BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K Alquist, Chair
BILL NO: AB 392
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AUTHOR: Feuer
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AMENDED: May 11, 2009
HEARING DATE: June 10, 2009
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CONSULTANT:
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Bain/cjt
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SUBJECT
Appropriation for local ombudsman programs
SUMMARY
Appropriates $1.6 million from the Federal Health
Facilities Citation Penalties Account (Federal Account) to
the California Department of Aging (CDA) for local
ombudsman programs. Takes effect immediately as an urgency
statute.
CHANGES TO EXISTING LAW
Existing law:
Under existing law, long-term health care facilities are
defined to include skilled nursing facilities, intermediate
care facilities, congregate living facilities, nursing
facilities, and pediatric day health and respite
facilities. Existing law requires the Department of Public
Health (DPH) to inspect and license health facilities.
Under existing law, the Long-Term Care, Health, Safety, and
Security Act of 1973, DPH can assess penalties for
violations of prescribed state and federal requirements.
Money collected as a result of state and federal civil
penalties imposed under the existing state Long-Term Care,
Continued---
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Health, Safety, and Security Act of 1973, or federal law,
must be deposited into the State Health Facilities Citation
Penalties Account (State Account), which contains money
collected from violations of state law, or the Federal
Account, which contains money collected from violations of
federal law.
Existing law establishes the California State Long-Term
Care Ombudsman Program within CDA, and requires the Office
of the State Long-Term Care Ombudsman to investigate and
seek to resolve complaints and concerns communicated by, or
on behalf of, patients, residents, or clients of any
long-term care (LTC) facility (nursing facility, skilled
nursing facility or residential care facilities for the
elderly). Existing state law sets forth a distribution
formula by which CDA must allocate federal and state funds
for local ombudsman programs.
This bill:
This bill would appropriate $1.6 million from the Federal
Account to CDA for use in funding local ombudsman programs
under the existing distribution schedule. This bill would
authorize these funds to be used for this purpose through
the end of the 2009-10 fiscal year, at which time remaining
funds would be required to revert to the originating
account. The provisions of this bill would take immediate
effect as an urgency statute.
FISCAL IMPACT
According to the Assembly Appropriations Committee, a
one-time $1.6 million (federal) appropriation to CDA to
partially backfill a $3.8 million General Fund (GF)
line-item veto enacted in the 2008-09 Budget Act. This
bill makes funds available for expenditure through 2009-10.
Any unspent funds at the end of the 2009-10 fiscal year
would revert to the original federal account.
BACKGROUND AND DISCUSSION
According to the author, Governor Schwarzenegger vetoed
$3.8 million from local LTC ombudsman programs last year,
representing approximately half of the programs' funding.
As a result of the funding cut, local ombudsman programs
have had to lay off staff and drastically reduce services.
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The author states that these reductions have greatly
compromised the ombudsman programs' ability to investigate
complaints from residents and monitor facilities, thus
putting nursing home and assisted living residents at
greater risk of abuse and neglect.
The author states that this bill would immediately provide
$1.6 million for the local ombudsman programs by using
existing penalties paid by long-term care facilities that
have failed to comply with federal laws for the protection
of residents. The author states that this bill would
ensure that, at least for this year, California's
vulnerable and isolated elderly in long-term care
facilities are afforded protections from abuse and neglect
through the ombudsman's frequent unannounced visits, and
timely response to reports of suspected abuse and neglect.
Long-Term Care Ombudsman Programs
According to CDA, the primary responsibility of the
ombudsman program is to investigate and endeavor to resolve
complaints made by, or on behalf of, individual residents
in LTC facilities. CDA indicates the Office of the State
Long-Term Care Ombudsman develops policy and provides
oversight to the local Long-Term Care Ombudsman Programs,
confers with state licensing agencies regarding difficult
cases, meets with the CDA legal counsel to clarify laws and
develop plans for implementing them, defines program roles,
and provides ongoing statewide ombudsman training.
Residents or their family members can file a complaint
directly with the local Long-Term Care Ombudsman or by
calling a statewide toll-free telephone line.
CDA indicates the local Long-Term Care Ombudsman Program is
a community-supported program. Volunteers are an integral
part of this program. The Office of the State Long-Term
Care Ombudsman and its 35 local ombudsman program
coordinators are responsible for recruiting, training, and
supervising the volunteer ombudsman representatives.
In February 2009, CDA estimated as a result of the
Governor's budget veto, the number of paid staff in local
ombudsman programs will decline from 183 in 2007-08 to 117
in 2008-09 and 108 in 2009-10. CDA estimates the number of
complaints received will fall from 53,443 in 2007-08 to
40,082 in 2008-09 and 37,410 in 2009-10, with the number of
complaints verified and closed also projected to decline.
