Existing law provides for the licensing and regulation of health facilities, including, but not limited to, long-term health care facilities, as defined, by the State Department of Health Care Services. A violation of the provisions relating to these facilities is a crime. Existing law requires a contract for admission to a long-term care facility to state that a resident shall not be involuntarily transferred within, or discharged from, a long-term health care facility unless the resident is given reasonable notice in writing, and transfer or discharge planning, as specified. Existing law requires the notice to state the reason for the transfer or discharge. Existing law requires the facility to immediately notify the State Long-Term Care Ombudsman if the discharge is involuntary.

When a resident is notified in writing of a facility-initiated transfer or discharge from a long-term health care facility, existing law requires that the local long-term care ombudsman be sent a copy of the notice.

This bill would require the facility to provide, within 48 hours of the written notice of a facility-initiated transfer or discharge, a copy of the residents discharge needs and discharge plan. The bill would require the facility to provide a copy of the residents discharge summary prior to the proposed transfer or discharge date. The bill would require the facility to provide these documents at no cost to the resident. If the resident requests a transfer or discharge appeal hearing, the bill would require both the resident and the facility to provide all documents and records to be used by the party at the hearing, as specified. Because a violation of these requirements by a long-term health care facility would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensing and regulation of health facilities, including, but not limited to, long-term health care facilities, as defined, by the State Department of Health Care Services. A violation of the provisions relating to these facilities is a crime. Existing law requires a contract for admission to a long-term care facility to state that a resident shall not be involuntarily transferred within, or discharged from, a long-term health care facility unless the resident is given reasonable notice in writing, and transfer or discharge planning, as specified. Existing law requires the notice to state the reason for the transfer or discharge. Existing law requires the facility to immediately notify the State Long-Term Care Ombudsman if the discharge is involuntary.

When a resident is notified in writing of a facility-initiated transfer or discharge from a long-term health care facility, existing law requires that the local long-term care ombudsman be sent a copy of the notice.

This bill would require the facility to provide, within 48 hours of the written notice of a facility-initiated transfer or discharge, a copy of the residents discharge needs and discharge plan. The bill would require the facility to provide a copy of the residents discharge summary prior to the proposed transfer or discharge date. The bill would require the facility to provide these documents at no cost to the resident. If the resident requests a transfer or discharge appeal hearing, the bill would require both the resident and the facility to provide all documents and records to be used by the party at the hearing, as specified. Because a violation of these requirements by a long-term health care facility would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensing and regulation of health facilities, including, but not limited to, long-term health care facilities, as defined, by the State Department of Health Care Services. A violation of the provisions relating to these facilities is a crime. Existing law requires a contract for admission to a long-term care facility to state that a resident shall not be involuntarily transferred within, or discharged from, a long-term health care facility unless the resident is given reasonable notice in writing, and transfer or discharge planning, as specified. Existing law requires the notice to state the reason for the transfer or discharge. Existing law requires the facility to immediately notify the State Long-Term Care Ombudsman if the discharge is involuntary.

This bill would require the facility to provide, within 48 hours of the written notice above, of a facility-initiated transfer or discharge, a copy of the residents discharge needs and discharge plan. The bill would require the facility to provide a copy of the residents discharge summary prior to the proposed transfer or discharge date. The bill would require the facility to provide these documents at no cost to the resident. If the resident requests a transfer or discharge appeal hearing, the bill would require both the resident and the facility to provide all documents and records to be used by the party at the hearing, as specified. Because a violation of these requirements by a long-term health care facility would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensing and regulation of health facilities, including, but not limited to, long-term health care facilities, as defined, by the State Department of Health Care Services. A violation of the provisions relating to these facilities is a crime. Existing law requires a contract for admission to a long-term care facility to state that a resident shall not be involuntarily transferred within, or discharged from, a long-term health care facility unless the resident is given reasonable notice in writing, and transfer or discharge planning, as specified. Existing law requires the notice to state the reason for the transfer or discharge.

This bill would require the notice to the resident to include specific facts to permit determination of the date, place, witnesses, and circumstances concerning the reason for the transfer or discharge. written notice to additionally be provided to the residents representative, if applicable. The bill would require the facility to provide, within 48 hours of the written notice above, a copy of the residents discharge needs and discharge plan. The bill would require the facility to provide a copy of the residents discharge summary prior to the proposed transfer or discharge date. The bill would require the facility to provide these documents at no cost to the resident. If the resident requests a transfer or discharge appeal hearing, the bill would require both the resident and the facility to provide all documents and records to be used by the party at the hearing, as specified. Because a violation of these requirements by a long-term health care facility would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law provides for the licensing and regulation of health facilities, including, but not limited to, long-term health care facilities, as defined, by the State Department of Health Care Services. A violation of the provisions relating to these facilities is a crime. Existing law requires a contract for admission to a long-term care facility to state that a resident shall not be involuntarily transferred within, or discharged from, a long-term health care facility unless the resident is given reasonable notice in writing, and transfer or discharge planning, as specified. Existing law requires the notice to state the reason for the transfer or discharge.

This bill would require the notice to the resident to include specific facts to permit determination of the date, place, witnesses, and circumstances concerning the reason for the transfer or discharge. Because a violation of these requirements by a long-term health care facility would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1309

Author:(Reyes)

As Amended Ver:August 28, 2023

Majority vote

SUMMARY

This bill requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge related documents, including a description of specific needs that cannot be met and the facility's attempts to meet those needs when the basis of the transfer or discharge is because the resident's needs cannot be met in the facility.

Senate Amendments

Recent amendments are clarifying in nature moving the provisions of this bill to a different section of law that already contains related requirements about discharge notifications in order to consolidate discharge notification requirements in one section of law.

