BILL ANALYSIS �
SB 345
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Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
SB 345 (Wolk) - As Amended: April 26, 2012
SENATE VOTE : 26-9
SUBJECT : Office of the State Long-Term Care Ombudsman.
SUMMARY : Conforms various provisions of the codes authorizing
the Office of State Long-Term Care Ombudsman (OSLTCO), including
requiring an annual advocacy report, to federal statutes.
Specifically, this bill :
1)Adds legislative findings and declarations with regard to the
OSLTCO and the State Long-Term Care Ombudsman's (SLTCO) roles
and responsibilities, including that the SLTCO is obligated to
represent the interests of long-term care facility residents
before governmental agencies, and to seek administrative,
legal, and other remedies to protect the health, safety,
welfare, and rights of residents.
2)Adds conformity language with federal authorizing statutes,
including that the OSLTCO represent the interest of long-term
care facility residents before governmental agencies, and seek
remedies to protect the health, safety, welfare and rights of
long-term care facility residents.
3)Repeals definition of "medical training" and "medical records
training."
4)Requires the California Department of Aging (CDA) provide
widespread public notification of the availability of the
position of SLTCO, and solicit candidates for the position of
SLTCO within 10 days of a vacancy, while seeking advice,
consultation and recommendations of an existing (though
inactive) 7-11 member, advisory council regarding the
selection of a candidate within 30 days.
5)Requires the SLTCO to be selected from among individuals with
expertise and experience in the fields of long-term care and
advocacy.
6)Requires the Ombudsman to be located in Sacramento, and
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conforms state statutes to federal law requiring the SLTCO to
have completed ombudsman training curriculum, and a 10 hour
in-service, performing the duties of a long-term care
ombudsman.
7)Requires, rather than authorizes, the OSLTCO to hire legal
representation, in the event the Attorney General is
unavailable, for litigation related to the affairs of the
office.
8)Requires rather than allows the OSLTCO to solicit, and receive
funds, gifts and contributions to support the operations of
the office and a charitable foundation, as defined.
9)Prohibits conflicts of interest for the 5-member body that
governs a charitable foundation, as defined.
10)Shifts from the CDA to the OSLTCO, responsibility for the
development of a statewide uniform reporting system to collect
and analyze data relative to complaints and conditions in
long-term care facilities, and responsibility for activities
that promote the development, coordination and utilization of
resources to meet the needs of older individuals served by the
OSLTCO program.
11)Requires the SLTCO to report to the legislature and local
long-term care ombudsman programs annually on prospective
advocacy plans, as well as advocacy activities from the
previous year, as defined, in compliance with federal guidance
in Title 42.
12)Requires the OSLTCO to maintain a website within the CDA's
website, and that the web site be consumer driven and include
various long-term care related information.
13)Requires the CDA and other departments and programs involved
in regulating, monitoring, or serving long-term care facility
residents to cooperate with, and meet with, the OSLTCO
periodically and as needed, to address concerns and questions
about care, quality of life, safety, rights, health and
well-being of long-term care facility residents.
14)Deletes a section of code describing primary roles of the
SLTCO, and recasts those duties to identify, investigate and
resolve complaints made by, or on behalf of residents of
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long-term care facilities; provide services to assist
residents in the protection of their health, safety, welfare,
and rights; inform and ensure residents have timely access to
services provided through the OSLTCO; provided technical and
administrative support to local long-term care ombudsman
programs; analyze, monitor, comment on, and recommend changes
to the development of policy impacting residents of long-term
care facilities; provide public information regarding the
problems and concerns of residents within long-term care
facilities; and support the development of organizations to
participate in the long-term care program.
15)Expands state law to conform with federal law, the reasons
why a long-term care ombudsman may enter a long-term care
facility, to include identifying complaints, observing and
monitoring conditions, speaking confidentially with residents
about complaints, and expands the eligible clientele to
include all long-term care facility residents, not just those
that are elderly.
16)Requires long-term care facilities to provide contact
information for a conservator, legal representative, or
next-of-kin of any resident to the OSLTCO within 24 hours of a
request, and to provide long-term care ombudsman program
representatives with census information regarding the
residents of the facility upon request.
17)Requires the OSLTCO, not the CDA, to staff the 24-hour,
long-term care ombudsman hotline.
18)Reaffirms federal law and requires the OSLTCO to analyze,
monitor and comment on the development of local, state, and
federal laws, regulations and other governmental policies; to
recommend changes to them, and facilitate public comment.
19)Allows the OSLTC, in conjunction with local programs, to
advise the public of long-term care facility inspection
reports, deficiencies, and plans of correction; promote
visitation programs, establish and assist in the development
of resident, family, and friends' councils, and present
community education programs.
20)Requires the convening of an advisory body made up of 7 to 11
members, as defined, and appointed by the Director of the CDA
by June 30 of 2013.
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EXISTING LAW
1)Establishes the Long-Term Care Ombudsman program as a result
of the federal Older Americans Act (OAA) and places it within
the 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. 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 SLTCO by the Governor, and
specifies requirements of the person filling that position.
