BILL ANALYSIS Ó
AB 581
Page 1
Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 581 (Ammiano) - As Amended: April 4, 2013
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : Residential Care Facilities: Retaliation
KEY ISSUE : Should A residential care facility be prohibited
from discriminating or retaliating against a resident or
employee who files a complaint or grievance with the Department
of Social Services or a state or local ombudsman?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
The State Department of Social Services (department) licenses,
regulates, and investigates residential care facilities,
including adult residential facilities and residential care
facilities for the elderly. Existing law authorizes any person
to ask the department to inspect a facility for alleged
violations and, in turn, prohibits the facility from retaliating
against any resident or employee who initiates or participates
in the inspection. This bill would, additionally, prohibit a
facility, or any of its employees, from discriminating or
retaliating against any person (resident or employee) who files
a grievance or complaint against the facility, or who requests
an inspection by the department or an investigation by a local
or state ombudsman. This bill appears to logically and
reasonably extend the spirit and intent of existing law by
protecting residents and employees from retaliation, whether
they exercise their right to request an inspection from the
department or whether they file a grievance or complaint with
the department. The bill also reasonably extends this
protection to requests for an investigation from the appropriate
local or state ombudsman. The bill is supported by advocates
for nursing care reform, county welfare directors, and the
Office of the State Long-Term Care Ombudsman. This sensible
bill has received no opposition, and it passed out of the
Assembly Committee on Human Services on a 7-0 vote. The author
will take a technical amendment to clarify that the department
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conducts "inspections" while the ombudsman conducts
"investigations." The analysis reflects that amendment.
SUMMARY : Prohibits a community care facility licensee or a
residential facility for the elderly licensee, or any officer or
employee of the licensee, from discriminating or retaliating
against a resident or employee, as specified. Specifically,
this bill :
1)Prohibits a licensee, or officer or employee of the licensee,
from discriminating or retaliating in any manner, including,
but not limited to, eviction or threat of eviction, against
any person receiving the services of the licensee's community
care facility, or against any employee of the licensee's
facility, on the basis, or for the reason that, the person or
employee or any other person has initiated or participated in
the filing of a complaint, grievance, or a request for
inspection or investigation with the Department of Social
Services or with the appropriate local or state ombudsman.
2)Prohibits a licensee, or officer or employee of the licensee,
from discriminating or retaliating in any manner, including,
but not limited to, eviction or threat of eviction, against
any person receiving the services of the licensee's
residential care facility for the elderly, or against any
employee of the licensee's facility, on the basis, or for the
reason that, the person or employee or any other person has
initiated or participated in the filing of a complaint,
grievance, or a request for inspection or investigation with
the Department of Social Services or the appropriate local or
state ombudsman.
EXISTING LAW :
1)Establishes the California Community Care Facilities Act to
license and regulate community care facilities that provide
care and supervision to persons who have a mental illness or a
developmental or physical disability, or any other persons,
children or adults, who require care or supervision, as
specified. (Health & Safety Code Section 1500 et seq.)
2)Defines a "community care facility" (CCF) to mean any
facility, place, or building maintained and operated to
provide nonmedical residential care, day treatment, adult day
care, or foster family agency services for children, adults,
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or children and adults, including, but not limited to, the
physically handicapped, mentally impaired, incompetent
persons, and abused or neglected children. (Health & Safety
Code Section 1502 (a).)
3)Establishes the California Residential Care Facilities for the
Elderly Act to provide for the licensing and regulation of
residential care facilities for the elderly. Defines
"residential care facilities for the elderly" (RCFE) to mean
any housing arrangement that provides varying levels of care
and protective supervision for persons 60 years of age or
older, who voluntarily choose to reside in that facility.
(Health & Safety Code Section 1569 et seq.)
4)Permits any person to request an inspection of a CCF or RCFE
by giving notice, as specified, to the Department of Social
Services of an alleged violation of any applicable law or
regulation. (Health & Safety Code Sections 1538 and 1569.35.)
5)Prohibits the licensee of a CCF or RCFE from discriminating or
retaliating in any manner against any person receiving the
services from the licensee, or against any employee of the
licensee, on the basis, or for the reason that, such person or
employee or any other person has initiated or participated in
an inspection of the licensee's facility. (Health & Safety
Code Sections 1539 and 1569.37.)
6)Establishes the California Long-Term Care Ombudsman Program
within the California Department of Aging and provides for its
administration by the State Long-Term Care Ombudsman.