COMMENTS

Current federal regulations require nursing homes to create the documentation that this bill is mandating be provided. Under federal requirements, a facility is required to have a discharge summary, and requires the summary to include a recapitulation of the resident's stay that includes diagnoses and course of treatment, a final summary of the resident's status, reconciliation of all pre-discharge medications with post-discharge medications, and a post-discharge plan of care that is developed with the resident or resident's representative that is required to indicate where the individual will reside and what arrangements have been made for the resident's care. Additionally, federal regulations requires, when a facility transfers or discharges a resident under any of the allowed circumstances (42 Code of Federal Regulations Section 483.15(c)), that the facility document in the resident's medical record the basis for the transfer, and in the case of not being able to meet a need, what that specific need is and the facility's attempts to meet the need and the service available at the receiving facility that will meet the need.

However, while facilities are required to include the reason for the transfer or discharge as part of the required notice of transfer or discharge, it doesn't explicitly require that the specific need that the facility claims it is unable to provide be part of the notice provided to residents, nor what steps were taken to attempt to meet the resident's needs, despite this information being required to be documented in the medical record. According to the author and sponsor, the goal of this bill is to provide resident's and their representatives with a level of detail that the facility is already required to produce, in order for the resident to have all the information necessary in the event they wish to appeal an inappropriate transfer or discharge.

According to the Author

"AB 1309 requires that notices to nursing home residents regarding reasons for their transfer or discharge include additional details, and specific facts to permit determination of the date, place, witnesses, and circumstances concerning the reason for their transfer or discharge. One of the most common complaints received by California's Long-Term Care Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill is intended to discourage facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhance the quality of resident appeals."

Arguments in Support

The California Advocates for Nursing Home Reform (CANHR), the sponsor of AB 1309 writes, "Nursing homes provide vital housing and care to about 450,000 residents each year, many of whom are medically fragile and disabled. There are only about 100,000 nursing home beds in California, which means there are roughly 350,000 evictions annually. Because of the extensive and complex care needs of nursing home residents, moving them out requires careful advance planning and coordination to ensure they end up in a place that is safe, appropriate, and stable. Bad evictions are those that are not careful or coordinated or end with the resident in an unsafe, inappropriate, or unstable place. These evictions sometimes mean residents with significant care needs are dumped into motels, homeless shelters, or the streets."

Arguments in Opposition

None on file.

FISCAL COMMENTS

The California Department of Public Health (CDPH) anticipates minor and absorbable costs.

VOTES:

ASM AGING AND LONG-TERM CARE: 7-0-1

YES: Bains, Ta, Alvarez, Haney, Stephanie Nguyen, Reyes, Blanca Rubio

ABS, ABST OR NV: Joe Patterson

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Robert Rivas, Sanchez, Ortega

ABS, ABST OR NV: Weber

ASSEMBLY FLOOR: 76-0-4

YES: Addis, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones‑Sawyer, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk‑Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

ABS, ABST OR NV: Aguiar-Curry, Kalra, Mathis, Papan

UPDATED

VERSION: August 28, 2023

CONSULTANT: Elizabeth Fuller / AGING & L.T.C. / (916) 319-3990 FN: 0001759

 CONSENT  

Bill No: AB 1309

Author: Reyes (D), et al.

Amended: 8/28/23 in Senate

Vote: 21

SENATE HEALTH COMMITTEE: 12-0, 6/21/23

AYES: Eggman, Nguyen, Glazer, Gonzalez, Grove, Hurtado, Limón, Menjivar, Roth, Rubio, Wahab, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/25/23 (Consent) - See last page for vote

SUBJECT: Long-term health care facilities: admission contracts

SOURCE: California Advocates for Nursing Home Reform

DIGEST:

This bill requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge related documents, including a description of specific needs that cannot be met and the facility’s attempts to meet those needs when the basis of the transfer or discharge is because the resident’s needs cannot be met in the facility.

Senate Floor Amendments of 8/28/23 move the provisions of this bill to a different section of law that already contains related requirements about discharge notifications in order to consolidate discharge notification requirements in one section of law.

ANALYSIS:

Existing law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including long-term health care (LTC) facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities (ICFs), and congregate living health facilities. [HSC §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that, except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax machine or email, as directed by the local LTC Ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits an LTC facility that participates as a provider under the Medi-Cal program from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semiprivate room. [WIC §14124.7]
5. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [42 CFR §483.15(c)]
6. Prohibits an LTC facility from transferring or discharging a resident while an appeal is pending, as specified, unless the failure to discharge or transfer would endanger the health or safety of the resident or other individuals in the facility. Requires the facility to document the danger that failure to transfer or discharge would pose. [42 CFR §483.15(c)]

This bill:

1. Requires an LTC facility, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident, and if applicable, the resident’s representative, a copy of all of the following:
   1. The evaluation of the resident’s discharge needs and discharge plan as required by federal law or the most current discharge plan; and,
   2. In the case of the transfer or discharge being necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, all of the following information (if not included in the most current discharge plan):
      1. A written description of the specific resident’s needs that cannot be met;
      2. Facility attempts to meet the resident’s needs; and,
      3. The services available at the receiving facility that meet the resident’s needs.
2. Requires an LTC facility, prior to the proposed transfer or discharge date, to provide the resident and, if applicable, the resident’s representative a copy of the resident’s discharge summary.
3. Requires any documents provided to the resident and the resident’s representative to be at no cost to the resident or resident’s representative.
4. Permits the documents 1) and 2) above to not be provided if the resident or representative requests that they not be provided or if no discharge is proposed.
5. Requires the LTC facility, if a transfer or discharge appeal hearing is requested by the resident or resident’s representative, to provide the resident or representative the opportunity to examine, at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing, all documents and records to be used by the facility at the hearing. Requires a resident or resident’s representative to provide the facility the same opportunity to examine all documents and records to be used by the resident at the hearing.
6. Specifies that the provisions of this bill are intended to be consistent with federal law and regulations.

Background

Federal requirements already require nursing homes to create the documentation that this bill is requiring to be provided. Under federal requirements, a facility is required to have a discharge summary, and requires the summary to include a recapitulation of the resident’s stay that includes diagnoses and course of treatment, a final summary of the resident’s status, reconciliation of all pre-discharge medications with post-discharge medications, and a post-discharge plan of care that is developed with the resident or resident’s representative that is required to indicate where the individual will reside and what arrangements have been made for the resident’s care. Additionally, federal regulations requires, when a facility transfers or discharges a resident under any of the allowed circumstances (as detailed in Existing law 5) above), that the facility document in the resident’s medical record the basis for the transfer, and in the case of not being able to meet a need, what that specific need is and the facility’s attempts to meet the need and the service available at the receiving facility that will meet the need.

