BILL ANALYSIS
AB 535
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Bonnie Lowenthal, Chair
AB 535 (Ammiano) - As Amended: January 4, 2010
As Proposed to be Amended: RN 10 00487
SUBJECT : Elder death review teams (EDRTs): information
requests.
SUMMARY : Requires skilled nursing facilities (SNFs) to report
additional information to the Office of Statewide Health
Planning and Development (OSHPD). Specifically, this bill :
1)Allows the EDRT chair, co-chair, or an agent of the chair or
co-chair to participate in the electronic death registration
system and specifies that access to the system shall be
exclusively for the purpose of obtaining the following
information:
a) Place of death;
b) Name;
c) Date of death; and,
d) Cause of death.
2)Requires all SNFs, except for facilities that are a distinct
part of a general acute care hospital, to include in the
annual report to OSHPD data on persons who have died in the
facility, including, but not limited to, the date and time of
death, age, and gender.
3)Requires OSHPD to comply and make available the data by county
and by facility upon the request of an EDRT.
4)Permits OSHPD to include census and utilization information
relating to the facilities, including whether the facility
offered a hospice program or another specialized program, such
as those for Alzheimer's disease.
5)Adds electronic data from certificates of death from the local
registrar of births and deaths to the list of information that
may be disclosed to an EDRT, subject to any fee requirements.
EXISTING LAW in various statutes, regulations, and programs
within state departments, provides for the prevention,
reporting, investigation, and prosecution of elder and dependent
adult abuse and the collection of data regarding these cases.
Specifically, existing law:
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1)Requires the Department of Public Health (DPH) to license
SNFs, conduct annual unannounced inspections, and to
investigate complaints about care provided in facilities.
2)Requires, by regulation, that every death from unnatural
causes and any unusual occurrence which threatens the welfare,
health, or safety of residents to be reported to DPH within 24
hours. Regulations also require that all resident deaths be
reported by the SNF to DPH when requested.
3)Establishes OSHPD to provide the state with an enhanced
understanding of the structure and function of its healthcare
delivery systems, including the collection of data and
dissemination of information about California's SNFs, acute
care hospitals, clinics, home health care, hospice, and other
healthcare infrastructure.
4)Requires all SNFs to report to OSHPD on an annual basis, a
current inventory of beds and services, utilization data by
bed type and service which includes discharge data, as well as
fiscal and physical plant information.
5)Requires all SNFs to report all incidents of alleged or
suspected abuse to DPH within 24 hours.
6)Requires physicians, physician assistants, and funeral
directors to report suspicious deaths to the coroner and
authorizes the coroner to investigate the death.
7)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.
8)Requires the physician to deposit the certificate at the place
of death or to the attending funeral director within 15 hours
after the death.
9)Imposes specific 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.
10)Establishes the Internet-based electronic death registration
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system within DPH, limited to proper use of the death
information created, stored, and transferred within the system
and subject to any limitations placed on the accessibility and
release of personally identifying information contained in
those death records.
11)Allows counties to establish an EDRT to assist local agencies
in identifying and reviewing suspicious elder deaths and
facilitation communication among persons involved in
investigating elder abuse cases.
12)Specifies that EDRTs may be comprised of, but not limited to
the following;
a) Experts in the field of forensic pathology;
b) Medical personnel with expertise in elder abuse and
neglect;
c) Coroners and medical examiners;
d) District attorneys and city attorneys;
e) County or local staff including, but not limited to:
i) Adult Protective Services (APS) staff;
ii) Public administrator, guardian, and conservator
staff;
iii) County health department staff who deal with elder
health issues;
iv) County counsel;
v) County and state law enforcement personnel;
vi) Local long-term care ombudsman;
vii) Community care licensing staff and investigators;
viii) Geriatric mental health experts;
ix) Criminologists;
x) Representatives of local agencies that are involved
with the oversight of APS and reporting elder abuse and
neglect; and,
xi) Local professional associations.
13)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,
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
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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,
a) 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.
14)Requires information gathered by the EDRT and any
recommendation 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.
15)Allows disclosure of written and oral communication to
members of the EDRT regardless of whether such information is
considered privileged under existing law, and prohibits
disclosure to a third person.
16)Includes findings and declarations that crimes against elders
and dependent adults are deserving of special consideration
and protection and establishes the Elder Abuse and Dependent
Adult Civil Protection Act (EADACPA), which defines abuse of
an elder or 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) The deprivation by a care custodian of goods or services
that are necessary to avoid physical harm or mental
suffering.
