BILL ANALYSIS Ó
AB 348
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Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Cheryl Brown, Chair
AB 348
Brown - As Amended April 14, 2015
SUBJECT: Long-term health care facilities.
SUMMARY: Creates a 40-day timeframe for the Department of
Public Health (DPH) to complete a long-term care facility
complaint investigation and requires DPH to provide additional
information about the investigation of the complainant.
Specifically, this bill:
1)Requires DPH to complete investigations of complaints against
long-term health care facilities within 40 working days of the
receipt of the complaint.
2)Allows DPH to extend an investigation up to 30 additional
working days if DPH has been unable to obtain necessary
evidence related to the investigation despite its diligent
attempts.
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3)Requires DPH, when it extends an investigation under 1) above,
to notify the complainant and provide the basis for the
extension, a description of outstanding evidence and sources,
and the anticipated completion date.
4)Effective July 1, 2015, requires DPH to include specific
findings concerning each alleged violation and a summary of
the evidence in the written determination it is required to
make at the investigation's conclusion.
5)Increases, from five days to 15 days, the amount of time a
complainant has to request an informal conference with DPH, if
the complainant is dissatisfied with DPH's determination.
6)Expands provisions related to timeframes for a complaint
investigation to include self-reports of violations by
facilities.
EXISTING LAW:
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1)Defines Health Facilities in Health and Safety Code Section
1250 as "general acute care hospital," "acute psychiatric
hospital," "skilled nursing facility," "intermediate care
facility," "intermediate care facility/developmentally
disabled habilitative," "special hospital," "intermediate care
facility/developmentally disabled," "intermediate care
facility/developmentally disabled-nursing," "congregate living
health facility," "correctional treatment center," "nursing
facility," "intermediate care facility/developmentally
disabled-continuous nursing," or "hospice facility."
2)Requires DPH to initiate investigations within 24 hours, and
complete investigations of written or oral complaints made in
regards to dangerous situations within acute hospital settings
within 45 days.
3)Requires DPH to initiate an investigation with an onsite
inspection within 10 working days of the receipt of a valid
written or oral complaint in a skilled nursing facility. In
cases of imminent danger of death, or serious bodily harm, DPH
is required to initiate an investigation with an onsite
inspection within 24 hours. There is no corresponding mandate
to complete the investigation, as there is for a complaint in
a general acute hospital setting.
4)Provides that any duly authorized officer, employee, or agent
of the state department may enter and inspect any long-term
health care facility, including, but not limited to,
interviewing residents and reviewing records, at any time to
enforce the law.
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5)Requires that inspections conducted pursuant to complaints
filed with the state department be conducted in such a manner
as to ensure maximum effectiveness while respecting the rights
of patients in the facility.
6)Forbids advance notice of inspections unless previously and
specifically authorized by the director or required by federal
law, and provides that any public employee giving any advance
notice of an inspection, or a visit related to an
investigation, is in violation of law and subject to
dismissal, demotion, suspension, or other disciplinary action.
7)Requires DPH to notify the complainant of the name of the
inspector or investigator and permits the complainant to
accompany the inspector to the site of the alleged violation.
8)Requires DPH to notify the complainant of its determination
within 10 working days of the completion of the complaint
investigation. Permits the complainant to request in writing
an informal conference within five business days after receipt
of the notice. Offers additional levels of appeals if the
complainant is dissatisfied with the determination of DPH.
9)Requires a long-term health care facility to report all
incidents of alleged abuse or suspected abuse of a resident of
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the facility to DPH immediately, or within 24 hours, as
specified.
10)Under state regulations, requires a long-term health care
facility to report unusual occurrences such as epidemic
outbreaks, poisonings, fires, major accidents, death from
unnatural causes, or other catastrophes which pose health or
safety threats within 24 hours to the local health officer and
to DPH.
11)Excludes, for the purposes of these complaint investigation
requirements, a self-report from a facility of an alleged
violation of applicable requirements of state or federal law.
