BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 581 (Ammiano)
As Amended June 14, 2013
Hearing Date: June 25, 2013
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Care Facilities: Retaliation
DESCRIPTION
This bill would extend discrimination and retaliation
protections to a resident or employee of a community care
facility, residential care facility, or residential care
facility for the elderly who has filed with the State Department
of Social Services or a state or local ombudsman a complaint,
grievance, or request for inspection regarding the facility.
BACKGROUND
In 1973, the Legislature enacted AB 2262 (Lanterman, Lewis, and
Brown, Ch. 1203, Stats. 1973), which established the California
Community Care Facilities Act and provided a coordinated and
comprehensive statewide service system of quality community care
for mentally ill, developmentally and physically disabled, and
children and adults who require care or services by a facility
or organization. AB 2262 also prohibited discrimination and
retaliation against a person requesting an inspection of the
facility by the Department of Social Services (DSS).
In 1985, SB 185 (Mello, Ch. 1127, Stats. 1985) was enacted to
provide for the licensing, regulation, and operation of
residential care facilities for the elderly and prohibited
discrimination or retaliation against persons requesting
inspections thereof. In 1990,
AB 3459 (Friedman, Ch. 1333, Stats. 1990) was enacted to provide
for the licensing, regulation, and operation of residential care
facilities for persons with a chronic, life-threatening illness.
(more)
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The next year, AB 305 (Friedman, Ch. 832, Stats. 1991)
prohibited discrimination or retaliation against a person who
requests inspections of residential care facilities for persons
with a chronic, life-threatening illness.
Although a resident or employee of a community or residential
care facility who requests an inspection of a community or
residential care facility is protected from discrimination and
retaliation, there is no existing protection for a resident or
employee of the facility who files with the DSS a complaint or
grievance regarding the facility. This bill would provide such
protection for complaints filed with the DSS and would further
protect a resident or employee who has initiated or participated
in the filing of a complaint, grievance, or request for
investigation with the appropriate local or state ombudsman.
This bill would also extend the discrimination and retaliation
prohibition to an officer or employee of the licensee.
This bill was heard by the Senate Human Services Committee on
June 11, 2013, and passed out on a vote of 6-0.
CHANGES TO EXISTING LAW
Existing law establishes the California Community Care
Facilities Act to provide a coordinated and comprehensive
statewide service system of quality community care for mentally
ill, developmentally and physically disabled, and children and
adults who require care or services by a facility or
organization issued a license or special permit. (Health & Saf.
Code Sec. 1500 et seq.)
Existing law defines "community care facility" (CCF) to mean any
facility, place, or building that is maintained and operated to
provide nonmedical residential care, day treatment, adult day
care, or foster family agency services for children, adults, or
children and adults, including, but not limited to, the
physically handicapped, mentally impaired, incompetent persons,
and abused or neglected children. (Health & Saf. Code Sec.
1502.)
Existing law provides separate provisions for the operation of a
residential care facility (RCF) (Health & Saf. Code Sec. 1568.01
et seq.) and defines "residential care facility" to mean a
residential care facility for persons with chronic,
life-threatening illness who are 18 years of age or older or are
emancipated minors, and for family units (Health & Saf. Code
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Sec. 1568.01(j)).
Existing law also provides for the operation of a residential
care facility for the elderly (RCFE) (Health & Saf. Code Sec.
1569 et seq.) and defines "residential care facility for the
elderly" to mean a housing arrangement chosen voluntarily by
persons 60 years of age or over, or their authorized
representative, where varying levels and intensities of care and
supervision, protective supervision, or personal care are
provided, based upon their varying needs, as determined in order
to be admitted and to remain in the facility (Health & Saf. Code
Sec. 1569.2(k)). Persons under 60 years of age with compatible
needs may be allowed to be admitted or retained in an RCFE.
(Ibid.)
Exiting law requires the Department of Social Services (DSS) to
license, regulate, and inspect CCFs, RCFs, and RCFEs. (Health &
Saf. Code Secs. 1530 et seq., 1568.01 et seq., 1569.11 et seq.)
Existing law provides that any person may request an inspection
of a CCF, RCF, or RCFE. (Health & Saf. Code Secs. 1538(a),
1568.07(d), 1569.35.)
Existing law prohibits any licensee from discriminating or
retaliating in any manner against any person receiving the
services of the licensee's CCF, or against any employee of such
licensee's facility, on the basis, or for the reason that, such
person or employee or any other person has initiated or
participated in an inspection. (Health & Saf. Code Sec. 1539.)
Existing law prohibits any licensee from discriminating or
retaliating in any manner against any person receiving the
services of the licensee's RCFE, or against any employee of the
licensee's facility, because the person or employee or any other
person has initiated or participated in an inspection. (Health
& Saf. Code Sec. 1569.37.)
Existing law prohibits a licensee from discriminating or
retaliating in any manner against any person receiving the
services of the facility of the licensee, or against any
employee of the facility, on the basis, or for the reason, that
a person or employee or any other person has initiated or
participated in an inspection. (Health & Saf. Code Sec.
