BILL NUMBER: AB 2947	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 18, 2008
	AMENDED IN SENATE  JULY 2, 2008
	AMENDED IN SENATE  JUNE 19, 2008
	AMENDED IN ASSEMBLY  MAY 7, 2008
	AMENDED IN ASSEMBLY  APRIL 3, 2008

INTRODUCED BY   Assembly Members Eng and Jones
   (Coauthors: Assembly Members Berg, Brownley, Mullin, and Saldana)
   (Coauthors: Senators Alquist and Romero)

                        FEBRUARY 22, 2008

   An act to add Section 15656.5 to the Welfare and Institutions
Code, relating to elder and dependent adult abuse.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2947, as amended, Eng. Elder and dependent adult abuse: waiver
of rights.
   Existing law, the Elder Abuse and Dependent Adult Civil Protection
Act, establishes procedures for the reporting, investigation, and
prosecution of elder and dependent adult abuse.
   This bill would, on and after January 1, 2009, prohibit a
residential care facility for the elderly that provides care to an
elder or dependent adult from requiring, as a condition of admission
to, or of continued care or residence at, the facility that an elder
or dependent adult, or his or her representative, waive any legal
rights, duties, remedies, forums, or procedures under the act,
including the right to file and pursue a complaint with the State
Department of Social Services, or a law enforcement agency, or to
file and pursue a civil action based on a claim for physical abuse,
neglect, or death. 
   This bill would provide that any provision in an agreement entered
into by a residential care facility for the elderly and an elder or
dependent adult, or his or her representative, in which legal rights,
remedies, duties, forums, or procedures are waived in violation of
this bill shall be considered unenforceable as an action against
public policy. 
   This bill would, on and after January 1, 2009, prohibit a
residential care facility for the elderly from refusing to enter into
an agreement with an elder or dependent adult, or his or her
representative, regarding admission to, or continued care or
residence at, the facility because he or she refuses to waive legal
rights, duties, remedies, forums, or procedures provided for in the
act.
   This bill would require any waiver of legal rights, duties,
remedies, forums, or procedures under the act by an elder or
dependent adult, or his or her representative, to be knowing,
voluntary, and not made as a condition of admission to, or continuing
care or residence at, the residential care facility for the elderly.

   This bill would create a rebuttable presumption that a waiver of
legal rights, duties, remedies, forums, or procedures is involuntary
if the waiver was made prior to or on the day of admission. The bill
would provide that it is not intended to affect existing law relating
to the enforceability or unenforceability of an arbitration
agreement.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares the following:
   (a) Unlike health facilities providing 24-hour care that are
licensed under Section 1250 of the Health and Safety Code, current
statutory law does not specifically regulate or prohibit the forced
and coercive waiver of legal rights in written agreements with
facilities licensed as residential care facilities for the elderly.
It is the public policy of the State of California to ensure that
elders and dependent adults and their representatives have the full
benefit of the legal rights, duties, remedies, forums, and procedures
contained in the Elder Abuse and Dependent Adult Civil Protection
Act (EADACPA) set forth in Chapter 11 (commencing with Section 15600)
of Part 3 of Division 9 of the Welfare and Institutions Code.
   (b) Over two million elders are abused each year, and it is
estimated that one out of every 20 elders is a victim of neglect or
physical, psychological, or financial abuse.
   (c) The Legislature recognizes that its enactment of the EADACPA
is to protect elders and dependent adults and to ensure that they
have the full protections afforded through administrative and law
enforcement processes, as well as recourse in a civil action.
   (d) Elder and dependent adults shall not be deprived of those
legal rights, duties, remedies, forums, and procedures by the use of
coerced and involuntary waivers.
   (e) It is the purpose of this act to require that any agreement to
waive any legal rights, duties, remedies, forums, or procedures
under the EADACPA, including any agreement that has the effect of
limiting the application or enforcement of the full rights, duties,
remedies, forums, or procedures available under EADACPA, is a matter
of voluntary consent, and not coercion.
  SEC. 2.  Section 15656.5 is added to the Welfare and Institutions
Code, to read:
   15656.5.  (a) No residential care facility for the elderly, as
defined in Section 1569.2, that provides care to elder or dependent
adults shall, on and after January 1, 2009, require that an elder or
dependent adult, or his or her representative, as a condition of
admission to, or of continued care or residence at, the facility
waive any legal rights, duties, remedies, forums, or procedures under
this chapter, including the right to file and pursue a complaint
with the State Department of Social Services, or a law enforcement
agency or other entity, or to file and pursue a civil action based on
a claim for physical abuse, neglect, or death.
   (b) Any waiver of legal rights, remedies, duties, forums, or
procedures under this chapter by an elder or dependent adult or his
or her representative, on and after January 1, 2009, shall be
knowing, voluntary, and in writing, and expressly not made a
condition of admission or continued care or residence at a
residential care facility for the elderly.
   (c) Any  provision in an  agreement entered into by a
residential care facility for the elderly and an elder or dependent
adult, or his or her representative, in which legal rights, remedies,
duties, forums, or procedures are waived in violation of this
section shall be considered  involuntary, unconscionable, and
 unenforceable as an action against public policy. 
Nothing in this section shall affect the enforceability or validity
of any other   provision in the admission agreement. 
   (d) On and after January 1, 2009, a residential care facility for
the elderly shall not refuse to enter into an agreement with an elder
or dependent adult, or his or her representative, regarding
admission to, or continued care or residence at, the facility because
he or she refuses to waive legal rights, duties, remedies, forums,
or procedures provided for in this chapter. The exercise by an elder
or dependent adult, or his or her representative, of the right to
refuse to waive legal rights, duties, remedies, forums, or procedures
under this chapter, including a rejection of an agreement requiring
that waiver, shall not affect any other term of the agreement.
   (e) A residential care facility for the elderly shall have the
burden of proving that any waiver of legal rights, duties, remedies,
forums, or procedures under this chapter by an elder, or dependent
adult, or his or her representative, was knowing, voluntary, and not
made as a condition of admission to, or continuing care or residence
at, the facility.
    (f) A waiver of legal rights, duties, remedies, forums, or
procedures under this chapter shall be presumed to be involuntary if
the waiver was made prior to or on the day of admission to the
facility. This presumption may be rebutted by a preponderance of the
evidence.
   (g) This section shall apply to any agreement between an elder or
dependent adult, or his or her representative, and a residential care
facility for the elderly for the admission to, or continued care or
residence at, the facility that is entered into, altered, modified,
renewed, or extended on or after January 1, 2009.
  SEC. 3.  Nothing in this act is intended to affect existing law
relating to the enforceability or unenforceability of an arbitration
agreement.