BILL ANALYSIS
AB 392
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 392 (Feuer and Jones) - As Introduced: February 23, 2009
SUBJECT : Long-term health care facilities.
SUMMARY : Requires that at least half of the funds in existing
federal and state citation penalties accounts be used to restore
funding for local long-term care ombudsman programs.
Specifically, this bill :
1)Requires that at least half of the funds in the State Health
Facilities Citation Penalties Account and the Federal Health
Facilities Citation Penalties Account be used to fund local
ombudsman programs.
2)Requires that remaining funds in the accounts that are not
used in accordance with 1) above be used in accordance with
state and federal law for the protection of health or property
of residents of long-term health care facilities.
3)Makes other technical non-substantive changes.
EXISTING LAW :
1)Authorizes the California State Long-Term Care Ombudsman
Program by the federal Older Americans Act and its State
companion, the Older Californians Act, to investigate and
endeavor to resolve complaints made by, or on behalf of,
individual residents in long-term care facilities.
2)Establishes the State Health Facilities Citation Penalties
Account into which monies derived from civil penalties levied
against long-term care facilities for violations of state law
are deposited.
3)Establishes the federal Health Facilities Citation Penalties
Account, into which monies derived from civil penalties levied
against long-term care facilities for violations of federal
law are deposited.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
AB 392
Page 2
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, in September
of 2008, the Governor, through a line item veto, eliminated
all state funding for the Long-Term Care Ombudsman Program by
approximately $3.8 million, which represented about half of
the local program funding. According to the sponsors of this
bill, as of January 5, 2009, more than 80 staff ombudsman
positions have been eliminated due to the state funding cuts.
Advocates maintain that the funding cuts are causing a
devastating impact on long-term care ombudsman programs
throughout California and are greatly compromising their
abilities to investigate complaints, monitor facilities and
advocate on behalf of long-term care facility residents,
putting the most vulnerable segment of our population at
greater risk of abuse and neglect.
2)BACKGROUND . According to the California Department of Aging's
(CDA's) Web site, since its inception over thirty years ago,
the primary responsibility of the Long-Term Care Ombudsman
Program is to investigate and endeavor to resolve complaints
made by, or on behalf of, individual residents in long-term
care facilities. These facilities include nursing homes,
residential care facilities for the elderly, and
assisted-living facilities. The Long-Term Care Ombudsman
Program also investigates elder abuse complaints in long-term
care facilities and in residential care facilities for the
elderly.
The Long-Term Care Ombudsman Program is administered by CDA and
is a community-supported program that extensively utilizes
volunteers. The paid staff of 35 local Ombudsman Program
Coordinators are responsible for recruiting, training, and
supervising nearly 1,200 volunteer state-certified ombudsman
representatives. The Program's goal to advocate for the
rights of all residents of long-term care facilities takes two
forms: a) To receive and resolve individual complaints and
issues by, or on behalf of, these residents; and, b) To pursue
resident advocacy in the long-term care system, its laws,
policies, regulations, and administration through public
education and consensus building. Residents or their family
members can file a complaint directly with the Long-Term Care
Ombudsman or by calling the state administered CRISISline.
All long-term care facilities are required to post, in a
AB 392
Page 3
conspicuous location, the phone number for the local ombudsman
office and the toll-free Statewide CRISISline number. The
CRISISline is available 24 hours a day, 7 days a week to take
calls and refer complaints from residents.
3)PENALTY ACCOUNTS . According to the Department of Public
Health (DPH), current state law provides the authority to
deposit moneys colleted as a result of state and federal civil
penalties imposed against health facilities for non-compliance
with state and federal laws into two accounts: the State
Health Facilities Citation Penalties Account (State Account)
and the Federal Health Facilities Citation Penalties Account
(Federal Account). Monies from these accounts are to be used,
upon appropriation by the Legislature, in accordance with
state and federal law for the protection of health or property
of residents of long-term health care facilities, including,
but not limited to the following: a) Relocation expenses
incurred by the state, in the event of a facility closure; b)
Maintenance of facility operation pending correction of
deficiencies or closure, such as temporary management or
receivership; c) Reimbursing residents for personal funds
lost; and, d) Costs associated with informational meetings
required under existing law.
