BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 1816
AUTHOR: Yamada
AMENDED: June 17, 2014
HEARING DATE: June 25, 2014
CONSULTANT: Marchand
SUBJECT : Long-term health care facilities.
SUMMARY : Requires the California Department of Public Health to
set a performance benchmark of at least within 60 days for
completing investigations of complaints against long-term health
care facilities.
Existing law:
1.Provides for the licensure and regulation of long-term health
care facilities by the California Department of Public Health
(CDPH), 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.
2.Requires CDPH 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 complaint
involves the threat of imminent danger of death or serious
bodily harm, CDPH is required to make an onsite inspection or
investigation of the facility within 24 hours of receipt of
the complaint.
3.Requires CDPH, 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.
4.Requires CDPH to notify the complainant and the facility
licensee, in writing, of its determinations within ten days of
the completion of the inspection or investigation. If a
complainant is dissatisfied with the department's
Continued---
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determinations, the law requires CDPH to notify the
complainant of his or her right to an informal conference, and
provides the complainant five days to request such a
conference.
5.Requires CDPH 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:
1.Requires CDPH, in any case in which a complaint about a
long-term health care facility involves a threat of imminent
danger of death or serious bodily harm, to make an onsite
inspection or investigation "as soon as practicable," and in
no case more than 24 hours after receipt of the complaint,
rather than the existing law requirement of within 24 hours of
the receipt of the complaint.
2.Requires CDPH to set a performance benchmark, on or before
July 1, 2015, for completing its investigations of complaints
of long-term health care facilities within a defined number of
days after receiving a complaint, and prohibits this benchmark
from exceeding 60 working days.
3.Requires CDPH, if it extends an investigation beyond the
number of days specified in the performance benchmark, to
notify the complainant, in writing, of the basis for the
extension, and to include in the notice the status of the
investigation and the anticipated completion date. Requires
CDPH to complete the investigation as expeditiously as
possible.
4.Requires CDPH, effective July 1, 2015, upon request of the
complainant, to provide specific findings concerning an
alleged violation, and to include a summary of the evidence
upon which the determination is made. Prohibits the written
determination from disclosing the names of individual
residents.
5.Extends the deadline by which a complainant, who has been
notified of CDPH's determination regarding a complaint and is
dissatisfied, can request an informal conference, from five
AB 1816 | Page
3
business days to 15 days after receipt of the notification of
CDPH's determination.
6.Requires CDPH to apply the time frames for investigation or
inspection in this bill to a report from the facility of an
alleged violation.
7.States the intent of the Legislation in enacting this bill
that CDPH endeavor to complete investigations of complaints
within the benchmark established pursuant to this bill.
8.Requires CDPH to analyze its compliance with the benchmark
developed pursuant to this bill in its annual system and
staffing analysis, as specified, and requires this benchmark
compliance analysis to be made available to the relevant
fiscal and policy committees of the Legislature and to be
posted on CDPH's Internet Web site. Requires this benchmark
compliance analysis to provide data on CDPH's performance and
to include, at a minimum, a tabulation of all of the
following:
a. Open investigations;
b. Completed investigations;
c. Number and percentage of investigations that
meet the benchmark; and,
d. Average length of time to complete an
investigation.
9.Prohibits anything in this bill from being interpreted to
diminish CDPH's authority and obligation to investigate and
enforce any alleged violation of applicable requirements of
state and federal law, or any alleged facts that might
constitute a violation.
FISCAL EFFECT : Unknown, significant costs, potentially in the
low millions of dollars annually to the Licensing and
Certification Fund within CDPH to meet the imposed time frames
for completion of investigations, paid for by facility licensing
fees. Of this amount, about five percent is attributable to
state-run facilities, whose licensure fees are paid for with
General Fund dollars.
PRIOR VOTES :
AB 1816 | Page 4
Assembly Health: 19- 0
Assembly Appropriations:16- 0
Assembly Floor: 78- 0
COMMENTS :
1.Author's statement. According to the author, 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 indicates that CDPH struggles to
meet its work-load demands. Testimony revealed thousands of
complaints of mistreatment, misconduct and abuse in nursing
homes have languished for years with incomplete investigation.
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. For an abused elder isolated within a
long-term care facility, 60-days can be, literally, a
lifetime. Timely investigations are critical to reduce risk
by identifying and acting to protect dependent adults in state
care from dangerous situations. AB 1816 directs CDPH to
establish a maximum length of an investigation of no more than
60 days, with time extensions under certain conditions.
2.History of poor performance. In 2005, the California Advocates
for Nursing Home Reform (CANHR) and two consumers sued the
Department of Health Services (DHS, CDPH's predecessor) to
force DHS to comply with the requirement that the initial
onsite investigation of a complaint happen within 10 days of
receipt of a complaint. The lawsuit included a quote from a
newspaper article in which the individual in charge of DHS'
L&C acknowledged that DHS often failed to meet the 10-day
requirement because DHS did not have enough inspectors. The
court issued an order as a result of this lawsuit in 2006,
which established several performance benchmarks, including
onsite investigations being conducted within ten days for 80
percent of new complaints through April of 2007, and 100
percent compliance for new complaints beginning in May of
2007. The court also ordered DHS to clear the entire backlog
of complaints by September of 2006.
In April of 2007, the Bureau of State Audits (BSA) released its
report concerning DHS' oversight of skilled nursing
facilities. BSA concluded that DHS struggled to initiate and
close complaint investigations and communicate with
complainants in a timely manner, and did not correctly
prioritize certain complaints it received. BSA found that DHS'
data on complaints were of undetermined reliability, but
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according to this data, DHS promptly initiated investigations
for only 51 percent of the complaints for which it began
investigations, and promptly completed investigations only 39
percent of the time.