However, while facilities are required to include the reason for the transfer or discharge as part of the required notice of transfer or discharge, it doesn’t explicitly require that the specific need that the facility claims it is unable to provide be part of the notice provided to residents, nor what steps were taken to attempt to meet the resident’s needs, despite this information being required to be documented in the medical record. According to the author and sponsor, the goal of this bill is to provide resident’s and their representatives with a level of detail that the facility is already required to produce, in order for the resident to have all the information necessary in the event they wish to appeal an inappropriate transfer or discharge.

Comments

Author’s statement. According to the author, this bill requires that nursing home residents are provided with additional documentation on the basis of their transfer or discharge. One of the most common complaints received by California’s LTC Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill discourages facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhances the quality of resident appeals.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/28/23)

California Advocates for Nursing Home Reform (source)

American Association of Retired Persons
California Commission on Aging

California Continuing Care Residents Association

California Geriatric Circle
California Long-Term Care Ombudsman Association
California Office of the State Long-Term Care Ombudsman
California Retired Teachers Association
Choice in Aging
Consumer Attorneys of California
Disability Rights California
Gray Panthers of San Francisco
Justice in Aging

Senior Advocacy Series

Two individuals

OPPOSITION: (Verified 8/28/23)

None received

ARGUMENTS IN SUPPORT: California Advocates for Nursing Home Reform (CANHR) argues that because of the extensive and complex needs of nursing home residents, moving them out requires careful advance planning and coordination to ensure that they end up in a place that is safe, appropriate, and stable. Bad evictions are those that are not careful or coordinated or end with the resident in an unsafe, inappropriate, or unstable place. CANHR states that bad evictions are one of the most common complaints made about nursing homes, and cites data from the National Ombudsman Reporting system showing 2,100 complaints per year in California related to nursing home evictions. According to CANHR, almost every nursing home resident is admitted after a hospital stay, and typically has about 10 to 20 days of rehabilitative services covered by Medicare, which pays a generous rate compared to other payment sources. If a person needs to stay in a nursing home for care after their Medicare coverage ends, they have to switch to a less lucrative payment source, such as Medi-Cal, which creates enormous incentives for facilities to evict residents who have exhausted Medicare coverage and replace them with new residents with fresh Medicare coverage. Because Medicare coverage terminations are usually swift with little notice, the facility tries to evict residents within that time, which is why residents are often sent home with inadequate care in place or to motels or homeless shelters. CANHR states that the only statutory and regulatory protection that empowers residents to stop unsafe evictions is the requirement that they be given written notice of the “reason for the move” and information about their right to appeal. However, a significant problem with the eviction notification laws is that they leave uncertainty about the level of detail required when explaining the facility’s justification for evicting the resident. CANHR states that nearly every eviction notice given to residents lists the six reasons for evicting residents allowed under federal law, with one or more reasons checked. The notice should include details to support the cited reason, but unfortunately, these details are not expressly delineated in the law and regulations. This bill clarifies that nursing homes must share with residents the basis for evictions, and include that same level of detail that is already required for residential care facilities for the elderly. Requiring this additional information will enable residents to better defend against inappropriate and unsafe evictions on appeal.

ASSEMBLY FLOOR: 76-0, 5/25/23

AYES: Addis, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Aguiar-Curry, Kalra, Mathis, Papan

Prepared by: Vincent D. Marchand / HEALTH / (916) 651-4111

8/31/23 10:47:01

**** END ****

 THIRD READING  

Bill No: AB 1309

Author: Reyes (D)

Amended: 4/27/23 in Assembly

Vote: 21

SENATE HEALTH COMMITTEE: 12-0, 6/21/23

AYES: Eggman, Nguyen, Glazer, Gonzalez, Grove, Hurtado, Limón, Menjivar, Roth, Rubio, Wahab, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/25/23 (Consent) - See last page for vote

SUBJECT: Long-term health care facilities: admission contracts

SOURCE: California Advocates for Nursing Home Reform

DIGEST:

This bill requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge related documents, including a description of specific needs that cannot be met and the facility’s attempts to meet those needs when the basis of the transfer or discharge is because the resident’s needs cannot be met in the facility.

ANALYSIS:

Existing law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including long-term health care (LTC) facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities (ICFs), and congregate living health facilities. [HSC §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that, except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC Ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC Ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax machine or email, as directed by the local LTC Ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits an LTC facility that participates as a provider under the Medi-Cal program from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semiprivate room. [WIC §14124.7]
5. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [42 CFR §483.15(c)]
6. Prohibits an LTC facility from transferring or discharging a resident while an appeal is pending, as specified, unless the failure to discharge or transfer would endanger the health or safety of the resident or other individuals in the facility. Requires the facility to document the danger that failure to transfer or discharge would pose. [42 CFR §483.15(c)]

This bill:

1. Requires an LTC facility, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident, and if applicable, the resident’s representative, a copy of all of the following:
   1. The evaluation of the resident’s discharge needs and discharge plan as required by federal law or the most current discharge plan; and,
   2. In the case of the transfer or discharge being necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, all of the following information (if not included in the most current discharge plan):
      1. A written description of the specific resident’s needs that cannot be met;
      2. Facility attempts to meet the resident’s needs; and,
      3. The services available at the receiving facility that meet the resident’s needs.
2. Requires an LTC facility, prior to the proposed transfer or discharge date, to provide the resident and, if applicable, the resident’s representative a copy of the resident’s discharge summary.
3. Requires any documents provided to the resident and the resident’s representative to be at no cost to the resident or resident’s representative.
4. Permits the documents 1) and 2) above to not be provided if the resident or representative requests that they not be provided or if no discharge is proposed.
5. Requires the LTC facility, if a transfer or discharge appeal hearing is requested by the resident or resident’s representative, to provide the resident or representative the opportunity to examine, at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing, all documents and records to be used by the facility at the hearing. Requires a resident or resident’s representative to provide the facility the same opportunity to examine all documents and records to be used by the resident at the hearing.
6. Specifies that the provisions of this bill are intended to be consistent with federal law and regulations.

