BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 609
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          Date of Hearing:   June 25, 2013

                   ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
                                Mariko Yamada, Chair
                     SB 609 (Wolk) - As Amended:  April 11, 2013

           SENATE VOTE  :   37-0
           
          SUBJECT  :   Office of the State Long-Term Care Ombudsman.

           SUMMARY  :   Establishes various accounts within the state's  
          Special Deposit Fund, and increases fines for willfully  
          interfering with the Long-Term Care Ombudsman program's lawful  
          actions from a maximum of $1,000 to a maximum of $2,500.   
          Specifically,  this bill  :   

          1)Establishes the "Long-Term Care Ombudsman Improvement Act  
            Account" within the state's Special Deposit Fund to receive  
            funds, gifts, and contributions, of which the receipt or  
            solicitation would not jeopardize the independence and  
            objectivity of the office of the Long-Term Care Ombudsman, to  
            support the operations of the Long-Term Care Ombudsman  
            program.

          2)Establishes the "Access to Facilities Account" within the  
            state's Special Deposit Fund for the purposes of receiving  
            civil monetary penalties collected as a result of enforcement  
            of a statutory prohibition against willfully interfering with  
            a Long-Term Care Ombudsman program representative's attempt to  
            access a long-term care facility, or to meet confidentially  
            with a resident of a long-term care facility.

          3)Increases the civil monetary penalty assessed by the Director  
            of the California Department of Aging (CDA) against any person  
            who willfully interferes with any lawful action of the office  
            of the Long-Term Care Ombudsman from $1,000 to $2,500.

           EXISTING LAW  

          1)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.







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          2)Establishes the Long-Term Care Ombudsman program as a result  
            of the federal Older Americans Act (OAA) and places it within  
            the CDA in order to encourage community contact and  
            involvement with elderly patients or residents of long-term  
            health care facilities or residential facilities through the  
            use of volunteers and volunteer programs.  

          3)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.



          4)Provides that investigation of reports of known or suspected  
            instances of abuse in long-term care facilities is 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 Long-Term Care Ombudsman program.

          5)Requires that representatives of the Ombudsman program 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.

          6)Prohibits willful interference with the functions of the  
            Ombudsman representative and the Ombudsman program, 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.

          7)Provides that representatives of the Ombudsman shall have the  
            right to enter and move about long-term care facilities to  
            identify, hear, investigate, 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.

          8)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-deductible contributions  
            for this purpose.







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           FISCAL EFFECT  :   According to the Senate Appropriations  
          Committee, SB 609 is projected to generate minor annual revenue  
          increases, while creating minor ongoing expenditures for state  
          Long-Term Care Ombudsman activities and for local ombudsman  
          activities.

           COMMENTS  :   

           Author's Statement:  "The purpose of the State Long-Term Care  
          Ombudsman is to protect and advocate for the rights, health and  
          safety of long-term care facility residents, oftentimes the  
          elderly.  California's State Ombudsman has designated this  
          responsibility to the 35 local ombudsmen programs (local  
          agencies on aging) throughout the state.  The local ombudsmen  
          are responsible for making site visits of the facilities in an  
          effort to identify, investigate, and resolve complaints that may  
          adversely affect the health, safety, welfare, or rights of  
          residents of 
          long-term care facilities.  Unfortunately, local ombudsmen  
          cannot perform their responsibilities if he or she is not  
          permitted through the front door of a facility.  

          While current law prohibits any person who willfully interferes  
          with the lawful action of an ombudsman, subject to a penalty of  
          $1,000, complaints about willful interference and local  
          ombudsmen being denied access to facilities continues to be a  
          problem.  

          In summary, SB 609 seeks to ensure the state ombudsman and his  
          local representatives have access to facilities by increasing  
          the penalty for willful interference from $1,000 to $2,500, and  
          to improve the manner in which complaints are handled from local  
          ombudsmen, to the State Ombudsman and the CDA.



           Background:   The CDA administers the State Long-Term Care  
          Ombudsman (SLTCO) program as part of its mission to serve older  
          adults, adults with disabilities, family caregivers, and  
          residents in long-term care facilities throughout the State.   
          The federal OAA requires states to establish a SLTCO program to  
          investigate and resolve complaints made by or on behalf of  
          residents of long-term care facilities, protecting residents'  
          rights, and advocating for systemic change in the long-term care  
          system.  According to the author, the Office of the State  







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          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.  
           
