Orange County Grand Jury 2005-2006 The Long-Term Care Ombudsman Program: Are We Ready For The Coming “Age Tsunami”?

Summary The older population (age 60 and over) in Orange Acronyms in this Report County is estimated to increase by 64 percent by the year 2020. Baby boomers will certainly impact the population AAA Area Agency on of long-term care facilities. For the immediate future, the Aging 75 plus age group will probably be an even greater ACIS Adult Care influence. As we prepare for this tidal wave of older Information System citizens some call an “age Tsunami”, we must rethink retirement and old age and take steps to ensure that BOS Orange County Orange County’s senior citizens experience a high Board of Supervisors quality of life. As society redefines aging policy, we CDA California Dept. of must consider the rights of residents of long-term care Aging facilities. CDBG Community The Orange County Office on Aging (OOA) Long-Term Development Block Care Ombudsman Program is the only federal and state Grant mandated program to advocate for the 30,000 Orange COA Council on Aging - County residents in 1,000 nursing and assisted living Orange County facilities for the elderly. Ombudsmen work to resolve problems and concerns of individual residents by DHS-L&C California Dept. of creating a presence through regular unannounced visits, Health Services, monitoring conditions and care, and providing a voice Licensing and for those unable to speak for themselves. Ombudsmen Certification receive and investigate an average of 3,000 complaints OAA Federal Older per year; these run the gamut of issues from complaints Americans Act about cold food to alleged sexual abuse. The Ombudsman Program is the mandated reporting agency OOA Orange County for any suspected abuse that occurs in licensed long-term Office of Aging care facilities. Based on review of the Long-Term Care Ombudsman Program, the Orange County Grand Jury determined that: 1.1 There will be a noticeable increase in the 75 plus age group in the near future and the 60 plus population is expected to increase by almost two-thirds in Orange County over the next fifteen years. This will increase the need for more long-term care facilities and an expansion of the OOA Ombudsman Program. .2 The Ombudsman Program, managed by the Council on Aging-Orange County (COA), provides a critical service to older and dependent adults in Orange County. The OOA has fiscal and administrative oversight over the Ombudsman Program. Unfortunately, the general public is not fully aware of the Ombudsman Program and its mission. 1.3 Additional public and private funding will be required to expand the number of Ombudsmen to ensure an increased presence in long-term care facilities to meet future needs. 1.4 Successful Ombudsman volunteer recruitment and retention will be improved by increased volunteer recognition. 1.5 Ombudsmen are a key factor in receiving and investigating reports of suspected cases of abuse or neglect. 1.6 Complaints of abuse and neglect in nursing homes filed by Long-Term Care Ombudsmen are not being investigated in a timely manner by appropriate agencies.

Introduction and Purpose of the Study The purposes of the study were to determine if the OOA Long-Term Care Ombudsman Program is: • Effectively providing services • Promoting and facilitating the optimal environment for residents of long-term care facilities • Preserving the residents’ rights to self determination and dignity • Adequately preparing for the expected large increase in the Orange County aging population 3. Method of Study To determine if Orange County residents in long-term care facilities are helped to maintain or improve their quality of life, the Orange County Grand Jury: • Made unannounced visits with Ombudsmen to a number of licensed long-term care facilities for the elderly in Orange County • Interviewed employees from the OOA and COA • Reviewed documents and materials listed in Section 8.2, “References” The Long-Term Care Ombudsman Program 4. Background 4.1 Federal and State Origins The Long-Term Care Ombudsman Program began in 1972 and was established in all states under the Federal Older Americans Act (OAA). Under Public Law 89-73 and Section 307 (a)(12)(B) of OAA, Ombudsmen have the right to enter appropriate facilities unannounced in order to fulfill the responsibilities imposed upon them by law. If anyone interferes with their lawful actions, they may be subject to a civil penalty of up to $1,000. The Ombudsman Program was established in California by Assembly Bill 2997. The California State Health and Human Services Agency, Department of Aging (CDA) administers the statewide Ombudsman Program through 33 Planning and Service Areas located throughout the state. The state agency established procedures for appropriate access by the Ombudsman to long-term care facilities and patient’s records. 