17)Specifies that financial abuse of an elder or dependent adult
under EADACPA occurs when a person or entity does any of the
following:
a) Takes, secretes, appropriates, or retains real or
personal property of an elder or dependent adult to a
wrongful use or with intent to defraud, or both; and,
b) Assists in taking, secreting, appropriating, or
retaining real or personal property of an elder or
dependent adult to a wrongful use or with intent to
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defraud, or both.
18)Specifies that any person who knows or reasonably should know
that a person is an elder or dependent adult and who, under
conditions likely to produce great bodily harm or death,
willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or
dependent adult to be placed in a situation in which his or
her person or health is endangered to be punished by:
a) a term of imprisonment in a county jail not to exceed
one year;
b) a fine not to exceed six thousand dollars ($6,000);
c) both a fine and imprisonment in a county jail; or,
d) imprisonment in the state prison for two, three, or four
years.
19)Establishes the Long-Term Care Ombudsman Program which is
authorized through the federal Older Americans Act 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 long-term care facilities. These
facilities include skilled nursing facilities, residential
care facilities for the elderly, intermediate care facilities,
adult residential care facilities, and adult day health care
facilities.
20)Establishes the APS program which provides for the prevention
and reporting of abuse and neglect of elders and dependent
adults and the delivery of various services to victims of
abuse as well as those who are functionally impaired. APS
provides assistance to elderly and dependent adults who are
functionally impaired, unable to meet their own needs, or are
victims of abuse, neglect, or exploitation. The county APS
program receives reports of abuse and neglect of elderly and
dependent adults residing in their own homes for investigation
and evaluation of their need for protection and services. APS
coordinates support services for both emergency situations and
longer-term case management.
21)Requires any mandated reporter who, within the scope of his
or her employment, observes, has knowledge of physical abuse,
financial abuse or neglect, or is told by an elder or
dependent adult that he or she has experienced abuse, or
reasonably suspects abuse, to immediately report the known or
suspected abuse.
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22)Defines a mandated reporter as any of the following:
a) Any person who has assumed full or intermittent
responsibility for care or custody of an elder or dependent
adult, including administrators, supervisors, and any
licensed staff of a public or private facility that
provides care or services for elder or dependent adults, or
any elder or dependent adult care custodian;
b) Health practitioners;
c) Clergy members;
d) Employees of a county APS agency; and,
e) Employees of a local law enforcement agency.
23)Requires the local ombudsperson and the local law enforcement
agency to do all of the following:
a) Report to the State Department of Public Health any case
of known or suspected abuse occurring in a long-term health
care facility.
b) Report to the State Department of Social Services any
case of known or suspected abuse occurring in a residential
care facility for the elderly, or in an adult day care
facility.
c) Report to the State Department of Health Services and
the California Department of Aging any case of known or
suspected abuse occurring in an adult day health care
center.
d) Report to the Bureau of Medi-Cal Fraud and Elder Abuse
any case of known or suspected criminal activity.
24)Provides penalties for failure to report elder abuse under
the mandated reporting requirements including fines and
imprisonment.
25)Provides mandated reporters with immunity from civil or
criminal liability as a result of any report of known or
suspected abuse of an elder or dependent adult unless it can
be proven that a false report was made and the person knew
that the report was false.
26)Provides for cross-reporting guidelines for APS, local
long-term care ombudsmen, and local law enforcement agencies.
27)Allows, but does not require, any person who is not a
mandated reporter who knows, or reasonably suspects, that an
elder or dependent adult has been the victim of abuse to
report that abuse to a local long-term care ombudsman program
or local law enforcement when the abuse is alleged to have
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occurred in a long-term care facility, and to the county APS
agency or local law enforcement when the suspected abuse
occurred in any other place.
In addition, state law authorizes the Department of Justice's
Bureau of Medi-Cal Fraud and Elder Abuse to protect the state's
Medi-Cal Program from fraud and abuse, and to investigate and
prosecute elder and dependent adult abuse, neglect, and poor
quality of care occurring in long-term care facilities.
Local law enforcement entities are responsible for investigating
reported elder and dependent adult abuse cases. Some local law
enforcement agencies dedicate specific units to these cases.
District attorney and city attorney offices are responsible for
the investigation and prosecution of elder and dependent adult
abuse. Some local entities have devoted units to specialize in
the prosecution of elder and dependent adult abuse cases.
The Department of Corporations operates a statewide outreach
campaign called Seniors Against Investment Fraud to alert and
educate Californians over the age of 50 regarding investment and
telemarketing fraud and how to avoid being victimized.
Finally, local Financial Abuse Specialist Teams (FASTs) review
financial abuse cases and assist in resolving complex cases.