Background

Federal requirements already require nursing homes to create the documentation that this bill is requiring to be provided. Under federal requirements, a facility is required to have a discharge summary, and requires the summary to include a recapitulation of the resident’s stay that includes diagnoses and course of treatment, a final summary of the resident’s status, reconciliation of all pre-discharge medications with post-discharge medications, and a post-discharge plan of care that is developed with the resident or resident’s representative that is required to indicate where the individual will reside and what arrangements have been made for the resident’s care. Additionally, federal regulations requires, when a facility transfers or discharges a resident under any of the allowed circumstances (as detailed in Existing law 5) above), that the facility document in the resident’s medical record the basis for the transfer, and in the case of not being able to meet a need, what that specific need is and the facility’s attempts to meet the need and the service available at the receiving facility that will meet the need.

However, while facilities are required to include the reason for the transfer or discharge as part of the required notice of transfer or discharge, it doesn’t explicitly require that the specific need that the facility claims it is unable to provide be part of the notice provided to residents, nor what steps were taken to attempt to meet the resident’s needs, despite this information being required to be documented in the medical record. According to the author and sponsor, the goal of this bill is to provide resident’s and their representatives with a level of detail that the facility is already required to produce, in order for the resident to have all the information necessary in the event they wish to appeal an inappropriate transfer or discharge.

Comments

Author’s statement. According to the author, this bill requires that nursing home residents are provided with additional documentation on the basis of their transfer or discharge. One of the most common complaints received by California’s LTC Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill discourages facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhances the quality of resident appeals.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 7/10/23)

California Advocates for Nursing Home Reform (source)

American Association of Retired Persons
California Commission on Aging

California Continuing Care Residents Association

California Geriatric Circle
California Long-Term Care Ombudsman Association
California Office of the State Long-Term Care Ombudsman
California Retired Teachers Association
Choice in Aging
Consumer Attorneys of California
Disability Rights California
Gray Panthers of San Francisco
Justice in Aging

Senior Advocacy Series

Two individuals

OPPOSITION: (Verified 7/10/23)

None received

ARGUMENTS IN SUPPORT: California Advocates for Nursing Home Reform (CANHR) argues that because of the extensive and complex needs of nursing home residents, moving them out requires careful advance planning and coordination to ensure that they end up in a place that is safe, appropriate, and stable. Bad evictions are those that are not careful or coordinated or end with the resident in an unsafe, inappropriate, or unstable place. CANHR states that bad evictions are one of the most common complaints made about nursing homes, and cites data from the National Ombudsman Reporting system showing 2,100 complaints per year in California related to nursing home evictions. According to CANHR, almost every nursing home resident is admitted after a hospital stay, and typically has about 10 to 20 days of rehabilitative services covered by Medicare, which pays a generous rate compared to other payment sources. If a person needs to stay in a nursing home for care after their Medicare coverage ends, they have to switch to a less lucrative payment source, such as Medi-Cal, which creates enormous incentives for facilities to evict residents who have exhausted Medicare coverage and replace them with new residents with fresh Medicare coverage. Because Medicare coverage terminations are usually swift with little notice, the facility tries to evict residents within that time, which is why residents are often sent home with inadequate care in place or to motels or homeless shelters. CANHR states that the only statutory and regulatory protection that empowers residents to stop unsafe evictions is the requirement that they be given written notice of the “reason for the move” and information about their right to appeal. However, a significant problem with the eviction notification laws is that they leave uncertainty about the level of detail required when explaining the facility’s justification for evicting the resident. CANHR states that nearly every eviction notice given to residents lists the six reasons for evicting residents allowed under federal law, with one or more reasons checked. The notice should include details to support the cited reason, but unfortunately, these details are not expressly delineated in the law and regulations. This bill clarifies that nursing homes must share with residents the basis for evictions, and include that same level of detail that is already required for residential care facilities for the elderly. Requiring this additional information will enable residents to better defend against inappropriate and unsafe evictions on appeal.

ASSEMBLY FLOOR: 76-0, 5/25/23

AYES: Addis, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Aguiar-Curry, Kalra, Mathis, Papan

Prepared by: Vincent D. Marchand / HEALTH / (916) 651-4111

7/13/23 12:00:03

**** END ****

SENATE COMMITTEE ON HEALTH

Senator Dr. Susan Talamantes Eggman, Chair

BILL NO: AB 1309

SUBJECT: Long-term health care facilities: admission contracts

SUMMARY:

Requires nursing homes, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident with a copy of certain discharge related documents, including a description of specific needs that cannot be met and the facility’s attempts to meet those needs when the basis of the transfer or discharge is because the resident’s needs cannot be met in the facility.

Existing state law:

1. Licenses and regulates health care facilities by the California Department of Public Health (CDPH), including long-term health care (LTC) facilities, which are defined, in part, as skilled nursing facilities (SNFs), intermediate care facilities (ICFs), and congregate living health facilities. [HSC §1250 et seq., §1418]
2. Requires all contracts of admission to LTC facilities to state that except in an emergency, a resident cannot be involuntarily transferred within, or discharged from, the facility unless the resident is given reasonable notice in writing and transfer or discharge planning as required. Requires the written notice to state the reason for the transfer or discharge, and requires the facility to immediately notify the Office of the State Long-Term Care Ombudsman (LTC Ombudsman) in every case of involuntary discharge, as specified. [HSC §1599.78]
3. Requires an LTC facility, if a resident is notified in writing of a facility-initiated transfer or discharge, to also send a copy of the notice to the local LTC ombudsman at the same time the notice is provided to the resident. Requires the facility, if the resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, to provide a copy of the notice to the LTC ombudsman as soon as practicable. Requires the copy of the notice to be sent by fax machine or email, as directed by the local LTC ombudsman, unless the facility does not have fax or email capability, in which case the copy of the notice is required to be sent by mail. [HSC §1439.6]
4. Prohibits an LTC facility that participates as a provider under the Medi-Cal program from seeking to evict out of the facility, or transfer within the facility, any resident as a result of the resident changing his or her manner of purchasing the services from private payment or Medicare to Medi-Cal, except that a facility is permitted to transfer a resident from a private room to a semiprivate room. [WIC §14124.7]