1568.07(d).)
Existing law establishes a Long-Term Care Ombudsman Program to
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encourage community contact and involvement with elderly
patients or residents of long-term care facilities or
residential facilities through the use of volunteers (Welf. &
Inst. Code Sec. 9700) and permits the State Ombudsman to
investigate and resolve complaints that are made by, or on
behalf of, residents of long-term care facilities (Welf. & Inst.
Code Sec. 9712.5(a)).
This bill would extend the existing provision prohibiting a CCF,
RCF, or RCFE licensee from discriminating or retaliating,
including, but not limited to, eviction or threat of eviction,
against a person receiving services or an employee of the CCF,
RCF, or RCFE on the basis of the person initiating or
participating in the filing of a complaint or grievance with the
DSS.
This bill would also prohibit the licensee from discriminating
or retaliating, including, but not limited to, eviction or
threat of eviction, against a person receiving services or an
employee of the CCF, RCF, or RCFE on the basis of the person
initiating or participating in the filing of a complaint,
grievance, or request for investigation with the appropriate
local or state ombudsman.
This bill would also prohibit an officer or employee of a CCF,
RCF, or RCFE licensee from such discrimination or retaliation.
COMMENT
1. Stated need for the bill
The author writes:
Current residency rights of the State Health and Safety Code
protect individuals from retaliation for requesting an
inspection from the Department of Social Services regarding a
Residential Care Facilities for the Elderly or Adult
Residential Care Facilities. This protection is not extended
to individuals that reach out to local Ombudsman Programs or
other advocacy organizations and as a result, facilities have
been found to retaliate against the resident because of these
grievances. This lack of protection discourages individuals
from filing grievances, or whistleblowing. Residents in these
types of care homes are discouraged from speaking out about
conditions, and face various forms of retaliation, for doing
so.
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AB 581 would prohibit Residential Care Facilities for the
Elderly and Adult Residential Care Facilities licensees,
officers or employees of the licensees, from discriminating or
retaliating in any manner against any person receiving the
services of the facility or against any employee of the
licensee's facility due to initiating or participating in the
filing of a grievance or complaint with the local Ombudsman
Program or other advocacy organization. Retaliation could
include intimidation; withholding of food, snacks, or
services; harassment; and threat of, or actual eviction.
2. Extending existing protections to complaints filed with an
ombudsperson
Existing law prohibits the licensee of a community care facility
(CCF), residential care facility for persons with chronic,
life-threatening illness (RCF), or residential care facility for
the elderly (RCFE) from discriminating or retaliating in any
manner against a person receiving the services of the facility,
or against any employee of the facility, on the basis that such
person or employee or any other person has initiated or
participated in an inspection by the Department of Social
Services (DSS). This bill would extend these protections to the
resident or employee of the facility who initiates or
participates in the filing of a complaint or grievance with the
DSS. This bill would also prohibit the licensee from
discriminating or retaliating against the resident or employee
of the facility who initiates or participates in the filing of a
complaint, grievance, or request for investigation with the
appropriate local or state ombudsman. This bill would also
clarify these prohibitions apply to an officer or employee of
the licensee.
Existing law provides a Long-Term Care Ombudsman Program to
encourage community contact and involvement with elderly
patients or residents of long-term care facilities or
residential facilities through the use of volunteers and permits
the State Ombudsman to investigate and resolve complaints that
are made by, or on behalf of, residents of long-term care
facilities.
The Office of the State Long-Term Care Ombudsman, in support,
argues that "[t]his bill will provide stronger and more specific
language in the Health and Safety Code regarding protection for
residents of RCFEs and [adult residential facilities] from
retaliation for exercising their rights to voice concerns with
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their care and living conditions." Arguably, providing seniors,
dependent adults, and minors living in care facilities, and the
employees who work in those facilities, protection from
retaliation for reporting potential problems at the facilities
will protect individuals living in these facilities from abuses
and harmful living conditions. Protecting these individuals is
an important public purpose, and this bill would promote the use
of the Ombudsman programs, which were established to further
this purpose.
Support : California Continuing Care Residents Association;
Causa Justa :: Just Cause; City and County of San Francisco;
County Welfare Directors Association of California; LeadingAge
California; State Long-Term Care Ombudsman; The Arc and United
Cerebral Palsy California Collaboration
Opposition : None Known
HISTORY
Source : San Francisco Long Term Care Ombudsman Program
Related Pending Legislation : None Known
Prior Legislation :
AB 305 (Friedman, Ch. 832, Stats. 1991) See Background.
AB 3459 (Friedman, Ch. 1333, Stats. 1990) See Background.
SB 185 (Mello, Ch. 1127, Stats. 1985) See Background.
AB 2262 (Lanterman, Lewis, and Brown, Ch. 1203, Stats. 1973) See
Background.
Prior Vote :
Assembly Committee on Human Services (Ayes 7, Noes 0)
Assembly Committee on Judiciary (Ayes 10, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Floor (Ayes 75, Noes 0)
Senate Committee on Human Services (Ayes 6, Noes 0)
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