BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: SB 609
S
AUTHOR: Wolk
B
VERSION: April 1, 2013
HEARING DATE: April 9, 2013
6
FISCAL: Yes
0
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CONSULTANT: Sara Rogers
SUBJECT
Office of the State Long-Term Care Ombudsman
SUMMARY
This bill establishes the Long-Term Care Ombudsman Program
Improvement Act Fund and requires the office of the State
Long-Term Ombudsman to deposit specified funds, including
gifts and contributions into the fund. This bill increases
civil penalties assessed by the Department of Aging on any
person who willfully interferes with any lawful action of
the office and requires 75 percent of collected fines be
distributed to local ombudsman offices. This bill creates
the Access to Facilities Account to receive civil penalties
collected.
ABSTRACT
Existing Federal Law:
1.Establishes, within the Older Americans Act (OAA), the
Office of the Long-Term Care Ombudsman Program and
requires states to establish and operate a State
Long-Term Care Ombudsman Program. (42 U.S.C. Sec. 3001 et
seq.)
Continued---
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2.Provides that a purpose of the Ombudsman is to identify,
investigate, and resolve complaints that may adversely
affect the health, safety, welfare, or rights of
residents of long-term care facilities. (42 U.S.C. 3058g)
3.Requires states to ensure that representatives of the
Office shall have access to long-term care facilities and
residents, appropriate access to review the medical and
social records of a resident, as specified, and access to
specified records of patients and the facility. (42
U.S.C. 3058g)
4.Requires states to prohibit willful interference with the
functions of the Office, to prohibit retaliation and
reprisals by a long-term care facility, and to provide
for appropriate sanctions with respect to the
interference, retaliation, and reprisals. (42 U.S.C.
3058g)
Existing State Law:
1.Establishes, within the Department of Aging, the Office
of the State Long-Term Care Ombudsman to protect and
advocate for the rights and health and safety for
long-term care facility residents. (WIC 9710)
2.Requires the Ombudsman, either personally or through
representatives, to identify, investigate, and resolve
complaints that may adversely affect the health, safety,
welfare, or rights of residents of long term care
facilities. (WIC 9712.5)
3.Provides that investigation of reports of known or
suspected instances of abuse in long-term care facilities
shall be the responsibility of the Bureau of Medi-Cal
Fraud and Elder Abuse (within the Office of the Attorney
General), the local law enforcement agency, and the
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long-term care ombudsman program. (WIC 15650)
4.Provides that representatives of the Ombudsman shall have
the right to enter and move within long-term care
facilities to identify, hear, investigate, and resolve
complaints, observe and monitor conditions of residents
and facilities, speak confidentially with residents, and
provide services to assist residents in protecting their
health, safety, welfare, and rights. (WIC 9722)
5.Requires the office of the Ombudsman to solicit and
receive funds, gifts, and contributions to support the
operations and programs of the office. Permits the
office to form a foundation eligible to receive
tax-deductive contributions for this purpose. (WIC 9714)
6.Provides that any person who willfully interferes with
any lawful action of the office shall be subject to a
civil penalty of no more than $1,000 to be assessed by
the Director of the Agency on Aging upon the request of
the office of the Ombudsman. (WIC 9732)
7.Provides that funds designated as continuously
appropriated without regard to fiscal years may not be
encumbered by the Legislature, unless the Legislature by
statute specifies that the funds shall be encumbered for
appropriation. (GC 13340)
8.Establishes the Special Deposit Fund as a trust fund in
the State Treasury to provide a depository for money
received in trust for specific purposes by a department
for which no other fund has been created to receive those
funds. Permits a department to establish accounts
through a request of the Department of Finance (DOF) and,
upon DOF approval, the State Controller's Office. (State
Administrative Manual 18420; GC 16370-16377)
This bill:
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1.Establishes in statute the Long Term Care Ombudsman
Program Improvement Act Fund, to be continuously
appropriated without regard to fiscal year, for the
purpose of supporting the operations and programs of the
office.