4.2 The Local Beginning The Orange County Housing and Community Services Department’s OOA administers the Ombudsman Program. Since 1976, the Orange County Ombudsman Program has been managed by the COA by contract with the OOA and funded with federal, state, local, and private financial support. OOA promotes the program through referrals at their call center, providing information about the program when outreach is done via health fairs, low income food distribution sites, low income housing sites and community events, radio broadcasts, a website, local print media methods, county libraries, senior centers, and hospitals. The COA, a private non-governmental agency, was founded in 1973 by a group of skilled professionals, civic leaders and committed citizens who recognized a need to define and address community concerns regarding aging. Their first accomplishment was to form the Orange County Area Agency on Aging (AAA) as mandated by the OAA. The COA is dedicated to promoting adult empowerment, abuse prevention, and advocacy for the rights and dignity of those experiencing health and aging challenges. 4.3 Orange County’s Projected Senior Statistics: The Coming “Age Tsunami” People are living longer, able to stay active, and remaining in their own homes, hence moving into facilities later in life. According to OOA, Orange County’s 838,000 baby boomers will begin turning 60 in 2006. Baby boomers are defined as those individuals born between 1946 and 1964. Although there may not be an explosion of baby boomers to facilities in this decade, it will happen and, in the meanwhile, there will still be an increase of adults 75 and older. 2020 Increase US Aged 60+ 49,712,000 75,487,000 52 % California Aged 60+ 5,507,167 8,742,297 59% OC Aged 60+ 437,972 719,038 64 % OC Aged 70+ 218,495 332,636 52 % OC Aged 75+ 145,333 195,185 34 % OC Aged 85+ 38,964 48,981 26 % OC = Orange County The extent of population aging is even more dramatic when looking at OOA data by ethnic groups: Projected Aging Population Population Type 2006 2020 Increase OC White Aged 60+ 305,593 403,519 32 % OC Asian Aged 60+ 64,505 145,967 126% OC Hispanic Aged 60+ 56,946 142,824 151% OC Other Aged 60+ 10,928 26,728 145% 4.4 OOA Long-Term Care Ombudsman Program 4.4.1 Purpose The purpose of the Ombudsman Program is to investigate and resolve complaints made by or on behalf of residents living in nursing and residential care homes and to provide advocacy and mediation to ensure that resident rights and quality of life are maintained or improved. See Exhibit 8.1.1 for Ombudsman Qualifications. 4.4.2 Staffing According to the COA, the Ombudsman Program has 20 part-time and three full- time staff. These 23 paid staff members average 10-30 hours per week and their office experiences a very low turnover rate. The Program also uses volunteers, primarily retired senior citizens, who are all part-time and volunteer an average of 15-20 hours per month. The current volunteer staff level of 38 is significantly less than previous levels that have varied from 64 in 2001 through 51 in 2005. Each volunteer averages 11.6 facilities which are assigned to them. Some cover two or three large facilities and some cover 18-20 small facilities. The paid staff members cover an average of about 20 facilities. The assignments are usually The Long-Term Care Ombudsman Program based on geographic location and Orange County’s 78 nursing homes are visited weekly. The majority of assisted living facilities are visited monthly. (See section 4.6.1 for definitions.) 4.4.3 Why is an Ombudsman Necessary? Older, dependent adults living in long-term care facilities face some unavoidable limitations when they have to leave their own homes. Privacy and independence may be curtailed by the need for care and assistance. These limitations do not mean that they also give up their fundamental human rights of self determination and dignity. They continue to have the right to be heard and taken seriously, and the right to express their own wishes and have them respected. Residents of long-term care facilities sometimes feel ignored or intimidated if they have a concern that goes unresolved. In truth, most caregivers do not intend to cause harm. In more serious cases, the Ombudsman will report violations to state licensing agencies that may result in fines, suspension of license, citations, and/or monetary penalties, if substantiated. An Ombudsman is charged with helping residents live as they wish. The expressed wish of the resident, however, may not be in agreement with what a family member or facility director thinks is best. In that case, the Ombudsman works to mediate a resolution that honors the expressed wish of the resident. The Ombudsman is dedicated to working with facilities in order to improve and enhance the quality of life of the residents. The Ombudsman can be instrumental in increasing the effectiveness of all facilities. 