BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 348 --------------------------------------------------------------- |AUTHOR: |Brown | |---------------+-----------------------------------------------| |VERSION: |July 8, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |July 15, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Vince Marchand | --------------------------------------------------------------- SUBJECT : Long-term health care facilities: complaints: investigations. SUMMARY : Requires the Department of Public Health (DPH) to apply the same time periods that are required for complaint investigations, inspections, and issuance of citations, to reports from licensed long-term health care facilities, and requires DPH to analyze its compliance on a quarterly basis with the time periods for investigations that were recently established by budget trailer bill language for complaints and expanded by this bill to facility reports. Existing law: 1)Provides for the licensure and regulation of long-term health care facilities by the Licensing and Certification Division (L&C) of DPH. Long-term health care facilities include skilled nursing facilities, intermediate care facilities, congregate living health facilities, nursing facilities, and pediatric day health and respite facilities. 2)Requires DPH upon receipt of a written or oral complaint against a long-term health care facility, to notify the complainant of the name of the assigned inspector within two working days of receipt of the complaint and to make an onsite inspection or investigation of the complaint within ten working days of receipt of the complaint. If a complaint involves the threat of imminent danger of death or serious bodily harm, DPH is required to make an onsite inspection or investigation of the facility within 24 hours of receipt of the complaint. 3)Requires DPH, when conducting an onsite inspection or investigation, to collect and evaluate all available evidence, AB 348 (Brown) Page 2 of ? and allows the department to issue a citation based upon specified factors, including observed conditions, statements of witnesses, and facility records. 4)Requires DPH, for complaints involving a threat of imminent danger of death or serious bodily harm received on or after July 1, 2016, to complete an investigation within 90 days of receipt of the complaint. Permits this time period to be extended up to an additional 60 days if the investigation cannot be completed due to extenuating circumstances, which are required to be documented. 5)Requires DPH, for complaints that do not involve a threat of imminent danger of death or serious bodily harm and that is received on or after July 1, 2017, and prior to July 1, 2018, to complete an investigation within 90 days of receipt of the complaint, but permits this time period to be extend by up to an additional 90 days due to extenuating circumstances. 6)Requires DPH, for complaints received after July 1, 2018, to complete an investigation within 60 days of receipt of the complaint, but permits this time period to be extended by up to an additional 60 days if the investigation cannot be completed due to extenuating circumstances. 7)Requires DPH to notify the complainant and the facility licensee, in writing, of its determinations upon completion completion of the investigation. If a complainant is dissatisfied with the department's determinations, DPH is required to notify the complainant of his or her right to an informal conference, and provides the complainant five days to request such a conference. 8)Defines "complaint," for purposes of the above provisions of law pertaining to long-term care facility complaint investigations, as any oral or written notice to DPH, 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 such a violation. 9)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 department resources to licensing and certification activities. The analysis must contain specified AB 348 (Brown) Page 3 of ? information, including the number and timeliness of complaint investigations, including data on DPH's compliance with the time periods for investigations recently established by trailer bill language. This bill: 1)Requires DPH to apply the same time periods that are required for complaint investigations, inspections, and issuance of citations, to reports from licensed long-term health care facilities of an alleged violation of law. 2)Requires DPH to analyze its compliance on a quarterly basis with the time periods for investigations that were recently established by budget trailer bill language for complaints and expanded by this bill to facility reports, and to post findings from this analysis on its Internet Web site. 3)Requires the analysis required in 2) above to provide data on DPH's performance, and to include, at a minimum, all of the following data elements: a) The number of open investigations; b) The number of completed investigations; c) The number and percentage of investigations completed within the initial time periods established in specified provisions of law; d) The number and percentage of investigations that required an extension of the time period as authorized under specified provisions of law; e) The number and percentage of investigations that required an extension and were completed within the extended time period; f) The average length of time to complete an investigation; and, g) The average length of time to complete an investigation that was not completed by the end of the extended time period authorized under specified provisions of existing law. 4)Makes