Code Section Group

Welfare and Institutions Code - WIC

DIVISION 8.5. MELLO-GRANLUND OLDER CALIFORNIANS ACT [9000 - 9757.5]

  ( Division 8.5 repealed and added by Stats. 1996, Ch. 1097, Sec. 13. )

CHAPTER 11. State Ombudsman [9700 - 9745]

  ( Chapter 11 added by Stats. 1996, Ch. 1097, Sec. 13. )

ARTICLE 2. General Provisions [9710 - 9719.5]
  ( Article 2 added by Stats. 1996, Ch. 1097, Sec. 13. )

9710.
  

There is within the department an Office of the State Long-Term Care Ombudsman.

(Repealed and added by Stats. 1996, Ch. 1097, Sec. 13. Effective January 1, 1997.)

9710.5.
  

(a) The Legislature finds and declares as follows:

(1) The Office of the State Long-Term Care Ombudsman has an extremely important role in 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 long-term care ombudsman programs.

(2) The position of State Ombudsman is extremely important to the successful coordination of ombudsman services at the local level.

(3) The position of State Ombudsman requires both an extensive background in social or health services programs, and an ability to manage and motivate individuals and groups.

(4) Remuneration for the position of State Ombudsman should be commensurate with the demands of the position.

(b) The Director of the California Department of Aging shall do all of the following:

(1) Provide widespread notification of the availability of the position of State Long-Term Care Ombudsman in order to reach the greatest number of qualified candidates and hire the most capable individual for the position.

(2) Within 10 days of the occurrence of a vacancy, publicly announce the vacancy and solicit candidates for the position.

(3) Within 30 days of the occurrence of a vacancy, convene a meeting with the advisory council established by the department pursuant to Section 9740, for the purpose of obtaining the advice, consultation, and recommendations of the council regarding the selection of a candidate.

(Amended by Stats. 2012, Ch. 649, Sec. 4. (SB 345) Effective January 1, 2013.)

9711.
  

(a) The office shall be under the direction of a chief executive officer who shall be known as the State Long-Term Care Ombudsman. The State Ombudsman shall be appointed by the director and shall report directly to the director. He or she shall devote his or her entire time to the duties of his or her position, and shall receive the salary otherwise provided by law.

(b) Any vacancy occurring in the position of State Ombudsman shall be filled in the same manner as the original appointment. Whenever the State Ombudsman dies, resigns, becomes ineligible to serve for any reason, or is removed from office, the director shall appoint an acting State Ombudsman within 30 days, who shall serve until the appointment and qualification of the State Ombudsman’s successor, but in no event longer than four months from the occurrence of the vacancy. The acting State Ombudsman shall exercise during this period all the powers and duties of the State Ombudsman pursuant to this chapter.

(Repealed and added by Stats. 1996, Ch. 1097, Sec. 13. Effective January 1, 1997.)

9712.
  

(a) The office shall be headed by an individual, to be known as the State Long-Term Care Ombudsman, who shall meet the qualifications established by the federal Older Americans Act (42 U.S.C. Sec. 3001 et seq.) and be selected from among individuals with expertise and experience in the fields of long-term care and advocacy. Within the first year of appointment, the State Ombudsman shall complete the training described in subparagraph (B) of paragraph (1) of subdivision (a) of Section 9719, and a 10-hour internship performing ombudsman services in a long-term care facility.

(b) The State Ombudsman shall be located in Sacramento. Other staff employed by the office may be located elsewhere in the state.

(c) (1) The State Ombudsman shall possess at least a bachelor’s degree, and have a minimum of five years’ professional experience that shall include all of the following areas:

(A) Gerontology, long-term care, or other relevant social services or health services programs.

(B) The legal system and the legislative process.

(C) Dispute or problem resolution techniques, including investigation, mediation, and negotiation.

(D) Organizational management and program administration.

(2) The professional experience described in paragraph (1) requires any reasonable combination of the fields described in subparagraphs (A) to (D), inclusive, of that paragraph for a total of five years, and does not require five years’ experience in each area. At the discretion of the director, a master’s or doctoral degree relevant to a field described in paragraph (1) may be substituted for one or two years, respectively, of professional experience. However, the applicant’s professional experience and field of study leading to the master’s or doctoral degree shall, nevertheless, include all of the fields described in paragraph (1).