3.Federal 60-day benchmark. In May 2012, the federal Centers
for Medicare and Medicaid Services (CMS) informed CDPH that a
portion ($1,565,384) of the allocation that it provides to
CDPH to perform CMS surveys and certification of long-term
care facilities was being withheld, and would be released only
if CDPH met certain benchmarks. According to CMS, CDPH had a
backlog of over 8,500 complaint investigations that had not
been completed in 2012 and more than 2,200 additional
complaints that it had not even begun to investigate. These
benchmarks, among other things, required CDPH to hire new
staff as part of a process toward achieving a full complement
of staff, ensure managers received specified training, and
establish, use, monitor and evaluate a statewide tracking
system for its workload. These benchmarks also required CDPH
to develop policies and procedures for the investigation of
complaints in CMS-certified long-term care facilities, provide
complaint investigation training to all staff, and to
investigate and close complaints against long-term care
facilities within 60 days. In December 2013, CDPH responded to
CMS on its progress in meeting its benchmarks, and stated that
it met 38 out of 39 benchmarks. The only benchmark that CDPH
failed to meet was related to completing investigations within
60 days. CDPH reported that instead of the required benchmark
of closing 95 percent of complaints within 60 days, the
compliance rate for this benchmark was only 64 percent.
4.Related legislation. AB 1996 (Brown), would have increased 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. AB 1996 was referred to
Assembly Health Committee, but was never heard.
5.Prior legislation. AB 1710 (Yamada), Chapter 672, Statutes of
2012, revised how nursing home administrator licensing fees
are adjusted so that fee revenue is sufficient to cover the
regulatory costs to CDPH, and revised and increased CDPH
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reporting requirements regarding the Nursing Home
Administrator Program.
SB 799 (Negrete-McLeod) of 2011 would have required CDPH to
complete long-term care facility complaint investigations
within a 90-working day period. SB 799 was held on the Senate
Appropriations Committee suspense file.
AB 399 (Feuer), of 2007, would have established a 40-day
timeframe in which CDPH must complete a long-term care
facility complaint investigation. AB 399 was vetoed by
Governor Schwarzenegger, who stated that while he believed
this bill was well-intentioned, it was premature to place
additional investigation requirements on this program as it
continues to demonstrate progress in meeting its mandated
state and federal workload.
SB 1312 (Alquist), Chapter 895, Statutes of 2006, required
inspections and investigations of long-term care facilities
certified by CMS to determine compliance with federal
standards and California statutes and regulations.
AB 1629 (Frommer), Chapter 875, Statutes of 2004, established
a quality assurance fee on skilled nursing facilities.
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.
6.Support. The Consumer Federation of California (CFC) states
in support that the mistreatment of nursing home residents has
been an ongoing problem in California, and that consumers have
lost all faith that CDPH will properly respond to negligent
conditions in nursing homes. CFC states that this is a simply
but meaningful bill that will require more timely
investigations of complaints. The California Association of
Health Facilities also supports this bill, which points out
that there are no timelines in law for CDPH to complete
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investigations of complaints, and that timely investigations
benefit all stakeholders. The California Long-Term Care
Ombudsman states that it has frequently expressed frustrations
with the current length of time it can take for CDPH to
investigate complaints and close cases, and that in many
instances, so much time has elapsed the complaint can no
longer be properly investigated due to faded memories or the
death of witnesses. AARP states in support that this bill
represents an important step in the right direction to improve
the timeliness of the complaint system. Disability Rights
California supports this bill, stating that requiring CDPH to
set benchmarks for completion of its investigations will help
ensure evidence is preserved, witnesses' memories are fresh,
and perpetrators are prosecuted, though it believes there
should be a limit as to how long CDPH can extend
investigations. The California Retired Teachers Association
states that this bill will strengthen and improve the state
oversight and enforcement process for long-term care
facilities, making important strides to ensure the safety of
California's seniors.
7.Oppose unless amended. California Advocates for Nursing Home
Reform is opposed to this bill unless it is amended to restore
the bill to the version prior to amendments made in Assembly
Appropriations Committee. Prior to the amendments, this bill
required CDPH to complete investigations within 40 working
days, with a 30-day extension when necessary. According to
CANHR, the amendments made in Assembly Appropriations gutted
this requirement, replacing it with an instruction that CDPH
set a performance benchmark for complaint investigations,
while allowing CDPH unrestricted authority to exceed whatever
benchmark it sets. In doing so, CANHR states that this amended
bill seeks to enact the failed approach that is the source of
the problem. CANHR states that CDPH already has internal and
external (CMS) benchmarks for completing complaint
investigations that have been in place for years, and it has
routinely ignored these benchmarks for at least the last
decade. According to CANHR, nursing home residents throughout
California are increasingly at risk of neglect, abuse and
death due to CDPH's overwhelming failure to respond to
complaints about mistreatment in a timely and appropriate
manner, and that now is not the time for timid direction to
CDPH. CANHR requests that this bill be amended to replace the
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benchmark with a requirement that CDPH complete complaint
investigations within 60 days (not working days), and to
restore this bill's original language allowing a single
extension of 30 days when necessary.
8.Technical amendments. On page 2, line 14, the word "of" should
be deleted, and the word "after" inserted in its place.
SUPPORT AND OPPOSITION :
Support: AARP
California Association of Health Facilities
California Hospital Association
California Long-Term Care Ombudsman Association
California Retired Teachers Association
California State Retirees
Consumer Federation of California
Disability Rights California
National Association of Social Workers, California
Chapter
Retired Public Employees Association
Oppose: California Advocates for Nursing Home Reform (unless
amended)
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