4.4.4 How Can An Ombudsman Help? Families are often relieved to know that help is available and that they can learn to become effective advocates themselves for their loved ones. Ombudsmen can empower residents and their families. For the residents of long-term care facilities and their families, getting to know the Ombudsman can provide the security of having a caring advocate available even when a family member is not present, or a resident is afraid of repercussions if he or she complains about a problem, as all complaints are confidential. Ombudsmen are trained advocates, educated in the needs, rights, and issues of residents living in nursing and residential care facilities. They are well-versed in local and state regulations governing long-term care facilities to assist residents and families in asserting their rights. A certified Ombudsman will: • Mediate concerns and complaints • Make unannounced regular visits to licensed long-term care facilities • Provide unbiased placement information and referrals in nursing facilities • Develop professional relationships with facility personnel The Ombudsman Program helps educate families and the community on issues of long-term care and assists the public in making informed decisions in selecting a residential care facility through the Adult Care Information System (ACIS). The public may view ACIS summaries, based on the visits of the California Department of Social Services, Community Care Licensing, which enforces regulations, identifies deficiencies and imposes civil penalties on residential facilities. 4.4.5 How to Contact an Ombudsman All licensed skilled nursing facilities and residential care facilities for the elderly are required by law to prominently display the Ombudsman poster listing contact numbers and services. The contact numbers are (714) 479-0107 or (800) 300-6222. There is no waiting list or fee for services. Emergency calls are referred to appropriate resources for immediate action 24 hours a day. All the facilities we visited had the Ombudsman poster prominently displayed. 4.4.6 Monitoring Tool for Ombudsman Program The California Long-Term Care Ombudsman Programs adhere to six core elements established in June 2000 by the California Ombudsman Strategic Action Task Force. Those core elements are: • Receive, investigate, and resolve complaints • Ensure a regular presence in long-term care facilities • Address patterns of poor practice • Maximize community awareness and involvement • Influence public policy • Ensure effective program administration Based on state and federal regulations, the OOA evaluates these core elements using a monitoring tool that assesses the Ombudsman Program’s management, fiscal and administrative support, data, core elements, self assessments, Ombudsman responsibilities, community impact, complaint management, and community education advocacy. Also included in the administrative and program assessment are performance standards, staffing and organization standards, emergency preparedness practices, facility standards, legal status of contractor, subcontracting, quality of services, and targeting requirements. The Long-Term Care Ombudsman Program 4.5 Ombudsman Funding The CDA allocates funding by specific programs and funding categories. The OOA also receives county general fund monies to comply with mandated federal and state match requirements. For FY 2005-2006, the Long-Term Care Ombudsman Program is funded through the following sources as shown in the table below: TYPE FEDERAL STATE COA TOTAL EFFORT TITLE IIIB (1) $42,698 $335,362 $378,060 TITLE VIIA (1) 107,281 16,980 124,261 INITIATIVE (2) 95,561 95,561 CITIES: (3) Anaheim $17,500 17,500 Fountain Valley 6,000 6,000 Fullerton 18,000 18,000 Mission Viejo 8,000 8,000 Community Services 8,200 8,200 Awards (4) DONATIONS 1,500 1,500 PROGRAM FEES 996 996 TOTALS $149,979 $447,903 $60,196 $658,078 (1) OAA Long-Term Care Ombudsman Service (2) State of California Long-Term Care Initiative (3) Community Development Block Grants (CDBG) (4) Laguna Niguel, Newport Beach, San Clemente Of the 34 Orange County cities, seven are making grants or awards to the Program. Donations and Program fees are minimal. 