There is a $10 million cap on the allowable fund balance for the
State Account. There is no cap on the fund balance for the
Federal Account.
4)SUPPORT . According to supporters of this bill, last year's
$3.8 million state budget cut to California's local ombudsman
programs has severely compromised the Program's ability to
provide services and has put long-term care residents at risk
of abuse and neglect. Numerous individuals, including former
volunteer ombudsman and family members of residents of
long-term care facilities, state that often residents and/or
their families are hesitant to make complaints to the
appropriate regulatory agency fearing retaliation by the
facility staff. Supporters further state that residents
depend on ombudsmen to provide a voice for them when their
rights have been violated. Supporters maintain that ombudsman
presence, advocacy, and intervention are crucial to the safety
and well-being of facility residents.
5)OPPOSE UNLESS AMENDED . The California Association of Health
Facilities (CAHF) and Aging Services of California are opposed
AB 392
Page 4
unless amended to this bill. According to CAHF, monies in the
citation penalty accounts should remain available to DPH for
their use in critical programs for the protection of health or
property of residents of long-term health care facilities.
CAHF maintains that DPH needs the money in the accounts to
protect residents in problem facilities. CAHF further
maintains that funding the ombudsman programs through citation
penalties levied against facilities might encourage the wrong
behavior by giving the ombudsman a stake in making sure there
was funding in the penalty account to support their program.
CAHF states it would be supportive of applying any amount
collected in the State Account over the $10 million cap to go
towards funding local ombudsman programs. CAHF would also be
supportive of seeking other potential sources of funding
including a tax check off or diversion of funds from other
programs within CDA. Aging Services of California (ASC)
maintains that it is the state's responsibility to support the
ombudsman program through general funds and not rely so
heavily on penalty funds whose resources are needed elsewhere.
ASC states that unless the amount of funds reserved for the
ombudsman program is more limited than currently described and
the ombudsman's access to the penalty fund accounts is sunset
within three years, ASC will remain opposed.
6)AUTHOR'S AMENDMENTS . The author is proposing to offer
amendments in Committee to delete the current proposal and
instead appropriate $1.6 million from the Federal Health
Facilities Citation Penalties Account to CDA for use in
funding local ombudsman programs through the end of 2009-10
fiscal year, at which time remaining funds will revert to the
originating account. The author's proposed amendments also
add an urgency clause to ensure the provisions of this bill go
into immediate effect upon enactment.
REGISTERED SUPPORT / OPPOSITION :
Support
AARP, California (cosponsor)
Bet Tzedek Legal Services (cosponsor)
California Alliance for Retired Americans (cosponsor)
California Commission on Aging (cosponsor)
California Senior Legislature (cosponsor)
Catholic Charities of California (cosponsor)
Ombudsman & HICAP Services of Northern California (cosponsor)
AB 392
Page 5
Advocacy, Inc.
Alzheimer's Association, California Council
American Federation of State, County and Municipal Employees,
AFL-CIO
At Your Service Home Care
California Advocates for Nursing Home Reform
California Association for Adult Day Services
California Long-Term Care Ombudsman Association
Congress of California Seniors
Council on Aging, Orange County
Cypress Place Senior Living
Healthcare Management, Placements & Referrals
Independent Advocacy
Innovative Solutions Insurance Services
Institute for Healthy & Aging, University of California San
Francisco
North Bay Eldercare Options
Ombudsman Services of San Mateo County
Ombudsman/Advocacy Services of Inyo-Mono
Professional Fiduciary Association of California
San Bernardino County Board of Supervisors
Senior Advocacy Services
Taylor Elder Care Management
Ventura County Board of Supervisors
Victoria Care Center
Volunteer Center of Riverside
Wise & Healthy Aging Long-Term Care Ombudsman Program
Wise Adult Day Service Center
Numerous individuals
Oppose Unless Amended
Aging Services of California
California Association of Health Facilities
Opposition
None on file.
Analysis Prepared by : Tanya Robinson-Taylor / HEALTH / (916)
319-2097