Amended  IN  Senate  March 16, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 460

Introduced by Senator Pan

February 16, 2021

An act to amend Section 1418.8 of the Health and Safety Code, and to add Chapter 4.1 (commencing with Section 9350) to Division 8.5 of the Welfare and Institutions Code, relating to aging. health decisions.


LEGISLATIVE COUNSEL'S DIGEST


SB 460, as amended, Pan. Office of the Patient Representative. Long-term health facilities: patient representatives.
Existing law, the Mello-Granlund Older Californians Act, establishes the California Department of Aging in the California Health and Human Services Agency, and sets forth its mission to provide leadership to the area agencies on aging in developing systems of home- and community-based services that maintain individuals in their own homes or least restrictive homelike environments.
This bill would create the Office of the Patient Representative in the Department of Aging to train, certify, provide, and oversee patient representatives to protect the rights of nursing home residents, as specified. The bill would, among other things, require the office to establish appropriate eligibility, training, certification, and continuing education requirements for patient representatives and to convene a group of stakeholders to advise the office regarding the eligibility requirements. The bill would, among other things, require the office to collect and analyze data, including the number of residents represented, the number of interdisciplinary team meetings attended, and the number of cases in which judicial review was sought and to present that data in an annual public report delivered to the Legislature and posted on the office’s internet website. The bill would require patient representatives to perform various duties including reviewing the determinations that the resident lacks decisionmaking capacity capacity, as defined, to make decisions and no surrogate decisionmaker is available, as specified.
Existing law requires the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility that prescribes or orders a medical intervention of a resident that requires the informed consent of a resident who lacks capacity to provide that consent and who does not have a person with legal authority to make those decision on behalf of the resident to inform the skilled nursing facility or intermediate care facility. Existing law requires the facility to conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention, subject to specified proceedings. Existing law authorizes a medical intervention prior to the facility convening an interdisciplinary team review in the case of an emergency, under specified circumstances. Existing law imposes civil penalties for a violation of these provisions.
This bill would require the physician and surgeon to document the determination that the resident lacks capacity, as defined, in the resident’s medical record, and would require the skilled nursing facility or intermediate care facility to identify, or use due diligence to search for, a surrogate decisionmaker, as defined. The bill would require, among other things, if the resident lacks capacity and there is no surrogate decisionmaker, the skilled nursing facility or intermediate care facility to provide written notice to the resident and to the Office of the Patient Representative, as specified. The bill would require a copy of the notice to be included in the resident’s records and to include specified information, including notice that the resident has the right to a patient representative. The bill would require the Office of the Patient Representative to designate someone to serve as the patient’s representative if no family member or friend is available to serve in that capacity, and would prohibit a patient representative from being, among others, an employee or former employee of the facility, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1418.8 of the Health and Safety Code is amended to read:

1418.8.
 (a) If For purposes of this section, the following terms have the following meanings:
(1) “Emergency” means a situation where medical treatment is immediately necessary for the preservation of life, the prevention of serious bodily harm, or the alleviation of severe physical pain.
(2) “Lacks capacity” means the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention.
(3) “Surrogate decisionmaker” means a person with legal authority to make medical treatment decisions on behalf of a patient, including a person designated under a valid durable power of attorney for health care, a guardian, a conservator, or next of kin.
(b) If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to make decisions concerning his or her health care and that there is no person with legal authority to make those decisions on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility. the resident’s health care, the physician and surgeon shall document the determination that the resident lacks capacity, and the basis for that determination, in the resident’s medical record, and inform the skilled nursing facility or intermediate care facility. To make the determination that the resident lacks capacity, the physician and surgeon shall interview the patient, review the patient’s medical records, and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

(b)For purposes of subdivision (a), a resident lacks capacity to make a decision regarding his or her health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the patient, review the patient’s medical records, and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.

(c)For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a patient is a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin. To determine the existence of a person with legal authority, the physician shall interview the patient, review the medical records of the patient, and consult with skilled nursing or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified.

(d)The attending physician and the skilled nursing facility or intermediate care facility may initiate a medical intervention that requires informed consent pursuant to subdivision (e) in accordance with acceptable standards of practice.