(d) The State Ombudsman may not have been employed by any long-term care facility within the three-year period immediately preceding his or her appointment.

(e) Neither the State Ombudsman nor any member of his or her immediate family may have, or have had within the past three years, any pecuniary interest in long-term care facilities.

(Amended by Stats. 2012, Ch. 649, Sec. 5. (SB 345) Effective January 1, 2013.)

9712.5.
  

The State Ombudsman shall, personally or through representatives of the office, do all of the following:

(a) (1) Identify, investigate, and resolve complaints that are made by, or on behalf of, residents of long-term care facilities that relate to actions, inactions, or decisions of providers or representatives of providers of long-term care services, public agencies, or health and social services agencies that may adversely affect the health, safety, welfare, or rights of residents, including the welfare and rights of residents with respect to the appointment and activities of conservators, guardians, and representative payees.

(2) The requirement described in paragraph (1) shall not preclude the referral of other individuals’ complaints and concerns that a representative becomes aware are occurring in the facility to the appropriate governmental agency.

(3) At the conclusion of any investigation of a complaint, the findings shall be reported to the complainant. If the office does not investigate a complaint, the complainant shall be notified in writing of the decision not to investigate and the reasons for the decision.

(b) Provide services to assist residents in the protection of their health, safety, welfare, and rights.

(c) Inform residents about the means of obtaining services delivered by the providers or agencies described in paragraph (1) of subdivision (a) or services described in subdivision (b).

(d) (1) Ensure that residents have regular and timely access to the services provided through the office and that the residents or other complainants receive timely responses from representatives of the office to complaints.

(2) To the extent permitted under federal law, paragraph (1) shall be implemented only to the maximum extent possible within available resources.

(e) Represent the interests of the residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents.

(f) Provide administrative and technical assistance to entities designated as local ombudsman programs, to assist the entities in participating in the program.

(g) Analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the state, without interference from the office of the Governor, any state agency, or other entity.

(h) Facilitate public comment on relevant laws, regulations, policies, and actions.

(i) Recommend changes to relevant laws, regulations, policies, or actions that the office determines to be appropriate.

(j) Provide information that the office determines to be necessary to public and private agencies, legislators, and other persons, regarding the problems and concerns of residents of long-term care facilities and recommendations relating to resolving these problems and concerns.

(k) Provide for training representatives of the office.

(l) Promote the development of citizen organizations to participate in the program.

(Added by Stats. 2012, Ch. 649, Sec. 6. (SB 345) Effective January 1, 2013.)

9713.
  

(a) Upon request of the office, the Attorney General shall represent the office or the department and the state in litigation concerning affairs of the office, unless the Attorney General represents another state agency, in which case the agency or the office shall employ other counsel.

(b) The State Ombudsman may employ technical experts and other employees that, in his or her judgment, are necessary for the conduct of the business of the office.

(Amended by Stats. 2012, Ch. 649, Sec. 7. (SB 345) Effective January 1, 2013.)

9714.
  

The office shall solicit and receive funds, gifts, and contributions to support the operations and programs of the office. The office shall not solicit or receive any funds, gifts, or contributions if the solicitation or receipt would jeopardize the independence and objectivity of the office. The office shall deposit funds received pursuant to this section into the Long-Term Care Ombudsman Program Improvement Act Account that is hereby created in the Special Deposit Fund in the State Treasury pursuant to Section 16370 of the Government Code. Revenues in this account shall, upon appropriation, be used for the purpose of supporting the operations and programs of the office.

(Amended by Stats. 2013, Ch. 521, Sec. 1. (SB 609) Effective January 1, 2014.)

9714.5.
  

(a) The office may form a foundation eligible to receive tax-deductible contributions to support the operations and programs of the office and the operations of the foundation. The foundation shall not solicit or receive any funds, gifts, or contributions if the solicitation or receipt would jeopardize the independence and objectivity of the office or foundation.

(b) The foundation formed pursuant to this section shall be under the direction and management of a five-member board of directors. One member shall be appointed by the Speaker of the Assembly, one member shall be appointed by the Senate Committee on Rules, and three members shall be appointed by the Governor. The members of the board shall each be experienced in the management, promotion, and funding of nonprofit charitable organizations.

(c) The board shall select from among its members a chair, a vice chair, and any other officers as it deems necessary.

