BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 799
S
AUTHOR: Negrete McLeod
B
AMENDED: March 30, 2011
HEARING DATE: April 6, 2011
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CONSULTANT:
9
Trueworthy
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SUBJECT
Long-term care
SUMMARY
Establishes a 90-working day timeframe in which the
Department of Public Health (DPH) must complete a long-term
care facility complaint investigation.
CHANGES TO EXISTING LAW
Existing law:
Provides for the licensure and regulation of long-term
health care facilities by the DPH, Licensing and
Certification Division (L&C). Long-term health care
facilities include skilled nursing facilities, intermediate
care facilities, congregate living health facilities,
nursing facilities, and pediatric day health and respite
facilities.
Requires DPH upon receipt of a written or oral complaint
against a long-term health care facility, to notify the
complainant of the name of the assigned inspector within
two working days of receipt of the complaint and to make an
onsite inspection or investigation of the complaint within
ten working days of receipt of the complaint. If a
Continued---
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complaint involves the threat of imminent danger of death
or serious bodily harm, DPH is required to make an onsite
inspection or investigation of the facility within 24 hours
of receipt of the complaint.
Requires DPH, when conducting an onsite inspection or
investigation, to collect and evaluate all available
evidence, and allows the department to issue a citation
based upon specified factors, including observed
conditions, statements of witnesses, and facility records.
Requires DPH to notify the complainant and the facility
licensee, in writing, of its determinations within 10 days
of the completion of the inspection or investigation. If a
complainant is dissatisfied with the department's
determinations, the law requires DPH to notify the
complainant of his or her right to an informal conference,
and provides the complainant five days to request such a
conference.
Existing law does not set a timeframe for completing an
investigation. Prior to June of 2009, DPH had an internal
policy for completing investigations within 40-working
days.
Requires DPH to prepare an annual staffing and systems
analysis to, among other things, ensure the effective and
efficient utilization of licensing and certification fees,
and proper allocation of department resources to licensing
and certification activities. The analysis must contain
specified information, including the number and timeliness
of complaint investigations.
This bill:
Requires the DPH to complete an investigation within
90-working days from the receipt of a complaint including
receipt of a complaint from the facility of an alleged
violation.
Allows the 90-day timeline to be extended if DPH exercises
reasonable diligence in attempting to, but has not been
able to, obtain all necessary evidence related to the
investigation.
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Requires the DPH to serve any citation upon the licensee
within three days after completion of the investigation,
excluding Sundays and holidays, unless the licensee agreed
in writing to an extension.
Requires DPH to analyze its compliance with these
requirements in an annual report.
Allows the complainant 15 working days, rather than 5
business days, after receipt of DPH's results of the
investigation or inspection to notify the Director in
writing a request for an informal conference.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, the California Department of
Public Health (DPH) often takes too long to complete their
investigations regarding long-term care facilities. This
bill will ensure DPH completes its investigations in a
timely manner.
In particular, the author notes that California law
requires skilled nursing facilities to report suspected
abuse and neglect, but sets no timelines for completing
investigations of these complaints. DPH is only required
to make an onsite inspection within 10 working days of the
receipt of a written or oral complaint, unless it is
determined that the complaint is willfully intended to
harass a licensee or is without any reasonable basis. In
cases of imminent danger of death or serious bodily harm,
DPH is required to make an onsite inspection or
investigation within 24 hours. The author believes this
bill will prevent delays by requiring that complaints be
investigated within 90 days, and that any corresponding
citations be issued within the statutory timeframes.
California nursing homes are subject to an extensive body
of state and federal requirements. DPH has over 965 DPH
L&C field survey staff, an additional 112 DPH L&C
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headquarters management staff and over a $55 million
fee-supported budget dedicated to monitoring facility
compliance with applicable laws, regulations and policies.
The L&C staff conducts federal recertification surveys,
extended annual facility surveys and detailed complaint
investigations to ensure continuous compliance throughout
the state. Of the total DPH L&C division workload, 71
percent are dedicated to nursing facility oversight. Staff
however, are often focused on opening an investigation but
current law does not set a time frame to complete the
investigation.
State and Federal Medicare and Medi-Cal requirements
provide for a range of sanctions to address poor provider
performance, including a ban on new admissions, termination
of Medicare or Medi-Cal certification, assignment of a
temporary manager, denial of payment by Medicare or
Medi-Cal, and civil monetary penalties up to $10,000 per
instance or per day.
Overview of the Survey Process
Skilled nursing facilities are subject to annual federal
certification surveys (conducted not less than once every
15 months), annual state licensing surveys and complaint
surveys. Surveys are unannounced and, for the federal
certification surveys, at least 10 percent of standard
surveys must be conducted on weekends or in the
evening/early morning hours.
