BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 348


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          Date of Hearing:  April 7, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                    Bonta, Chair


          AB  
                        348 (Brown) - As amended March 18, 2015


          SUBJECT:  Long-term health care facilities.


          SUMMARY:  Establishes a 40-working-day timeframe by which the  
          Department of Public Health (DPH) would be required to complete  
          investigations of long-term health care facility complaints.   
          Specifically, this bill:  



          1)Requires DPH to complete its investigation of a long-term  
            health care facility complaint within 40 working days of its  
            receipt, and authorizes DPH to extend the 40-working-day  
            timeframe by an additional 30 days if DPH has diligently  
            attempted, but has not been able to obtain necessary evidence  
            related to the investigation.

          2)Requires DPH, in the case that it extends an investigation  
            beyond 40 working days, to notify the complainant, in writing,  
            of the basis for the extension, any outstanding evidence  
            sought to complete the investigation, the source of the  
            outstanding evidence, and the anticipated completion date.

          3)Applies the 40-working-day, and 30-day extension timeframes to  
            investigations of entity-reported incidents (ERIs), which are  
            incidents such as epidemics, outbreaks, disasters, fires,  
            disruptions of services, major accidents, or other unusual  
            occurrences that long-term health care facilities are required  
            to self-report to DPH.








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          4)Requires DPH, effective July 1, 2016, to include in its  
            written notice of investigation determinations, specific  
            findings concerning each alleged violation, and a summary of  
            the evidence upon which its determination is made.  Prohibits  
            the written determination from disclosing the names of  
            individual residents. 

          5)Grants complainants 15 days, rather than five days, to request  
            an informal conference with DPH if the complainant does not  
            agree with the findings of the investigation. 

          6)Requires DPH to analyze its compliance with the complaint and  
            ERI investigation timeframes in its annual system and staffing  
            analysis.

          7)Provides that none of the provisions proposed in this bill are  
            to be interpreted to diminish the DPH's authority and  
            obligation to investigate any alleged violation of state or  
            federal law, or to enforce applicable state and federal  
            requirements.  

          EXISTING LAW:  


          1)Establishes specified timeframes relating to the investigation  
            of complaints against long-term health care facilities made to  
            DPH.  Specifically, DPH is required to:



             a)   Assign an inspector to make a preliminary review of the  
               complaint and notify the complainant of the name of the  
               assigned inspector within two working days of receipt of  
               the complaint;

             b)   Make an onsite inspection or investigation within 10  
               working days of the receipt of the complaint.  If the  
               complaint involves a threat of imminent danger of death or  
               serious bodily harm, then DPH must make an onsite  
               inspection within 24 hours of receipt of the complaint;  
               and,








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             c)   Notify the complainant and licensee, in writing, of  
               DPH's determination within 10 working days of the  
               completion of the complaint investigation. 

          2)Requires DPH to notify a complainant of his or her right to an  
            informal conference if that complainant is dissatisfied with  
            DPH's investigation determinations, and grants the complainant  
            five business days after receipt of the notice to request an  
            informal conference.  Requires DPH to notify the complainant  
            and license of its determination within 10 working days after  
            the informal conference.



          3)Requires, under existing regulations, long-term health care  
            facilities to self-report ERIs to DPH.

          4)Requires DPH to perform a staffing and systems analysis to  
            ensure proper allocation of departmental resources to  
            complaint investigations and other licensing and certification  
            activities and to make the analysis available to the public by  
            submitting it to the Legislature and posting it on their  
            Website.
          
          FISCAL EFFECT:  This bill has not yet been analyzed by a fiscal  
          committee.
          
          COMMENTS:

          1)PURPOSE OF THIS BILL.  According to the author, DPH is charged  
            with protecting nursing home residents from harmful events and  
            with investigating complaints filed by the public and  
            facilities.  However, the author contends that, by any  
            measure, DPH's system of investigation is not functioning as  
            expected.  The author states that in 2009, DPH eliminated its  
            policy calling for complaint investigations to be completed  
            within 40 days, and now has no specific time frames for  
            completing investigations of nursing home complaints.  Despite  
            the elimination of this policy, the author cites numerous  
            reports issued by federal and state agencies, private  
            organizations, and the media documenting DPH's failures to  








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            investigate nursing home complaints in a timely manner.  The  
            author also states that DPH has been the subject of two recent  
            lawsuits for failing to investigate nursing home complaints  
            with timeliness.  The author concludes by stating that  
            legislation to improve timeliness of complaint investigations  
            is critically needed.