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CDA currently projects the number of volunteers will
increase from 858 in 2007-08 to 950 in 2008-09 and
declining to 850 in 2009-10. CDA estimates there will be
approximately 1,375 skilled nursing facilities and 8,050
residential care facilities for the elderly, with a
combined total of 296,000 beds, in California in 2009-10.
The 2007-08 budget appropriated $3.9 million GF in local
assistance funding for the Ombudsman Program and for Elder
Abuse Prevention. Governor Schwarzenegger line-item vetoed
all GF spending in 2008-09 and proposed no GF funding for
local assistance in 2009-10. In his veto message, the
governor cited the need to control state spending. Total
local assistance funding for the local ombudsman programs
in 2009-10 is $4.2 million ($2.7 million federal funds,
$1.4 million special deposit funds from the Federal
Account, with no GF funding).
State and federal penalty accounts
Under existing law, funds in the State Account and the
Federal Account must be used, upon appropriation by the
Legislature, in accordance with state and federal law for
the protection of health or property of residents of LTC
facilities, including, but not limited to, the following:
Relocation expenses incurred by DPH, in the event
of a facility closure;
Maintenance of facility operation pending
correction of deficiencies or closure, such as
temporary management or receivership, in the event
that the revenues of the facility are insufficient;
Reimbursing residents for personal funds lost; and,
The costs associated with informational meetings
required if DPH proceeds with a receivership petition.
Monetary awards presented under the Quality Awards Program
for nursing homes may also be paid from funds from the
Federal Account. Additionally, money from the Federal
Account in an amount up to $130,000 and upon appropriation
by the Legislature, may be used in accordance with state
and federal law for the improvement of quality of care and
quality of life for long-term health care facilities
residents.
In 2002, the Centers for Medicare and Medicaid Services
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(CMS) issued guidance to states in regard to the proper use
of civil monetary penalty (CMP) funds. CMS stated that
because CMP funds collected by a state are state funds, the
state may use the money for any project that directly
benefits facility residents, including funding an increase
in ombudsman services.
According to DPH, the estimated fund balance of the State
Account is projected to be $3.4 million at the beginning of
the 2009-2010 fiscal year, and the estimated balance of the
Federal Account is projected to be $3.5 million at the
beginning of the 2009-10 fiscal year. DPH indicates no
minimum fund balance is required for either account.
Arguments in support
Supporters of this bill include numerous individuals,
senior organizations and organizations serving seniors and
residents of LTC facilities, which argue that last year's
$3.8 million state budget cut to California's local
ombudsman programs severely compromised the programs'
ability to provide services and has put LTC residents at
risk of abuse and neglect. Supporters state that residents
and/or their families are often 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, and that ombudsman
presence, advocacy, and intervention are crucial to the
safety and well-being of facility residents.
Related legislation
AB 935 (Feuer) would have required at least one-half of the
funds in the State Account and the Federal Account to be
used to fund local ombudsman programs using the funding
distribution schedule in existing law. AB 935 was held on
the Assembly Appropriations suspense file.
PRIOR ACTIONS
Assembly Floor: 72-0
Assembly Appropriations: 16-0
Assembly Health: 13-0
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POSITIONS
Support: AARP California (co-sponsor)
Bet Tzedek Legal Services (co-sponsor)
California Advocates for Nursing Home Reform
(co-sponsor)
California Alliance for Retired Americans
(co-sponsor)
Catholic Charities of California (co-sponsor)
California Commission on Aging (co-sponsor)
Ombudsman & HICAP Services of Northern California
(co-sponsor)
Aging Services of California
Alzheimer's Association
Alliance on Aging
Catholic Charities Diocese of Stockton
Congress of California Seniors
Council on Aging Orange County Ombudsman
Damar Construction Inc.
HICAP Services of Northern California
Long Term Care Services of Ventura County, Inc.
Marin County Commission on Aging
Regional Council of Rural Counties
San Bernardino County Board of Supervisors
St. John's Pleasant Valley Hospital
Numerous individuals
Support (prior version):
California Senior Legislature
Council on Aging-Orange County
Cypress Place Senior Living
National Union of Healthcare Workers
Ombudsman Services of San Mateo County, Inc.
Professional Fiduciary Association of California
San Benito County Long Term Care Commission
San Francisco Gray Panthers
City of Seal Beach
Ventura County Board of Supervisors
Oppose: None received
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