(d) The members of the board shall serve without compensation, but shall be reimbursed for all necessary expenses actually incurred in the performance of their duties as directors.

(e) Three members of the board shall constitute a quorum for the purpose of conducting the board’s business.

(f) By March 1 of each year, the board shall determine the amount of funds to be allocated from the foundation to the office for the support of the operations and programs of the office and the operations of the foundation. Foundation funds may only be expended for the support of the operations and programs of the office and the operations of the foundation.

(g) The members of the board shall be free from conflicts of interest and shall be subject to the same conflict of interest provisions that apply to the State Ombudsman under Section 3058g(f)(3) of Title 42 of the United States Code.

(Amended by Stats. 2013, Ch. 521, Sec. 2. (SB 609) Effective January 1, 2014.)

9715.
  

(a) No representative of the office shall be held liable for good faith performance of responsibilities under this chapter.

(b) No discriminatory, disciplinary, or retaliatory action shall be taken against any employee of a facility or agency, any patient, resident, or client of a long-term care facility, or any volunteer, for any communication made, or information given or disclosed, to aid the office in carrying out its duties and responsibilities, unless the same was done maliciously or without good faith. This subdivision is not intended to infringe on the rights of the employer to supervise, discipline, or terminate an employee for other reasons.

(c) All communications by a representative of the office, if reasonably related to the requirements of that individual’s responsibilities under this chapter and done in good faith, shall be privileged, and that privilege shall serve as a defense to any action in libel or slander.

(d) Any representative of the office shall be exempt from being required to testify in court as to any confidential matters, except as the court may deem necessary to enforce the provisions of this chapter.

(Repealed and added by Stats. 1996, Ch. 1097, Sec. 13. Effective January 1, 1997.)

9716.
  

(a) The office shall be responsible for activities that promote the development, coordination, and utilization of resources to meet the long-term care needs of older individuals, consistent with its mission. These responsibilities shall include establishing a statewide uniform reporting system to collect and analyze data relative to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems. The office shall submit the data to the state agency responsible for licensing or certifying long-term care facilities and to the federal Administration on Aging.

(b) Notwithstanding Section 10231.5 of the Government Code, beginning September 30, 2013, and annually thereafter, the office shall prepare and submit an annual advocacy report in accordance with Section 3058g(h)(1) of Title 42 of the United States Code. The annual advocacy report shall do all of the following:

(1) Describe the activities carried out by the office in the year for which the report is prepared, including, but not limited to, actions taken to carry out the advocacy duties of the office described in Sections 9712.5 and 9726.1 and prescribed by the federal Older Americans Act in Section 3058g(a)(3)(E) and (G) of Title 42 of the United States Code.

(2) Contain and analyze the data collected pursuant to Section 3058g(c) of Title 42 of the United States Code.

(3) Evaluate the problems experienced by, and the complaints made by or on behalf of, residents.

(4) Contain recommendations for both of the following:

(A) Improving quality of the care and life of residents.

(B) Protecting the health, safety, welfare, and rights of residents.

(5) (A) Analyze the success of the ombudsman program, including success in providing services to residents of long-term care facilities and other similar adult care facilities.

(B) Identify barriers that prevent the optimal operation of the program.

(6) Provide policy, regulatory, and legislative recommendations to solve identified problems, to resolve complaints, to improve the quality of care and life of residents, to protect the health, safety, welfare, and rights of residents, and to remove the barriers identified in subparagraph (B) of paragraph (5).

(c) The office shall promptly post the annual advocacy report on its Internet Web site and shall submit it to the Assistant Secretary of the federal Administration on Aging, the Governor, the Legislature, the State Department of Public Health, the State Department of Social Services, local ombudsman programs, and other appropriate governmental entities.

(d) The State Ombudsman shall consult with the local ombudsman programs in developing the report.

(Amended by Stats. 2012, Ch. 649, Sec. 10. (SB 345) Effective January 1, 2013.)

9716.11.
  

(a) The Office of the State Long-Term Care Ombudsman shall maintain an Internet Web presence.

(b) The Internet Web site shall be easily found and prominent on the department’s homepage. The Legislature finds and declares that resources currently exist for this purpose.

(c) The Internet Web site shall be consumer driven and shall include, but not be limited to, current long-term care trends and issues, links to local ombudsman programs, the annual advocacy report described in Section 9716, and other information relevant to long-term care facility residents and consumers.