12)Requires DPH to prepare an annual staffing and systems
analysis to, among other things, ensure the effective and
efficient utilization of licensing and certification fees and
proper allocation of DPH resources to licensing and
certification activities. Requires the analysis to contain
specified information, including the number and timeliness of
complaint investigations.
FISCAL EFFECT: This bill has not yet been analyzed by a fiscal
committee.
COMMENTS:
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PURPOSE OF THIS BILL: Unlike investigations of complaints about
hospitals, DPH staff members are not required by law to complete
investigations of complaints in nursing homes. The author
points to extensive testimony received by the Legislature during
two joint oversight hearings of the Assembly Committee on Aging
and Long-Term Care and the Assembly Committee on Health which
indicates that DPH, despite well-established statutory
mechanisms to assure adequate financial and personnel resources
to conduct and complete necessary investigations, fails to meet
its workload demands. It should be noted that DPH failed to
report to the legislature, for two years, a statutorily required
workload analysis that would have demonstrated performance
challenges that the DPH staff were confronting, and through
licensing fee adjustments - not General Fund allocations - the
staff shortages could have been managed. Despite a continued
focus upon the problem, a back-log of uninvestigated complaints
about physical abuse, mistreatment, poor care and entity
reported incidents (ERIs) continues to grow - now, according to
DPH, estimated at nearly 12,000. Oversight exercises revealed
that thousands of complaints have languished with incomplete
investigation, some for years. The author asserts that each
complaint represents a potentially serious injustice, potential
pain, and ongoing suffering, potentially caused by predators who
seek employment among vulnerable populations who become
unwitting prey in long-term health care facilities, or, business
practices that place individuals at risk of serious harm such as
poor staffing patterns, poor management, or other practices over
which DPH is charged with state and federal oversight
responsibilities.
The author asserts that timely investigations are critical to
reduce, even eliminate known risk. According to the author,
acting to protect dependent adults in care environments
regulated by the state is a governmental priority. This bill is
intended to address this issue by enhancing existing laws which
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require investigations to be initiated within no more than 10
days. The specific enhancement AB 348 proposes is to establish
a reasonable, statutory timeframe (40 working days, plus one 30
working day extension, if necessary) within which the
investigation must be completed. According to the author, AB
348 improves current law so that DPH which is already under
statutory obligation to open investigations, remains obligated
to complete, and close the investigation. Ongoing reporting
requirements will provide periodic evidence establishing a basis
for additional resources through licensing-fee adjustments, not
tax-payer supported general funds, to assure that abused,
mistreated and injured citizens, or their families, receive
dignity and justice. Completed investigations may also help
facilities recognize management or business practices which
unwittingly create unnecessary risk for a medically frail
population, and place their Medicare "Star" rating at risk.
According to Supporters: According to the California Advocates
for Nursing Home Reform (CANHR), the sponsor of AB 348, "lives
are at risk: years often go by before DPH responds when it
receives a complaint that a nursing home resident died due to
neglect" and provide three recent examples of the types of
complaints that become overlooked at DPH:
On November 13, 2013, DPH issued a $100,000 fine to
Rosewood Post-Acute Rehab, a skilled nursing facility in
Carmichael; nearly seven years after the patient died on
January 1, 2007 by an overdose of Warfarin, a powerful blood
thinning medication.
DPH offered no explanation for the extreme delay.
An April 12, 2014 article by Kaiser Health News,
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"Frustrating Wait for the Nursing Home Inspector," tells
the story of Sui Mee Chiu, a former resident of the Arcadia
Health Care Center. Ms. Chiu died in 2011 at age 85 after
developing severe bedsores, including one on her backside
that was so deep it exposed the bone. Following her death,
her daughter, Mary Chiu, filed a 7-page complaint with the
Los Angeles County Department of Public Health in September
2011. At the time of the article in April 2014, the
Department had still not completed its investigation.
The Department also ignores victims of physical and
sexual abuse. For example, after learning in November 2009
that a male nurse sexually assaulted a female resident at
the Palos Verdes Health Care Center, the Department took
four years before issuing a citation in October 2013.
