BILL ANALYSIS �
AB 1816
Page 1
Date of Hearing: April 1, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 1816 (Yamada) - As Introduced: February 18, 2014
SUBJECT : Long-term health care facilities.
SUMMARY : Creates a 40-day timeframe for the Department of
Public Health (DPH) to complete a long-term care facility
complaint investigation and requires DPH to provide additional
information about the investigation of the complainant.
Specifically, this bill :
1)Requires DPH to complete investigations of complaints against
long-term health care facilities within 40 working days of the
receipt of the complaint.
2) Allows DPH to extend an investigation up to 30
additional days if DPH has been unable to obtain necessary
evidence related to the investigation despite its diligent
attempts.
3) Requires DPH, when it extends an investigation under 1)
above, to notify the complainant and provide the basis for
the extension, a description of outstanding evidence and
sources, and the anticipated completion date.
4) Effective July 1, 2015, requires DPH to include specific
findings concerning each alleged violation and a summary of
the evidence in the written determination it is required to
make at the investigation's conclusion.
5) Increases, from five days to 15 days, the amount of time
a complainant has to request an informal conference with
DPH, if the complainant is dissatisfied with DPH's
determination.
6) Expands provisions related to timeframes for a complaint
investigation to include self-reports of violations by
facilities.
EXISTING LAW :
1) Requires DPH to make an onsite inspection within 10
AB 1816
Page 2
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.
2) Requires DPH to notify the complainant of the name of
the inspector or investigator and permits the complainant
to accompany the inspector to the site of the alleged
violation. Requires DPH to notify the complainant of its
determination within 10 working days of the completion of
the complaint investigation. Permits the complainant to
request in writing an informal conference within five
business days after receipt of the notice. Offers
additional levels of appeals if the complainant is
dissatisfied with the determination of DPH.
3) Excludes, for the purposes of these complaint
investigation requirements, a self-report from a facility
of an alleged violation of applicable requirements of state
or federal law.
4) Requires a long-term health care facility to report all
incidents of alleged abuse or suspected abuse of a resident
of the facility to DPH immediately, or within 24 hours, as
specified.
5) Under state regulations, requires a long-term health
care facility to report unusual occurrences such as
epidemic outbreaks, poisonings, fires, major accidents,
death from unnatural causes, or other catastrophes which
pose health or safety threats within 24 hours to the local
health officer and to DPH.
6) 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 DPH resources to licensing and
certification activities. Requires the analysis to contain
specified information, including the number and timeliness
of complaint investigations.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
AB 1816
Page 3
COMMENTS :
1)PURPOSE OF THIS BILL . The author of this bill writes that
testimony received by the Legislature in a joint oversight
hearing of the Assembly Committee on Aging and Long-Term Care
and the Assembly Committee on Health indicated that DPH
struggles to meet its workload demands. Testimony revealed
that thousands of complaints of mistreatment, misconduct, and
abuse have languished for years with incomplete investigation.
The author writes that each day that a complaint is left
open, medically fragile and vulnerable adults in long-term
health care facilities are placed at risk of harm. Timely
investigations are critical to reduce risk by identifying and
acting to protect dependent adults in state care from
dangerous situations. This bill is intended to address this
issue by establishing a 40-day limit on the length of an
investigation, with allowable extensions for difficult
conditions.
2)BACKGROUND . The Licensing and Certification Division (L&C)
within DPH is responsible for ensuring and promoting a high
standard of medical care in approximately 8,000 health care
facilities and agencies in California, including about a total
of 2,500 long-term health care facilities: 1,270 skilled
nursing facilities; 1,187 intermediate care facilities; 65
congregate living health facilities; and 16 pediatric day
health and respite care facilities.
In addition to inspecting long-term health care facilities for
compliance with state law, L&C is also the state survey agency
for the federal Centers for Medicare and Medicaid Services
(CMS). DPH is responsible for certifying to the federal
government that nursing homes are eligible for payments under
CMS programs. According to CMS, state survey agencies perform
initial surveys (inspections) and periodic resurveys
(including complaint surveys) of health facilities that
receive Medicare or Medicaid financial reimbursement. CMS
requires L&C to promptly review complaints/incidents, conduct
unannounced onsite investigations of reports alleging
noncompliance, and inform CMS of any certification
requirements that are found to be out of compliance.
Under California and federal law, DPH must begin an onsite
investigation of a complaint within 10 working days of
receipt. If the complaint involves a threat of imminent
AB 1816
Page 4
danger of death or serious bodily harm, state law requires DPH
to investigate onsite within 24 hours of receipt of the
complaint. Federal rules allow for a two-day period prior to
the initiation of an investigation in these cases. Under
state law, after DPH has closed an investigation of a
complaint, it sends a written determination to the
complainant. If a complaint is substantiated, DPH provides to
the complainant a copy of a statement of deficiencies,
detailing their findings of confirmed violations. If a
complaint is unsubstantiated, the complainant receives a
written determination of DPH's findings, along with
information about the complainant's right to request an
informal conference to appeal DPH's findings, but no summary
of the evidence or specific findings related to the
allegations is required to be provided.