(c) Upon being notified by the attending physician of a determination that a resident lacks capacity to provide informed consent, the skilled nursing facility or intermediate care facility shall identify, or use due diligence to search for, a surrogate decisionmaker. Due diligence includes, at minimum, interviewing the resident, reviewing the medical records of the resident, and consulting with skilled nursing or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified. The facility shall document in the resident’s records what efforts were made to find a surrogate decisionmaker.
(d) (1) If the physician and surgeon determines that a resident lacks capacity, and the skilled nursing facility or intermediate care facility determines that there is no surrogate decisionmaker, the skilled nursing facility or intermediate care facility shall provide a notice to the resident written in the resident’s primary language.
(2) The notice described in paragraph (1) shall be delivered to the resident and the Office of the Patient Representative, established pursuant to Chapter 4.1 (commencing with Section 9350) of Division 8.5 of the Welfare and Institutions Code, at least 10 days prior to the interdisciplinary team review as described in subdivision (e).
(3) A copy of the written notice shall be entered into the resident’s records.
(4) The notice described in paragraph (1) shall include information regarding all of the following:
(A) The resident lacks capacity and the reasons for that determination.
(B) A surrogate decisionmaker is not available.
(C) A description of the proposed medical intervention that has been prescribed or ordered.
(D) That a decision on whether to proceed with the medical intervention will be made using the interdisciplinary team review process.
(E) The date and time of the interdisciplinary team review.
(F) That the resident has the right to have a patient representative participate in the interdisciplinary team review process and that if the resident does not have a representative, an independent representative from the Office of the Patient Representative will be assigned.
(G) The name, mailing address mailing, email address, and telephone number of the local office of the Long-Term Care Ombudsman.
(H) The name, mailing address, email address, and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities or mental disorders.
(I) That the resident has the right to judicial review to contest the physician and surgeon’s determinations, the use of an interdisciplinary team review, or the decisions made by the interdisciplinary team.
(e) Where When a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician and surgeon that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and there is no person with legal authority to make those decisions on behalf of the resident, the facility has determined that there is no surrogate decisionmaker, the facility shall, except as provided in subdivision (h), (i), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention. The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and, where practicable, and a patient representative, in accordance with applicable federal and state requirements. The review shall include all of the following:
(1) A review of the physician’s assessment of the resident’s condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To determine the desires of the resident, the interdisciplinary team shall interview the patient, review the patient’s medical records, and consult with family members or friends, if any have been identified. identified, and review any prior expressions of the resident’s health care wishes, including checking registries for an advanced health care directive or physician’s orders for life-sustaining treatment.
(4) The type of medical intervention to be used in the resident’s care, including its probable frequency and duration.
(5) The probable impact on the resident’s condition, with and without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.
(f) The outcome of the interdisciplinary team review shall be documented in the resident’s records, and communicated in writing to the resident in the resident’s primary language, and to the resident’s representative, including a statement regarding the resident’s right to judicial review.

(f)

(g) A patient representative may include a family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident, but who has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law. The patient representative shall not be an employee or former employee of the skilled nursing facility or intermediate care facility, paid by the facility, an employee of a vendor to the facility, or a provider of health care to the resident. The patient representative shall have access to all of the resident’s records and otherwise confidential health information. If no family member or friend is available to serve as the patient representative, the Office of the Patient Representative shall designate someone to serve as the patient’s representative.

(g)

(h) The interdisciplinary team shall periodically evaluate the use of the prescribed medical intervention at least quarterly or quarterly, upon a significant change in the resident’s medical condition. condition, or upon the resident’s or the resident’s representative’s request. The skilled nursing facility or intermediate care facility shall provide notice of this evaluation by the interdisciplinary team in accordance with subdivision (d), and shall enter a copy of this notice, as well as the result of the evaluation, in the resident’s records.

(h)

(i) In case of an emergency, after obtaining a physician and surgeon’s order as necessary, a skilled nursing or intermediate care facility may administer a medical intervention that requires informed consent prior to the facility issuing the notice required pursuant to subdivision (d) and prior to convening an interdisciplinary team review. The emergency shall be documented in the resident’s records and written notice of the intervention and the resident’s right to judicial review shall be provided to the resident and the resident’s representative, if known, or the Office of the Patient Representative, if unknown, within 24 hours. If the emergency results in the application of physical or chemical restraints, the interdisciplinary team shall meet within one week of the emergency for an evaluation of the medical intervention.

(i)Physicians and surgeons and skilled nursing facilities

(j) Physicians and surgeons, skilled nursing facilities, and intermediate care facilities shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering a medical intervention which requires informed consent if the requirements of this section are met. The prescribed medical intervention shall not be initiated until the resident has received written notice, pursuant to subdivision (d), of the outcome of the interdisciplinary review team process, and has had an opportunity to seek judicial review. If judicial review is sought, the intervention shall not be initiated until after the review has been decided, except in the case of emergency.

(j)

(k) Nothing in this section shall in any way affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief, at any time, in order to review the decision that a patient lacks capacity, that the patient lacks a surrogate decisionmaker, or to provide the medical intervention.

