BILL ANALYSIS
AB 535
Page 1
Date of Hearing: January 5, 2010
ASSEMBLY COMMITTEE ON HEALTH
Dave Jones, Chair
AB 535 (Ammiano) - As Amended: January 4, 2010
SUBJECT : Elder death review teams.
SUMMARY : Requires long term care (LTC) facilities within a
county that has an elder death review team (EDRT) to report the
death of a resident who is 65 years or older to the EDRT and
allows EDRTs to have access to information contained in the
State of California's electronic death data. Specifically, this
bill :
1)Requires the LTC facility to notify the EDRT as soon as
possible, but no later than 24 hours, after the death of the
resident.
2)Requires the notification to include the gender, place of
death, and time of death.
3)Specifies that failure to comply with the reporting
requirement is a Class "B" violation.
4)Allows the chair, co-chair, or specified agent of a county
EDRT to access the following information in a county that
elects to participate in the Internet-based electronic death
registration system:
a) Place of death;
b) Name;
c) Date of birth; and,
d) Cause of death.
5)Adds electronic data from certificates of death from the local
registrar of births and deaths to the types of information
already established in existing law that may be disclosed to
an EDRT.
6)Stipulates that the information in #2 above is subject to any
fee requirements.
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EXISTING LAW :
1)Requires the Department of Public Health (DPH) to license LTC
facilities, conduct annual unannounced inspections, and to
investigate complaints about care provided in these
facilities. Violations of licensing standards are punishable
by specified citations and penalties.
2)Defines class "B" citations as violations which DPH determines
have a direct relationship to the health, safety, or security
of LTC residents. Class "B" violations are subject to civil
penalties of $100 to $1,000 for each violation.
3)Requires, by regulation, that every death from unnatural
causes and any unusual occurrence which threatens the welfare,
health or safety of patients be reported to DPH within 24
hours.
4)Defines abuse of an elder or a dependent adult as either: a)
physical abuse, neglect, financial abuse, abandonment,
isolation, abduction, or other treatment with resulting
physical harm or pain or mental suffering; or, b) deprivation
by a care custodian of goods or services that are necessary to
avoid physical harm or mental suffering.
5)Requires all LTC facilities to report all incidents of alleged
or suspected abuse to DPH within 24 hours.
6)Requires, by regulations, DPH to conduct on-site visits if the
abuse, unusual occurrence, or death reported indicates
continuing threat to health, safety, and welfare of the
patients.
7)Mandates certain individuals to report known or suspected
instances of elder abuse to the local ombudsperson. These
include:
a) Physicians and medical professionals;
b) Clergy;
c) All employees of health care facilities, such as
hospitals, skilled nursing facilities (SNFs), adult day
care centers, and residential care facilities; and,
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d) Any individual who assumes responsibility for the care
or custody of an elderly person.
8)Establishes the LTC Ombudsman Program which is authorized
through the federal Older Americans Act (OAA) and its state
companion, the Mello-Granlund Older Californians Act. The
primary responsibility of the program is to investigate and
attempt to resolve complaints made by, or on behalf of,
individual residents in LTC facilities.
9)Defines the LTC ombudsman as the State Long-Term Care
Ombudsman, local ombudsman coordinators, and other persons
currently certified as ombudsmen by the California Department
of Aging (CDA).
10)Requires the local ombudsman and the local law enforcement
agency to report cases of known or suspected elder abuse to
the local district attorney's office and to DPH.
11)Requires physicians, physician assistants, and funeral
directors to report suspicious deaths to the coroner and
authorizes the coroner to investigate the death.
12)Requires the medical and health section of the physician's or
coroner's certification to be completed by the attending
physician within 15 hours of death or by the coroner within
three days of examination.
13)Requires the physician to deposit the certificate at the
place of death or to the attending funeral director within 15
hours after the death.
14)Allows each county to establish an interagency EDRT to assist
local agencies in identifying and reviewing suspicious elder
deaths and facilitating communication among persons involved
in investigating elder abuse cases.