CANHR concludes that "when nursing home residents die from
neglect or suffer from abuse, DPH is usually nowhere to be
found."
According to the California Association of Area Agencies on
Aging, "although the Department of Public Health reports that it
completes 90 percent of their investigations within 40 days, the
response time is not sufficient. These are investigations
involving poor care, mistreatment and abuse. Timely
investigations are not only critical because of the threat of
danger or death, but the need to investigate and collect
evidence before it deteriorates or memories fade."
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The California Retired Teachers Association states that "by
establishing an investigation completion timeline, AB 348
provides some certainty about DPH's responsiveness and
dedication to completing investigations, thereby prioritizing
the health and safety of long-term care residents. It is
critically important that allegations of mistreatment,
misconduct, and abuse be fully investigated in timely manner.
This bill will strengthen and improve the State oversight and
enforcement process for long-term care facilities, making
important strides to ensure the safety of California's seniors."
BACKGROUND: DPH leadership has been scrutinized since
revelations about misplaced priorities, poor management, ongoing
and persistent lack of accountability and a growing back-log of
complaints describing abuse, mistreatment and poor care within
facilities which they regulate continues to grow. The DPH
Licensing and Certification (L&C) Program is responsible for the
oversight of licensed health care facilities defined in Health
and Safety Code
Section 1250, about 1275 of which are skilled nursing facilities
(SNFs) and intermediate care facilities (ICFs). SNFs and ICFs
account for about 50 percent of the DPH workload - about 6,200
other health facilities, such as acute care hospitals, clinics,
adult day health centers, and others account for the other 50
percent.
The Federal Centers for Medicare and Medicaid Services (CMS)
contracts with DPH L&C to evaluate facilities accepting payments
from Medicare and Medi-Cal, to ensure that they meet federal
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requirements mandated as a condition for financial participation
in those programs. As such, DPH L&C leaders, management and
staff act as agents for the federal government to assure federal
funds, as well as state funds, serve the purposes for which they
are appropriated. The L&C Program evaluates health care
facilities for compliance with state and federal laws and
regulations through initial and re-licensure surveys,
unannounced federal certification surveys, as well as
investigations of complaints submitted by citizens who assert
that they have received substandard care, or have been abused,
mistreated, or exploited in a facility. Entity Reported
Incidents (ERI) are also investigated by DPH employees, and
often require a facility visit.
The L&C Program relies upon "field operations" that oversee 15
district offices, 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 undergo extensive
training to perform L&C duties and ensure uniform application
and enforcement of state and federal laws, rules, and
regulations pertaining to patient care.
LA County Contract. 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 the same activities that state
staff perform in the rest of the state. Pursuant to this
contract, county staff is responsible for approximately 385
nursing homes operating within the county. This contracting
arrangement has been in place for decades. The current contract
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is set to expire at the end 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. For instance, if a complaint about a
facility staff person is received by DPH, and the staff person
is found to be at fault for abuse or mistreatment, the PCB
receives a referral to begin a licensing action. However, with
nearly 12,000 back-logged complaints, as many as 1,000 of them
PCB branch related, the question of to what extent is the
ongoing back-log contributing to unnecessary risk, or creating
an environment where a suspect may have free passage to escape
scrutiny, set-up activities in other environments, such as the
burgeoning home care industry, or in another state?
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
initiate an onsite investigation of a complaint against a
nursing home within 10 working days of receipt, though there is
no corresponding mandate to complete that investigation. 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, though, again, there is no corresponding
statutory obligation for the DPH to do anything beyond "an
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on-site initiation" of an investigation involving immediate
jeopardy.
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 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 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
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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 when CMS, DPH's
federal partner, demanded it due to chronic departmental
performance deficiencies. DPH contracted privately with 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, though the timeline for
completion of the existing backlog exceeds the Governor's term.