(k)No

(l) A physician or other health care provider, whose action under this section is in accordance with reasonable medical standards, is shall not be subject to administrative sanction if the physician or health care provider believes in good faith that the action is consistent with this section and the desires of the resident, or if unknown, the best interests of the resident.

(l )The determinations required to be made pursuant to subdivisions (a), (e), and (g), and the basis for those determinations shall be documented in the patient’s medical record and shall be made available to the patient’s representative for review.

(m) The use of an interdisciplinary team to provide consent to a prescribed medical intervention shall be noted in the resident’s minimum data set, as specified by Section 14110.15 of the Welfare and Institutions Code.

SECTION 1.SEC. 2.

 Chapter 4.1 (commencing with Section 9350) is added to Division 8.5 of the Welfare and Institutions Code, to read:
CHAPTER  4.1. Office of the Patient Representative

9350.
 The Office of the Patient Representative is hereby established within the Department of Aging to train, certify, provide, and oversee patient representatives to protect the rights of nursing home residents pursuant to Section 1418.8 of the Health and Safety Code.

9351.
 (a) The Office of the Patient Representative shall establish appropriate eligibility, training, certification, and continuing education requirements for patient representatives. The Department of Aging shall convene a group of stakeholders to advise the office regarding the eligibility requirements of patient representatives.
(b) Each patient representative shall 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.
(c) Patient representatives shall not be a current or former licensee, or owner, employee, or volunteer of a skilled nursing or intermediate care facility. Notwithstanding this prohibition, former employees and volunteers are not precluded from serving as patient representatives at the facilities where they previously served after two years of separation. Former employees and volunteers are not precluded from serving as patient representatives for facilities that they were not previously affiliated with.
(d) The Office of the Patient Representative shall communicate with every skilled nursing and intermediate care facility to provide, and update as needed, contact information to use for notices provided to residents.
(e) The Office of the Patient Representative may work with Area Agencies on Aging or other nonprofit entities to provide patient representatives.

9352.
 (a) The Office of the Patient Representative shall collect and analyze data, including the number of residents represented, the number of interdisciplinary team meetings attended, and the number of cases in which judicial review was sought. The collected data shall be the basis for an annual public report delivered to the Legislature and posted on the Office of the Patient Representative’s internet website.
(b) The report required to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.

9353.
 The Office of the Patient Representative shall ensure residents who seek judicial review pursuant to Section 1418.8 of the Health and Safety Code are provided adequate legal counsel for that purpose.

9354.
 (a) Patient representatives shall perform all of the following duties:

(a)

(1) Receive written notices from facilities issued pursuant to Section 1418.8 of the Health and Safety Code.

(b)

(2) Meet and interview the resident who is the subject of a notice at the initiation of the representation and, at the discretion of the representative, thereafter.

(c)

(3) Verify that the resident received the notice.

(d)

(4) Review the determinations that the resident lacks decisionmaking capacity and no surrogate decisionmaker is available.

(e)

(5) Participate in the interdisciplinary team review.

(f)

(6) Articulate the resident’s perspective if it can be determined and advocate for the resident’s wishes if known.

(g)

(7) Identify and report any concerns regarding the care or wellbeing of the resident to the Department of Public Health and appropriate organization or agency.

(h)

(8) Review the nature of the proposed interventions requiring informed consent and the alternatives to those interventions, and consider whether they appear consistent with the best interests of the resident.

(i)

(9) Express agreement or disagreement with the other members of the interdisciplinary team regarding proposed interventions under review and seek to reach consensus on the proposed or alternative interventions, if possible.

(j)

(10) Make referrals, as appropriate, to appropriate legal counsel identified by the Department of Aging, when further or additional actions may be appropriate, to protect the interests of residents including legal action contesting the determinations that the resident lacks decisionmaking capacity, capacity to make decisions, that no surrogate decisionmaker is available, or contested interventions requiring informed consent.
(b) For purposes of this section, the following terms have the following meanings:
(1) “Lacks capacity” has the same meaning as set forth in paragraph (2) of subdivision (a) of Section 1418.8 of the Health and Safety Code.
(2) “Surrogate decisionmaker” has the same meaning as set forth in paragraph (3) of subdivision (a) of Section 1418.8 of the Health and Safety Code.

9355.
 (a) The Office of the Patient Representative shall adopt any regulations necessary to implement this chapter consistent with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(b) The state shall disburse all funds not directed to the Office of the Patient Representative to each of the counties’ Area Agency on Aging using an allotment proportional to the number of nursing home beds in that county.