          2)BACKGROUND.  DPH's Licensing and Certification (L&C) Program  
            is the DPH's largest program and is responsible for the  
            regulatory oversight of over 7,500 licensed health care  
            facilities, 2,500 of which are long-term health care  
            facilities such as skilled nursing facilities (SNFs) and  
            intermediate care facilities.  Additionally, the federal  
            Centers for Medicare and Medicaid Services (CMS) contracts  
            with L&C to evaluate facilities accepting payments from  
            Medicare and Medi-Cal, the state's Medicaid program, to ensure  
            that they meet federal requirements.  The L&C Program  
            evaluates health care facilities for compliance with state and  
            federal laws and regulations through a variety of required  
            tasks, including initial and re-licensure surveys, federal  
            certification surveys, and investigations of complaints and  
            ERIs. 

          The L&C Program has a field operations branch that oversees 15  
            district offices, which are divided between five geographic  
            areas throughout the state.  The majority of L&C activities  
            are performed by health facility evaluator nurses (HFENs).   
            HFENs must be licensed as registered nurses, and must undergo  
            extensive training to properly and independently perform L&C  
            duties and ensure uniform application and enforcement of state  
            and federal laws, rules, and regulations pertaining to patient  
            care.

          Rather than directly performing L&C activities in Los Angeles  
            (LA) County, DPH contracts with LA County's Department of  
            Public Health, Health Facilities Investigation Division to  
            perform these activities on its behalf.  Pursuant to this  
            contract, county staff are responsible for performing the same  
            L&C activities that would otherwise be performed by state L&C  
            staff, for approximately 385 nursing homes operating within  
            the county.  This contracting arrangement has been in place  
            for decades.  The current contract is set to expire at the end  








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            of June 2015.  According to DPH, the department is currently  
            in negotiations with LA County to renew the contract. 

          Additionally, the L&C Program's Professional Certifications  
            Branch (PCB) certifies nurse assistants (a key classification  
            of nursing home employees), home health aides, and  
            hemodialysis technicians.  The PCB is responsible for  
            investigating complaints against and enforcing disciplinary  
            action against the personnel it certifies.
          
             a)   Complaint and ERI investigations.  Investigations of  
               nursing home complaints and ERIs are carried out pursuant  
               to both federal and state mandates.  Current law requires  
               DPH to make an onsite investigation of a complaint against  
               a nursing home within 10 working days of receipt.  If the  
               complaint is an immediate jeopardy complaint, meaning that  
               it involves a threat of imminent danger of death or serious  
               bodily harm, DPH is required to make an onsite  
               investigation within 24 hours of receipt.  However, current  
               law does not specify the length of time required to  
               complete complaint investigations. 

             Longstanding concerns and complaints about the manner in  
               which the L&C program managed complaint and ERI  
               investigations have persisted for many years.  In 2006, the  
               Legislative Analyst's Office reported that only one-half of  
               all complaints not classified as immediate jeopardy were  
               investigated within the required10-day timeframe.  Further,  
               in 2007, the California State Auditor issued a report  
               finding that the Department of Health Services (now  
               referred to as DPH) struggled to initiate and close  
               complaint investigations and communicate with complainants  
               in a timely manner.  In July 2012, CMS sent a letter to DPH  
               expressing concern with their ability to meet many of its  
               L&C responsibilities, including timely complaint  
               investigations.  The state was in jeopardy of losing $1  
               million in federal funds if certain benchmarks were not  
               met.  Ultimately, $138,123 in federal funding was withheld.

