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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