          The Long-Term Care Ombudsman Program is a community-supported  
          program of local volunteers who serve an integral role as  
          representatives of this program, as they make personal visits to  
          long-term care facilities. The Office of the State Long-Term  
          Care Ombudsman and its 35 local Ombudsman Program Coordinators  
          are responsible for recruiting, training, and supervising the  
          volunteer Ombudsman representatives.  Ombudsman services are  
          free and strictly confidential.  Federal and State law authorize  
          the SLTCO and local long-term care ombudsman to enter long-term  
          care facilities, unescorted and unhindered, in order to receive  
          complaints from residents without fear of retaliation.   State  
          law provides for immediate referral to the appropriate licensing  
          authority (Department of Social Services Community Care  
          Licensing in the case of non-medical long-term care facilities  
          and Department of Public Health, Licensing and Certification in  
          the case of skilled nursing and intermediate care facilities),  
          and a civil penalty up to $1000, to be assessed by the Director  
          of the CDA if any person willfully interferes with any lawful  
          action of the Ombudsman. 

           At Issue:   

           1.Willful Interference:  According to the author and supporters,  
            some facilities have not allowed local ombudsman to walk into  
            residents' rooms without an escort, or have prevented  
            ombudsman from meeting privately with residents.  

           2.Inadequate Deterrent:  According to the author, the current  
            penalty of $1,000 has been in place for 30 years and is an  
            insufficient deterrent to sanction facilities for willful  
            interference.

           3.Unmet Training and Outreach Needs:  The author asserts that  
            penalties collected are better utilized to fund more outreach  
            to facilities by local ombudsman program volunteers and  
            training to perform site visits.  

           Willful Interference  : The author cites recent incidences where  
          local Ombudsman representatives have approached long-term care  
          facilities and were refused entry into the facility or  







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          confidential access to residents, despite state law requiring  
          facilities to grant unhindered access.  Requiring ombudsmen to  
          have escorts, preventing them from meeting confidentially with  
          residents, and preventing them from accessing certain parts of a  
          facility or records, constitutes willful interference.  Some  
          local ombudsman programs state that, for years, some facilities  
          have refused to allow ombudsman representatives to enter  
          facilities without an escort.  

          According to the Office of the State Long-Term Care Ombudsman,  
          since 2010, there have been six incidents of willful  
          interference where a local ombudsman program requested the  
          assistance of the state office.  Of the six incidents, four were  
          resolved with the intervention of the Office of the State  
          Long-Term Care Ombudsman while two incidents required the  
          imposition of civil penalties by CDA.  Prior to 2010, there is  
          no history of an imposition of civil penalties for willful  
          interference.

          When a local Ombudsman program representative experiences  
          interference, such as being refused entry into a facility or is  
          refused interaction with residents without supervision of  
          facility staff, that Ombudsman representative is to provide the  
          State Ombudsman office in Sacramento with details of the event.  
          The State Ombudsman then asks the local Ombudsman program  
          coordinator to send a letter to the facility documenting the  
          event, informing the provider of the Ombudsman's right to  
          access, 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 local Ombudsman representative experiences additional  
          interference, the local Ombudsman program coordinator informs  
          the State Ombudsman in Sacramento again. The State Ombudsman  
          then sends a letter to the facility asserting state and federal  
          law granting access rights. The letter warns the facility that,  
          if the interference continues, the State Ombudsman will ask the  
          Director of CDA to sanction the facility.  The State Ombudsman  
          then asks the local Ombudsman program to visit the facility a  
          third time.  If the facility continues to deny access or  
          willfully interferes 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 willful interference, following two letters  
          and two visits, the State Ombudsman in Sacramento reviews the  







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          case, and presents the information to the Director and legal  
          counsel of CDA.  The Director then decides whether to sanction  
          the facility, and determines the amount of the sanction, taking  
          into account the severity, and previous attempts to 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, currently authorized by state law (the extent  
          of the violation, good faith by the licensee and the prior  
          history of willful interference by the facility).

          Since 2010, CDA reports there were six instances of willful  
          interference, and states that in all but two of these cases, the  
          warning letter from the State Ombudsman was sufficient to end  
          the interference.  In the other two cases, the CDA 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.