             In March 2014, concerns came to light regarding DPH's  
               oversight of its contract with LA County after an  
               investigative reporter uncovered evidence that the county  








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               had an unofficial policy to close certain nursing home  
               complaints without fully investigating them.  As a result,  
               DPH performed a review of the county's compliance with  
               state and federal complaint investigation requirements, and  
               directed the county to cease its unsanctioned policy of  
               case closures without proper investigation.  The LA County  
               Board of Supervisors requested an audit by the LA County  
               Department of Auditor-Controller.  The LA County Auditor  
               released two audit reports, concluding, in part, that the  
               county had a significant workload backlog and lacked a  
               mechanism to effectively track and managed its workload.   
               The LA County Auditor also found that complaints and ERIs  
               were not always prioritized in accordance with state  
               guidelines, resulting in delays in initiating  
               investigations.

             In August 2014, DPH published the findings of a comprehensive  
               assessment of the L&C Program that was performed per a 2012  
               request from CMS.  DPH contracted with a private  
               contractor, Hubbert Systems Consulting, to perform the  
               assessment.  In summary, the assessment found numerous  
               deficiencies within the L&C Program, including timeliness  
               of investigation closures, and set forth 21 recommendations  
               to remediate deficiencies identified in its assessment.   
               Included among these recommendations were the restructure  
               of L&C to improve performance, establishing performance  
               indicators, and improving oversight of LA County workload  
               and management.  DPH has accepted all 21 of the  
               recommendations, and has developed a work plan to fully  
               implement the recommendations within two years.  

             In October 2014, the California State Auditor released  
               another report regarding the L&C Program citing ineffective  
               management of nursing home complaint investigations.  The  
               key findings of that report included:

               i)     As of April 2014, there were more than 11,000 open  
                 complaints and ERIs backlogged, many of which had  
                 relatively high priorities, and had remained open for an  
                 average of nearly a year;

               ii)    Despite backlogs and lengthy investigations, L&C  








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                 does not have any policies or procedures to ensure prompt  
                 completion of complaint/ERI investigations and in many  
                 cases did not meet statutory timeframes for initiating  
                 complaint investigations;

               iii)   There was no staffing analysis for any of its  
                 district offices to determine how much staff is needed to  
                 complete workload.  Most of the L&C district offices  
                 visited by audit staff reported not having the resources  
                 needed to investigate complaints properly, and having to  
                 work overtime in order to try to keep pace with workload;  
                 and,

               iv)    DPH failed to report all statutorily required  
                 information to the Legislature in certain years by  
                 omitting information related to the timeliness of  
                 complaint investigations in their 2012 and 2013 reports  
                 to the Legislature.

               The State Auditor made numerous recommendations to DPH,  
                 including that DPH establish timeframes to complete  
                 complaints and ERI investigations.  According to the  
                 State Auditor, DPH did not always lack timeframes for  
                 completing investigations.  The State Auditor cited  
                 departmental policies and procedures from 2004, which set  
                 forth a goal that district offices complete  
                 investigations of facility-related complaints within 40  
                 days of receipt.  DPH reported to the State Auditor that  
                 it eliminated the 40-day goal because district offices  
                 were unable to meet the timeline for various reasons.   
                 For example, DPH cited investigations involving the death  
                 of residents that could not be completed pending receipt  
                 of coroner reports.  The State Auditor disagreed with  
                 DPH's decision to eliminate the 40-day timeframe, stating  
                 that, while there may be instances in which district  
                 offices cannot comply with established timeframes for  
                 valid reasons, a lack of accountability has contributed  
                 to its failure to complete investigations within  
                 reasonable periods.

               DPH is in the process of implementing some of the State  
                 Auditor's recommendations, but disagrees with the  








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                 recommendation to establish a timeframe to complete  
                 investigations.  According to DPH, they recognize the  
                 importance of the timeliness in completing complaint and  
                 ERI investigations and is committed to reducing the  
                 average time to complete these investigations through  
                 enhanced monitoring of workload activities, public  
                 reporting of workload performance, and improved district  
                 office implementation.  