technical, clarifying changes relating to the requirement that DPH document the extenuating circumstances necessitating any extensions of an investigation time period. FISCAL EFFECT : The Assembly Appropriations Committee analysis is not AB 348 (Brown) Page 4 of ? relevant as the bill, while retaining the same subject matter, has substantially changed in the Senate. PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |80 - 0 | |------------------------------------+----------------------------| |Assembly Appropriations Committee: |17 - 0 | |------------------------------------+----------------------------| |Assembly Health Committee: |18 - 0 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, California's long-term health care facilities, or "nursing homes," are subject to comprehensive state and federal mandates governing all aspects of resident care and facility operations. DPH's L&C personnel, also known as "surveyors," perform annual inspections, or surveys, of all state licensed long-term health care facilities to enforce both state and federal quality standards. Annual surveys include observations of resident care; interviews of residents, family members, staff or other individuals; and, inspection of medical records and other documents. DPH surveyors also investigate complaints submitted by consumers. Complaint investigations include inspections that are shorter than certification inspections, although they are also carried out pursuant to dual mandates from both federal and state laws and regulations. Under California and federal law, DPH must begin an onsite investigation of a complaint within 10 working days of receipt. If the complaint involves a threat of imminent danger of death, or serious bodily harm, state law requires DPH to investigate onsite within 24 hours of receipt of the complaint. Historically, DPH has failed to assess the true personnel needs of the licensing and certification unit, thus starving consumers of the accurate and timely information they need to make informed choices about the facility they wish to choose for their loved one. Budget action this year thankfully addressed this deficiency, but during the tense negotiations failed to include the thousands of Entity Reported Incidents (ERIs) into the timelines required for investigation. Without the inclusion of ERIs, thousands of AB 348 (Brown) Page 5 of ? injuries and other deprivations of personal and human rights may go unacknowledged. AB 348 makes a small change to the work the Budget Committees brilliantly achieved, including ERIs in the same timelines established for complaint investigation. 2)Difference between complaints and facility reports. Under existing law, DPH is required to establish a centralized consumer response unit within L&C to respond to consumer inquiries and complaints. The consumer response unit is required to initiate onsite investigations in response to oral or written complaints made if it determines that there is a reasonable basis to believe that the allegations in the complaints describe one or more violations of state law by a long-term care facility. "Complaints" are defined to mean any oral or written notice to DPH, 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 such a violation. Separately from the complaint process, existing law requires long-term health care facilities to report all incidents of alleged abuse or suspected abuse of a resident of the facility to DPH immediately, or within 24 hours. Because these "facility reports," which are also referred to as ERIs, are specifically excluded from the definition of a complaint, and because the recently enacted time limits for investigations only refer to complaints, this bill is extending those time limits to facility reports. 3)History of poor performance. There have been long-standing concerns about the L&C program, with multiple legislative oversight hearings, audits, and media reports. In 2005, the California Advocates for Nursing Home Reform (CANHR) and two consumers sued DPH (technically, they sued Department of Health Services, which was DPH's predecessor) to force DPH to comply with the requirement that the initial onsite investigation of a complaint happen within 10 days of receipt of a complaint. The lawsuit included a quote from a newspaper article in which the individual in charge of DPH's L&C acknowledged that DPH often failed to meet the 10-day requirement because DPH did not have enough inspectors. The court issued an order as a result of this lawsuit in 2006, which established several performance benchmarks, including onsite investigations being conducted within ten days for 80% of new complaints through April of 2007, and 100% compliance AB 348 (Brown) Page 6 of ? for new complaints beginning in May of 2007. The court also ordered DPH to clear the entire backlog of complaints by September of 2006. In April of 2007, the Bureau of State Audits (BSA) released its report concerning DPH's oversight of skilled nursing facilities. BSA concluded that DPH struggled to initiate and close complaint investigations and communicate with complainants in a timely manner, and did not correctly prioritize certain complaints it received. BSA found that DPH's data on complaints were of undetermined reliability, but according to this data, DPH promptly initiated investigations for only 51% of the complaints for which it began investigations, and promptly completed investigations only 39% of the time. In October of 2014, BSA released another audit report, entitled California Department of Public Health: It Has Not Effectively Managed Investigations of Complaints Related to Long-Term Health Care Facilities. The findings from this report include: a) DPH's oversight of complaints processing is inadequate and has contributed to the large number of open complaints and entity reported incidents, with more than 11,000 complaints and entity-reported incidents open for an average of nearly a year; b) DPH does not have accurate data about the status of investigations into complaints against individuals; c) DPH has not established formal policies and procedures for ensuring prompt completion of investigations of complaints related to facilities or to the individuals it certifies; and, d) DPH did not consistently meeting certain time frames for initiating complaints and entity-reported incidents. 