BILL ANALYSIS Ó
AB 313
Page 1
Date of Hearing: March 22, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 313 (Monning) - As Amended: March 14, 2011
SUBJECT : Residential care facilities for the elderly
SUMMARY : Requires residential care facilities for the elderly
(RCFEs) to provide residents, their designated emergency
contacts and authorized representatives, and the local long-term
care ombudsman (LTC Ombudsman) with notice when specified
actions are taken in response to violations that could result in
suspension or revocation of the facility's license or that
relate to the health and safety of residents. Specifically,
this bill :
1)Requires a licensed RCFE to provide written notice to
residents, any person designated as their authorized emergency
contact or, if applicable, the legal representative of the
resident, and the local LTC Ombudsman within 10 days of the
occurrence of any of the following:
a) The Department of Social Services (DSS) informs the
facility that a violation has occurred that poses a serious
threat to the health, including mental health, and safety
of any resident;
b) DSS commences proceedings to suspend or revoke the
license of the facility; or,
c) A civil or criminal action that relates to the health or
safety of residents is brought against the facility.
2)Requires that the notice to the resident and emergency contact
include contact information for the LTC Ombudsman and for the
DSS Community Care Licensing Division (CCLD) with a statement
directing the resident or emergency contact person to contact
either the local LTC Ombudsman or CCLD for information on the
license status of the facility.
3)Requires the RCFE to post a written notice on or by the
interior of the main entrance that includes all of the
following:
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a) The date of the notice;
b) The name of the RCFE;
c) A statement that a copy of the most recent licensing
report prepared by DSS, and any additional reports of
facility evaluation visits within the preceding 12 months
may be obtained at the facility; and,
d) The name and phone number of the contact person
designated by DSS to provide information about the site
visit report.
4)Requires that the notice remain posted for 30 days or until
the deficiencies giving rise to the notice are resolved,
whichever is later.
5)Provides that any civil penalty levied by DSS for violation of
the notice provisions of this bill be in addition to any civil
penalty levied for the underlying violation giving rise to the
notice requirement.
EXISTING LAW
1)Under the Residential Care Facilities for the Elderly Act,
provides for the licensure and regulation of RCFEs by DSS,
CCLD.
2)Authorizes DSS to take enforcement action, including, but not
limited to, actions to suspend, temporarily suspend, or revoke
a license and to impose civil penalties for violations of
rules and regulations established under licensing provisions
governing RCFEs.
3)Requires DSS to notify placement agencies and the Office of
the State Long-Term Care Ombudsman when DSS substantiates that
a violation has occurred that poses a serious threat to the
health and safety of any resident when the violation results
in the assessment of a penalty or filing of an accusation for
revocation of the license.
4)Requires that, if the RCFE appeals the violation within 10
days, notice be sent only to placement agencies at the time
the appeal has been exhausted, unless the appeal process is
not completed within 60 days, at which time the placement
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agency is to be notified indicating the case is still under
appeal. After 24 months, the placement agencies are to be
updated monthly.
5)Requires that, prior to surrendering its license or otherwise
transferring residents to another facility or independent
living arrangement, the RCFE licensee provide residents or
their responsible person with written notice no later than 60
days prior to the eviction, and provide relocation assistance.
6)Requires an RCFE to place, in a conspicuous place, copies of
all DSS licensing reports issued in the preceding 12 months,
and all licensing reports resulting from the most recent
annual visit, excluding any reference to a complaint found by
DSS to be unfounded or unsubstantiated.
7)Requires written notice to a resident's responsible person at
the time of admission that licensing reports are available for
review at the facility, and that copies of licensing reports
and other documents pertaining to the facility are available
from the appropriate DSS district office.
FISCAL EFFECT : Unknown
COMMENTS : RCFEs are licensed assisted living facilities for
persons 60 years of age and over and persons under 60 with
compatible needs. Varying levels of care and supervision,
protective supervision, or personal care are provided, based
upon residents' needs. As of February 2011, there were 7,668
licensed RCFEs in the state with a total capacity of 170,376
residents. According to DSS, approximately 80% of RCFEs are
licensed for six or fewer residents; the remaining RCFEs have an
average licensed capacity of approximately 60 residents.
Need for this bill : The author notes that, "Ýd]espite the
impact ÝCCLD] enforcement action may have on the residents of
RCFEs, they are not provided any advance notice of a potential
facility shut-down. In fact, residents are often the last to
know their home is going to be closed and they will no longer
have housing or care services."
The author cites a recent incident involving Chanticleer Home, a
48-bed RCFE in Santa Cruz. The residents' representatives
received a letter dated April 30, 2010 stating that DSS began
legal action against the facility on April 23, 2009. The letter
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explained that DSS "has now received the Decision and Order that
revokes the license" for the RCFE, and that "Ýt]he closure will
be effective on May 14, 2010"-only 2 weeks following the date of
the letter to the RCFE resident representatives. The
representatives were advised to contact the local LTC Ombudsman
for support and information about other RCFEs, and were also
directed to a facility search website.