15)Allows disclosure of the following to an EDRT:
a) Medical information, as specified;
b) Mental health information, as specified;
c) Information from elder abuse reports and investigations,
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except the identity of the persons who made the reports;
d) State summary criminal history information, criminal
offender record information, and local summary criminal
history information, as specified;
e) Information pertaining to reports by health
practitioners of persons suffering from physical injuries
inflicted by means of a firearm or of persons suffering
physical injury where the injury is a result of assaultive
or abusive conduct;
f) Information provided to probation officers in the course
of the performance of their duties, as specified;
g) Records relating to in-home supportive services, unless
disclosure is prohibited by federal law;
h) Information normally covered by the attorney-client
privilege, physician-patient privilege, or psychotherapist
privilege; and,
i) Information in the possession of each organization
represented to other members of the team concerning the
decedent who is the subject of the review or any person who
was in contact with the decedent and any other information
deemed by the organization to be pertinent to the review.
16)Requires information gathered by the EDRT and any
recommendations made by the EDRT to be used by the county to
develop education, prevention, and, if necessary, prosecution
strategies that will lead to improved coordination of services
for families and the elder population.
17)Allows disclosure of written and oral communication to
members of the EDRT regardless of whether such information is
considered privileged under existing law, prohibits disclosure
to a third person.
18)Imposes specified requirements for collecting information
regarding death certificates and requires each death to be
registered with the local registrar of births and deaths in
the district which the death was officially pronounced or the
body was found within eight calendar days after death and
prior to any disposition of the human remains.
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19)Establishes the Internet-based electronic death registration
system within DPH, limited to proper use of the death
information created, stored, and transferred within the system
and subject to any limitation placed on the accessibility and
release of personally identifying information contained in
those death records.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, there is
currently no mechanism to determine patterns of deaths or
abuse that may develop in a given LTC facility unless a
complaint is made to the LTC ombudsperson. The author states
that the intent of this bill is to allow the local county EDRT
to review data by facility in order to identify potential
problem areas. The author points out that this bill builds on
EDRTs existing role to filter information on suspicious deaths
and identify patterns. The author further states that this
bill is intended to fill an existing gap in the information
available to EDRTs and local ombudspersons in that they
receive complaint information but not deaths by facility and
even though death certificate information is available, it
does not necessarily include the residence at time of death.
Furthermore, only deaths identified as "suspicious" are
reported to the coroner for investigation.
2)BACKGROUND . According to the California Association of Health
Facilities (CAHF), there are approximately 1400 nursing care
facilities with 125,000 beds and approximately 300,000
residents. Based on data reported by facilities to the Office
of Statewide Health Planning and Development (OSHPD) there are
approximately 33,000 deaths of residents annually. This bill
also applies to approximately 1,100 intermediate care
facilities for the developmentally disabled serving over 8000
residents.
Currently the data of deaths in LTC facilities is a report from
OSHPD at the end of each calendar year. There is no daily,
monthly, or quarterly reporting to OSHPD of the deaths of
residents. When an elderly, terminally or chronically ill
resident dies in a LTC facility, a physician or physician's
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assistant completes a death certificate and the medical and
health section data of the certificate. However, physicians
or physician's assistants do not track instances of deaths in
nursing homes. In addition, DPH does not track and is not set
up to review patterns of deaths in nursing homes. The Minimum
Data Sets, which facilities fill out for residents, are sent
to the Centers for Medicare and Medicaid Services for
information on Medicare and Medi-Cal payment and national
policy studies but not to track patterns of deaths in
individual facilities.