Authorizes the Ombudsman to, among other things, identify and
investigate complaints made by, or on behalf of, residents of
long-term care facilities. (Welfare and Institutions Code
Section 9700 et seq.)
COMMENTS : The California Department of Social Services (DSS)
licenses and regulates both "community care facilities" (CCF)
and "residential care facilities for the elderly" (RCFE). A CCF
includes a variety of different kinds of facilities, from foster
homes to facilities that provide nonmedical care and supervision
to persons with development disabilities. An RCFE provides
assisted residential arrangements for persons who are over the
age of 60 who need varying levels of care and supervision, and
who voluntarily reside in the facility. In order to better
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protect the residents of CCFs and RCFEs, existing law permits
any person, including a facility resident or employee, to
request that the DSS conduct an investigation of any alleged
violations of applicable laws or regulations. Furthermore,
existing law prohibits the licensee of the facility from
discriminating or retaliating against any resident or employee
who initiates or participates in a DSS inspection. In addition,
the California Long-Term Care Ombudsman, through a program
administered by the California Department of Aging, is
authorized to identify and investigate complaints made by, or on
behalf of, residents of long-term care facilities.
Shortcomings in Existing Law : Existing statutes that protect
persons who initiate complaints or investigations from
retaliation suffer from at least three shortcomings. First,
existing law only offers protection against retaliation to
residents or employees who request an inspection from DSS; it
does not apply to persons who request an investigation from the
Ombudsman, even though like the DSS, the Ombudsman is charged
with receiving and acting upon requests for investigation. This
bill would prohibit discrimination and retaliation whether the
request is made to the DSS or the Ombudsman.
Second, existing law only prohibits the licensee of the facility
from discriminating or retaliating against a resident or
employee who initiates and participates in a DSS inspection; it
does not prohibit an officer or employee of the licensee from
engaging in acts of discrimination or retaliation. This bill
would extend the prohibition to officers and employees, because
the administrative staff of the licensed facility may also
engage in discrimination and retaliation against a resident who
requests an inspection.
Third, existing law only applies where a resident or employee
requests an inspection; it does not apply where the resident or
employee actually files a complaint or grievance with the DSS.
Given that the filing of a complaint or grievance, like a
request for inspection, alleges that the facility violated a law
or regulation, it seems quite reasonable to protect residents
and employees from retaliation for these filings just as they
are protected from making requests for inspection. This bill
would offer protection whether the resident or employee requests
an inspection or files a complaint or grievance.
ARGUMENTS IN SUPPORT : According the author, this measure "will
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increase protections against discriminatory and retaliatory
actions by prohibiting an eldercare facility licensee or staff
member from retaliating against a person for filing a complaint
or grievance with the local Ombudsman Program or other advocacy
organization." The author contends that the lack of protection
in existing law "discourages individuals from filing grievances"
for fear that they will "face various forms of retaliation for
doing so."
LeadingAge California (formerly Aging Services of California)
argues that while "current law protects residents of residential
care facilities . . . from retaliation if they participate in an
investigation by a licensing agency," this measure will "extend
the current protections to instances where the resident has
complained, filed a grievance, or requested an inspection by the
department [DSS] and also expands the current prohibition to
complaints made to the local or state ombudsman."
The California Advocates for Nursing Home Reform (CANHR) reports
that there are currently over 7,500 residential care facilities
for the elderly in California and over 5,000 adult residential
care facilities. CANHR argues that "the only way that residents
and employees of these facilities can pursue corrective action
is to file complaints with Community Care Licensing, the
long-term care ombudsman, or other public agencies.
Unfortunately, the residents are often faced with threats of
evictions, and the employees with threats of being fired. . . AB
581 would deem this retaliatory conduct illegal and will provide
needed protection for residents and employees of these
facilities."
PROPOSED TECHNICAL AMENDMENTS: The author will take the
technical amendments listed below in this Committee in order to
clarify that the department "inspects" while the ombudsman
"investigates."
- On page 3 line 1 after "or" insert:
has initiated or participated in the filing of a complaint,
grievance, or request for investigation
- On page 3 line 13 after "chapter" insert:
or has initiated or participated in the filing of a complaint,
grievance, or request for investigation
AB 581
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REGISTERED SUPPORT / OPPOSITION :
Support
San Francisco Long Term Care Ombudsman Program (sponsor)
California Advocates for Nursing Home Reform
California Assisted Living Association (as proposed to be
amended)
County Welfare Directors Association of California
LeadingAge California (as proposed to be amended)
Office of the State Long-Term Care Ombudsman
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334