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,  







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            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  








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            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  








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          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  








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            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  
      







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            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 








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          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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