FAST teams consist of representatives from law enforcement, APS,
the district attorney's office, and county counsel's office. In
addition, the public guardian has been vested with greater
powers to promptly intervene where law enforcement has a
reasonable suspicion that an elderly person could be, or is, a
victim of financial abuse.
FISCAL EFFECT : None
COMMENTS :
According to the author, this bill provides an essential tool
for EDRTs to annually track the deaths of elders in each county.
For example, patterns that may develop locally with respect to
deaths will be more easily tracked and responded to with this
information.
Elder Death Review Teams:
California has 33 EDRTs operating, although their size and
practices vary. The overarching purpose of all EDRTs is to
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assist local agencies in identifying and reviewing suspicious
elder deaths and facilitating communication among persons who
perform autopsies and the various agencies involved in
investigating and prosecuting elder abuse and neglect cases.
According to the Sacramento EDRT, their goal is to eradicate
elder abuse by advocating for systemic changes that improve the
community's response to the needs of older victims of abuse and
neglect. Its mission is to examine deaths associated with
suspected elder abuse and/or neglect, and identify and implement
prevention strategies that protect the county's elders. There
is no statewide department or organization responsible for the
oversight and training of EDRTs.
Existing Data Collection and Reporting Practices:
OSHPD annually produces the State Utilization Data File of
Long-Term Care Facilities.
The data included in the report comes from the individual Annual
Utilization Report of Long-Term Care Facilities filed by
California's licensed long-term care facilities for the previous
calendar year. Each facility reports its annual utilization
data to OSHPD through a secure web-based reporting system. The
data includes general licensee information, patient census,
demographics, and discharge data, including discharges due to
death. According to OSHPD data, California had 1,065 SNFs
serving 90,695 residents in 2008. OSHPD data also indicates
that in 2008, discharges due to death accounted for 10.7 percent
of all discharges, a decline from 11.7 percent in 2007 and 16.1
percent in 2003. As noted in the Assembly Health Committee
analysis, there is no daily, monthly, or quarterly reporting to
OSHPD of the deaths of residents in SNFs.
When a resident dies in a SNF, a physician or physician's
assistant completes a death certificate and the medical and
health section data of the certificate. Any unusual occurrence
in a SNF, including unusual deaths, must be reported by the SNF
to DPH. All physicians, physician assistants and funeral
directors are required to report suspicious deaths to the
coroner. In addition, all employees and volunteers at the SNF,
the physician, physician assistant, and any health care worker
with contact with older or dependent adults are mandated
reporters for suspected elder and dependent adult abuse under
existing law and required to report suspected abuse to the local
ombudsman or local law enforcement. The local ombudsman is also
required to report suspected abuse to DPH.
Arguments in Support:
California Advocates for Nursing Home Reform (CANHR), the
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sponsor of this bill, contend that there is no system in place
currently that tracks the rates or patterns of deaths in
facilities. Although California has EDRTs, these teams do not
receive information about the deaths that occur in nursing homes
in any systematic manner. There are no individuals or entities
mandated to report incidents of known or suspected elder abuse
to EDRTs and any case coming to their attention would be on a
voluntary basis. CANHR argues that this bill would not create
an undue burden or hardship on facilities since it would simply
require them to report the age, gender, and date of death of the
resident.
Amendments discussed in the Assembly Health Committee and
reflected in this analysis have removed the prior opposition to
the bill.
Prior Legislation:
SB 333 (Escutia), Chapter 301, Statutes of 2001, authorized
counties to establish an interagency EDRT to assist local
agencies in identifying and reviewing suspicious elder deaths.
EDRTs were modeled after interagency child death review teams
and domestic violence review teams. Pursuant to SB 333,
counties are authorized to us EDRTs to develop a protocol that
could guide coroners and other persons performing autopsies in
identifying elder abuse.
SB 1644 (Romero) of 2004 would have required a local registrar
of births and deaths to provide specified information from death
certificates, upon request, to the local EDRT. SB 1644 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
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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.
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 of the EDRT, or
chair's designee, when there is a death of an elderly resident
of the facility. SB 397 failed passage in the Assembly Health
Committee and these provisions were subsequently deleted from
the bill and unrelated provisions inserted.
Suggested Amendment:
If the author's intent is to allow EDRTs to track death data by
SNF and discern unusual or suspicious deaths from expected
deaths, the author may wish to amend the bill to require
facilities to report not just whether or not the facility had a
hospice program in place as currently reported to OSHPD, but
individual enrollment in hospice at the time of death.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (CANHR)
Opposition
Analysis Prepared by : Allison Ruff / AGING & L.T.C. / (916)
319-3990