BILL ANALYSIS Ó
AB 1436
Page A
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1436 (Waldron) - As Amended: February 18, 2014
SUBJECT : Residential Care Facilities for the Elderly (RCFE).
SUMMARY : Requires the Department of Social Services (DSS) to
post on its website information relating to reports on
inspections of RCFEs. Specifically, this bill :
1)Requires DSS to post on its website the results of licensing
inspection reports, consultation reports, lists of
deficiencies, and plans of correction for RCFES.
2)Requires DSS to include on its website whether a licensee has
requested an appeal in accordance with Section 87763 of Title
22 of the California Code of Regulations.
3)Requires DSS to immediately remove from its website a notice
of deficiency on a RCFE upon a successful appeal of the RCFE.
EXISTING LAW:
1)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in that facility
to be licensed by the California Department of Social Services
(DSS). (H&S Code 1569 and 1569.1)
2)Requires DSS to conduct an unannounced licensing inspection of
a RCFE no less than once every five years. (H&S Code
1569.33(d)
3)Requires DSS to conduct an annual unannounced licensing
inspection of a RCFE under the following circumstances:
a. When a licensee is on probation;
b. When the terms of agreement in a facility compliance
plan require an annual evaluation;
c. When an accusation against a licensee is pending;
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d. When a facility requires an annual visit as a
condition of receiving federal financial participation;
and
e. In order to verify that a person who has been
ordered out of the facility for the elderly by the
department is no longer at the facility. (H&S Code
1569.33(b))
4)Requires DSS to conduct unannounced inspections of a 30%
random sample of facilities each year. (H&S Code 1569.33(c))
5)Requires DSS to notify RCFEs in writing of all deficiencies in
its compliance with applicable statute and regulations. (H&S
Code 1569.33(e))
6)Requires DSS to keep on file the results of each inspection,
evaluation, or consultation and to make available to the
public all inspection reports, consultation reports, lists of
deficiencies, and plans of correction. (H&S Code 1569.33(f))
7)Requires DSS to establish an automated RCFE license
information system on licensees and former licensees of
licensed RCFEs, which shall include information that may be
pertinent, as determined by the director, for licensure, which
may include, but is not limited to, the licensees' addresses,
telephone numbers, violations of any laws related to the care
of clients in a residential care facility for the elderly,
licenses, revocation of any licenses and, to the extent
permitted by federal law, social security numbers. (H&S Code
1569.335)
FISCAL EFFECT : Unknown.
COMMENTS :
Background : It is the intent of the Legislature, in
establishing the RCFE Act, to help provide a system of
residential care to allow older persons to be able to
voluntarily live independently in a homelike environment as
opposed to being forced to live in an institutionalized
facility, such as a nursing home, or having to move between
medical and nonmedical environments. RCFEs, commonly referred
to as assisted living facilities, are licensed retirement
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residential homes and board and care homes that accommodate and
provide services to meet the varying, and at times, fluctuating
health care needs of individuals who are 60 years of age and
over, and persons under the age of 60 with compatible needs.
Licensed by DSS' Community Care Licensing Division (CCLD), they
can range in size from residential homes with six or less beds
to more formal residential facilities with 100 beds or more.
There is also no uniform common care model; rather the types of
assistive services can vary widely, which can include differing
levels of personal care and protective supervision, based upon
the needs of the resident.
When a resident needs medical care in his or her residence in
order to maintain an independent lifestyle, incidental medical
services are permitted to be provided by a licensed or otherwise
approved external provider, such as a home healthcare agency
(HHA), which is licensed by the California Department of Public
Health. Additionally, some RCFEs, upon approval of DSS and
after having met specified orientation and training
requirements, may provide assistive memory care services to
individuals with dementia or Alzheimer's disease.
