Amended in Assembly March 18, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 348

Introduced by Assembly Member Brown

February 17, 2015

An act to amend Section 1420 of the Health and Safety Code, relating to long-term health care facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 348, as amended, Brown. Long-term health care facilities.

(1) Existing law provides for the licensure and regulation by the State Department of Public Health of health care facilities, including long-term health care facilities, as defined. Existing law establishes procedures to be followed when the department receives a written or oral complaint about a long-term health care facility. A complaint is defined to mean any notice to the department, other than a report from the facility, of an alleged violation of applicable requirements of state or federal law or any alleged facts that might constitute a violation.

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This bill, on or before July 1, 2016, would require the department to set a performance benchmark for completing its investigations within a defined number of days after receiving the complaint, not to exceed 60 working days. The bill would require the department, if it extends an investigation beyond the number of days specified in the benchmark, to notify the complainant, in writing, of the basis for the extension. The bill would require, effective July 1, 2016, and upon request of the complainant, that the department provide specific findings concerning an alleged violation, and include a summary of the evidence upon which the determination is based. The bill would require the department to comply with those specified time periods established for investigations and inspections of complaints from a facility of an alleged violation of applicable requirements of state or federal law or any alleged facts that may constitute an alleged violation of these requirements. The bill would require the department to analyze its compliance with the benchmark in its annual system and staffing analysis, to make that analysis available to the relevant fiscal and policy committees of the Legislature, and to post it on the department’s Internet Web site.

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(2) Existing law provides the complainant with 5 business days after receipt of the notice of the department’s determination in which to request an informal conference.

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This bill would, instead, provide the complainant with 15 days after receipt of the notice in which to request an informal conference.

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This bill would require the department to complete its investigation of the complaint within 40 working days of its receipt, except that this period may be extended up to an additional 30 days if the department has diligently attempted, but has not been able to obtain, necessary evidence related to the investigation. The bill would require the department, if it extends an investigation beyond 40 working days, to notify the complainant, in writing, of the basis for the extension. The bill would require, effective July 1, 2016, that the department’s written determination provide specific findings concerning each alleged violation, and include a summary of the evidence upon which the determination is based. The bill would require the department to comply with those specified time periods established for investigations and inspections of complaints from a facility of an alleged violation of applicable requirements of state or federal law or any alleged facts that may constitute an alleged violation of these requirements.

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(2) Existing law provides the complainant with 5 business days after receipt of the notice of the department’s determination in which to request an informal conference, as specified.

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This bill would instead provide the complainant with 15 days after receipt of the notice in which to request an informal conference.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 1420 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

1420.  

(a) (1) Upon receipt of a written or oral complaint, the
begin delete state end delete department shall assign an inspector to make a preliminary
review of the complaint and shall notify the complainant within
two working days of the receipt of the complaint of the name of
the inspector. Unless the begin delete state end delete department determines that the
complaint is willfully intended to harass a licensee or is without
any reasonable basis, it shall make an onsite inspection or
investigation within 10 working days of the receipt of the
complaint. In any case in which the complaint involves a threat of
imminent danger of death or serious bodily harm, the begin delete state end delete
department shall make an onsite inspection or investigation begin delete within end delete
begin insert as soon as practicable, and in no case more than end insert 24 hours of the
receipt of the complaint. In any event, the complainant shall be
promptly informed of the begin delete state end delete department’s proposed course of
action and of the opportunity to accompany the inspector on the
inspection or investigation of the facility. Upon the request of
either the complainant or the begin delete state end delete department, the complainant or
his or her representative, or both, may be allowed to accompany
the inspector to the site of the alleged violations during his or her
tour of the facility, unless the inspector determines that the privacy
of any patient would be violated thereby.

(2) When conducting an onsite inspection or investigation
pursuant to this section, the begin delete state end delete department shall collect and
evaluate all available evidence and may issue a citation based
upon, but not limited to, all of the following:

(A) Observed conditions.

(B) Statements of witnesses.

(C) Facility records.

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(3) The department shall complete its investigation within 40
working days from receipt of the complaint. The 40-working-day
period may be extended up to an additional 30 days if the
department has diligently attempted, but has not been able to
obtain, necessary evidence related to the investigation. The
department shall analyze its compliance with this requirement in
its annual system and staffing analysis prepared pursuant to
subparagraph (B) of paragraph (2) of subdivision (d) of Section
1266.

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(4) If the department extends an investigation beyond 40 working
days, it shall notify the complainant, in writing, of the basis for
the extension, and shall include in the notice any outstanding
evidence and the sources from which the evidence has been sought,
and the anticipated completion date.