               In October 2014, DPH began to release quarterly data  
                 regarding the volume, timeliness, and disposition of  
                 long-term health care facility complaints and ERIs.   
                 According to most recent data released, as of December  
                 31, 2014, the total number of open complaints and ERIs,  
                 including LA County cases and complaints against  
                 PCB-certified personnel, was 12,814.  The data indicate  
                 that between July and December 2014, DPH completed 70% of  
                 complaint investigations and 77% of ERI investigations in  
                 90 days or less.

             b)   Governor's budget proposal.  For the 2015-16 budget  
               year, the Governor proposes funding to support the  
               implementation of the quality improvement recommendations  
               made by Hubbert Systems Consulting, special funds to  
               improve oversight of its LA County contract, as well as  
               funding to fill and add new LA County positions.  The  
               Governor proposes 237 new L&C positions and increased  
               expenditure authority to reduce complaint/ERI volume, and  
               decrease investigation time.  With these added positions,  
               DPH estimates that it will take four years to complete  
               current pending investigation workload while keeping up  
          with new workload and avoiding backlogs.

          3)SUPPORT.  California Advocates for Nursing Home Reform (CANHR)  
            supports this bill, stating that it presents an historic  
            opportunity to restore integrity to California's nursing home  
            complaint investigation system.  CANHR states that this bill  
            is critical to establish meaningful complaint investigation  
            deadlines, that the timely investigation of nursing home  
            complaints is a matter of life and death for nursing home  
            residents, and that by improving complaint investigation  
            standards, this bill will help restore public confidence in  








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            California's nursing home oversight system.  Other supporters  
            state that this bill will provide certainty about DPH's  
            responsiveness and dedication to completing investigations,  
            thereby strengthening and improving the state's nursing home  
            oversight and enforcement process.

          The California State Council of the Service Employees  
            International Union (SEIU California), which represents the  
            state's HFENs who perform nursing home complaint  
            investigations, states that, due to chronic understaffing  
            within L&C, HFENs have not had the ability to consistently  
            complete and close investigations, resulting in a serious  
            backlog of complaints.  SEIU California states that the status  
            quo does a disservice to nursing home residents, their  
            families, providers, and L&C staff struggling to keep up with  
            their workload, and that this bill will provide a timeframe by  
            which to monitor DPH's accuracy in assessing appropriate  
            staffing levels in the L&C program and the LA County contract.

          Tenet Healthcare supports this bill if amended to include  
            language to allow for a 30-day extension of the current  
            complaint investigation timeframe set for general acute care  
            hospitals.  Tenet states that current law sets a timeframe by  
            which L&C must complete investigations of complaints against  
            general acute care hospitals, and supports the establishment  
            of a timeframe for long-term health care facilities.  Tenet  
            states that the 30-day extension provided for in this bill  
            allows more time to accommodate complex investigations where  
            additional evidence has to be considered in order to make  
            thorough and accurate assessments.  As such, Tenet argues that  
            a similar extension should be allowed for complaint  
            investigations against hospitals, and symmetry in timelines  
            for these facility types would be for the protection of  
            patients regardless of the setting in which they receive care.  


          4)RELATED LEGISLATION.  AB 927 (McCarty) expands disclosure  
            requirements regarding nursing home ownership, expands the  
            type of information posted on DPH's website to include  
            information regarding nursing home ownership, and modifies  
            provisions that prohibit certain persons from governing or  
            owning a beneficial interest in a SNF by providing for the  








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            denial of an application by L&C for a SNF license under  
            circumstances in which a person named in the application has  
            governed or owned a facility that has violated the law during  
            the preceding seven years.  AB 927 is pending in the Assembly  
            Health Committee.

          5)PREVIOUS LEGISLATION.

             a)   AB 1816 (Yamada) of 2014 would have required DPH to set  
               a performance benchmark for completing nursing home  
               complaints within 60 working days of receipt; authorized  
               DPH to extend its investigation beyond 60 days and required  
               written notice to the complainant explaining the basis of  
               the extension and the anticipated completion date; and,  
               following an extension beyond the 60-day performance  
               benchmark, required DPH to complete its investigation as  
               expeditiously as possible.  AB 1816 was held in the Senate  
               Appropriations Committee.

             b)   AB 1996 (Brown) of 2014 would have increased the  
               frequency of routine inspections of long-term health care  
               facilities from once every two years to once every year and  
               authorized a facility inspector to refer facilities for the  
               appointment of a temporary manager or receiver if the  
               inspector finds it is necessary.  AB 1996 was referred to  
               the Assembly Health Committee, but not heard.