Existing regulations also lay out the circumstances under which
an individual may be allowed to reside in RCFEs. Specifically,
they include persons:<1>
Capable of administering their own medications;
Receiving medical care and treatment outside the
facility or who are receiving needed medical care from a
visiting nurse;
Who because of forgetfulness or physical limitations
need only be reminded or to be assisted to take medication
usually prescribed for self-administration;
With problems including, but not limited to,
forgetfulness, wandering, confusion, irritability, and
inability to manage money;
With mild temporary emotional disturbance resulting from
personal loss or change in living arrangement;
--------------------------
<1> Section 87455(b) of Title 22, California Code of
Regulations.
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Who are temporarily bedridden, as specified; or
Who are under 60 years of age whose needs are compatible
with other residents in care, if they require the same
amount of care and supervision as do the other residents in
the facility.
Regulations also provide specific prohibitions on individuals
who are allowed to reside in a RCFE, which includes whether the
resident has active communicable tuberculosis, requires 24-hour
skilled nursing or intermediate care, has an ongoing behavioral
or mental disorder, or has dementia, unless the individual is
otherwise permitted to be cared for in a RCFE by CCLD.<2>
Growing demand: Over the past thirty years, the demand for
RCFEs has grown substantially. Although RCFEs have been
generally available, they experienced explosive growth in the
1990s, more than doubling the number of beds between 1990 and
2002,<3> and continued to grow 16% between 2001 and 2010.<4>
Nationwide, states reported 1.2 million beds in licensed RCFEs
in 2010.<5> That same year, the national Centers for Disease
Control reported that 40% of RCFE residents needed help with
three or more activities of daily living and three-fourths of
residents had at least two of the 10 most common chronic
conditions.<6>
According to March 5, 2014 data from DSS, there are currently
7,589 licensed RCFEs in California with a capacity to serve
176,317 residents.
---------------------------
<2> Section 87455(c) of Title 22, California Code of
Regulations.
<3> Flores and Newcomer, "Monitoring Quality of Care in
Residential Care for the Elderly: The Information Challenge".
Journal of Aging and Social Policy, 21:225-242, 2009.
<4> SCAN Foundation. "Long Term Care Fundamentals: Residential
Care Facilities for the Elderly." March 2011.
http://thescanfoundation.org/sites/thescanfoundation.org/files/LT
C_Fundamental_7_0.pdf
<5> "Assisted Living and Residential Care in the States in
2010," Mollica, Robert, AARP Public Policy Institute
<6> "Residents Living in Residential Care Facilities: United
States, 2010, Caffrey, Christine, et al., US Centers for
Disease Control, April 2012
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Transparency or lack thereof: Under current law, DSS is
required to operate an automated RCFE license information system
to provide information on licensees and former licensees of
licensed RCFEs. Although this requirement was established in
statute in 1985 (SB 185 (Mello) Chapter 1127, Statutes of 1985),
it is unclear how DSS is complying with this requirement. It
currently has available a searchable database of RCFEs on its
website, however information is limited to the name, location,
contact information, type of facility and whether the facility's
license is current or pending. It does not provide information
such as a facility's licensing history, the expertise and
certification of staff, or its complaints history, including
whether the complaint was resolved. In order to acquire
additional information relating to the quality of a facility, a
person must travel to one of DSS' eight regional licensing
offices and request the information in person.
DSS also currently operates a webpage entitled "myccl" on its
departmental Internet Web site, however, it is only accessible
to RCFE licensees, administrators, board members of the RCFE,
staff, or related individuals per the approval of DSS.
Other than DSS' searchable database, which is limited to general
information of RCFEs, there currently does not exist an online
or other automated system provided by DSS whereby the public can
review or learn more about licensed RCFEs. This not only limits
the public's access to information about RCFEs, but it is also
limits CCLD's internal ability to track patterns of poor care
within a single facility, much less across facilities with the
same licensee. Under current practice, when a licensee
undergoes a licensing inspection or is subject to a complaint
investigation, the information reported by CCLD is maintained in
a paper-based format. This limits CCLD's ability to track
licensees overtime and whether they operate other facilities
that should undergo additional scrutiny.