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(3)

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begin insert (5) end insert  Within 10 working days of the completion of the complaint
investigation, the begin delete state end delete department shall notify the complainant
and begin delete licensee end delete begin insert licensee, end insert in begin delete writing end delete begin insert writing, end insert of the department’s
determination as a result of the inspection or investigation.

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(6) Effective July 1, 2016, the department’s written
determination shall provide specific findings concerning each
alleged violation, and shall include a summary of the evidence
upon which the determination is made. The written determination
shall not disclose the names of individual residents.

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(b) Upon being notified of the begin delete state end delete department’s determination
as a result of the inspection or investigation, a complainant who
is dissatisfied with the begin delete state end delete department’s determination, regarding
a matter which would pose a threat to the health, safety, security,
welfare, or rights of a resident, shall be notified by the begin delete state end delete
department of the right to an informal conference, as set forth in
this section. The complainant may, within begin delete five business end delete begin insert 15 end insert days
after receipt of the notice, notify the director in writing of his or
her request for an informal conference. The informal conference
shall be held with the designee of the director for the county in
which the long-term health care facility begin delete which end delete begin insert that end insert is the subject
of the complaint is located. The long-term health care facility may
participate as a party in this informal conference. The director’s
designee shall notify the complainant and licensee of his or her
determination within 10 working days after the informal conference
and shall apprise the complainant and licensee in writing of the
appeal rights provided in subdivision (c).

(c) If the complainant is dissatisfied with the determination of
the director’s designee in the county in which the facility is located,
the complainant may, within 15 days after receipt of this
determination, notify in writing the Deputy Director of the
Licensing and Certification Division of the begin delete state end delete department, who
shall assign the request to a representative of the Complainant
Appeals Unit for review of the facts that led to both determinations.
As a part of the Complainant Appeals Unit’s independent
investigation, and at the request of the complainant, the
representative shall interview the complainant in the district office
where the complaint was initially referred. Based upon this review,
the Deputy Director of the Licensing and Certification Division
of the begin delete state end delete department shall make his or her own determination
and notify the complainant and the facility within 30 days.

(d) Any citation issued as a result of a conference or review
provided for in subdivision (b) or (c) shall be issued and served
upon the facility within three working days of the final
determination, unless the licensee agrees in writing to an extension
of this time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant by registered or certified mail.

(e) A miniexit conference shall be held with the administrator
or his or her representative upon leaving the facility at the
completion of the investigation to inform him or her of the status
of the investigation. The department shall also state the items of
noncompliance and compliance found as a result of a complaint
and those items found to be in compliance, provided the disclosure
maintains the anonymity of the complainant. In any matter in which
there is a reasonable probability that the identity of the complainant
will not remain anonymous, the begin delete state end delete department shall also notify
the facility that it is unlawful to discriminate or seek retaliation
against a resident, employee, or complainant.

(f) For purposes of this section, “complaint” means any oral or
written notice to the begin delete state end delete department, other than a report from the
begin delete facility end delete begin insert facility, end insert of an alleged violation of applicable requirements
of state or federal law or any alleged facts that might constitute
begin delete such end delete a begin delete violation. end delete begin insert violation of these requirements. end insert

begin insert

(g) The department shall apply the timeframes for investigation
or inspection established in this section to a report from the facility
of an alleged violation of applicable requirements of state or
federal law or any alleged facts that might constitute a violation
of those requirements.

end insert begin insert

(h) Nothing in this section shall be interpreted to diminish the
department’s authority and obligation to investigate any alleged
violation of applicable requirements of state or federal law, or
any alleged facts that might constitute a violation of applicable
requirements of state or federal law, and to enforce applicable
requirements of law.

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SECTION 1.  

Section 1420 of the Health and Safety Code is
amended to read:

1420.  

(a) (1) Upon receipt of a written or oral complaint, the
department shall assign an inspector to make a preliminary review
of the complaint and shall notify the complainant within two
working days of the receipt of the complaint of the name of the
inspector. Unless the department determines that the complaint is
willfully intended to harass a licensee or is without any reasonable
basis, it shall make an onsite inspection or investigation within 10
working days of the receipt of the complaint. In any case in which
the complaint involves a threat of imminent danger of death or
serious bodily harm, the department shall make an onsite inspection
or investigation as soon as practicable, and in no case more than
24 hours of the receipt of the complaint. In any event, the
complainant shall be promptly informed of the department’s
proposed course of action and of the opportunity to accompany
the inspector on the inspection or investigation of the facility. Upon
the request of either the complainant or the department, the
complainant or his or her representative, or both, may be allowed
to accompany the inspector to the site of the alleged violations
during his or her tour of the facility, unless the inspector determines
that the privacy of any patient would be violated thereby.