(Added by Stats. 2012, Ch. 649, Sec. 11. (SB 345) Effective January 1, 2013.)

9717.
  

(a) All advocacy programs and any programs similar in nature to the Long-Term Care Ombudsman Program that receive funding or official designation from the state shall cooperate with the office, where appropriate. These programs include, but are not limited to, the Office of Human Rights within the State Department of State Hospitals, the Office of Patients’ Rights, Disability Rights California, and the Department of Rehabilitation’s Client Assistance Program.

(b) The office shall maintain a close working relationship with the Legal Services Development Program for the Elderly within the department.

(c) In order to ensure the provision of counsel for patients and residents of long-term care facilities, the office shall seek to establish effective coordination with programs that provide legal services for the elderly, including, but not limited to, programs that are funded by the federal Legal Services Corporation or under the federal Older Americans Act (42 U.S.C. Sec. 3001 et seq.), as amended.

(d) The department and other state departments and programs that have roles in funding, regulating, monitoring, or serving long-term care facility residents, including law enforcement agencies, shall cooperate with and meet with the office periodically and as needed to address concerns or questions involving the care, quality of life, safety, rights, health, and well-being of long-term care facility residents.

(Amended by Stats. 2014, Ch. 442, Sec. 19. (SB 1465) Effective September 18, 2014.)

9718.
  

Every long-term care facility, as defined in subdivision (b) of Section 9701, shall post in a conspicuous location a notice of the name, address, and phone number of the office and the nearest approved organization, and a brief description of the services provided by the office and the approved organization. The form of the notice shall be approved by the office.

(Amended (as added by Stats. 1996, Ch. 1097) by Stats. 1997, Ch. 216, Sec. 7. Effective January 1, 1998.)

9719.
  

(a) (1) The office shall sponsor a training of representatives of approved organizations at least twice each year. The office shall provide training to these representatives as appropriate. Prior to the certification of an ombudsman by the office, individuals shall meet both of the following requirements:

(A) Have a criminal offender record clearance conducted by the State Department of Social Services. A clearance pursuant to Section 1569.17 of the Health and Safety Code shall constitute clearances for the purpose of entry to any long-term care facility.

(B) Have received a minimum of 36 hours of certification training that is approved by the office and offered by an approved organization, which shall include training on cultural competency and sensitivity in issues relating to the underserved aging lesbian, gay, bisexual, and transgender community.

(2) Upon receipt of an applicant’s criminal record clearance and acceptance by the office, the office shall issue a card identifying the bearer as a certified ombudsman. Each ombudsman shall receive a minimum of 12 hours of additional training annually.

(b) (1) The department shall contract with the State Department of Social Services to conduct a criminal offender record information search, pursuant to Section 1569.17 of the Health and Safety Code, for each applicant seeking certification as an ombudsman. The State Department of Social Services shall notify the individual and the office of the individual’s clearance or denial.

(2) An applicant for certification as an ombudsman shall not be responsible for any costs associated with transmitting the fingerprint images and related information or conducting criminal record clearances.

(c) Nothing in this section shall be construed to prohibit the Department of Justice from assessing a fee pursuant to Section 11105 of the Penal Code to cover the cost of searching for or furnishing summary criminal offender record information.

(Amended by Stats. 2013, Ch. 675, Sec. 3. (AB 663) Effective January 1, 2014.)

9719.5.
  

(a) (1) The department shall allocate all federal and state funds for local ombudsman programs according to the following distribution, but shall not allocate less than thirty-five thousand dollars ($35,000) per fiscal year, except for an area where there are less than 10 facilities and less than 500 beds.

(2) An allocation to an area where there are less than 10 facilities and less than 500 beds shall not be less than the base allocation contained in the Budget Act of 1986.

(3) After the base allocation, remaining funds shall be distributed in accordance with subdivision (b).

(b) (1) Fifty percent of the funds shall be allocated to each local program based on the number of facilities served by the program in proportion to the total number of facilities in the state.

(2) Forty percent of the funds shall be allocated based on the number of beds within the local program’s area of service in proportion to the total number of beds in the state.

(3) Ten percent of the funds shall be allocated based on the total square miles within each local program’s area of service in proportion to the total number of square miles in the state.

(Repealed and added by Stats. 1996, Ch. 1097, Sec. 13. Effective January 1, 1997.)

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