Existing federal law:

1. Prohibits LTC facilities that participate in the Medicaid or Medicare program from transferring or discharging a resident from the facility unless under one of the following conditions:
   1. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
   2. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the facility;
   3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
   4. The health of individuals in the facility would otherwise be endangered;
   5. The resident has failed, after reasonable and appropriate notice, to pay for (or have paid under Medicare or Medicaid) a stay at the facility. Specifies that for a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
   6. The facility ceases to operate. [42 CFR §483.15(c)]
2. Prohibits an LTC facility from transferring or discharging a resident while an appeal is pending, as specified, unless the failure to discharge or transfer would endanger the health or safety of the resident or other individuals in the facility. Requires the facility to document the danger that failure to transfer or discharge would pose. [42 CFR §483.15(c)]

This bill:

1. Requires an LTC facility, within 48 hours of giving a required written notice of an involuntary transfer or discharge, to provide the resident, and if applicable, the resident’s representative, a copy of all of the following:
   1. The evaluation of the resident’s discharge needs and discharge plan as required by federal law or the most current discharge plan; and,
   2. In the case of the transfer or discharge being necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, all of the following information (if not included in the most current discharge plan): a written description of the specific resident’s needs that cannot be met; facility attempts to meet the resident’s needs; and, the services available at the receiving facility that meet the resident’s needs.
2. Requires an LTC facility, prior to the proposed transfer or discharge date, to provide the resident and, if applicable the resident’s representative, a copy of the resident’s discharge summary.
3. Requires any documents provided to the resident and the resident’s representative to be at no cost to the resident or resident’s representative.
4. Permits the documents 1) and 2) above to not be provided if the resident or representative requests that they not be provided or if no discharge is proposed.
5. Requires the LTC facility, if a transfer or discharge appeal hearing is requested by the resident or resident’s representative, to provide the resident or representative the opportunity to examine, at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing, all documents and records to be used by the facility at the hearing. Requires a resident or resident’s representative to provide the facility the same opportunity to examine all documents and records to be used by the resident at the hearing.
6. Specifies that the provisions of this bill are intended to be consistent with federal law and regulations.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, CDPH anticipates minor and absorbable costs.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, this bill requires that nursing home residents are provided with additional documentation on the basis of their transfer or discharge. One of the most common complaints received by California’s LTC Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill is intended to discourage facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhance the quality of resident appeals.
2. Background. Federal requirements already require nursing homes to create the documentation that this bill is requiring to be provided. Under federal requirements, a facility is required to have a discharge summary, and requires the summary to include a recapitulation of the resident’s stay that includes diagnoses and course of treatment, a final summary of the resident’s status, reconciliation of all pre-discharge medications with post-discharge medications, and a post-discharge plan of care that is developed with the resident or resident’s representative that is required to indicate where the individual will reside and what arrangements have been made for the resident’s care. Additionally, federal regulations require, when a facility transfers or discharges a resident under any of the allowed circumstances (as detailed in existing federal law 1) above), that the facility document in the resident’s medical record the basis for the transfer, and in the case of not being able to meet a need, what that specific need is and the facility’s attempts to meet the need and the service available at the receiving facility that will meet the need.
   
   However, while facilities are required to include the reason for the transfer or discharge as part of the required notice of transfer or discharge, it doesn’t explicitly require that the specific need that the facility claims it is unable to provide be part of the notice provided to residents, nor what steps were taken to attempt to meet the resident’s needs, despite this information being required to be documented in the medical record. According to the author and sponsor, the goal of this bill is to provide resident’s and their representatives with a level of detail that the facility is already required to produce, in order for the resident to have all the information necessary in the event they wish to appeal an inappropriate transfer or discharge.
3. Related legislation. AB 979 (Alvarez) recasts and strengthens provisions of law governing the rights and operations of family councils at SNFs and ICFs, as well as those governing family councils at residential care facilities for the elderly (RCFEs), by, among other provisions, conforming the two sets of laws so they are more closely aligned with each other and with federal law, permitting family councils to be allowed to meet virtually or at an offsite location, and requiring written responses to requests or concerns raised by the family councils to have detailed rationales for any action or inaction taken in response to those requests or concerns. AB 979 is set for hearing on June 21, 2023 in this Committee.
4. Prior legislation. AB 895 (Holden, Chapter 577, Statutes of 2022) requires SNFs and RCFEs to provide a written notice to a prospective resident, or their representative, that includes the contact information for the local LTC ombudsman, and links to specified websites governing licensing and quality of care.
   
   AB 940 (Weber, Chapter 274, Statues of 2017) requires a LTC facility to notify the local LTC ombudsman when a resident is notified in writing of a facility-initiated transfer or discharge from the facility.
   