At the request of the Chairpersons of the Assembly Committees on
Health, and Aging and Long-Term Care, the Bureau of State
Audits, directed by the Joint Legislative Audit Committee,
studied DPH activities with regard to complaint investigations
and assurances of safe living environments for nursing home
residents. In October 2014, the California State Auditor
released its report regarding the L&C Program citing ineffective
management of nursing home complaint investigations, among other
deficiencies - some identified in previous audits. The key
findings of that report included:
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1)DPH should establish timeframes for complaint investigations;
2)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;
3)Despite backlogs and lengthy investigations, L&C 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;
4)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,
5)DPH failed to report all statutorily required information to
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the Legislature in certain years by omitting information
related to the timeliness of complaint investigations in their
2012 and 2013 reports to the Legislature.
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 most of the State
Auditor's recommendations, but disagrees with the recommendation
to establish a timeframe to complete investigations of nursing
home complaints (the audit did not address the corresponding
existing mandate for DPH to complete investigations in acute
hospital settings within 45 days). According to DPH, they
recognize the importance of the timeliness in completing
complaint and ERI investigations and remains 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
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implementation. However, it should be noted that the response
to the audit was composed and issued before the public release
of the Governor's request for 237 additional positions at DPH
L&C (see below). Additionally, the committee may wish to
consider whether the nature of "enhanced monitoring," "public
reporting," or "improved district office implementation" leads
to improved investigation performance. It is difficult to
determine how these largely passive administrative activities
can affect more timely investigations.
For instance, 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 percent of complaint investigations and 77 percent of ERI
investigations in 90 days or less. Despite enhanced monitoring
of workload activities, public reporting of workload
performance, and improved district office implementation, the
backlog has grown.
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,
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DPH estimates that it will take four years to complete pending,
back-logged investigation workload while keeping up with new
workload and avoiding backlogs. Given the on-going and
historical issues related to DPH's performance, it should be
noted that four years places the eventual solution of this well
documented problem beyond the authority of the current Governor,
and in light of DPH's historical well-documented challenges with
accountability, the Legislature may wish to consider if the
proposed work-plan to improve DPH performance is at risk of
becoming another unaccountable component of the DPH work
mandate.
Policy note. Health and Safety Code Section 1279.2 provides for
an investigation timeframe of 45 days for acute health care
hospital investigations. Does continued bifurcation of
investigation timeframes contribute to the often-raised
management and training complexities at DPH? With the known
obstacles to completing investigations, should acute setting
investigation timeframes and skilled nursing facility
investigation timeframes be synchronized, both settings allowing
for 45 working days, and both settings providing for a 30
working day extension, if and when necessary?
PREVIOUS LEGISLATION:
1)AB 1816 (Yamada) of 2014, was generally identical to AB 348
though dropped by the author when amendments changed the
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"timeframe" articulated in the measure to a "benchmark," a
largely administrative performance measurement.
2) 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.
3)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.
4)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 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."
5)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
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health facilities that are 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.
6)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.
7)AB 1731 (Shelley), Chapter 451, Statutes of 2000, enacts major
reforms for skilled nursing facilities 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.
REGISTERED SUPPORT / OPPOSITION:
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Support
American Association of Retired Persons (AARP)
The Arc and United Cerebral Palsy California Collaboration
California Association of Area Agencies On Aging
California Association of Health Facilities
California Commission on Aging (CCoA)
California Communities United Institute
California Continuing Care Residents Association (CALCRA)
California Hospital Association (CHA)
California Long-Term Care Ombudsman Association (CLTCOA)\
California Retired Teachers Association
California Senior Legislature
California State Council of the Service Employees International
Union (SEIU California)
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Consumer Federation of California
Disability Rights California
Elder and Dependent Adult Abuse prevention Council of Santa
Barbara County
LeadingAge California
National Association of Social Workers (NASW)-California Chapter
Office of the State Long-Term Care Ombudsman
Tenet Healthcare - Support if Amended
Three Individuals
Opposition
None on file.
Analysis Prepared by:Robert MacLaughlin / AGING & L.T.C. / (916)
319-3990
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