4)Federal 60-day benchmark. In May 2012, the federal Centers for Medicare and Medicaid Services (CMS) informed DPH that a portion ($1,565,384) of the allocation that it provides to DPH to perform CMS surveys and certification of long-term care facilities was being withheld, and would be released only if DPH met certain benchmarks. According to CMS, DPH had a backlog of over 8,500 complaint investigations that had not been completed in 2012 and more than 2,200 additional complaints that it had not even begun to investigate. These benchmarks, among other things, required DPH to hire new staff AB 348 (Brown) Page 7 of ? as part of a process toward achieving a full complement of staff, ensure managers received specified training, and establish, use, monitor and evaluate a statewide tracking system for its workload. These benchmarks also required DPH to develop policies and procedures for the investigation of complaints in CMS-certified long-term care facilities, provide complaint investigation training to all staff, and to investigate and close complaints against long-term care facilities within 60 days. In December 2013, DPH responded to CMS on its progress in meeting its benchmarks, and stated that it met 38 out of 39 benchmarks. The only benchmark that DPH failed to meet was related to completing investigations within 60 days. DPH reported that instead of the required benchmark of closing 95% of complaints within 60 days, the compliance rate for this benchmark was only 64%. 5)2015-16 Budget increased funding, established investigation time limits. According to agenda items from the Senate Budget Subcommittee #3 on Health and Human Services, during the 2014-15 budget subcommittee process, DPH indicated that it understood the concerns about its L&C program, and was in the process of conducting a complete evaluation of its program. In response to CMS's concerns, L&C contracted with Hubbert Systems Consulting for an organizational assessment of its effectiveness and performance, which provided 21 recommendations for program improvement. For the current 2015-16 budget year, $2 million was approved to implement quality improvement projects recommended by Hubbert Systems Consulting. In addition, 237 permanent positions were added to the L&C program in order to reduce the number of open complaints and decrease the average number of days to close complaints. Similarly, more funding was approved for a contract with Los Angeles County, which performs licensing and certification activities on behalf of DPH in Los Angeles County. The additional funds are intended to enable Los Angeles County to hire 32 additional positions, and allow the County to fill currently authorized positions that are vacant due to insufficient funding in the contract. Beyond the additional funds, the current budget includes trailer bill language, enacted as part of SB 75 (Committee on Budget and Fiscal Review, Chapter 18, Statutes of 2015.) This trailer bill required, beginning on July 1, 2016, that all investigations of complaints of long-term health care facilities involving danger of death or serious bodily harm be AB 348 (Brown) Page 8 of ? completed within 90 days, with an additional 60 day extension for extenuating circumstances. Complaints not involving risk of death or bodily injury are also required to be completed within 90 days, but not beginning until July 1, 2017, and these complaints can be extended for an additional 90 days for extenuating circumstances. Finally, beginning on July 1, 2018 (after all backlogs should have been eliminated), all complaints are required to be completed within 60 days, with an extension of another 60 days for extenuating circumstances. 6)Quarterly reporting requirement vs. existing reporting requirement. This bill requires DPH to analyze its compliance with the recently enacted time periods on a quarterly basis, and to post findings from this analysis on its Internet Web site, also on a quarterly basis. This bill specifies several data points that must be included in this analysis, such as the number and percentage of investigations completed within the initial time period, and within the extended time period. However, the recently enacted trailer bill also amended an existing requirement that DPH annually post on the Internet a staffing and systems analysis by requiring this analysis to include data on DPH's compliance with the time periods for investigation. This existing report is an annual report, as opposed to the quarterly requirement in this bill, and does detail the specific data elements that are specified by this bill. According to the author, DPH has already been voluntarily posting investigation data on a quarterly basis, and this bill just places this into statute. 