4.6 Facilities 4.6.1 Facility Licensing and Definitions There are approximately 78 skilled/convalescent nursing homes and 800 to 900 assisted living facilities in Orange County (for a listing, by city and community, provided by the COA, see Exhibit 8.1.2). Most of these facilities are six-bed, board and care, as opposed to the larger facilities that have anywhere between 30 to 300+ beds. For residents of any age who need on- years old site nursing care Non medical care, but in some Medical care instances, limited health care services Provides room and board, plus 24-hour Provides room and board, plus nursing care care and supervision * Residential Care Facilities for the Elderly (Assisted Living Facility) are licensed by the California Department of Social Services, Community Care Licensing ** Licensed by the California Department of Health Services, Licensing and Certification 4.6.2 Facility Complaints, Cases, and Resolutions A complaint is defined as a concern brought to, or initiated by, the Ombudsman for investigation and action by or on behalf of one or more residents of a long-term care facility relating to health, safety, welfare, or rights as a resident. One or more complaints constitute a case. A case is defined as an inquiry brought to, or initiated by, the Ombudsman on behalf of a resident or a group of residents, involving one or more complaints or problems which requires opening a case file and includes Ombudsman investigation, fact-gathering, setting of objectives, and/or strategy to resolve, and follow-up. A complaint is considered resolved when addressed to the satisfaction of the resident or complainant. See Exhibit 8.1.3 for a Flowchart of the Complaint Process. A summary of the 2,913 complaints filed in Orange County during the fiscal year 2004-2005 showed the following disposition: 2,570 (88%) were either resolved to the satisfaction of the complainant, partially resolved, needed no action, referred to another agency, or were withdrawn. Only 12% were not resolved to the satisfaction of the complainant, needed legislative action to resolve, or the report of the final disposition has not been obtained. 4.7 Nursing Home Laws and Resident Rights Nursing home residents have important rights under both federal and state law. Nursing home laws require that they educate their residents on their rights and assist them in exercising these rights. If a nursing home fails to comply with federal resident rights, it can lose its Medicare or Medicaid certification and funding. The Long-Term Care Ombudsman Program The following is a listing of rights as outlined in the Federal Nursing Home Reform Law that was part of the 1987 Social Security Act. This law was enacted in order to "… promote and protect the rights of each resident.” (cid:131) Accommodation of Needs (cid:131) Notice of Rights and Services (cid:131) Activities (cid:131) Participation in Resident Groups (cid:131) Access and Visitation Rights (cid:131) Participation in Other Activities (cid:131) Admission Policy (cid:131) Protection of Funds (cid:131) Dignity (cid:131) Personal Property (cid:131) Exercise of Rights (cid:131) Restraints (cid:131) Equal Access to Quality Care (cid:131) Right of Privacy (cid:131) Environment (cid:131) Self-Administered Drugs (cid:131) Freedom of Choice (cid:131) Social Services (cid:131) Grievances (cid:131) Staff Treatment (cid:131) Quality of Life (cid:131) Telephone (cid:131) Mail (cid:131) Transfer and Discharge (cid:131) Married Couples in Same Room (cid:131) Work (cid:131) Notice of Bed-Hold Policy The Federal Nursing Home Quality Protection Act was enacted in 2001. The Act: • Provides more stringent safeguards from institutional elderly abuse and subpar nursing home care • Provides better quality of care • Provides for increased funding, mandatory nursing staffing levels, tougher sanctions, increased public disclosure, background checks, and greater protection • Came about at the urging of consumer and elder advocates, media pressure, and government concerns 5. Observations and Discussion 5.1 Visits The Grand Jury participated in ride-alongs with Ombudsmen, during which members: • Visited a number of skilled nursing facilities in Orange County • Conducted interviews with a variety of residents to determine their satisfaction with the Ombudsman Program • Determined that most of the residents appeared pleased and supportive of the Program. .2 Monitoring Results and Critical Success Factors OOA conducted annual monitoring site visits and published reports for FY 2004-05 and FY 2003-04. OOA reported that for Fiscal Year 2004-2005, the Ombudsman Program made over 10,000 visits to facilities, attended almost 800 resident council meetings, received over 2,900 complaints, and investigated over 500 suspected abuse complaints. The Ombudsman Program was found to be in compliance in all areas reviewed. Both reports complimented the Ombudsman staff and volunteers for their outstanding service. The OOA notes that the Ombudsman Program is extremely important and provides a critical service to older adults in Orange County. 