Amended in Assembly May 28, 2015

Amended in Assembly April 27, 2015

Amended in Assembly April 14, 2015

Amended in Assembly March 18, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 348

Introduced by Assembly Member Brown

(Coauthors: Assembly Members Gipson and Mathis)

February 17, 2015

An act to amend Sections 1266, 1279.2, and 1420 of the Health and Safety Code, relating to health care facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 348, as amended, Brown. Health facilities: complaints: investigations.

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.

This bill would begin delete require end delete begin insert require, effective January 1, 2018, end insert the department to complete its investigation of begin delete the end delete begin insert a end insert complaint begin insert or a report from a long-term health facility end insert within 45 working days of its receipt, except that this period may be extended up to an additional 30 working 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 45 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. begin delete 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. end delete The bill would also require the department to analyze its compliance with the timeframes for investigations on a quarterly basis and post those findings on its Internet Web site.

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.

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

Existing law requires the department, when it receives a complaint or report involving a general acute care hospital, acute psychiatric hospital, or special hospital, that indicates a specified level of danger, to complete an investigation of the complaint or report within 45 days. Existing law also requires the department to submit to the Legislature, and publish on its Internet Web site, a staffing and systems analysis that includes the number and timeliness of complaint investigations, among other things.

This bill would authorize a 30-day extension to the time period to complete the investigation 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 45 days, to notify the complainant, in writing, of the basis for the extension. The bill would also require the staffing and systems analysis prepared by the department to include data regarding the department’s compliance with these requirements.

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

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

SECTION 1.  

Section 1266 of the Health and Safety Code is
amended to read:

1266.  

(a) The Licensing and Certification Division shall be
supported entirely by federal funds and special funds by no earlier
than the beginning of the 2009-10 fiscal year unless otherwise
specified in statute, or unless funds are specifically appropriated
from the General Fund in the annual Budget Act or other enacted
legislation. For the 2007-08 fiscal year, General Fund support
shall be provided to offset licensing and certification fees in an
amount of not less than two million seven hundred eighty-two
thousand dollars ($2,782,000).

(b) (1) The Licensing and Certification Program fees for the
2006-07 fiscal year shall be as follows:

 

Type of Facility	Fee
General Acute Care Hospitals	$ 134.10	per bed
Acute Psychiatric Hospitals	$ 134.10	per bed
Special Hospitals	$ 134.10	per bed
Chemical Dependency Recovery Hospitals	$ 123.52	per bed
Skilled Nursing Facilities	$ 202.96	per bed
Intermediate Care Facilities	$ 202.96	per bed
Intermediate Care begin delete Facilities- Developmentally end delete begin insert Facilities-Developmentally end insert Disabled	$ 592.29	per bed
Intermediate Care begin delete Facilities- Developmentally end delete begin insert Facilities-Developmentally end insert Disabled-Habilitative	$1,000.00	per facility
Intermediate Care begin delete Facilities- Developmentally end delete begin insert Facilities-Developmentally end insert Disabled-Nursing	$1,000.00	per facility
Home Health Agencies	$2,700.00	per facility
Referral Agencies	$5,537.71	per facility
Adult Day Health Centers	$4,650.02	per facility
Congregate Living Health Facilities	$ 202.96	per bed
Psychology Clinics	$ 600.00	per facility
begin delete Primary Clinics- Community end delete begin insert Primary Clinics-Community end insert and Free	$ 600.00	per facility
begin delete Specialty Clinics- Rehab end delete begin insert Specialty Clinics-Rehab end insert Clinics  (For profit)	$2,974.43	per facility
(Nonprofit)	$ 500.00	per facility
begin delete Specialty Clinics- Surgical end delete begin insert Specialty Clinics-Surgical end insert and Chronic	$1,500.00	per facility
Dialysis Clinics	$1,500.00	per facility
Pediatric Day Health/Respite Care	$ 142.43	per bed
Alternative Birthing Centers	$2,437.86	per facility
Hospice	$1,000.00	per provider
Correctional Treatment Centers	$ 590.39	per bed

 

(2) (A) In the first year of licensure for intermediate care
facility/developmentally disabled-continuous nursing (ICF/DD-CN)
facilities, the licensure fee for those facilities shall be equivalent
to the licensure fee for intermediate care facility/developmentally
disabled-nursing facilities during the same year. Thereafter, the
licensure fee for ICF/DD-CN facilities shall be established pursuant
to the same procedures described in this section.