Federal Certification Survey: The certification survey
begins with a retrospective review of compliance issues for
both federal and state regulations prior to entering the
facility for the survey. One person is assigned to
complete this analysis and then shares the information with
the other survey team members. The typical survey team is
comprised of at least three nurse evaluators and may also
include pharmacy consultants or nutritionists.
Following the record review for past compliance history,
the surveyors review the CMS Quality Measures/Quality
Indicators Reports to identify potential areas of concern
for onsite investigation throughout the survey process.
Based on observations, resident and family interviews,
and/or staff interviews. Surveyors investigate quality of
care, quality of life, abuse/neglect, environmental issues,
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and facility administration to determine whether there are
system problems that have or will affect outcomes for the
residents. Surveyors follow required investigative
protocols that are defined in the survey tasks.
At the conclusion of the survey process, the survey team
determines whether the facility provides substandard
quality of care and identifies any standards the facility
has violated that require correction in order for the
facility to be licensed and certified for another year.
The survey concludes with an exit conference, after which
the surveyors prepare the written statement of deficiencies
for their supervisor's review and release to the facility.
The facility is then required to submit a plan of
correction for each identified issue.
State Licensing Surveys: State licensing surveys are
generally conducted concurrently with the federal
certification survey. Surveyors must evaluate facility
compliance with all state laws and regulations that are
more stringent or more precise than the federal
certification regulations.
In conducting the state licensing survey, surveyors utilize
a 60-page workbook that details state laws and regulations
related to: environment, nursing, patient rights, staff
development, activities, pharmacy, dietary and
administration. Additionally, surveyors must evaluate
staffing to verify a facility's compliance with the state's
minimum staffing standard.
At the conclusion of the state licensing process, the
survey team identifies any practices that have resulted in
violation of state laws or regulations. The survey team
then prepares a written survey report (statement of
deficiencies) that is released to the facility. The
facility must then submit a plan of correction for all
identified deficiencies.
Facility complaints
In 2009-10, DPH received 25,397 complaints concerning
nursing facilities, the vast majority (19,369) of them were
self-reported by facilities. Of the 5,689 that were
investigated by DPH, 62 percent (3,545) of the
investigations were closed within 90 days and 46 percent
(2,617) of the complaints were closed within 90 days.
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Related bills
SB 895 (Alquist) proposes to reduce the frequency of
licensing inspections for long-term health care facilities
conducted by DPH. SB 895 is pending in the Senate Health
Committee.
AB 641 (Feuer) is a spot bill that intends to make changes
to the nursing home citation process. AB 641 is pending in
the Assembly Health Committee.
Prior legislation
AB 399 (Feuer) of 2007 would have established a 40-day
timeframe in which DPH must complete a long-term care
facility complaint investigation. AB 399 was vetoed by
Governor Schwarzenegger.
SB 1312 (Alquist) Chapter 895, Statutes of 2006, requires
inspections and investigations of long-term care facilities
certified by the Medicare or Medicaid program to determine
compliance with federal standards and California statutes
and regulations.
AB 1629 (Frommer), Chapter 875, Statues of 2004, provided
for the imposition of a quality assurance fee on each
skilled nursing facility.
AB 358 (Jackson) of 2003 would have required DHS to
complete a final determination of each long-term health
care facility complaint within 65 working days of receipt
of the complaint with a 30-day extension for good cause.
The provisions of this bill were deleted and replaced with
new provisions unrelated to long-term health care
facilities.
AB 1731 (Shelley), Chapter 451, Statutes of 2000, increased
nursing home oversight and enforcement, including specific
procedures and timeframes relating to handling of
complaints.
Arguments in support
The California Association of Health Facilities (CAHF)
writes this bill is needed to restore provider and consumer
confidence in the DPH complaint investigation system and to
protect nursing home residents from mistreatment. CAHF
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contends that California law requires skilled nursing
facilities to report suspected abuse and neglect, but sets
no timeline for completing investigations of these
complaints. Crestwood Behavioral, Inc. writes in support
that delays in investigating complaints result in a loss of
credible evidence, lack of witnesses, and a diminished
memory of events that are the subject of the investigation.
The California Hospital Association writes they support
changes to existing oversight and regulatory processes that
will improve their ability to identify concerns and to
develop and implement effective corrective actions.
Supporters contend investigations can take many months and
even years to complete. Timely investigations and
resolutions of complaints are essential.
Arguments in opposition
The California Advocates for Nursing Home Reform (CANHR) is
opposed to SB 799, arguing that DPH's current policy is to
complete a complaint investigation within 40-working days
and a 90-working day standard is too long to be acceptable.
POSITIONS
Support: California Association of Health Facilities
California Hospital Association
Crestwood Behavioral Health, Inc.
Oppose: California Advocates for Nursing Home Reform (If
Amended)
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