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