5. Support. This bill is sponsored by California Advocates for Nursing Home Reform (CANHR), which states that because of the extensive and complex needs of nursing home residents, moving them out requires careful advance planning and coordination to ensure that they end up in a place that is safe, appropriate, and stable. Bad evictions are those that are not careful or coordinated or end with the resident in an unsafe, inappropriate, or unstable place. CANHR states that bad evictions are one of the most common complaints made about nursing homes, and cites data from the National Ombudsman Reporting system showing 2,100 complaints per year in California related to nursing home evictions. According to CANHR, almost every nursing home resident is admitted after a hospital stay, and typically has about ten to twenty days of rehabilitative services covered by Medicare, which pays a generous rate compared to other payment sources. If a person needs to stay in a nursing home for care after their Medicare coverage ends, they have to switch to a less lucrative payment source, such as Medi-Cal, which creates enormous incentives for facilities to evict residents who have exhausted Medicare coverage and replace them with new residents with fresh Medicare coverage. Because Medicare coverage terminations are usually swift with little notice, the facility tries to evict residents within that time, which is why residents are often sent home with inadequate care in place or to motels or homeless shelters. CANHR states that the only statutory and regulatory protection that empowers residents to stop unsafe evictions is the requirement that they be given written notice of the “reason for the move” and information about their right to appeal. However, a significant problem with the eviction notification laws is they leave uncertainty about the level of detail required when explaining the facility’s justification for evicting the resident. CANHR states that nearly every eviction notice given to residents lists the six reasons for evicting residents allowed under federal law, with one or more reasons checked. The notice should include details to support the cited reason, but unfortunately, these details are not expressly delineated in the law and regulations. This bill clarifies that nursing homes must share with residents the basis for evictions, and include that same level of detail that is already required for residential care facilities for the elderly. Requiring this additional information will enable residents to better defend against inappropriate and unsafe evictions on appeal.
6. Suggested technical amendment. The provisions of this bill are being added to a part of the law governing admission contracts for LTC facilities. However, a different section of law (see 3) in existing law above) already requires, when residents are notified in writing of a facility-initiated discharge or transfer, to provide notification to the local LTC ombudsman. The author may wish to consider whether the provisions of this bill, expanding on the notification of involuntary discharges and transfers, would be more appropriately placed in this section of law.

SUPPORT AND OPPOSITION:

Support: California Advocates for Nursing Home Reform (sponsor)

American Association of Retired Persons (AARP)
California Commission on Aging (CCoA)
California Long-Term Care Ombudsman Association (CLTCOA)
California Office of the State Long-Term Care Ombudsman
California Retired Teachers Association (CalRTA)
Choice in Aging
Consumer Attorneys of California
Disability Rights California (DRC)
Gray Panthers of San Francisco
Justice in Aging

Two individuals

Oppose: None received.

-- END --

Date of Hearing: May 17, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1309

Author:(Reyes) – As Amended Ver:April 27, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill adds a resident’s representative to those who must be notified in writing prior to a resident’s involuntary transfer or discharge from a long-term health care facility and requires the facility to provide specified documents and information to the resident and the resident’s representative within 48 hours of giving the written notice.

Specifically, this bill:

1. Requires a contract of admission to a long-term health care facility to also state, with exception of an emergency, a resident may not be involuntarily transferred within or discharged from a long-term health care facility unless the resident’s representative, if applicable, is given reasonable notice in writing and is given transfer or discharge planning.
2. Requires, within 48 hours of giving written notice, the facility to provide the resident and the resident’s representative certain documents and information, including:
3. The evaluation of the resident’s discharge needs and discharge plan as required by federal law and regulations or the most current discharge care plan.
4. In the case of the transfer or discharge being necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, all of the following information if the information is not included in the most current discharge care plan:
5. A written description of the specific resident’s needs that cannot be met.
6. Facility attempts to meet the resident’s needs.
7. The services available at the receiving facility that meet the resident’s needs.
8. Requires the facility, prior to the proposed transfer or discharge date, to provide the resident and the resident’s representative a copy of the resident’s discharge summary.
9. Requires any documents provided to the resident or the resident’s representative pursuant to these provisions to be at no cost to the resident or the resident’s representative.
10. Clarifies the documents described in subdivisions 2) and 3) are not required to be provided if the resident or the resident’s representative request they not be provided or if no discharge is proposed.
11. If a transfer or discharge appeal hearing is requested by the resident or the resident’s representative, requires the facility to provide the resident or the resident’s representative the opportunity to examine all documents and records to be used by the facility at the hearing. Further requires the resident or the resident’s representative to provide the facility the opportunity to examine all documents and records to be used by the resident or the resident’s representative at the hearing, as specified.
12. Requires the facility to promptly (rather than immediately) notify the Office of the State Long-Term Care Ombudsman (LTCO) in every case of involuntary discharge.
13. Specifies the above provisions are intended to be consistent with federal law and regulations.

FISCAL EFFECT:

The California Department of Public Health (CDPH) anticipates minor and absorbable costs.

COMMENTS:

1. Purpose. According to the author:

One of the most common complaints received by California’s Long-Term Care Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill is intended to discourage facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhance the quality of resident appeals.

1. Background. Existing law defines a “long-term health care facility” to mean a skilled nursing facility (SNF) or intermediate care facility (ICF), including an ICF for individuals with developmental disabilities, among other facilities. SNFs are health facilities that provide skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. ICFs are health facilities that provide inpatient care to ambulatory or nonambulatory patients who have recurring needs for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. As health care facilities, SNFs and ICFs are licensed and overseen by CDPH. ICFs for individuals with intellectual disabilities (ICF/IID) are also health facilities licensed by CDPH to provide 24-hour residential habilitative or nursing services. ICF/IIDs are approved by the Department of Developmental Services prior to CDPH licensure.

Existing laws and regulations allow the transfer or discharge of a resident from a long-term health care facility only if (a) the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility; (b) the resident's health has improved sufficiently so the resident no longer needs the services of the facility; (c) the safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident; (d) the health of individuals in the facility would otherwise be endangered; (e) the resident has failed, after reasonable and appropriate notice, to pay for, or to have paid under Medicare or Medicaid, a stay at the facility; or (f) the facility ceases to operate.

Federal law currently requires nursing homes to document the reason and basis for resident evictions in great detail, but is not explicitly required to share that documentation with the resident. This bill requires documentation to be given to the resident and the resident’s representative consistent with federal law.

In January of 2021, the Governor released his Master Plan for Aging (MPA). The MPA prioritizes the health and well-being of older Californians and the need for policies that promote healthy aging. This bill aligns with the goals of the MPA.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: April 25, 2023

ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE

Jasmeet Bains, Chair

ABPCA Bill Id:AB 1309 (

Author:Reyes) – As Introduced Ver:February 16, 2023

SUBJECT: Long-term health care facilities: admission contracts.