2.Requires the Ombudsman to deposit solicited funds, gifts
and contributions into the Fund.
3.Increases civil penalties for willful interference with
any lawful action of the office of the Ombudsman to
$2,500 and provides that penalties shall be assessed per
incident.
4.Provides that, if the penalty is not paid within 30 days
of the assessment, the director of the Department of
Aging shall initiate an action to collect the penalties
in the local jurisdiction.
5.Establishes the Access to Facilities Account, created
within the Special Deposit Fund and provides that civil
penalties collected by the Department of Aging shall be
deposited into this account.
6.Provides that Funds in the Access to Facilities Account
shall be available, upon appropriation, to support the
operations and programs of the office.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, the State Long Term Care Ombudsman
reports recent incidences where local offices have
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approached long term care facilities and were refused entry
into the facility despite state law requiring facilities to
grant unhindered access. In response, the Ombudsman
requested the California Department of Aging (CDA) to
initiate actions against those facilities. One facility
paid the penalty of $1,000 but another facility has ignored
the fine forcing the Ombudsman to initiate a claim in small
claims court. Because the Ombudsman did not have an
account set up to receive the funds, nor authority to
expend the funds, the fines reverted to the General Fund.
The author further states that the current penalty of
$1,000 has been in place for 30 years and is an
insufficient deterrent against violations. By increasing
the penalty to $2,500 and establishing it for each incident
of willful interference, the Ombudsman will have a stronger
tool to ensure local ombudsmen legal access to residents
and facilities. The author states that any penalties
collected would fund more outreach to facilities by local
ombudsmen and training for volunteers to perform site
visits.
Several local ombudsman programs state that, for years,
some facilities have refused to allow ombudsman
representatives to enter facilities without an escort, in
violation of state and federal law.
Office of the State Ombudsman
The state's Long-Term Care Ombudsman program is
administered through the California Department of Aging and
35 local programs contracted through the network of local
area agencies on aging (AAA). The program utilizes
approximately 950 volunteers and 155 paid full-time and
part-time staff to serve as resident/patient advocates of
residents in over 9,000 long-term care facilities.
Volunteers initially receive a minimum of 36 hours of
training to carry-out their duties. According to the CDA
website, the primary responsibility of the program is to
investigate and endeavor to resolve complaints
made by, or on behalf of, individual residents in long-term
care facilities. The goal of the program is to advocate for
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the rights of all residents of long-term care facilities.
Complaint and Sanction Process
According to CDA, when a local Ombudsmen experiences
willful interference such being refused entry into a
facility or is refused interaction with residents without
supervision of facility staff, he or she is to inform the
State Ombudsman. The State Ombudsman then determines what
steps the local office has taken to inform the provider
about access laws and unlawful willful interference and
asks the local program coordinator to send a letter to the
facility documenting the instance of willful interference,
informing the provider of the Ombudsman's right to access,
and including a copy of the Ombudsman access laws. Once the
provider has received this information, the State Ombudsman
requests the local Ombudsman to return to the facility.
If the Ombudsman experiences willful interference a second
time, the local Ombudsman program coordinator documents the
incident and informs the State Ombudsman. The State
Ombudsman then sends another letter to the facility
asserting state and federal law granting access rights. The
letter includes documentation of the previous incidents and
warns the facility that, if the interference continues, the
State Ombudsman will ask the Director of CDA to sanction
the facility.
The State Ombudsman will then ask the local program to go
the facility a third time. If the facility continues to
deny access or to willfully interfere with the duties of
the Ombudsman, the local program documents the most recent
events and provides that information to the State
Ombudsman.
In the instance of continued willful interference,
following two letters and three visits from the local
office, the State Ombudsman reviews the facts of the case,
and presents the information to the Director and Legal
Counsel of the CDA. The Director of CDA then makes the
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decision on whether or not to sanction the facility and
determines the amount of the sanction, taking into account
the severity of interference, and previous attempts to
educate and inform the provider about access laws and
willful interference. Title 22, Div. 1.8, Chap. 6, Art. 3,
section 8045 provides guidance to the Director when
considering a penalty amount, up to the current limit of
$1,000.
