BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 345
S
AUTHOR: Wolk
B
VERSION: January 4, 2012
HEARING DATE: January 10, 2012
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FISCAL: Appropriations
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CONSULTANT: Mareva Brown
SUBJECT
Long Term Care Ombudsman Program
SUMMARY
Requires the Office of the Long Term Care Ombudsman to make
two annual reports to the Legislature on advocacy and other
efforts, establishes a hiring panel for filling vacancies
in the State Ombudsman position, requires that the State
Ombudsman establish an advisory board, requires the office
to solicit charitable contributions, directs the office to
establish a prominent web presence, and makes various other
changes.
ABSTRACT
Current law
1. Establishes the Long-Term Care Ombudsman program as
a result of the federal Older Americans Act (OAA) and
places it within the California Department of Aging
(CDA) in order to encourage community contact and
involvement with elderly patients or residents of
long-term care facilities or residential facilities
through the use of volunteers and volunteer programs.
Continued---
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Federal law generally prohibits ombudsman from making
a disclosure of personal information pertaining to an
ombudsman program client, unless the client provides
written consent.
2. Allocates funds to local ombudsman programs to
assist elderly persons in long-term health care
facilities and residential care facilities by, among
other things, investigating and seeking to resolve
complaints against these facilities.
3. Provides for the appointment of a state ombudsman
and specifies certain requirements of the person
filling that position.
4. Requires the department to establish an 11-member
advisory council for the office to provide advice and
consultation on issues affecting the provision of
ombudsman services.
This bill
1. Makes various declarations about the Office of the
State Long Term Care Ombudsman and the duties of the
Ombudsman.
2. Deletes the definition of "medical training."
3. Requires, instead of encouraging, the Director of
the Department of Aging to provide widespread
notification if the Ombudsman's position becomes
vacant, announce the position within 10 days of
vacancy and convene an advisory panel within 30 days
to consider selection of a new Ombudsman.
4. Creates a five-member hiring panel to select two or
more candidates for the Long Term Care Ombudsman's
position, from which the Department of Aging director
may hire, and specifies the composition of that board.
5. Adds the requirement of being a certified ombudsman
to other hiring qualifications of a Long Term Care
Ombudsman.
6. Requires that the office of the State Ombudsman be
located in Sacramento.
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7. Requires that the State Ombudsman establish an
advisory council no later than June 30, 2013 to obtain
advice and consultation on various issues related to
state and local ombudsman programs. Membership in the
council will be voluntary and members will serve
without compensation.
8. Repeals existing language defining the composition
of this advisory council, including its size and
required membership, and instead states only that it
must include at minimum two local ombudsman program
representatives.
9. Requires that at least two members of the advisory
council be local ombudsmen program representatives,
chosen in consultation with the Long Term Care
Ombudsman Association.
10. Requires, instead of permitting, that in cases
where the Attorney General cannot represent the Office
of the Long Term Care Ombudsman because of a conflict
with another state agency, that the Ombudsman's office
or the other agency must hire outside counsel.
11. Requires, instead of permitting, the Office of the
Long Term Care Ombudsman to solicit and receive funds,
gifts and contributions to support the operations and
programs of the office.
12. Requires the Office of the Long Term Care Ombudsman
to submit a report to the legislature annually on July
1 that describes its advocacy plan, including
measurable, achievable outcomes that benefit long-term
care facility residents.
13. Requires the Office of the Long Term Care Ombudsman
to submit a report to the legislature annually on
Sept. 30 evaluating the previous year's advocacy
efforts, including evidence of completed activities
and results. Prior to submitting the report, the
Ombudsman's office must solicit comments on the report
from local ombudsman programs and include those
responses in an addendum to the report.
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14. Amends state law to comply with federal statute
which, among other duties, requires the State
Ombudsman to "represent the interests of long-term
care facility residents before governmental agencies
and seek administrative, legal and other remedies to
protect the health, safety, welfare and rights of the
residents." Requires that this representation be done
without interference by the Department of Aging or any
other state departments or programs.
15. Directs the Office of the Long Term Care Ombudsman
to maintain an internet presence that is prominent on
the Department's home page and includes information
about current long-term care trends and issues, links
to local ombudsman programs and other information
relevant to long-term care facility residents and
consumers.
16. Prohibits investigatory files and records kept by
local ombudsmen be disclosed only at the discretion of
the ombudsman or the person designated to disclose the
files and records and permits disclosure only in
specified circumstances.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill
The author believes that, under its present structure, the
state's ombudsman program is not advocating effectively for
residents. Community activists have informed the author
that California's office is ineffective, citing the state
ombudsman's lack of public support on legislative issues
pertaining to long-term care. As an appointee of the
director of the Department on Aging, the state ombudsman,
says the author, is expected to take the same position on
legislation and other public policy matters as the
Department of Aging takes.
Initially, the author intended to remove the Office of the
Long Term Care Ombudsman from the Department of Aging and
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into a nonprofit organization. However, this approach had
constitutional challenges. This bill instead requires an
annual advocacy plan, as well as a second annual report
evaluating the previous year's advocacy efforts, with
mandated input from local ombudsman programs. It makes a
number of other changes, intended to buffer the Ombudsman
from the state agency in which it is housed, including
creating a hiring panel to provide a list of candidates
from which the Director may choose, and aligning state
statute with federal statute requiring the State Ombudsman
to advocate for residents of long-term care facilities.