Untimely complaint investigations. The timeliness of the L&C
complaint investigation process has been a subject of
criticism for several years. In 2006, CANHR and two consumers
sued the Department of Health Services (or DHS, which then
housed L&C) to force DHS to comply with state law requiring
initial onsite investigation within 10 days of receipt of a
complaint. DHS informed the court that 9,463 of 17,210
complaints were initiated within 10 working days, with a
backlog of 1,071 complaints still to be initiated. The court
issued the order requested by CANHR, which established several
performance benchmarks.
In its February 23, 2006, analysis of the 2006-07 Budget, the
Legislative Analyst's Office (LAO) reported that California's
nursing home oversight system suffered from serious
weaknesses. In fiscal year 2004-05, DHS reported that only
one-half of all complaints alleging harm, but not immediate
and serious, were investigated within the 10-day timeframe
required under federal rules. In fiscal year 2001-02, nearly
72% of these complaints had been investigated within 10 days.
The LAO also reported a similar reduction in the timeliness of
investigations of self-reported incidents.
In 2007, the Bureau of State Audits published a report
entitled, "Department of Health Services: Its Licensing and
Certification Division Is Struggling to Meet State and Federal
Oversight Requirements for Skilled Nursing Facilities." The
report found that DHS had struggled to initiate and close
complaint investigations and communicate with complainants in
AB 1816
Page 5
a timely manner. According to the audit, although no federal
or state time requirements exist for closing complaints, DHS's
policy was to reach closure within 45 days of receiving a
complaint. However, between July 1, 2004, and April 14, 2006,
the audit found that DHS failed to close more than half of its
complaint cases within 45 working days. In its response to
the audit, DHS concurred that it did not meet the statutory
timeframe for initiating complaints against long-term health
care facilities, and stated that as of March 14, 2007, it had
hired 55 new surveyors. DHS asserted that these positions
would substantially augment its ability to meet the statutory
timeframes for complaint initiation and closure.
On June 20, 2012, CMS sent a letter to DPH expressing concern
with the ability of DPH to meet many of its responsibilities
as state survey agency. In this letter, CMS stated that L&C
was not adequately meeting federal survey and certification
workload requirements, including requirements to complete
investigations in a timely manner. As a result of these
concerns, CMS set benchmarks for DPH to attain and is
requiring quarterly updates from DPH on its work plans and
progress on meeting these benchmarks. CMS withheld over $1.5
million from the state grant from DPH until L&C was able to
demonstrate compliance with the benchmarks. Ultimately, 38 of
41 benchmarks were met and CMS withheld less than $200,000.
Cursory investigations. In September 2013, the Center for
Investigative Reporting published an article entitled, "Quick
dismissal of caregiver abuse cases puts Calif. patients at
risk," which focused on the investigation of complaints
against nursing home employees by L&C's Professional
Certification Branch. The article asserted in 2009, due to a
large backlog of complaints against certified nurse assistants
(CNAs) and home health aides (HHAs), L&C ordered its
investigators to dismiss nearly 1,000 pending cases, often
with a single phone call from Sacramento headquarters. The
article suggests this rapid reduction in the CNA/HHA complaint
backlog was a result of less rigorous investigations: in 2006,
L&C revoked or denied a caregiver's certification in 27% of
complaints it investigated, whereas in 2009, only 7% of
complaints resulted in revocation or denial of certification.
Annual fee reports. Since 2007, state law has required DPH to
annually calculate fees for health facilities based on
AB 1816
Page 6
workload and the cost of licensing and regulating health care
facilities. L&C is required to be entirely supported by
special funds and federal funds unless otherwise specified in
statute, or unless funds are specifically appropriated from
the General Fund by the Legislature. DPH is required to
publish an annual report each February listing the estimated
fees for each category of health facility.