SUMMARY: Requires reasonable notice in writing and transfer and discharge planning for residents in a long –term health facility. Specifically, this bill:

1. Requires a contract of admission to state that with exception of an emergency, a resident may not be involuntarily transferred within or discharged from, a long-term health facility, unless the resident is given reasonable notice in writing and transfer or discharge planning.
2. Mandates written notice to state the reason for transfer or discharge, including specific facts to determine the reason for the transfer or discharge.
3. Notifies the Office of the State Long-Term Care Ombudsman (LTCO) in every case of involuntary discharge.

EXISTING LAW:

1. Establishes the California Department of Public Health (DPH), which, among other functions, licenses and regulates skilled nursing facilities (SNF) and Intermediate Care Facilities (ICF). Defines SNFs as health facilities that provide skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis, and ICFs as health facilities that provide inpatient care to ambulatory or non-ambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require the availability of continuous skilled nursing care. (HSC §1250 (c) and (d))
2. Establishes a civil penalty structure for long-term care (LTC) facilities, including SNFs and ICFs, categorized into “AA,” “A,” and “B” violations:
   1. “A” violations are those which DPH determines the violation presents either imminent danger of death or serious harm, or a substantial probability that death or serious harm to residents would result;
   2. “AA” violations (the most severe) are those that meet the criteria for a class “A” violation that DPH determines was a substantial factor (as defined) in the death of a resident of an LTC facility; and.
   3. “B” violations are those that DPH determines have a direct or immediate relationship to the health, safety, or security of LTC facility residents. (HSC §1424])
3. Establishes, within the Older Americans Act (OAA), the Office of the LTCO Program and requires states to establish and operate a LTCO for the purpose of identifying, investigating, and resolving complaints that may adversely affect the health, safety, welfare, or rights of residents of long-term care facilities. (42 USC § 3058(g))
4. Establishes the Office of the State LTCO under the California Department of Aging (CDA), for the purpose of protecting and advocating for the rights and health and safety of long-term care facility residents, and in providing leadership, direction, and support to local LTCO programs. (WIC § 9700 et seq.)
5. Defines “long-term health care facility” to mean a skilled nursing facility (SNF); intermediate care facility (ICF), including an ICF for individuals with developmental disabilities, as specified, a congregate living health facility; a nursing facility, and a pediatric day health and respite care facility. Specifies that a “long-term health care facility” does not include a general acute care hospital or acute psychiatric hospital, as specified. (HSC § 1418)
6. Defines “long-term care facility,” for purposes of establishing the role of the State LTCO, to mean a nursing facility or SNF, including distinct parts of facilities that are required to comply with licensure requirements for SNFs, or a residential care facility for the elderly (RCFE.) (WIC § 9701).
7. Develops person-centered baseline care plans; comprehensive care plans and discharge plans. (42 CFR § 483.21 et seq.)
8. Mandates in residential care for the elderly (RCFEs), eviction notices must include “specific facts to permit determination of the date, place, witnesses, and circumstances concerning” the reason for discharge. (HSC § 1569.683(a)

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

Author’s Statement: “AB 1309 requires that notices to nursing home residents regarding reasons for their transfer or discharge include additional details, and specific facts to permit determination of the date, place, witnesses, and circumstances concerning the reason for their transfer or discharge. One of the most common complaints received by California’s Long-Term Care Ombudsman programs is related to evictions. Due to the vulnerability of our nursing home residents, it is completely unacceptable for them to not know why they are being turned away from care, because this leaves them and their loved ones unable to fight for their ability to stay. This bill is intended to discourage facilities from pursuing unwarranted evictions, prompt residents to appeal their evictions, and enhance the quality of resident appeals.”

BACKGROUND

California’s aging population is growing faster than any other age group. By 2030, over 25 percent of the population in California will be 60 and older.^[1] The population in the state is becoming more racially and ethnically diverse, and yet the COVID-19 pandemic impacted Californians disparately.

Skilled Nursing Facilities: SNFs are health facilities that provide skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. ICFs are health facilities that provide inpatient care to ambulatory or nonambulatory patients who have recurring needs for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. As health care facilities, SNFs and ICFs are licensed and overseen by CDPH. ICFs for Individuals with Intellectual Disabilities (ICF/IID) are also health facilities licensed by CDPH to provide 24-hour residential habilitative or nursing services. ICF/IIDs are approved by the Department of Developmental Services (DDS) prior to CDPH licensure. SNFs and ICFs are under the purview of the Assembly Committee on Health.

Office of the State Long-Term Care Ombudsman (LTCO): Under the federal OAA, each state is required to operate an Office of the State LTCO, which is charged with identifying, investigating, and resolving complaints that are made by, or on behalf of, residents of long-term care facilities. In California, the Office of the LTCO is housed under CDA. The State LTCO and their local representatives assist residents in long-term care facilities with issues related to day-to-day care, health, safety, and personal preferences, including investigating abuse and violations of residents’ rights or dignity, and other issues regarding quality of care.

The LTCO has oversight responsibility for 35 local Ombudsman programs throughout California. Approximately 216 paid staff and 717 certified volunteers advocate on behalf of residents of LTC facilities. These facilities include 1230 skilled nursing and intermediate care facilities, and 7307 RCFEs, with a combined count of 308,011 LTC beds.^[2]

The third ranking complaint relating to resident’s rights taken by the LTCO relates to transfers discharges, and evictions, with the following number of complaints per year: 2,365 (FY 2017-18), 2,094 (FY 2018-19 and 2,077 (FY 2019-20).^[3]

Master Plan for Aging: In January of 2021, the Governor released his Master Plan for Aging (MPA). The MPA prioritizes the health and well-being of older Californians and the need for policies that promote healthy aging. The MPA serves as a blueprint for state government, local government, the private sector, and philanthropy to prepare the state for the coming demographic changes and continue California’s leadership in aging, disability, and equity.

After work began on the MPA, the COVID-19 pandemic reached California. The virus disproportionately harmed older and other at-risk adults, and it strained aging and disability services that were perpetually underfunded. Worldwide, older adults have experienced unprecedented death rates. California’s diverse population saw disproportionate numbers, particularly among Latino, Black and Asian Pacific Islander communities and those living in nursing homes. The pandemic intensified social isolation.