3)EDRT . SB 333 (Escutia), Chapter 301, Statutes of 2001,
authorizes counties to establish an interagency EDRT to assist
local agencies in identifying and reviewing suspicious elder
deaths. EDRT's were modeled after interagency child death
review teams and domestic violence review teams. Pursuant to
SB 333, counties are authorized to use EDRTs to develop a
protocol that could be used to guide coroners and other
persons performing autopsies in identifying elder abuse for
the purpose of determining whether elder abuse or neglect
contributed to an elder death. According to the Sacramento
County EDRT Website ( www.sacedrt.org ), 33 counties have
EDRTs. The goals of EDRTs are:
a) Prevent elder abuse fatalities;
b) Examine deaths of elders with suspected elder abuse
and/or neglect;
c) Identify patterns that lead to fatal outcomes;
d) Determine whether reviewed deaths could have been
preventable;
e) Develop prevention strategies;
f) Increase awareness of the responsibility of each health
care provider to consider abuse or neglect as a
contributing factor to death;
g) Increase awareness of the responsibility of each health
care provider to refer cases arising from abuse or neglect
to the appropriate agencies including, but not limited to:
coroner; adult protective services; state licensing
department; ombudsman; and, law enforcement;
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h) Improve system responses by identifying gaps in delivery
services;
i) Prosecution of offenders; and,
j) Develop intervention strategies to reduce fatalities and
eliminate ongoing abuse and/or neglect.
The purpose of EDRTs is to assist local agencies in
identifying and reviewing suspicious elder deaths and
facilitating communication among persons who perform autopsies
and the various agencies involved in elder abuse and neglect
cases. SB 333 provides that the information gathered and any
recommendations made shall be used by the county to develop
education, prevention, and if necessary prosecutions
strategies that will lead to improved coordination of services
for families and the elder population. SB 333 also authorized
each county to develop protocols to be used as guidelines for
autopsies in order to assist coroners in the identification of
elder abuse and in the proper reporting requirements. Every
oral or written communication or document is confidential and
immune from disclosure or discovery.
4)POLICY QUESTIONS .
a) Resources of EDRTs . EDRTs are generally convened by
either a representative of the local district attorney's
office, the local social services agency, the aging agency,
or the coroner. There is no funding mechanism. The
agencies and community members who participate volunteer
their time and resources. In San Francisco, the EDRT meets
monthly. In Sacramento, the EDRT has reduced the frequency
from monthly to quarterly due to reduced resources.
According to the "County of Sacramento, Elder Review Team,
2008 Report," 39 death cases were reviewed in that year.
There are approximately 33,000 deaths in LTC facilities
annually statewide. Extrapolating from the statewide
number, as an example, the Sacramento EDRT would receive
approximately 3,000 reports annually under this bill.
Given the limited resources it is not clear that the EDRTs
would have the time or resources to obtain any benefit from
this raw data.
b) Use of data . This bill does not specify a protocol or
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use of the data. According to the author, the intent is
that each EDRT will use the reported death information to
match it to abuse reports from LTC facilities and death
certificate information. The author states that the
purpose is to identify patterns in particular facilities
and identify LTC facilities which may need to address
underlying problems with internal policies and procedures
that may be hastening some deaths. However, existing law
prohibits the information acquired by the EDRT from being
released to a third party. The author may wish to explain
how this data can be used to address facility specific
problems given the limitations on the use of information by
an EDRT.
c) Purpose of EDRT . Although EDRTs are authorized to
review individual suspicious deaths, the statutory mandate
and intent of EDRTs is more general. Specifically to
facilitate communication among local agencies in
identifying and reviewing these deaths, to develop
recommendations for policies and protocols for prevention
and intervention initiatives, to reduce the incidence of
elder abuse and neglect, and to develop protocols for
autopsies in elder abuse cases. DPH, on the other hand, is
the licensing authority with the responsibility for
oversight of individual facilities. Is the intent of this
bill to identify individual LTC facilities with problems,
consistent with the original purpose of the EDRTs? Isn't
that the role of DPH?
d) Potential for breach of confidentiality . EDRTs are
composed of local agency staff and may also include
community members and volunteers. Existing law does not
designate an oversight or lead agency. Therefore, there is
no mechanism to enforce confidentiality. The local
agencies that would usually police this are all members,
such as the local district attorney, the coroner, and the
county aging or social services agency. There is no
independent agency to investigate breaches. This potential
would be enhanced by the increase in volume of confidential
information that would be released to EDRT members under
this bill.
e) Natural cause vs. suspicious circumstances . The death
of a LTC resident may be the result of a terminal illness
and the care and treatment at end of life may have been
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consistent with the wishes of the family and resident. For
instance, this bill covers facilities with hospice beds.