4)Requires the CDA to establish an 11-member advisory council
for the office to provide advice and consultation on issues
affecting the provision of ombudsman services.
FISCAL EFFECT : Unknown
AUTHORS STATEMENT :
"For too long, facility residents have not had an independent
voice at the state level, as required by the federal law. State
law needs to be aligned with existing federal law to resolve the
conflict that currently exists, and ensure the State Ombudsman
can take positions on legislation that affects long-term care
residents and local ombudsman programs without interference. SB
345 is the first step toward improving the effectiveness and
efficiency of the State Ombudsman's office; strengthen local
programs; requiring an annual report; and ensuring the State
Ombudsman program is fulfilling its mandated responsibilities to
long-term care facility residents throughout the state."
COMMENTS :
According to the CDA website, the primary responsibility of the
program is to investigate and endeavor to resolve complaints
made by, or on behalf of, individual residents in long-term care
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facilities. These facilities include nursing homes, residential
care facilities for the elderly, and assisted living facilities.
The Long-Term Care Ombudsman Program investigates elder abuse
complaints in long-term care facilities and in residential care
facilities for the elderly.
The OSLTCO contracts with 35 local organizations that provide
local ombudsman services. Local ombudsman programs recruit and
train volunteers to enter long-term care facilities, monitor
quality of care and conditions, receive complaints, and endeavor
to resolve them confidentially. There are about 1,000
volunteers providing about 150,000 hours of unpaid advocacy and
support to long-term care residents.
SB 345 was originally introduced to establish the OSLTCO as an
independent entity outside the state administrative structure.
Various legal barriers inspired the current version of the bill,
which instead requires an annual advocacy plan in accordance
with federal law, among other changes intended to insulate the
OSLTCO from the California Department of Aging, and to narrow
the field of potential candidates eligible to be appointed by
the Governor to the position of SLTCO, when a vacancy occurs.
The bill also states that the SLTCO advocacy be free from state
departments' interference.
SUPPORTERS ARGUE
The California Senior Legislature (CSL) writes that while
federal law requires that the OSLTCO speak on behalf of the
interests of facility residents before government agencies, in
California this is not happening; and that since the SLTCO is a
political appointee, the ability to advocate on behalf of
residents for changes in policy or funding is seriously
constrained. The Congress of California Seniors (CCS) writes
that SB 345 would require the SLTCO to take actions that will
make clear its authority to act independently as an active
advocate for long-term care residents. CCS cites a recent
report which indicates that the SLTCO in 21 states was
discouraged from acting by their own state's department of
aging.
OPPONENTS ARGUE
The OSLTCO is largely in support of SB 345 and will remove their
opposition upon adoption of committee amendments to be presented
in committee.
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Related Legislation:
AB 40 (Yamada) Requires telephonic reports of physical abuse of
dependent adults in institutional settings to be submitted
directly to law enforcement with follow-up written reports to be
submitted to both law enforcement and the long-term care
ombudsman.
AB 2149 (Butler) Prohibits gag-clauses in settlement agreements
of actions brought as a result of abuse under the Elder Abuse
and Dependent Adult Civil Protections Act from including bans on
contacting the long-term care ombudsman, Department of Aging,
and various other investigative entities.
AB 2276 (Campos) Appropriates $1.6 million to the OSLTCO from
the State Health Facilities Citation Penalties Account for
support of the program during FY 2012-13 and FY 2013-14.
AB 2550 (Carter) Conforms state law to federal guidelines
related to the long-term care ombudsman program.
SB 718 (Vargas) Chapter 373, Statutes of 2011, provides for an
electronic, internet-based elder abuse reporting mechanism.
SB 897 (Leno) Chapter 376, Statutes of 2011, provides for
notification to residents within residential care facilities for
the elderly, and the long-term care ombudsman, when facilities
become distressed financially, as defined.
REGISTERED SUPPORT / OPPOSITION :
Support
AARP
Advocacy, Inc.
American Federation of State, County and Municipal Employees
(AFSCME)
Advisory Council for the Area Agency on Aging - Napa/Solano
Area Agency on Aging - San Luis Obispo/Santa Barbara Counties
California Advocates for Nursing Home Reform (CANHR)
California Long-Term Care Ombudsman Association (CLTCOA)
California Senior Legislature (CSL)
Camarillo health Care District
Central Coast Senior Placement Services
Committee for an Independent State Ombudsman Office (CISO)
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Congress of California Seniors (CCS)
Contra Costa County Advisory Council on Aging
Elder and Dependent Adult Abuse Prevention Council
Long-Term Care Ombudsman - San Luis Obispo County
Long-Term Care Ombudsman - Santa Cruz/San Benito Counties
Long-Term Care Ombudsman - Ventura County
Older Women's League (OWL) - Santa Clara County Chapter
Ombudsman & HICAP Services of Northern California
Ombudsman Services of San Mateo County
San Luis Obispo County Commission on Aging
Ventura County Board of Supervisors
WISE & Healthy Aging Long-Term Care Ombudsman Program
Individuals - 2
Support if Amended
California Commission on Aging
Opposition
Office of State Long-Term Care Ombudsman
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990