             c)   AB 1710 (Yamada), Chapter 672, Statutes of 2012, revises  
               how nursing home administrator licensing fees are adjusted  
               so that fee revenue is sufficient to cover the regulatory  
               costs to DPH and revises and increases DPH reporting  
               requirements regarding the Nursing Home Administrator  
               Program.

             d)   SB 799 (Negrete-McLeod) of 2011 would have required DPH  
               to complete long-term care facility complaint  
               investigations within a 90-working day period.  SB 799 was  
               held on the suspense file in Senate Appropriations. 

             e)   AB 399 (Feuer) of 2007 contained provisions that are  
               substantially similar to this bill.  AB 399 was vetoed by  
               Governor Schwarzenegger with the following message: "While  








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               I believe this bill is well-intended, it is premature to  
               place additional investigation requirements on this program  
               as it continues to demonstrate progress in meeting its  
               mandated state and federal workload."

             f)   AB 1807 (Committee on Budget), Chapter 74, Statutes of  
                                                                      2006, was the health trailer bill for the Budget Act of  
               2006.  Among other changes, AB 1807 establishes a new fee  
               structure for health facilities that licensed and/or  
               certified by L&C:  fees must be calculated based on:  i)  
               specified workload data provided by DPH to the Legislature  
               and made available to the public on their website; ii) any  
               General Fund support appropriated by the Legislature; iii)  
               any federal grant funds received for this purpose; and iv)  
               any policy adjustments as proposed by the Administration  
               and as adopted by the Legislature.  States intent that L&C  
               become entirely supported by fees and federal funds by no  
               later than July 1, 2009.

             g)   SB 1312 (Alquist), Chapter 895, Statutes of 2006,  
               requires inspections and investigations of long-term care  
               facilities certified by the Medicare or Medicaid program to  
               determine compliance with federal standards and California  
               statutes and regulations.
             
             h)   AB 1731 (Shelley), Chapter 451, Statutes of 2000, enacts  
               major reforms for SNFs and intermediate care facilities,  
               including the expansion of citations and penalties, an  
               increase in disclosure requirements and inspections,  
               requires DPH to provide specified notice to complainants  
               within specified timeframes, and requires initial onsite  
               investigations within 24 hours in response to complaints  
               where there is a serious threat of imminent danger of death  
               or serious bodily harm.
             
          6)POLICY COMMENTS.  Committee may wish to bolster compliance  
            analysis and reporting requirements.  This bill would require  
            DPH to analyze its compliance with the timeframe requirements  
            set forth in its annual system and staffing analysis.   
            However, given that DPH currently reports data regarding the  
            volume, timeliness, and disposition of complaints and ERIs on  
            a quarterly basis, the Committee may wish to amend this bill  








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            to require DPH to analyze and report on its compliance  
            quarterly rather than annually.

          Additionally, the Committee may wish to amend the bill to more  
            clearly specify the elements DPH should analyze and report on,  
            including the number and percentage of complaints and ERI  
            investigations completed within the 40-day timeframe, the  
            number and percentage of complaints and ERI investigations  
            requiring an extension, and the number and percentage of  
            complaints and ERI investigations that were not completed  
            within required timeframes, the average length of time to  
            complete an investigation, and the average length of time to  
            complete investigations which exceed the timeframes set forth  
            in this bill.

          REGISTERED SUPPORT / OPPOSITION:

          Support

          AARP
          Asian Law Alliance
          California Advocates for Nursing Home Reform 
          California Association of Health Facilities
          California Communities United Institute
          California Hospital Association
          California Long-Term Care Ombudsman Association
          California Retired Teachers Association
          Coalition of California Welfare Rights Organizations, Inc.
          Consumer Attorneys of California
          Disability Rights California
          Leading Age California
          National Association of Social Workers, California Chapter
          SEIU California
          Tenet Healthcare (if amended)
          Several individuals

          Opposition

          None on file.

          Analysis Prepared  
          by:              Kelly Green / HEALTH / (916) 319-2097








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