5.3 Annual Goals and Actual Service Levels The FY 2004-2005 OOA goals were: • To provide 2,100 hours for providing information and technical support to residents, families, and the public about long-term care services. The actual service level provided was 1,170 hours. • To make 5,050 contacts to maintain an ongoing presence in long-term care facilities. The actual service level was 10, 069 contacts. • To investigate and resolve complaints by 4,700 annual unduplicated individuals, representing the interests of residents before government agencies and witnessing advance health care directives and property transfers for more than $100. The actual service level was 3,531 annual unduplicated individuals. The Grand Jury believes there is a need for more Ombudsmen and for increased public awareness by the OOA. Some OOA and COA strategies to increase public awareness are to: a) partner with AARP to highlight the Ombudsman Program via newsletters, emails, and at various events and venues; b) conduct presentations and partner with faith-based community organizations to increase awareness and support of the Ombudsman Program; c) partner with hospitals, medical offices and other stakeholders in the health care community to distribute brochures and flyers about the Ombudsman Program to ensure that important materials are available to care providers and receivers; and d) work with members of the media to utilize press releases and secure free public service announcements. 5.4 Board of Supervisors (BOS) Funding Issues For FY 2005-2006 the BOS is providing $965,762 from the general funds for match and overmatch funding to the OOA for a variety of programs. In accordance with the BOS Strategic Financial Plan, the general fund support to the OOA has been reduced by $131,500 per year over the last four years. As a result, the OOA does not have the ability to allocate additional general fund dollars to support the Ombudsman Program. Finally, the OOA receives $2,800,000 per year in Measure H Tobacco Settlement Revenue. These The Long-Term Care Ombudsman Program funds have been specifically allocated by the BOS for the administration of a highly successful non-emergency medical transportation program for seniors. The OOA does not have the discretion to supplement the Ombudsman Program with these funds. 5.5 Volunteer Recognition Volunteers are the backbone of the Ombudsman Program. As a result, successful volunteer recruitment and retention is critical to the success of the Program. Recognition encourages retention and provides incentive for those considering volunteering as well as informing the community about what the volunteer does. The COA hosts volunteer recognition events and is extremely interested in having its Ombudsmen volunteers and staff honored in a public forum. Options that could be considered by the BOS include presenting resolutions and/or proclamations to outstanding volunteers quarterly during an official BOS meeting and at the COA Volunteer Recognition Luncheon, recognizing volunteers at the OOA Senior Citizen Advisory Council meetings, and honoring volunteers at the OOA quarterly provider meetings. 5.6 Possible Legislative Issue There is now a discussion at the state level to change the law so that the Ombudsman Program would be removed as the mandated reporting agency for receiving and investigating reports about suspected cases of neglect or abuse in licensed long-term care facilities. Supporters of the change point out that these requirements are an unfunded state mandate and their proposal is to rely on other agencies to detect neglect or abuse during their inspections of long-term care facilities. Opponents of the proposed change, including Orange County’s Ombudsman Program, believe Ombudsmen are key to receiving reports of suspected cases of abuse since they visit long-term care facilities far more often than state officials and under current law are provided a legislative shield from legal retaliation. 5.7 Enforcing Mandates According to a 2005 report from the California Advocates for Nursing Home Reform, nursing home residents still suffer from daily neglect, abuse, and violation of their basic rights. Hundreds of nursing homes routinely violate minimum staffing requirements, creating a severe threat to residents’ health and safety. The report points out that the budget of the DHS-L&C has been cut to the point where enforcement is negligible. Cases are not responded to on a timely basis, if they are responded to at all. Current law requires the DHS-L&C to make an on-site inspection or investigation within ten working days of the receipt of the case and to make a final determination as a result of the inspection or investigation within ninety days of the receipt of the case. percent