The work plan laid out in the MPA two years after its release continues to highlight the urgent needs facing California’s older adults, people with disabilities, their families, advocates and the workforce supporting these populations.

The MPA outlines five bold goals, 23 strategies and currently seeks to advance 95 initiatives to build a California for All Ages by 2030. It also includes a Data Dashboard on Aging to measure progress. AB 1309 can be linked to all of the goals:

• Goal One: Housing for All Ages and Stages
• Goal Two: Health Reimagined
• Goal Three: Inclusion and Equity, Not Isolation
• Goal Four: Caregiving That Works
• Goal Five: Affording Aging

Current realities of SNF transfers or discharges:

According to the California Association of Health Facilities, the following are the only allowable reasons for discharge:

1. The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
2. The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
3. The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
4. The health of individuals in the facility would otherwise be endangered;
5. The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicare or Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or,
6. The facility ceases to operate.

There is no standard form, but they are all required to have the same information as required by Center for Medicare and Medicaid Services (CMS)

Federal law currently requires nursing homes to document the reason and basis for resident evictions in great detail, but is not explicitly required to share that documentation with the resident.

In Residential Care Facilities for the Elderly (RCFEs), eviction notices must include “specific facts to permit determination of the date, place, witnesses, and circumstances concerning” the reason for discharge. There is currently no parity for residents in SNFs

Committee amendments: Lengthy discussions between committee staff, the sponsor, California Advocates for Nursing Home Reform (CAHNR), CAHF and the author’s staff have resulted in the following amendments (proposed language is underlined). These amendments reflect the most recent mediations to come to a reasonable solution for some of the state’s most vulnerable residents. Amends are as follows:

SECTION 1. Section 1599.78 of the Health and Safety Code is amended to read:

(a) A contract of admission shall state that except in an emergency, a resident may not be involuntarily transferred within or discharged from, a long-term health care facility unless the resident and, if applicable, the resident’s representative, is given reasonable notice in writing and transfer or discharge planning as required by law. The written notice shall state the reason for the transfer or discharge. discharge, including specific facts to permit determination of the date, place, witnesses, and circumstances concerning the reason for the transfer or discharge. 

(b) Within 48 hours of giving the written notice required in subsection (a), the facility shall provide the resident and, if applicable, the resident’s representative, a copy of the following:

(i) the evaluation of the resident’s discharge needs and discharge plan as required by federal law and regulations or the most current discharge care plan; and

(ii) in the case of the transfer or discharge being necessary for the resident’s welfare and the resident’s needs cannot be met in the facility, a written description of the specific resident need(s) that cannot be met, facility attempts to meet the resident needs, and the service available at the receiving facility to meet the need(s) as required by federal law and regulations if this information is not included in the most current discharge care plan.

(iii) The documents and information do not have to be provided to the resident and, if applicable, the resident’s representative if the resident and resident representative request they not be provided or if no discharge is proposed.

(c) Prior to the proposed transfer or discharge date, the facility shall provide the resident and, if applicable, the resident’s representative, a copy of the resident’s discharge summary required by federal law and regulations. The documents and information do not have to be provided to the resident and, if applicable, the resident’s representative if the resident and resident representative request they not be provided or if no discharge is proposed.

(d) Any documents provided to the resident and, if applicable, the resident’s representative, pursuant to this section shall be at no cost to the resident and, if applicable, the resident’s representative.

(e) If a transfer or discharge appeal hearing is requested by the resident or, if applicable, the resident’s representative, the facility shall provide the resident or the residents’ representative the opportunity to examine at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing all documents and records to be used by the facility at the hearing as required by federal law and regulations. The resident or, if applicable, the resident’s representative, shall provide the facility the opportunity to examine at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing all documents and records to be used by the resident or, if applicable, the resident’s representative at the hearing.

(f) The facility shall immediately promptly notify the Office of the State Long-Term Care Ombudsman in every case of involuntary discharge as specified in Section 1439.7.

Argument in Support: The California Advocates for Nursing Home Reform (CANHR), the sponsor of AB 1309 writes, “Nursing homes provide vital housing and care to about 450,000 residents each year, many of whom are medically fragile and disabled. There are only about 100,000 nursing home beds in California, which means there are roughly 350,000 evictions annually. Because of the extensive and complex care needs of nursing home residents, moving them out requires careful advance planning and coordination to ensure they end up in a place that is safe, appropriate, and stable. Bad evictions are those that are not careful or coordinated or end with the resident in an unsafe, inappropriate, or unstable place. These evictions sometimes mean residents with significant care needs are dumped into motels, homeless shelters, or the streets.”

The Office of the State Long Term Care Ombudsman Program also writes in support “In 2022, the Long-Term Care Ombudsman program received more than 2,000 complaints related to resident discharges or evictions. A significant proportion of these complaints were determined to be associated with inadequate or poorly substantiated eviction notices presented to nursing home residents. AB 1309 would require nursing homes to provide the same level of detail to justify a resident eviction that is required of RCFEs, allowing residents to better defend against inappropriate and unsafe evictions.”

Arguments in Opposition: None.

REGISTERED SUPPORT / OPPOSITION:

Support

California Advocates for Nursing Home Reform (sponsor)

AARP
California Commission on Aging
California Long-term Care Ombudsman Association
California Office of The State Long-term Care Ombudsman
California Retired Teachers Association
Choice in Aging
Consumer Attorneys of California
Disability Rights California
Gray Panthers of San Francisco
Justice in Aging
Senior Advocacy Services
The Geriatric Circle

Several individual letters

Opposition

None on file.

Analysis Prepared by: Elizabeth Fuller / AGING & L.T.C. / (916) 319-3990

1. Projections | Department of Finance (ca.gov) ↑

2. https://aging.ca.gov/Providers_and_Partners/Long-Term_Care_Ombudsman/Program_Narrative_and_Fact_Sheets/ ↑

3. https://aging.ca.gov/download.ashx?lE0rcNUV0zbv53edF4WiJg%3d%3d ↑