The EDRT will not have all relevant information, such as
advance medical directives and "do not resuscitate orders."
The author may wish to add protections to ensure that only
deaths with independent indicia of circumstances out of the
ordinary are investigated.
f) Identification of EDRTs . EDRTs are voluntary and not
every county has one. A self-designated local agency acts
as the contact agency. However, this bill does not specify
how the LTC facility will be able to identify the EDRT
contact or where the death report is to be sent. The
author may wish to clarify this.
g) DPH enforcement . This bill provides that failure to
report a death to the EDRT would be a class "B" license
violation. DPH license violation investigations result
from a variety of sources such as an unusual occurrence
report from the LTC facility to DPH, complaints from the
family or the local ombudsperson, or routine regulatory
inspections. It is not clear how DPH would enforce the
mandate created by this bill as there is no relationship
between county EDRTs and DPH and no way for DPH to monitor
compliance. Furthermore, not every county has an EDRT and
there is no centralized registry or list. How will DPH
even know whether the facility is in a county with an EDRT
to trigger this mandate?
h) Time of death . Currently, when a resident dies, a
licensed physician or physician's assistant completes a
death certificate and the medical and health section of the
death certificate and it must be documented in the medical
record. Even though the LTC facility has no role in
determining death, this bill places the reporting mandate
on the facility. As the facility does not determine death,
it is not clear at what point the LTC facility will have
been considered to have knowledge and from what point the
24 hour requirement would run.
i) Notice to the LTC facility . If a resident becomes
critically ill in a LTC facility, the facility will act
according to medical directives from the patient and may
call the family and the treating physician. However, in
the absence of contrary directives, the resident may be
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transported to an acute care hospital or emergency
department. If the resident subsequently dies at the
hospital, the person may still be a resident of the LTC
facility. This bill requires the death to be reported by
the LTC within 24 hours of death. However, compliance may
be impossible as the LTC facility may not have notice
within 24 hours. There is no requirement that the
physician or hospital report to the LTC facility in that
period
5)SUPPORT . California Advocates for Nursing Home Reform
(CANHR), in support of this bill, states that currently EDRTs
have no procedures or means to track deaths in LTC facilities
as they occur. According to CANHR, only cases voluntarily
reported come to the attention of the EDRT, therefore there is
no way of becoming alerted to unexpected events such as spikes
in the numbers of deaths in a facility. CANHR claims that
these existing mechanisms are insufficient to track deaths as
they occur. CANHR states that immediate reporting is crucial
when investigating suspicious deaths and it is unacceptable
that California does not have a state agency or apparatus
capable of tracking such deaths on an immediate basis. CANHR
also states that this bill is needed to allow EDRTs to have
electronic access to county registrar death records.
CANHR also points to inadequacies in the local ombudsperson
program as supporting the need for this bill. The local
ombudsperson has the primary responsibility for receiving and
investigating abuse and neglect reports in LTC facilities.
However, according to a November 3, 2009 report by the
California Senate Office of Oversight and Outcomes,
"California's Elder Abuse Investigators: Ombudsmen Shackled by
Conflicting Laws and Duties," the number of reports has
dropped over 40% in the last year. This is attributed to 2008
budget reductions as well as a restrictive interpretation of
the required consent before a complaint may be reported. The
report goes on to describe a conflict that has developed. The
federal OAA requires consent of the resident before the
ombudsperson may investigate or report complaints. The state
ombudsman at CDA has interpreted this to require, before a
complaint may be reported, the consent of witnesses
interviewed as part of the investigation. The report
concludes that the end result is that very few reports have
been finding their way to the prosecutors. CANHR cites this
report as additional need for the bill and state that the
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EDRTs working in concert with ombuds programs, could be
invaluable in tracking these "dropped" abuse cases that result
in preventable deaths as the ombuds programs are in a unique
position to know the prevailing conditions at facilities when
deaths occur and in identifying system problems that lead to
preventable deaths.