of the most serious cases were resolved within the 90 day mandate, based on data provided by the COA, as shown in the table below. ORANGE COUNTY CASES TO CALIFORNIA DEPARTMENT OF HEALTH SERVICES LICENSING AND CERTIFICATION, 2004-2005 SOURCE: COUNCIL ON AGING DATA Number Percent of Total of Cases Cases TOTAL NUMBER OF CASES 54 100% RESPONSE LESS THAN 90 DAYS 13 24% RESPONSE GREATER THAN 90 DAYS 18 33% NO RESPONSE TO DATE (180 DAYS+) 23 43% TOTAL NO. OF CITATIONS GIVEN 17 31% 6. Findings In accordance with California Penal Code §933 and §933.05, each finding will be responded to by the government entity to which it is addressed. The responses are to be submitted to the Presiding Judge of the Superior Court. The 2005-2006 Orange County Grand Jury has arrived at the following findings: 6.1 Elderly Population Increasing: There will be a noticeable increase in the 75 plus age group in the near future and the 60 plus population is expected to increase by two- thirds in Orange County over the next fifteen years. This will increase the need for more long-term care facilities and therefore, an expansion of the OOA Ombudsman Program. 6.2 Effective Program Lacks Public Awareness: The Ombudsman Program is extremely important, successful, and provides a critical service to older and dependent adults in Orange County. Unfortunately, the general public is not fully aware of the Ombudsman Program and its mission. 6.3 Funding Support: The demand for the Ombudsman Program will continue to grow as the older adult population in Orange County increases by two-thirds over the next fifteen years. As a result, additional funding support will be needed to ensure an increased presence of Ombudsmen in long-term care facilities. 6.4 Volunteer Recognition: Successful Ombudsman volunteer recruitment and retention will be improved by increased volunteer recognition. The Long-Term Care Ombudsman Program 6.5 Elder Abuse Reporting: Legislation is being considered to remove the requirement that the Ombudsman Program receive and investigate reports of suspected cases of abuse or neglect. 6.6 Complaints Not Being Responded To Timely: Complaints of abuse and neglect in nursing homes filed by Long-Term Care Ombudsmen are not being investigated in a timely manner by appropriate agencies. Responses to Findings 6.1 through 6.6 are requested from the Orange County Housing and Community Services Department, Office on Aging. Responses to Findings 6.4 through 6.6 are required from the Orange County Board of Supervisors.

Recommendations In accordance with California Penal Code §933 and §933.05, each recommendation will be responded to by the government entity to which it is addressed. The responses are to be submitted to the Presiding Judge of the Superior Court. Based on the findings, the 2005- 2006 Orange County Grand Jury makes the following recommendations: 7.1 Make Adequate Preparations: The OOA should take steps to expand the Long- Term Care Ombudsman Program to accommodate the expected increase in the elderly population with a resulting increase in the number of long-term care facilities and residents. (See Finding 6.1) 7.2 Continue Monitoring/Evaluation and Increase Public Awareness: The OOA should continue its annual monitoring site visits and reports to ensure adherence to the core elements of the program. The OOA should implement planned strategies to increase public awareness (See Finding 6.2) 7.3 Additional Funding Support: The OOA should consider requiring the COA to seek additional funding support for the Ombudsman Program from corporate sponsors, individual donors, fundraising efforts, foundations and other governmental agencies. (See Finding 6.3) 7.4 Additional Funding Support: The Orange County BOS should consider allocating additional funding to the Ombudsman Program. (See Finding 6.3) 7.5 Volunteer Ombudsman Recognition: The BOS should participate in the recognition of volunteer Ombudsmen at public forums such as during official board meetings, Senior Citizen Advisory meetings, etc. (See Finding 6.4). .6 Retain Elder Abuse Reporting Role: The BOS should lobby state legislators about the continued need for the Ombudsman Program to receive and investigate reports of suspected cases of abuse or neglect in long-term care facilities. (See Finding 6.5) 7.7 Request Enforcement of Mandates: The BOS should lobby state legislators and officials about the importance of investigating complaints filed by Long-Term Care Ombudsmen in a timely manner by appropriate agencies. (See Finding 6.6) Responses to Recommendations 7.1 through 7.3 are requested from the Orange County Housing and Community Services Department, Office on Aging. Responses to Recommendations 7.4 through 7.7 are required from the Orange County Board of Supervisors.