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 AB 581 Page 2 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, AB 581 Page 3 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 AB 581 Page 4 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 AB 581 Page 5 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 Page 6 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