BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 348
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|AUTHOR: |Brown |
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|VERSION: |July 8, 2015 |
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|HEARING DATE: |July 15, 2015 | | |
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|CONSULTANT: |Vince Marchand |
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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 :
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|Assembly Floor: |80 - 0 |
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|Assembly Appropriations Committee: |17 - 0 |
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|Assembly Health Committee: |18 - 0 |
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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
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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
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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
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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
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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
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