6)OPPOSITION . In its opposition, CAHF states that this bill
assumes that all deaths in nursing homes are suspicious. CAHF
points out that existing law already requires suspicious cases
to be reported and investigated by the county coroner, who is
also a member of an EDRT. CAHF asserts that rather than a
mandate on the LTC facility, that it is more appropriate for
the licensed professionals who are responsible for determining
time and cause of death to report deaths to coroners. CAHF
further states that this bill creates a stigma for those who
care for a person at the end of life.
CAHF also expressed concern regarding potential breaches in
confidentiality and litigation solicitations. In their letter
of opposition, CAHF pointed to anecdotal examples of
solicitations that have been sent to families of LTC residents
who have died. The letter solicits the family as clients for
a lawsuit against the LTC facility for abuse or neglect.
CAHF states that this mandate creates a system of reporting
information that is vulnerable to abuses.
The California Hospital Association (CHA) also opposes this bill
as an unnecessary mandate. CHA, in opposition, points out LTC
facilities are already subject to significant oversight. All
facilities are inspected annually by DPH and whenever a
patient complaint or quality of care concern arises.
CHA further contends that this bill will result in unnecessary
transfers to the hospital setting in conflict with the
provision of good patient care particularly for patients who
are at the end-of-life. CHA points out that this bill
suggests that dying in a LTC facility is undesirable or
avoidable and the mandate may inadvertently encourage
facilities to send patients to the acute care hospital for
their final hours. CHA states that this potentially
undermines practices that have been developed to support
individualized and caring end-of-life practices.
7)PRIOR LEGISLATION .
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a) AB 2100 (Wolk), Chapter 481, Statutes of 2008, requires
the local ombudsperson or local law enforcement to whom a
case of abuse against an elder or dependant adult has been
reported, in addition to existing reporting requirements,
to report all cases of known or suspected physical abuse
and financial abuse to the local district attorney's office
in the county where the abuse occurred.
b) SB 397 (Escutia) of 2005 would have required SNFs and
residential care facilities for the chronically ill within
a county that has an EDRT to notify the chair or chair
designee of the EDRT through fax or e-mail, when there is a
death of an elderly resident of the facilities. SB 397
failed passage in the Assembly Health Committee. These
provisions were subsequently deleted and unrelated
provisions were inserted.
c) SB 1644 (Romero) of 2004 would have required a local
registrar of birth and deaths to provide specified
information from death certificates, upon request, to the
local EDRT. This bill was vetoed by the Governor with the
following message:
I support the work of county elder death review
teams that are designed to assist in identifying and
reviewing suspicious elder deaths. These
multidisciplinary teams bring together experts from
many departments including law enforcement, health
care, adult protective services, and the coroner's
office. In addition to this effort, county coroners
are required to examine all cases where an unnatural
death is suspected or where a physician has not been
in attendance within the past 20 days. Current law
also requires the majority of health care providers
to be mandatory reporters of elder abuse or neglect.
There is no evidence that the information currently
provided to the elder death review teams is
inadequate to assist in identifying and reviewing
suspicious elder deaths. I appreciate the author's
commitment to reducing elder abuse and neglect and I
share her concern that each suspicious death be
fully investigated. However, the access to
electronic death certification information will not
enhance the deliberative process these teams employ.
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d) SB 333 (Escutia), Chapter 301, Statutes of 2001,
authorizes counties to establish an interagency EDRT
to assist local agencies in identifying and reviewing
suspicious elder deaths.
8)DOUBLE REFERRAL . Should this bill pass out of this
committee, it will be referred to the Assembly Committee
on Aging and Long-Term Care.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO (prior version)
California Advocates for Nursing Home Reform
California Senior Legislature (prior version)
Opposition
California Association of Health Facilities
California Hospital Association
Analysis Prepared by : Marjorie Swartz / HEALTH / (916)
319-2097