(B) In the first year of licensure for hospice facilities, the
licensure fee shall be equivalent to the licensure fee for congregate
living health facilities during the same year. Thereafter, the
licensure fee for hospice facilities shall be established pursuant to
the same procedures described in this section.

(c) Commencing February 1, 2007, and every February 1
thereafter, the department shall publish a list of estimated fees
pursuant to this section. The calculation of estimated fees and the
publication of the report and list of estimated fees shall not be
subject to the rulemaking requirements of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.

(d) Notwithstanding Section 10231.5 of the Government Code,
by February 1 of each year, the department shall prepare the
following reports and shall make those reports, and the list of
estimated fees required to be published pursuant to subdivision
(c), available to the public by submitting them to the Legislature
and posting them on the department’s Internet Web site:

(1) A report of all costs for activities of the Licensing and
Certification Program. At a minimum, this report shall include a
narrative of all baseline adjustments and their calculations, a
description of how each category of facility was calculated,
descriptions of assumptions used in any calculations, and shall
recommend Licensing and Certification Program fees in accordance
with the following:

(A) Projected workload and costs shall be grouped for each fee
category, including workload costs for facility categories that have
been established by statute and for which licensing regulations
and procedures are under development.

(B) Cost estimates, and the estimated fees, shall be based on
the appropriation amounts in the Governor’s proposed budget for
the next fiscal year, with and without policy adjustments to the fee
methodology.

(C) The allocation of program, operational, and administrative
overhead, and indirect costs to fee categories shall be based on
generally accepted cost allocation methods. Significant items of
costs shall be directly charged to fee categories if the expenses can
be reasonably identified to the fee category that caused them.
Indirect and overhead costs shall be allocated to all fee categories
using a generally accepted cost allocation method.

(D) The amount of federal funds and General Fund moneys to
be received in the budget year shall be estimated and allocated to
each fee category based upon an appropriate metric.

(E) The fee for each category shall be determined by dividing
the aggregate state share of all costs for the Licensing and
Certification Program by the appropriate metric for the category
of licensure. Amounts actually received for new licensure
applications, including change of ownership applications, and late
payment penalties, pursuant to Section 1266.5, during each fiscal
year shall be calculated and 95 percent shall be applied to the
appropriate fee categories in determining Licensing and
Certification Program fees for the second fiscal year following
receipt of those funds. The remaining 5 percent shall be retained
in the fund as a reserve until appropriated.

(2) (A) A staffing and systems analysis to ensure efficient and
effective utilization of fees collected, proper allocation of
departmental resources to licensing and certification activities,
survey schedules, complaint investigations, enforcement and appeal
activities, data collection and dissemination, surveyor training,
and policy development.

(B) The analysis under this paragraph shall be made available
to interested persons and shall include all of the following:

(i) The number of surveyors and administrative support
personnel devoted to the licensing and certification of health care
facilities.

(ii) The percentage of time devoted to licensing and certification
activities for the various types of health facilities.

(iii) The number of facilities receiving full surveys and the
frequency and number of followup visits.

(iv) The number and timeliness of complaint investigations,
including data on the department’s compliance with the
requirements of Section 1279.2.

(v) Data on deficiencies and citations issued, and numbers of
citation review conferences and arbitration hearings.

(vi) Other applicable activities of the licensing and certification
division.

(3) The annual program fee report described in subdivision (d)
of Section 1416.36.

(e) The reports required pursuant to subdivision (d) shall be
submitted in compliance with Section 9795 of the Government
Code.

(f) (1) The department shall adjust the list of estimated fees
published pursuant to subdivision (c) if the annual Budget Act or
other enacted legislation includes an appropriation that differs
from those proposed in the Governor’s proposed budget for that
fiscal year.