          Advocates and the author are concerned that the process  
          associated with enforcing access laws is cumbersome and lengthy,  
          which defeats the purpose of the state prohibition against  
          willful interference.  The author's office states that willful  
          interference leads to isolation of a resident which could be  
          characterized as a form of elder abuse as defined in section  
          15610.07 of the Welfare and Institutions Code.  State law  
          provides for at least misdemeanor level citations for willfully  
          interfering with emergency medical technicians (EMTs),  
          firefighters and law enforcement.  The CDA writes that "because  
          this is an emerging issue, enacting a statute to address the  
          process may be premature and not result in increased  
          enforcement.   Alternatively, the Office of the State Long-Term  
          Care Ombudsman is proposing to develop a written procedure, in  
          conjunction with local Ombudsman Programs, to address the  
          willful interference complaints and sanction process."   
          According to CDA, such procedure will be incorporated in the  
          Ombudsman Program Manual currently in use by local programs.  
          Because "isolation" as a form of elder abuse may be present, the  
          CDA and the SLTCO may wish to consider policies to address  
          willful interference which includes an immediate report to local  
          law enforcement as provided by existing mandatory elder abuse  
          reporting statutes (WIC 15630, et. seq.) when they undertake the  
          development of written procedures.

           Inadequate deterrent  : The author further states that the current  
          penalty of $1,000 has been in place for 30 years (Chapter 1625,  







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          Statutes of 1984) and is an insufficient deterrent against  
          violations.  Under section 9732 of the Welfare and Institutions  
          Codes, The Director of the CDA is required to initiate an  
          assessment at the request of the SLTCO office.  SB 609 increases  
          the maximum penalty from $1,000 to $2,500, requires the Director  
          of CDA to assess the penalty, and establishes a 30-day period to  
          pay the fine before the CDA initiates collection activities.  
          By increasing the penalty to $2,500, the author believes that  
          the Ombudsman will have a stronger mechanism to deter willful  
          interference and support access to residents and facilities  
          without interference.  

           Unmet training and outreach needs  : SB 609 also directs penalties  
          collected to be deposited into the "Access to Facilities  
          Account" which will be created by the measure, within the  
          state's Special Deposit Fund.  SB 609 then directs no less than  
          75% of those funds to defray the direct travel costs associated  
          with local ombudsman visits, or training of local ombudsman  
          representatives throughout the state.  

          Additionally, SB 609 provides clarifying amendments to a  
          foundation authorized by SB 345 (Chapter 649, Statutes of 2012).  
           SB 609 creates the Long-Term Care Ombudsman Improvement Act  
          Account within the State's Special Deposit Fund to receive funds  
          in the State's Treasury, and restricts deposits to  
          contributions, gifts, or funds that will not jeopardize the  
          independence and objectivity of the office or the foundation.
           
          PROPOSED AMENDMENT

           On page 3, line 38, add:
           
          (b) Each instance of willful interference may be reported to  
          local law enforcement and the appropriate licensing agency as an  
          instance of isolation pursuant to section 15610.07.

            (b)   (c)  ?

           
          RELATED LEGISLATION

            AB 477 (Chau) -- Establishes notaries public as mandated  
            reporters of elder and dependent adult abuse.

           AB 663 (Gomez) -- Establishes training requirements for  
            long-term care facility administrators and long-term care  







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            ombudsman regarding the unique needs of California's lesbian,  
            gay, bisexual, transgender communities. 

           AB 973 (Quirk-Silva) -- Promoting culture change within  
            long-term health care facilities.


           SB 345 (Chapter 649, Statues of 2012) -- Strengthened the  
            State Ombudsman's ability to advocate on behalf of long-term  
            care residents' rights, safety, and welfare; strengthened  
            SLTCO autonomy.

           AB 40 (Chapter 659, Statutes of 2012) -- Codifies federal  
            protocol related to facility-based abuse reports, including  
            direct-to-law enforcement reports of serious events.

           SB 1895 (Chapter 1096, Statutes of 1995) and AB 2800 (Chapter  
            10897, Statutes of 1995) -- Mello-Granlund Older Californians  
            Act reauthorization.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Federation of State, County and Municipal Employees  
          (AFSCME)
          Area Agency on Aging of Lake & Mendocino Counties
          California Catholic Conference
          California Commission on Aging
          Consumer Federation of California
          County Welfare Directors Association of California (CWDA)
          Ventura County Board of Supervisors

           Opposition 
           
          None on file.


           Analysis Prepared by  :    Robert MacLaughlin / AGING & L.T.C. /  
          (916) 319-3990