011, the Centers for Medicare
and Medicaid Services (CMS) issued guidance to states relating
to the acceptable uses of CMP funds in response to the ACA.
CMS states in the guidance that prior approval to use CMP
funds was not required if the use conforms to culture change.
CMS defines culture change as the common name given to the
national movement for the transformation of older adult
services, based on person-directed values and practices where
the voices of elders and those working with them are
considered and respected. Core person-directed values are
choice, dignity, respect, self-determination, and purposeful
living. According to CMS, CMP funds may be used to promote
culture change in projects that involve multiple nursing
homes. CMS also indicates in the guidance that CMP funds may
not be used to update a state's LTC Ombudsman Program in
regards to consumer education materials or to recruit or train
Ombudsman staff or volunteers or to investigate complaints.
According to CMS, these are all existing responsibilities of
Ombudsman programs under the federal Older Americans Act,
regardless of whether funding is adequate for these purposes.
According to a January 2013 issue brief from the Kaiser Family
Foundation (KFF) describing provisions of the ACA aimed at
improving nursing home transparency, care quality, and abuse
prevention, CMS has supported the culture change movement with
information, technical assistance to facilities, training of
surveyors, and review of regulations to remove unnecessary
barriers to creating more home-like environments. KFF reports
that, although some nursing homes have the necessary
information technology (IT) infrastructure, overall the
nation's 15,800 nursing homes have lagged behind other health
care settings in the use of information technology to improve
clinical care and personalize care delivery.
KFF indicates that the ACA authorizes two national demonstration
projects to improve resident care through culture change and
information technology. One grant would be awarded to
facilities that are involved in culture change to develop best
practice resources and the other grant opportunity would
develop best practices in the use of IT to improve resident
care. As of January 2013, KFF reports that no funds have been
allocated to conduct these projects.
2)LTC OMBUDSMAN PROGRAMS . According to CDA, the primary
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responsibility of the LTC Ombudsman Program is to investigate
and endeavor to resolve complaints made by, or on behalf of,
individual residents in LTC facilities. CDA indicates that
the Office of the LTC Ombudsman develops policy and provides
oversight to the local LTC Ombudsman Programs; confers with
state licensing agencies regarding difficult cases; meets with
CDA legal counsel to clarify laws and develop plans for
implementing them; defines program roles; and, provides
ongoing statewide ombudsman training. CDA states that the LTC
Ombudsman Program is a community-supported program that
extensively utilizes volunteers. The paid staff of 35 local
Ombudsman Program Coordinators are responsible for recruiting,
training, and supervising state-certified volunteer ombudsman
representatives.
3)SUPPORT . The sponsor of this bill, the California Culture
Change Coalition, states that with approximately 166,000
nursing home residents living with some form of cognitive
impairment in California, it is important to examine and
implement best practices for delivering person-centered,
quality care for these individuals. The Office of the State
LTC Ombudsman supports this bill because it will use a modest
amount of funding from both the state and federal penalty
accounts to support activities and training to improve
person-centered care in these facilities. Nutricopia, Inc.,
representing registered dieticians working in LTC facilities,
writes in support that culture change practices improve the
lives of vulnerable nursing home residents by ensuring that
they benefit from a quality dining program and personalized
care. The Congress of California Seniors adds in support that
moving to a nursing home can be traumatic for seniors and this
bill will help ease that transition.
4)OPPOSITION . California Advocates for Nursing Home Reform
(CANHR) objects to diverting funds from the state and federal
penalty accounts to pay for culture change. CANHR argues that
if skilled nursing facilities were truly interested in culture
change, they would fund it on their own. CANHR writes that
while it supports culture change practices in nursing homes,
including consistent staffing, reduction of psychotropic
drugs, and patient-centered care, it is not appropriate to use
funds paid by facilities with serious violations of the law to
provide those same facilities with culture change services.
5)RELATED LEGISLATION . SB 609 (Wolk), pending in the Senate
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Appropriations Committee, increases civil penalties for
willful interference with any lawful action of the Office of
the State LTC Ombudsman from $1,000 to $2,500 and requires 75%
of collected fines to be distributed to local ombudsman
offices.
6)PRIOR LEGISLATION .
a) AB 2276 (Campos) of 2012 would have appropriated $1.6
million for the 2012-13 fiscal year, and $1.6 million for
the 2013-14 fiscal year, from the state penalty account to
CDA to fund local ombudsman programs. AB 2276 was held on
the Assembly Appropriations Committee Suspense File.
b) AB 641 (Feuer), Chapter 729, Statutes of 2011, revises
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.
c) AB 392 (Feuer), Chapter 102, Statutes of 2009, requires
at least one-half of the funds in the state and federal
penalty accounts to be used to restore funding for local
LTC Ombudsman Programs.
d) AB 1397 (Soto), Chapter 545, Statutes of 2007, directs
DPH to post specified information relating to the state and
federal penalty accounts on its Internet Website.
7)TECHNICAL AMENDMENTS .
a) On page 4, line 20, after "(6)" insert "(a)".
b) On page 5, lines 1 and 4, delete "state" and insert
"department".
8)AUTHOR'S AMENDMENT . The author will be offering an amendment
in committee to delete the requirement that the nonprofit
organization includes representatives specified in this bill
on its board of directors, advisory council, or both, and,
instead, require the entity to demonstrate that it includes
the involvement of the specified representatives. The chair
has requested an additional amendment to ensure a competitive
bid process.
a) On page 5, line 24, after contract add "through a
competitive bid process"
b) On page 5, line 31, delete "includes on its board of
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directors, advisory council, or both," and insert
"demonstrates that it includes the involvement of".
REGISTERED SUPPORT / OPPOSITION :
Support
California Culture Change Coalition (sponsor)
Alzheimer's Association
California Association of Health Facilities
Chaparral House
Congress of California Seniors
LeadingAge California
Nutricopia, Inc.
Office of the State Long-Term Care Ombudsman
Opposition
California Advocates for Nursing Home Reform
Disability Rights California
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097