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 








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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