According to DSS, there are approximately 462 licensing program
analysts responsible for the more than 75,000 licensed community
care facilities, including RCFEs, and the nearly 1.4 million
individuals they serve, ranging from the earliest stages of life
to the end of life care. This comes to a ratio of one licensing
analyst per 162 facilities and 3,030 individuals in care.
In response to increased media coverage of incidences that have
occurred in RCFEs across the state, DSS is currently working to
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provide more robust information of licensed RCFEs on its
website. It is anticipated that DSS will be providing an online
searchable database, where the public can access up to five
years of historical information on RCFEs. This searchable
database is proposed to include the following:
The name of the facility and its licensee's name and
contact information;
The number of substantiated, unsubstantiated, and
inconclusive complaints filed against the facility,
including complaint severity and whether a complaint
resulted in a citation; and
The number of inspections, complaint investigations, and
general visits the facility has received.
A timeline for the availability of this searchable database has
not been established.
However, due to the current statutory requirement that all
community care facilities, including RCFEs, undergo an
unannounced licensing inspection visit at least once every five
years, rather than annually as required prior to 2003, the
reliability and relevance of information included in this
database will be limited. Whereas more information would be
available for those facilities that have recently been inspected
or undergone a complaint investigation, information for a
facility that has not had any complaints filed against it nor
has undergone a licensing inspection in several years be limited
to basic demographic information related to the facility.
Need for the bill : Stating the need for the bill, the author
writes that "California must keep up with modern technology and
require the State Department of Social Services to post all
inspection reports, consultation reports, lists of deficiencies,
appeals and plans for correction on the department's website."
Opposition : Writing in opposition to this bill, the California
Association for Health Services at Home writes, "Facilities are
surveyed and during the process evaluators may incorrectly cite
a deficiency. In order to protect providers from inaccurate
deficiencies, an established appeal process already exists which
entitles additional review by DSS licensing staff. During this
appeal process deficiencies can be overturned.
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"In order to protect the reputation of providers with the
public, only final deficiencies, those not on appeal or those
being filed for appeal, should only be made public."
RECOMMENDED AMENDMENTS:
As proposed, this measure would require DSS to post all RCFE
inspection reports, consultation reports, lists of deficiencies,
and plans of correction on its website. It would also require
the posting of any appeals filed by the facility and, in cases
where a deficiency is dismissed on appeal, to have the
deficiency removed from the website.
The bill does not provide requirements on whether any steps
should be taken to protect the privacy and confidentiality of
the complainant's information that may be included in the
information this measure seeks to have posted to DSS website.
Additionally, current law requires DSS to make all inspection
reports, consultation reports, lists of deficiencies, and plans
of correction available to the public, but it does not require
that pending complaints and appeals information be made
available. The posting of pending deficiencies, like
allegations, without a proper investigation and outcome could
unfairly disadvantage RCFEs subject to unfounded or otherwise
unsubstantiated complaints.
Should the committee choose to pass this measure, it should be
amended to take into account necessary privacy protections of
residents and information relevant to the public.
Specifically, staff recommends the following amendments:
Amendment #1 - On page 3, line 3 delete "lists of deficiencies"
and replace with "violations"
Amendment #2 - On page 3, line 5 delete "The Internet Web site"
and lines 6 through 11.
Amendment #3 - On page 3, line 5 after the first "Internet Web
site." add the following language to read:
The department shall also post on the department's Internet
Web site the number and nature of complaints filed against
a facility within each calendar year, including whether a
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complaint is undergoing investigation, whether it has been
substantiated or unsubstantiated, and whether it has been
found to be inconclusive. The department shall redact all
personally identifiable information of residents prior to
the posting of information pursuant to this subdivision.
REGISTERED SUPPORT / OPPOSITION :
Support
California Assisted Living Association (CALA)
California Commission on Aging
California Long-Term Care Ombudsman Association
California Right to Life Committee, Inc.
Community Residential Care Association of California
Consumer Advocates for TRCFE Reform (CAR)
Consumer Attorneys of California
LeadingAge California
Office of the State Long-Term Care Ombudsman
Opposition
California Association for Health Services at Home (CAHSAH)
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089