BILL ANALYSIS
SENATE HEALTH AND HUMAN SERVICES
COMMITTEE ANALYSIS
Senator Deborah V. Ortiz, Chair
BILL NO: SB 1644
S
AUTHOR: Romero
B
AMENDED: March 22, 2004
HEARING DATE: March 24, 2004
1
FISCAL: Public Safety/Appropriations
6
4
CONSULTANT:
4
Vazquez/sl
SUBJECT
Long-term health care: deaths of residents: reporting
requirements
SUMMARY
This bill would require a long-term health care facility
and mandated reporters defined under the Elder Abuse and
Dependent Adult Civil Protection Act to report the death of
any resident of the facility to the county medical examiner
or coroner. In addition, any person who is not a mandated
reporter, under specified circumstances, may report the
abuse or death to the medical examiner or coroner.
ABSTRACT
Existing law:
1.Enacts the Long-Term Care, Health, Safety, and Security
Act of 1973, which establishes a citation system for the
imposition of civil sanctions against long-term health
care facilities in violation of federal and state laws
and regulations relating to patient care. That act also
establishes an inspection and reporting system to ensure
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that long-term health care facilities are in compliance
with state statutes and regulations pertaining to patient
care, and a provisional licensing mechanism to ensure
that full-term licenses are issued only to those
long-term health care facilities that meet state
standards relating to patient care. A violation of the
act is a misdemeanor.
2.Creates the Elder Abuse and Dependent Adult Civil
Protection Act, which defines mandated reporters and
establishes various procedures for the reporting,
investigation, and prosecution of elder and dependent
adult abuse. The act requires a mandated reporter, as
defined, to report known or suspected physical abuse,
abandonment, abduction, isolation, financial abuse, or
neglect of elder or dependent adults in long-term health
care facilities.
3.Requires coroners to inquire into and determine the
circumstances, manner, and cause of certain deaths,
including those that are violent, sudden, or unusual,
deaths wherein the deceased has not been attended by a
physician in the 20 days before death, known or suspected
homicide, suicide, or accidental poisoning, deaths of
patients in state hospitals serving the developmentally
disabled and operated by the State Department of
Developmental Services, and deaths under such
circumstances as to afford a reasonable ground to suspect
that the death was caused by the criminal act of another,
among other circumstances.
4.Defines long-term health care facility as any licensed
facility that is any of the following:
a. Skilled nursing facility.
b. Intermediate care facility.
c. Intermediate care facility/developmentally
disabled.
d. Intermediate care facility/developmentally disabled
habilitative.
e. Intermediate care facility/developmentally
disabled--nursing.
f. Congregate living health facility.
g. Nursing facility.
h. Pediatric day health and respite care facility.
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This bill:
1.Requires a long-term health facility to report the death
of any resident of the facility to the medical examiner
(ME) or coroner of the county in which the death
occurred.
2.Requires that this report be made in writing and include
the pertinent identifying information that the local
coronor or ME deems appropriate. The ME or coroner shall
provide acknowledgement of receipt of the report to the
person who made the report.
3.Requires a mandated reporter, defined under the Elder
Abuse and Dependent Adult Civil Protection Act, with the
exception of the State Department of Health Services
(DHS), to report an incident that reasonably appears to
be physical abuse, abandonment, abduction, isolation,
financial abuse, or neglect and that involves a resident
in a long-term health care facility and that resident who
is the subject of the report dies, to immediately upon
the resident's death, or within 24 hours of learning of
the death if the mandated reporter is not aware of the
death when it occurs, report the death and the incident
to the ME or coroner of the county in which the death
occurred.
4.Under the former provision, allows the mandated reporter
to communicate the report by telephone, facsimile, or
electronic mail. Requires the ME or coroner to whom the
report is made to provide acknowledgement of receipt of
the report to the mandated reporter who made the report.
5.Authorize persons who are not mandated reporters to
report to the ME or coroner instances of abuse and death
of residents in long-term health care facilities, and
require the ME or coroner to acknowledge receipt of the
report.
FISCAL IMPACT
It is uncertain what impact the additional responsibilities
imposed upon long term care facilities will have upon their
administrative function. In addition, the reporting and
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consideration of deaths to the county ME or coroner will
increase workload and may require additional support at the
local level.
BACKGROUND AND DISCUSSION
The bill requires long term care facilities (LTCFs) to
notify the local ME or coroner upon the death of any
elderly resident. It further requires mandated and
non-mandated reporters to report the death of any elderly
resident at a LTCF who has been the victim of abuse or is
suspected to have been the victim of abuse to the local ME
or coroner.
Background
Existing law requires reporting of known or suspected
incidents of elder abuse in LTCFs to the local ombudsman or
the local law enforcement agency. The Ombudsman or local
law enforcement agency must then make a report to the state
Department of Health Services (DHS). Only deaths involving
a question of abuse are required to be reported but not to
the local ME or coroner.
The author asserts that if there is a pattern of neglect or
abuse that has resulted in death that is occurring at a
facility, there is currently no way for the ME or coroner
to determine whether or not the death needs to be
investigated. It oftentimes takes the DHS months to
follow-up and to finalize an investigation on a complaint.
It is not uncommon for a deceased to be cremated or buried
within a day or so after the body has left a LTCF,
significantly reducing the opportunity for an
investigation.
By requiring the LTCF to notify the local coroner or ME
immediately or within 24 hours after the death of any
resident, they can quickly determine whether an autopsy is
necessary given the history of the LTCF. Requiring
mandated reporters to report deaths involving abuse to the
local coroner or ME would provide local authorities with
additional information as well.