(2) When conducting an onsite inspection or investigation
pursuant to this section, the department shall collect and evaluate
all available evidence and may issue a citation based upon, but not
limited to, all of the following:

(A) Observed conditions.

(B) Statements of witnesses.

(C) Facility records.

(3) On or before July 1, 2016, the department shall set a
performance benchmark for completing its investigation within a
defined number of days after receiving the complaint. The
performance benchmark may be less than, but shall not exceed,
60 working days.

(4) If the department extends an investigation beyond the
number of days specified in the performance benchmark, it shall
notify the complainant, in writing, of the basis for the extension,
and shall include in the notice the status of the investigation and
the anticipated completion date. The department shall, thereafter,
complete the investigation as expeditiously as possible.

(5) Within 10 working days of the completion of the complaint
investigation, the department shall notify the complainant and
licensee, in writing, of the department’s determination as a result
of the inspection or investigation.

(6) Effective July 1, 2016, upon request of the complainant, the
department shall provide specific findings concerning an alleged
violation, and shall include a summary of the evidence upon which
the determination is made. The written determination shall not
disclose the names of individual residents.

(b) Upon being notified of the department’s determination as a
result of the inspection or investigation, a complainant who is
dissatisfied with the department’s determination, regarding a matter
which would pose a threat to the health, safety, security, welfare,
or rights of a resident, shall be notified by the department of the
right to an informal conference, as set forth in this section. The
complainant may, within 15 days after receipt of the notice, notify
the director in writing of his or her request for an informal
conference. The informal conference shall be held with the
designee of the director for the county in which the long-term
health care facility that is the subject of the complaint is located.
The long-term health care facility may participate as a party in this
informal conference. The director’s designee shall notify the
complainant and licensee of his or her determination within 10
working days after the informal conference and shall apprise the
complainant and licensee in writing of the appeal rights provided
in subdivision (c).

(c) If the complainant is dissatisfied with the determination of
the director’s designee in the county in which the facility is located,
the complainant may, within 15 days after receipt of this
determination, notify in writing the Deputy Director of the
Licensing and Certification Division of the department, who shall
assign the request to a representative of the Complainant Appeals
Unit for review of the facts that led to both determinations. As a
part of the Complainant Appeals Unit’s independent investigation,
and at the request of the complainant, the representative shall
interview the complainant in the district office where the complaint
was initially referred. Based upon this review, the Deputy Director
of the Licensing and Certification Division of the department shall
make his or her own determination and notify the complainant and
the facility within 30 days.

(d) Any citation issued as a result of a conference or review
provided for in subdivision (b) or (c) shall be issued and served
upon the facility within three working days of the final
determination, unless the licensee agrees in writing to an extension
of this time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant by registered or certified mail.

(e) A miniexit conference shall be held with the administrator
or his or her representative upon leaving the facility at the
completion of the investigation to inform him or her of the status
of the investigation. The department shall also state the items of
noncompliance and compliance found as a result of a complaint
and those items found to be in compliance, provided the disclosure
maintains the anonymity of the complainant. In any matter in which
there is a reasonable probability that the identity of the complainant
will not remain anonymous, the department shall also notify the
facility that it is unlawful to discriminate or seek retaliation against
a resident, employee, or complainant.

(f) For purposes of this section, “complaint” means any oral or
written notice to the department, other than a report from the
facility, of an alleged violation of applicable requirements of state
or federal law or any alleged facts that might constitute a violation
of these requirements.

(g) The department shall apply the timeframes for investigation
or inspection established in this section to a report from the facility
of an alleged violation of applicable requirements of state or federal
law or any alleged facts that might constitute a violation of those
requirements.

(h) It is the intent of the Legislature in enacting the amendments
that added this subdivision that the department endeavor to
complete investigations of complaints within the benchmark
established pursuant to this section.

(i) The department shall analyze its compliance with the
benchmark developed pursuant to paragraph (3) of subdivision (a)
in its annual system and staffing analysis prepared pursuant to
paragraph (2) of subdivision (d) of Section 1266. The analysis
required pursuant to this subdivision shall be made available to
the relevant fiscal and policy committees of the Legislature and
shall be posted on the department’s Internet Web site. The analysis
shall provide data on the department’s performance and shall
include, at a minimum, a tabulation of all of the following:

(1) Open investigations.

(2) Completed investigations.

(3) Number and percentage of investigations that meet the
benchmark.

(4) Average length of time to complete an investigation.

(j) Nothing in this section shall be interpreted to diminish the
department’s authority and obligation to investigate and enforce
any alleged violation of applicable requirements of state or federal
law, or any alleged facts that might constitute a violation of
applicable requirements of state or federal law.

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