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The Good, the Bad, and the Ugly!

On Thursday, September 14, 2000, Governor Davis signed the nursing home reform bill, AB 1731 (Shelley), into law.

The bill ended as a compromise between last year’s AB 1160 and the Governor’s idea of nursing home reform. As Senator John Vasconcellos (D-Santa Clara) noted upon the passage of AB 1731: “It´s not nearly all it could be, but we pushed the rock halfway up the hill.”

Thanks to Assemblymember Kevin Shelley (D-San Francisco), the bill´s author, Senator Vasconcellos, who forced the bill to conference committee by sponsoring SB 1862, his own, much more inclusive measure, and to the strong opposition of such advocacy groups as the California Congress of Seniors, Older Women´s League, Bet Tzedek Legal Services, California Gray Panthers, National Senior Citizens Law Center and CANHR, many “but not all” of the objectionable provisions originally included in the Governor’s Initiative for nursing home reform were deleted. Many “but not all” of the provisions the advocates wanted included were added to the bill

While AB 1731 includes many good provisions, including several important residents’ rights amendments, it also includes a number of questionable provisions and fails to deal adequately with two of the most important quality of care issues: increased staffing and better staff training.

Following is the good, the bad and the ugly of AB 1731:

The Good

A. Residents’ Rights:

  • Room-to-Room Transfers: effective 1/1/02, prohibits facilities from room-to-room transfers when a resident changes from private pay or Medicare to Medi-Cal, except when the resident is in a private room. Also prohibits facilities from evicting residents whose Medi-Cal eligibility is pending.
  • Transfers to Acute Care/Bed Holds: allows a resident who has been transferred to an acute care hospital to file an appeal when the facility refuses to readmit the resident.
  • Complaint system: strengthens the resident/consumer complaint system and requires an investigation within 24 hours when the complaint involves imminent danger of death or serious bodily harm.

Note: In the next issue of the advocate, CANHR will focus on the new complaint procedures as required by AB 1731.

B. Temporary Manager/Receivership

  • Allows the Department to appoint a temporary manager immediately to prevent death or serious harm to the residents and to prevent transfer trauma. Allows the licensee to appeal the appointment to an Administrative Hearing and to a judicial appeal.
  • Increases the amount of funds available in the Health Facilities Citation Penalties Account from $1 million to $10 million.
  • Allows the Department to recoup the costs of a receivership from the facility, the licensee or from other entities related to the licensee. This is particularly important, as, under current law, DHS could spend well over $1 million on receivership and never recoup the funds. This has prevented DHS from imposing receiverships in the first place.

C. Enforcement:

  • Increased fines: increases penalties for Class AA citations to a range of $25,000-$100,000 (currently $5,000-$25,000), Class A fines to $2,000-$20,000 (currently $1,000-$5,000), and fines for citations relating to falsification of medical records to a range of $2,000 to $20,000. Note: Fines for Class B citations—The majority of citations issued—were not increased and remain at the range of $100-$1,000.
  • Financial Solvency: establishes a Financial Solvency Advisory Board to develop recommendations on financial solvency for nursing home licensees.
  • Annual report: requires DHS to submit to the Legislature an annual summary of federal enforcement actions.
  • Cycle of Surveys: Varies the cycle of inspections to reduce predictability of surveys.
  • Transfer trauma: Requires facilities to implement a comprehensive relocation plan when the residents are transferred due to any change in the status of the license or operation of the facility, including voluntary or involuntary termination of the facility’s Medi-Cal or Medicare certification.
  • Provisional license: allows the Department to rescind a license and issue a provisional license when certain remedies are imposed.
  • Abuse: requires facilities to report within 24 hours all incidents of suspected or alleged abuse.

D. Consumer Information/Notices

  • Requires facilities to post notices of certain remedies imposed for violations, including decertification for Medi-Cal or Medicare, ban on admissions or suspension of license on all doors providing ingress or egress from the facility.
  • Requires facilities to post notices of long term care ombudsman services and imposes penalties for violation.
  • Requires DHS to develop a consumer information system by 1/1/02 with detailed information on long term care facilities, including an on-line system.
  • Requires facilities to send written notices to the residents and the residents’ representatives when certain penalties are imposed, such as decertification from Medi-Cal or Medicare and bans on admissions.

The Bad

Clearly, the problem of short staffing needs to be addressed if we are ever to see serious improvements in quality in nursing homes. Despite almost unanimous support for specified increased staffing hours, AB 1731, at the Governor’s insistence, instead requires the Department to "study" the issue and to make recommendations on staffing increases by May of 2001. The staffing provisions also include legislative intent to increase the number of direct care nursing hours to 3.5 hours per patient per day by 2004 or to the levels determined by DHS.

The Governor’s budget includes a 7.5% wage pass through for direct care staff – money that may or may not end up in the pockets of the workers.

Is this nursing home reform? No. Nor do we need yet another study to determine that California nursing homes are seriously understaffed. The staffing provisions in AB 1731 are seriously inadequate, and the legislative intent language is only a beginning.

Staff Training:

If we are ever going to attract sufficient, responsible staff and reduce staff turnover rates, we need to professionalize the certified nurse assistant position, establish a training program through the educational system like community colleges, provide career ladder incentives to encourage CNAs to remain in the long term care profession and pay them enough to support themselves.

Under current law, a 16-year-old high school drop out can become a certified nurse assistant with only 50 hours of in-service training and 100 hours of on-the-job training. This teenager is then "certified" to provide hands-on care to our loved ones.

  • AB 1731 does little to address any of these training issues. It adds ten hours of classroom training which can be provided by the facility.
  • On or before 1/1/04, the Department of Health Services is required to review the current CNA examination and develop a plan that identifies and encourages career ladder opportunities for CNAs.

The Ugly

  • Establishes a consulting unit in the Department to provide facilities with training and technical assistance and prohibits state employees who provide such assistance from reporting violations, unless there is an immediate threat to residents or actual harm.
  • Repeals public information reporting and media requirements for DHS, including press releases for sanctions against facilities.
  • Prohibits DHS from notifying the public (including the residents) when the facility exhibits evidence of financial trouble.
  • Establishes a $50 million "Quality Awards Program," to provide grants to facilities for "innovative" programs. While this money is earmarked for "staff bonuses," we know better. The State will publish an annual listing of the award recipients,which the public will no doubt confuse with quality of care.

At a time when Medi-Cal recipients are losing their family homes to repay the Medi-Cal program, it is an outrageous proposal to be bribing facilities to provide decent care.

The Money

The other half of the Governor’s Initiative is his budget. In his 2000-01 state budget, the Governor has included $228.4 million (an increase of $450.9 with the federal match) to increase provider Medi-Cal rates.

Medi-Cal base rate increases will average 11.7% for skilled nursing facilities, with an additional 7.5% wage pass through for direct care and other staff. Effective 8/1/00, Medi-Cal rates for long-term care facilities statewide increased by an average of 16.8%—a statewide average of $111 per day.

In some cases the new rates exceed the current private pay rate, and the industry is advising providers to increase their rates.

Hundreds of millions of dollars in more money, little accountability for the money and an empty promise of better care from the nursing home industry. No, this is not "nursing home reform," and much still needs to be done to ensure that California’s nursing home residents receive the care they need and deserve.

Kudos should be given to all of the advocates who worked so hard to change the Governor’s mind and to force him to back off from his more onerous proposals. And special thanks, once again, to Assemblyman Shelley and to Senator Vasconcellos for their hard work and their willingness to push for real reforms.