State law requires DPH to prepare an analysis along with the
annual fee report that includes, among other data, information
on the number and timeliness of complaint investigations. The
law does not specify how DPH should measure the timeliness of
complaint investigation. From 2007-08 to 2009-10, DPH
reported the percentage of investigations completed within
specified timeframes. The reported timeframes vary from year
to year. Beginning with the 2012-13 report's information on
2010-11 complaints, DPH has not included any information on
timeliness of complaint investigation completion. The
information from the annual fee reports on complaint
investigations for long-term care facilities is summarized in
the table below:
-------------------------------------------------------------
|Fiscal |Total |Complaints|Immediate and |Non-IS |
|Year |complain| |serious (IS) |complaint |
| |ts |requiring |complaint |investigation |
| |received|investigat|investigation |completion |
| | |ion |completion rate |rate |
|-------+--------+----------+------------------+--------------|
|2007-08|6,754 |6,356 |69% within 10 |79% within 40 |
| | | |days |days |
|-------+--------+----------+------------------+--------------|
|2008-09|6,275 |5,961 |61% within 40 |21% within 40 |
| | | |days |days |
|-------+--------+----------+------------------+--------------|
|2009-10|6,027 |5,692 |47% within 40 |54% within 60 |
| | | |days |days |
|-------+--------+----------+------------------+--------------|
|2010-11|5,838 |5,523 |Not reported |Not reported |
| | | | | |
|-------+--------+----------+------------------+--------------|
|2011-12|6,109 |5,701 |Not reported |Not reported |
| | | | | |
|-------+--------+----------+------------------+--------------|
|2012-13|6,404 |5,926 |Not reported |Not reported |
AB 1816
Page 7
| | | | | |
-------------------------------------------------------------
3)SUPPORT . In support, CANHR, writes that this bill, by
requiring timely investigation of complaints, will prevent
nursing home residents from continuing to be subject to
neglect or abuse after it has been reported, and that this
bill will help ensure that DPH's findings are fair,
accurate, and efficient because investigations will be
conducted and completed while evidence is readily
available and still fresh. CANHR writes that the timely
investigation of nursing home complaints is a matter of
life and death for nursing home residents and that this
bill will help protect nursing home residents from neglect
and abuse and help restore public confidence in
California's nursing home oversight system.
4)RELATED LEGISLATION . AB 1996 (Brown) increases the frequency
of routine inspections of long-term health care facilities
from once every two years to once every year and authorizes a
facility inspector to refer facilities for the appointment of
a temporary manager or receiver if the inspector finds it is
necessary.
5)PREVIOUS LEGISLATION .
a) AB 1710 (Yamada), Chapter 672, Statutes of 2012, revises
how nursing home administrator licensing fees are adjusted
so that fee revenue is sufficient to cover the regulatory
costs to DPH, and revises and increases DPH reporting
requirements regarding the Nursing Home Administrator
Program.
b) SB 799 (Negrete-McLeod) of 2011 would have required DPH
to complete long-term care facility complaint
investigations within a 90-working day period. SB 799 was
held on the suspense file in Senate Appropriations.
c) AB 399 (Feuer) of 2007 contained provisions that are
substantially similar to this bill. AB 399 was vetoed by
Governor Schwarzenegger with the following message: "While
I believe this bill is well-intended, it is premature to
place additional investigation requirements on this program
as it continues to demonstrate progress in meeting its
mandated state and federal workload."
AB 1816
Page 8
d) AB 1807 (Committee on Budget), Chapter 74, Statutes of
2006, was the health trailer bill for the Budget Act of
2006. Among other changes, AB 1807 establishes a new fee
structure for health facilities that licensed and/or
certified by L&C: fees must be calculated based on i)
specified workload data provided by DPH to the Legislature
and made available to the public on their website; ii) any
General Fund support appropriated by the Legislature; iii)
any federal grant funds received for this purpose; and iv)
any policy adjustments as proposed by the Administration
and as adopted by the Legislature. States intent that L&C
become entirely supported by fees and federal funds by no
later than July 1, 2009.
e) 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.
f) AB 1731 (Shelley), Chapter 451, Statutes of 2000, enacts
major reforms for skilled nursing facilities and
intermediate care facilities, including the expansion of
citations and penalties, an increase in disclosure
requirements and inspections, requires DPH to provide
specified notice to complainants within specified
timeframes, and requires initial onsite investigations
within 24 hours in response to complaints where there is a
serious threat of imminent danger of death or serious
bodily harm.
6)POLICY COMMENT . This bill limits complaint investigations to
40 working days, with the possibility for a single extension
of up to 30 additional days, after which DPH is required to
complete its investigation. This requirement could have the
unintended consequence of requiring DPH, when the 70-day limit
is reached, to close investigations before they are complete.
Therefore, the Committee may wish to amend the bill to allow
additional 30-day extensions, with corresponding notifications
to the complainant, if DPH has not been able to obtain
necessary evidence related to the investigation. To create a
measure of accountability, the Committee may wish to further
amend the bill to explicitly require DPH to publish, as part
of its annual fee report, the number of complaint
investigations that were completed within 40 days, how many
AB 1816
Page 9
required an additional 30-day extension, how many required two
additional extensions, up to the maximum number of extensions
granted.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform
California Association of Health Facilities
California Communities United Institute
California Long-Term Care Ombudsman Association
Consumer Federation of California
Opposition
None on file.
Analysis Prepared by : Ben Russell / HEALTH / (916) 319-2097