In 2012, CDA reports there were six instances of willful
interference reported to the State Ombudsman, and states
that in all but two of these cases, the warning letter from
the State Ombudsman will be sufficient to end to the
interference. In the other two cases, the CDA Director
levied the maximum penalty when the warning letter to the
facility went unheeded. One of the fines was not paid, and
the issue has been brought before Small Claims Court.
An additional course of action available to the Ombudsman
and to CDA is to report the violation to the California
Department of Social Services (DSS). Though DSS does not
enforce the access rights of the Ombudsman, they do have
the authority to cite facilities that are not complying
with all applicable state and federal laws.
Comments:
1.The author expresses concerns that the lack of prior
sanctions may indicate a failure on the part of the
escalation process, or an unwillingness on the part of
CDA to issue fines. However, it is unclear to staff
whether the absence of sanctions prior to 2012 is a
result of relatively few instances where facilities have
willfully interfered with the activities of the Ombudsman
despite warning, or whether such instances were not
sanctioned by the CDA despite the authority to do so.
Staff recommends further conversations with CDA, the
State Ombudsman, and local Ombudsmen to gain clarity on
this question prior to amending the bill to address the
concern.
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2.Permitting the office to receive Long-Term Care Ombudsman
Program Improvement Act Funds as a continuous
appropriation without regard to fiscal year would remove
fiscal oversight from the Department of Finance. Staff
recommends amending the bill to remove the continuous
appropriation.
Additionally, staff recommends amending the bill to
explicitly establish the Long-Term Care Ombudsman Program
Improvement Act Fund within the Special Deposit Fund of
the State Treasury and to establish that it is an account
within a fund, rather than a fund itself.
Amend Page 2, Lines 7-13:
Notwithstanding Section 13340 of the Government Code, the
The office shall deposit funds received pursuant to this
section into the Long-Term Care Ombudsman Program
Improvement Act Fund Account that is hereby created in
the Special Deposit Fund in the State Treasury. Revenues
in this account shall, upon appropriation, be used
continued in existence and continuously appropriated,
without regard to fiscal year, for the purpose of
supporting the operations and programs of the office.
3.According to the author, addressing violations through
letters or through fines requires local offices to make
repeated visits to facilities to confirm compliance, and
as a result the author believes that the majority of the
funds should revert to the local offices and has amended
the bill accordingly.
Concerns have been raised that this may lead to a
perception that local offices may seek to issue fines as
a method of raising revenue for the local office. The
author has stated that the intent of the bill is not to
direct fines toward the particular local office that
issued the fine, but rather toward local offices
generally. Staff recommends amending the bill to direct
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75 percent of the funds for a specific purpose at the
local level. In recent years, funding for training of
local ombudsmen, who are often volunteers, has declined
significantly. To avoid the appearance of a conflict of
interest, staff recommends the following amendment:
Amend Page 3, Lines 34-38 as follows:
Funds in this account shall be available, upon
appropriation, to the office, and no less than 75 percent
of the penalties collected shall be dedicated to fund the
direct travel costs associated with local ombudsmen
visits throughout the state or training of local
ombudsmen throughout the state services at local
ombudsman programs .
POSITIONS
Support: Alliance on Aging Long-Term Care Ombudsman
Program for Monterrey County
California Advocates for Nursing Home Reform
(CANHR)
California Catholic Conference, Inc.
California Long Term-Care Ombudsman Association
(CLTCOA)
Consumer Federation of California
Council on Aging-Orange County
Humboldt-Del Norte Long Term Care Ombudsman
program
Long Term Care Services of Ventura County
Ombudsman Services of Northern California-Shasta
Region (OSNC)
Ombudsman Services of San Mateo County, Inc.
9 Individuals
Oppose:None Received
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