7)Related legislation. SB 75 (Committee on Budget and Fiscal Review),was the omnibus health trailer bill, and contained changes to implement the 2015-16 Budget. Among the provisions of this bill were requirements that investigations of long-term health care facilities be completed within 90 days, as specified, until July 1, 2018, at which point investigations would have to be completed within 60 days. 8)Prior legislation. AB 1816 (Yamada, 2014), would have required DPH to set a performance benchmark of at least within 60 days for completing investigations of complaints against long-term health care facilities. AB 1816 was held in the Senate Appropriations Committee. AB 1710 (Yamada, Chapter 672, Statutes of 2012), revised how nursing home administrator licensing fees are adjusted so that AB 348 (Brown) Page 9 of ? fee revenue is sufficient to cover the regulatory costs to CDPH, and revised and increased CDPH reporting requirements regarding the Nursing Home Administrator Program. SB 799 (Negrete-McLeod, 2011) would have required CDPH to complete long-term care facility complaint investigations within a 90-working day period. SB 799 was held on the Senate Appropriations Committee suspense file. AB 399 (Feuer, 2007), would have established a 40-day timeframe in which CDPH must complete a long-term care facility complaint investigation. AB 399 was vetoed by Governor Schwarzenegger, who stated that while he believed this bill was well-intentioned, it was premature to place additional investigation requirements on this program as it continues to demonstrate progress in meeting its mandated state and federal workload. SB 1312 (Alquist, Chapter 895, Statutes of 2006), required inspections and investigations of long-term care facilities certified by CMS to determine compliance with federal standards and California statutes and regulations. AB 1629 (Frommer, Chapter 875, Statutes of 2004), established a quality assurance fee on skilled nursing facilities. AB 358 (Jackson, 2003), would have required DHS to complete a final determination of each long-term health care facility complaint within 65 working days of receipt of the complaint with a 30-day extension for good cause. The provisions of this bill were deleted and replaced with new provisions unrelated to long-term health care facilities. AB 1731 (Shelley, Chapter 451, Statutes of 2000), increased nursing home oversight and enforcement, including specific procedures and timeframes relating to handling of complaints. 9)Support. This bill is sponsored by CANHR, which states that this is a simple but powerful bill that would build upon SB 75's breakthrough to require DPH to complete nursing home complaint investigations within reasonable timelines. CANHR states that originally, this bill would have established identical timelines for investigating nursing home complaints filed by the public and facility reported incidents of abuse AB 348 (Brown) Page 10 of ? and neglect. However, now that the Governor has signed SB 75, which contains new timelines for public complaints, this bill has been amended to establish the same timelines for completing investigations of facility reports. This bill is supported by numerous other organizations. The Office of the State Long-Term Care Ombudsman states in support that DPH often takes years to investigate complaints of abuse and neglect, and that timely investigation of complaints will help prevent further mistreatment. The California Retired Teachers Association states that this bill will strengthen and improve the oversight and enforcement process for long-term care facilities, making important strides to ensure the safety of California's seniors. Bet Tzedek states in support that the timeline enacted through SB 75 will not apply to incidents of abuse and neglect reported by nursing homes, which number about 20,000 per year, and that this is simply unacceptable. 10)Support with recommendation. The California Association of Health Facilities (CAHF) states that it supports this bill, but would recommend that the author consider requiring DPH to develop clear statewide criteria and guidelines on what constitutes an entity-reported incident and how DPH investigates those facility self-reported incidents. According to CAHF, as of now, there is inconsistency by DPH and discrepancies with these standards and this creates confusion and frustration among CAHF members, as well as adds to the backlog of investigation inside DPH. SUPPORT AND OPPOSITION : Support: California Advocates for Nursing Home Reform (sponsor) AARP Advisory Council of the Central Coast Commission for Senior Citizens Area Agency on Aging American Federation of State, County and Municipal Employees Arc and United Cerebral Palsy California Foundation Bet Tzedek Legal Services California Association of Area Agencies on Aging California Association of Health Facilities California Chapter of the National Association of Social Workers California Commission on Aging California Communities United Institute California Continuing Care Residents Association California Hospital Association California Long-Term Care Ombudsman Association AB 348 (Brown) Page 11 of ? California Retired Teachers Association California Senior Legislature California State Council of the Service Employees International Union California State Retirees Coalition of California Welfare Rights Organizations, Inc. Consumer Attorneys of California Consumer Federation of California Disability Rights California Elder and Dependent Adult Abuse Prevention Council of Santa Barbara County Huntington Hospital Pasadena Leading Age California Office of the State Long-Term Care Ombudsman Numerous individuals Oppose: None received -- END --