Prior legislation, AB 949 (Krekorian), Chapter 686, Statutes of
2007, established procedures requiring that, prior to
transferring RCFE residents as a result of forfeiture of a
license or change of use of the facility, the facility take all
reasonable steps to transfer affected residents safely and to
minimize transfer trauma. The steps include preparing a
relocation evaluation for each resident of the resident's needs,
and providing the residents or the residents' responsible person
with a written notice concerning the transfer no later than 60
days before the intended eviction. The required notice must
include the reasons for the eviction, a copy of the resident's
current service plan, the relocation evaluation, a list of RCFEs
in the area, a list of referral agencies, and the right of the
resident or resident's legal representative to contact DSS to
investigate the reasons given for the eviction.
AB 949 focused on notice in the context of imminent transfers to
ensure resident safety and minimize transfer trauma. This bill,
on the other hand, is intended to inform RCFE residents, their
representatives, and the local LTC Ombudsman as soon as there is
a substantial possibility that the residents may need to move.
Thus, for example, notice is required at the time DSS first
informs the facility of a licensing violation posing a serious
health and safety threat, even though the violation may
eventually be corrected. This bill also requires notice when
administrative or judicial proceedings are commenced that could
result in license suspension or revocation, even though they may
go on for months or years and may not ultimately result in
suspension or revocation of the facility's license.
This bill expands on existing notice requirements. For example,
while current law requires that the facility notify placement
agencies, if any, and the Office of the State LTC Ombudsman of
licensing violations in certain circumstances, this bill
requires notice to the residents themselves, their emergency
contact persons and authorized representatives, and the local
LTC Ombudsman.
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In support of this bill, California Advocates for Nursing Home
Reform (CANHR) notes that "Ýd]espite their special needs, RCFE
residents have few legal protections to ensure they are notified
when their facility is in danger of losing its license and
shutting down." According to CANHR, this bill "will
substantially reduce the grave harm that threatens RCFE
residents when they are abruptly forced to move due to the
unanticipated closure of their facility" and that it will
"protect residents from the danger of abruptly losing their
homes due to unannounced administrative enforcement action."
Advocacy, Inc., the nonprofit organization operating the LTC
Ombudsman program for Santa Cruz and San Benito Counties, says
that this bill "will prevent the anxiety, trauma and stress
Chanticleer residents and families experienced and offer an
opportunity for residents and families to positively interact
with facility administrations to affect needed changes within
vulnerable facilities."
Opposition : The California Assisted Living Association (CALA)
has an Oppose Unless Amended position and has proposed a number
of amendments. CALA has proposed that the existing 60-day
notice provisions that apply when an RCFE surrenders its license
or is otherwise transferring residents also apply in the case of
license revocation. CALA also proposes that the notice required
by this bill go to the resident and their responsible party
rather than to all emergency contacts in order to maintain
consistency with current disclosure and communications
requirements. CALA further proposes that notice be provided
when DSS commences suspension or revocation proceedings, or when
criminal charges are brought, but not in each instance when the
facility is cited for a serious violation. Finally, CALA
proposes changing the posting requirements to specify
conspicuous locations other than next to the main door to the
facility. Both the author and CALA report that they expect to
resolve CALA's issues and concerns.
The notification requirements of this bill are in recognition of
the fact that the residents of RCFEs are elderly, often
medically frail individuals for whom an RCFE is home. They and
their representatives are entitled to be kept apprised in a
timely manner of events that will seriously disrupt their lives
and potentially require that they find alternative living
arrangements.
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Prior legislation and bills :
AB 1433 (Eng & Beall), Chapter 443, Statutes of 2010 : Requires
a continuing care retirement community (CCRC) to provide written
notice to residents at least 60 days prior to a temporary
relocation of residents required because of, for example, major
repairs or renovations.
SB 781 (Leno), Chapter 617, Statutes of 2009 : Requires an RCFE
to include specified information when providing a notice of
eviction to a resident, including the reason for the eviction,
the effective date of the eviction, and additional information
informing the resident of his/her rights regarding evictions.
AB 407 (Beall & Eng), Chapter 442, Statutes of 2009 : Requires a
CCRC to provide written notice to DSS and to the affected
residents and their designated representatives 120 days prior to
the permanent closure of the CCRC.
AB 949 (Krekorian), Chapter 686, Statutes of 2007 : Established
procedures to be followed by an RCFE prior to transferring a
resident to another facility or living arrangement as a result
of forfeiture of a license or change in the use of the facility,
and provides remedies for noncompliance.
SB 1329 (Leno 2010) (vetoed) : Would have required notice to
RCFE residents and their representatives in the event of
foreclosures or other circumstances indicating financial
distress experienced by the RCFE licensee, intended to protect
the interest of facility residents.
REGISTERED SUPPORT / OPPOSITION :
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Support
AARP
Advocacy, Inc.
California Advocates for Nursing Home Reform (CANHR)
California Communities United institute (CalComUI)
Ombudsman Services of San Mateo County, Inc.
Opposition
California Assisted Living Association (CALA) (unless amended)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089