(2) The department shall publish a final fee list, with an
explanation of any adjustment, by the issuance of an all facilities
letter, by posting the list on the department’s Internet Web site,
and by including the final fee list as part of the licensing application
package, within 14 days of the enactment of the annual Budget
Act. The adjustment of fees and the publication of the final fee list
shall not be subject to the rulemaking requirements of Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.

(g) (1) Fees shall not be assessed or collected pursuant to this
section from any state department, authority, bureau, commission,
or officer, unless federal financial participation would become
available by doing so and an appropriation is included in the annual
Budget Act for that state department, authority, bureau,
commission, or officer for this purpose. Fees shall not be assessed
or collected pursuant to this section from any clinic that is certified
only by the federal government and is exempt from licensure under
Section 1206, unless federal financial participation would become
available by doing so.

(2) For the 2006-07 state fiscal year, a fee shall not be assessed
or collected pursuant to this section from any general acute care
hospital owned by a health care district with 100 beds or less.

(h) The Licensing and Certification Program may change annual
license expiration renewal dates to provide for efficiencies in
operational processes or to provide for sufficient cashflow to pay
for expenditures. If an annual license expiration date is changed,
the renewal fee shall be prorated accordingly. Facilities shall be
provided with a 60-day notice of any change in their annual license
renewal date.

SEC. 2.  

Section 1279.2 of the Health and Safety Code is
amended to read:

1279.2.  

(a) (1) In any case in which the department receives
a report from a facility pursuant to Section 1279.1, or a written or
oral complaint involving a health facility licensed pursuant to
subdivision (a), (b), or (f) of Section 1250, that indicates an
ongoing threat of imminent danger of death or serious bodily harm,
the department shall make an onsite inspection or investigation
within 48 hours or two business days, whichever is greater, of the
receipt of the report or complaint and shall complete that
investigation within 45 days.

(2) Until the department has determined by onsite inspection
that the adverse event has been resolved, the department shall, not
less than once a year, conduct an unannounced inspection of any
health facility that has reported an adverse event pursuant to
Section 1279.1.

(b) In any case in which the department is able to determine
from the information available to it that there is no threat of
imminent danger of death or serious bodily harm to that patient or
other patients, the department shall complete an investigation of
the report within 45 days.

(c) The 45-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. If
the department extends an investigation beyond 45 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.

(d) The department shall notify the complainant and licensee
in writing of the department’s determination as a result of an
inspection or report.

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

(f) The costs of administering and implementing this section
shall be paid from funds derived from existing licensing fees paid
by general acute care hospitals, acute psychiatric hospitals, and
special hospitals.

(g) In enforcing this section and Sections 1279 and 1279.1, the
department shall take into account the special circumstances of
small and rural hospitals, as defined in Section 124840, in order
to protect the quality of patient care in those hospitals.

(h) In preparing the staffing and systems analysis required
pursuant to Section 1266, the department shall also report regarding
the number and timeliness of investigations of adverse events
initiated in response to reports of adverse events.

SEC. 3.  

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)  begin delete The end delete begin insert Effective January 1, 2018, the end insert department shall complete
its investigation within 45 working days from receipt of the
complaint. The 45-working-day period may be extended up to an
additional 30 working days if the department has diligently
attempted, but has not been able, to obtain necessary evidence
related to the investigation.

(4)  begin delete If end delete begin insert Effective January 1, 2018, if end insert the department extends an
investigation beyond 45 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.

(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, 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.

(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) The department shall analyze its compliance with the
timeframes for investigations established in this section on a
quarterly basis, and shall, on a quarterly basis, post findings from
the analysis on its Internet Web site. The analysis shall provide
data on the department’s performance, and shall include, at a
minimum, all of the following data elements:

(1) The number of open investigations.

(2) The number of completed investigations.

(3) The number and percentage of investigations completed
within the 45-working-day timeframe.

(4) The number and percentage of investigations that required
a 30-working-day extension.

(5) The number and percentage of investigations that required
a 30-working-day extension and were completed within the
extended time period.

(6) The average length of time to complete an investigation.

(7) The average length of time to complete an investigation that
was not completed by the end of the 30-working-day extended
time period.

(i) 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.