The bill also states that the State Ombudsman's advocacy
must be free from state departments' interference.
Program History
California's Ombudsman program began in 1979 in response to
federal efforts to improve conditions for residents of
nursing homes and other long-term care facilities. Shoddy
conditions and poor care had prompted Congressional
interest, and a 1978 amendment to the federal Older
Americans Act requiring states to create ombudsman programs
that could investigate and resolve complaints at nursing
homes and advocate for residents by commenting on laws and
policies, and identifying widespread problems.
Senate review of the state ombudsman
In November 2009, the Senate Office of Oversight and
Outcomes, which is part of the Office of the President pro
Tempore, prepared a report for the Rules Committee, at the
request of the Health Committee's Subcommittee on Aging and
Long-Term Care. The report's title provides its own
executive summary: California's Elder Abuse Investigators:
Ombudsmen Shackled by Conflicting Laws and Duties.
Among the findings of the report: "Local coordinators in
California say that having a political appointee running
the state office makes it hard for the program to speak out
on issues concerning long-term care residents, one of the
original intents of the federal ombudsman program.
California's state ombudsman (in talking with the Oversight
office) said he supported steps that would give him more
flexibility and independence."
In the body of the report, the author cited local
coordinators saying that "the state ombudsman lacks the
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independence to take stands that might contradict or get
out in front of the governor on legislation or budget
cuts." He goes on to write that this constraint filters
down to local programs. Although most of the report is
focused on issues surrounding elder abuse investigations,
the report does include a recommendation for improving
advocacy efforts:
Pass legislation to enhance the ability of the
ombudsman to act as an independent voice for the
elderly, as required under the Older Americans Act,
and require the state ombudsman's office to develop a
comprehensive plan of advocacy.
National review of the states' long-term care ombudsmen
In March 2007, the National Association of State Long-Term
Care Ombudsman Programs published a white paper evaluating
the success of the states' advocacy efforts. It found that
36 percent of state ombudsmen need prior approval before
testifying to legislators on issues related to long-term
care facility residents, and 21 percent of state ombudsmen
are not allowed to initiate contact with state legislators.
The report noted that the Older Americans Act clearly
mandates that long-term care ombudsman programs provide
systems-level advocacy on behalf of long-term care
residents.
State fundraising
Under existing statute, the Office of the State Long Term
Care Ombudsman may solicit and receive funds, gifts and
contributions to support the operations and programs of the
office. This bill would require the office to solicit
funds. According to the State Ombudsman's office, the only
charitable contributions it has solicited and used so far
have been significant grants from foundations which have
directly supported specific programs. Existing statute
permits the creation of a foundation with a five-member
board of directors to oversee the charitable funds' use.
However, the State Ombudsman said he believes the change
required by this bill would likely require additional staff
support to fulfill the fundraising requirement.
COMMENTS AND QUESTIONS
Are two separate annual reports warranted?
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On December 12, 2011, Gov. Brown ordered state departments
to review the 2,600 annual reports that they are required
to submit to the legislature and identify those that are no
longer necessary. Given the economic climate and the
length of time it takes on average to prepare a legislative
report or advocacy plan, it may be worth consolidating
these proposed new reports. The Department of Aging must
submit information annually to the federal government about
advocacy activities, nursing home complaints and other
information, per the federal Older Americans Act. Staff
recommends:
Combining language for the initial advocacy plan and the
review of activities into a single plan, due annually.
Is a separate hiring panel warranted?
This bill establishes both a five-member hiring panel, and
establishes a June 2013 deadline to create an advisory
committee, which has been required in statute since 2000.
The State Ombudsman currently is appointed at the
discretion of the Governor, through the Director of the
state Department of Aging, per existing statute. Given the
economic climate, and the desire to streamline governmental
organizations, the creation of two separate bodies may be
unnecessary. Staff recommends the following actions:
Delete amendments to WIC 9711 (a) and (b) requiring that
the State Ombudsman be appointed by a selection of
candidates selected by a five-member hiring panel.
Delete amendments to Welfare and Institutions Code section
9711.10 creating the hiring panel and specifying its
duties.
Add to WIC Section 9710.5 (b) (3) Forward to the Governor
for consideration up to two names of individuals
recommended by the advisory council pursuant to WIC 9740,
if the panel chooses to make recommendations.
Should the composition of the advisory committee be more
specific?
This bill repeals the section of code that defines the size
and composition of the advisory committee and process for
selecting members. Instead it solely requires the advisory
committee to include to representatives of local ombudsman
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programs and states that participation is voluntary and
without compensation. Staff recommends the following
action:
Delete amendments that repeal WIC 9740 and 9741 and move
language in WIC 9712(c) to those sections.
Withdrawal of amendments redefining confidentiality of
documents
New amendments, reflected in Section 18 (g) subsections (1)
and (2 A-C), are not reflective of the author's intent.
Additionally, the author's office requests withdrawal of
the amendment on Page 13, line 4, which reads "if consent
to share the information has been provided by the resident
or his or her responsible party. The author's office also
requests to withdraw the amendment on page 13, line 5,
which strikes the word "shall" and inserts the words "may
request to." Staff recommends:
Delete these amendments.
POSITIONS
Support: Committee for an Independent State Ombudsman
(sponsor)
AARP
Long Term Care Services of Ventura County
Ombudsman Services of San Mateo County
Wise & Healthy Aging
Oppose: None received.
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