Profile of residents in nursing homes
There are 1400 nursing homes in California with 110,000
beds. Approximately 210,000 residents occupy the beds each
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year. About 40,000 residents die every year. There is no
single source that tracks the deaths and their causes in
LTCF. The Office of Statewide Health Planning and
Development (OSHPD) tracks how many people die each year,
but not the causes of death.
Arguments in support
California Advocates for Nursing Home Reform argue that
currently no individual or entity mandated to report
incidents of known or suspected elder abuse has any
requirement to contact the county coroner or ME at any time
of the death of any resident of their facility. "Even if
there had been a serious spike in the numbers of deaths in
a facility, say for instance, ten or twenty in one week, a
coroner or ME would have no immediate way of knowing that
this occurred." Other proponents argue that by reviewing
the cause of death as determined by the coroner, the state
could learn more about the needs of the frail elderly.
Arguments in opposition
The California Association of Health Facilities (CAHF),
representing a majority of the state's licensed LTCFs,
states that the requirement in the bill to report every
death in a facility is unnecessary given the current legal
requirements for certain cases to be reported and
investigated by the coroner (cited under "Existing Law" in
this analysis). In addition, CAHF argues that the licensed
professional is the appropriate individual to be
responsible for determining whether a death should be
reported to the coroner. Current requirements dictate that
a licensed physician or physician assistant pronounces the
patient dead and documents this in the medical record.
Under certain circumstances, the death may be reported to
the coroner.
CAHF also states that "the mandate creates a system of
reporting information that is vulnerable to abuses by
individuals who have, in the past, tried to "drum up"
business for themselves by contacting families of deceased
individuals and encouraging them to file meritless lawsuits
against facilities, with the only basis for the suit being
that the individual died in a facility."
In addition, at the request of the Committee, CAHF is
offering the following amendments regarding the question of
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disclosure (raised in this analysis under "Questions for
Consideration") for the author to consider:
On Page 3, Lines 3-4:
Strike subsection 1418.92 (c), which states that a
facility's failure to comply with the reporting
requirement shall be a class "B" violation, and replace
it with the following:
(c) The information collected pursuant to subsection (a)
shall not be disclosed to the general public for any
purpose unless a court finds that the report meets the
requirements of law, including Section 27491.8 of the
Government Code and the admissibility requirements of the
California Evidence Code, and also finds that:
(1) The party requesting the information reported in
subsection (a) is the state or a local government entity;
or
(2) The party requesting the information reported in
subsection (a) was referred to or is the personal
representative of a person who was referred to, in the
report and they have requested only the specific
information that relates to the person in the report; or
(3) The party requesting the information reported in
subsection (a) has asked for an aggregate total number of
deaths that have occurred in all long-term care
facilities in the county, and the information does not
specify how many deaths have occurred at any individual
facility.
(d) Notwithstanding subsection (c), the Department of
Health Services may require disclosure of certain records
of the information reported in subsection (a) in so far
as such disclosure is necessary to determine the
compliance of the facility with this section.
Additional requested amendment
California Association for Health Services at Home
(CAHSAH), which represents over 400 licensed and/or
certified home health agencies, hospices, home care aide
organizations and other providers of services and products
in the home in California, requests an amendment to exempt
their providers from the requirements of this bill.
Recipients of hospice services receive 98% of their care in
the home, which can include a long term care facility,
including a skilled nursing facility or a congregate living
health facility. By definition, hospice care is provided
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to patients who have an anticipated life expectancy of six
months or less if the disease follows it normal course.
The patient's care is focused on providing comfort and not
a cure for the disease and death is certain.
CAHSAH requests that the author consider the following
change to exempt licensed and certified hospices, as
defined in Health and Safety Code 1745, and a licensed home
health agencies providing hospice care, as defined in
Health and Safety Code 1727, in a long term health care
facility:
Page 2, line 7: "?upon the death of the resident, other
than a resident receiving hospice services by a licensed
and certified hospice, as defined in Health and Safety
Code, Section 1745, and by a licensed home health agency
providing hospice care, as defined in Health and Safety
Code 1725."
Prior legislation
AB 1836 (Bates, Chapter 1068, Statutes of 2000), permitted
the county coroner or ME to receive medical records from
LTCF without getting a Superior Court order. This measure
is the logical next step and picks up where AB 1836 left
off. In order for a coroner or ME to know to ask for
records, they must first be notified that a death has
occurred. Also, one death by itself might not stand out,
but if there are a disproportionate number of deaths from
one facility, that is a pattern that could be detected if
the reports were being routinely forwarded to the coroner
or ME.
Questions for consideration
1.How does this bill change the role of the county coroner
or ME? Does it create an oversight function over LTCFs
that may duplicate the licensing and certification
function that currently resides with DHS?
2.Does the nature of the population within LTCFs alter the
way that multiple deaths within a short span of time may
be evaluated by an oversight office?
3.How will the reported information to the coroner or ME be
used? Will it be disclosed and available in some
fashion? What will be the standards for privacy and
confidentiality of this new class of reports of deaths
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occurring at LTCFs?
4.How will home health and hospice providers who serve
residents in LTCFs be affected by this bill? Should the
bill be amended to exempt them?
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POSITIONS
Support: California Senior Legislature (sponsor)
California Advocates for Nursing Home Reform
Consumer Attorneys of California
Older Women's League of California
Oppose: California Association of Health Facilities
California Association of Homes and Services
for the Aging
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