Amended in Senate June 15, 2014

Amended in Assembly May 23, 2014

Amended in Assembly May 6, 2014

Amended in Assembly April 21, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2171


Introduced by Assembly Member Wieckowski

(Coauthor: Assembly Member Yamada)

(Coauthor: Senator Leno)

February 20, 2014


An act to amend Section 1569.886 of, to add Article 2.5 (commencing with Section 1569.261) to Chapter 3.2 of Division 2 of,begin delete and to add Section 1569.275 to,end delete the Health and Safety Code, relating to care facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 2171, as amended, Wieckowski. Residential care facilities for the elderly.

Existing law, the Residential Care Facilities for the Elderly Act, provides for the licensure and regulation of residential care facilities for the elderly by the State Department of Social Services. Existing law requires that an admission agreement for a residential care facility for the elderly explain the resident’s right to notice prior to an involuntary transfer, discharge, or eviction, as specified. A violation of these provisions is a misdemeanor.

This bill would establish specified rights for residents of residential care facilities for the elderly, including, among other things, to receive 90 days’ notice before an involuntary transfer, discharge, or eviction, to be accorded dignity in their personal relationships with staff, to be granted a reasonable level of personal privacy of accommodations, medical treatment, personal care and assistance, and to confidential treatment of their records and personal information, as specified. The bill would require, at admission, a facility staff person to personally advise a resident and the resident’s representative, as described, of these and other specified rights and to provide them with a written copy. The bill would authorize the department to assess civil penalties, pursuant to specified provisions, for a violation of these rights, and would provide that a licensee who violates these rights may be prosecuted by the Attorney General in a civil action for an injunction or civil damages, or both. The bill would also authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any facility that violates these rights, but would require the resident to provide the facility alleged to have violated any of the rights described above with a specified written notice at least 30 days prior to the commencement of the action. The bill would prohibit the maintenance of an action for damages if the facility alleged to have violated these rights ceases, corrects, or otherwise rectifies the alleged violation within 30 days of the written notice.

By expanding the scope of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Article 2.5 (commencing with Section 1569.261)
2is added to Chapter 3.2 of Division 2 of the Health and Safety
3Code
, to read:

 

P3    1Article 2.5.  Resident’s Bill of Rights
2

 

3

1569.261.  

(a) It is the intent of the Legislature in enacting this
4article to adopt fundamental rights for all persons residing in a
5residential care facility for the elderly, as defined in Section 1569.2,
6to ensure that facilities respect and promote these rights, and to
7provide residents the ability to enforce their rights.

8(b) In establishing this bill of rights, the Legislature intends that
9persons residing in residential care facilities for the elderly be
10treated with dignity, kindness, and respect, and that their civil
11liberties be fully honored.

12(c) A central purpose of the bill of rights is to strengthen a
13resident’s right to make choices about his or her care, treatment,
14and daily life in the facility and to ensure that the resident’s choices
15are respected. The Legislature intends to enhance each resident’s
16autonomy and ability to make decisions concerning his or her life.

17(d) The Legislature also intends that each residential care facility
18for the elderly provide a safe, comfortable, and homelike
19environment for its residents and that it protect residents from any
20type of physical or mental abuse, neglect, restraint, exploitation,
21or endangerment.

22

1569.265.  

Rights and liberties set forth in this article do not
23diminish a resident’s constitutional rights or any other rights set
24forth in other state or federal laws and regulations. Persons residing
25in residential care facilities for the elderly shall continue to enjoy
26all of their civil and legal rights.

27

1569.267.  

(a) At admission, a facility staff person shall
28personally advise a resident and the resident’s representative of,
29and give a complete written copy of, the rights in this article and
30the personal rights in Section 87468 of Title 22 of the California
31Code of Regulations. The licensee shall have each resident and
32the resident’s representative sign a copy of the resident’s rights,
33and the licensee shall include the signed copy in the resident’s
34record.

35(b) Facilities shall prominently post, in areas accessible to the
36residents and their representatives, a copy of the residents’ rights.

37(c) The rights posted pursuant to subdivision (b) shall be posted
38both in English and in any other language in a facility where 5
39percent or more of the residents can only read that other language.

P4    1(d) The facility shall provide initial and ongoing training for all
2members of its staff to ensure that residents’ rights are fully
3respected and implemented.

4

1569.269.  

(a) Residents shall have all of the following rights:

5(1) To be accorded dignity in their personal relationships with
6staff, residents, and other persons.

7(2) To be granted a reasonable level of personal privacy in
8accommodations, medical treatment, personal care and assistance,
9visits, communications, telephone conversations, use of the
10Internet, and meetings of resident and family groups.

11(3) To confidential treatment of their records and personal
12information and to approve their release, except as authorized by
13law.

14(4) To be encouraged and assisted in exercising their rights as
15citizens and as residents of the facility. Residents shall be free
16from interference, coercion, discrimination, and retaliation in
17exercising their rights.

18(5) To be accorded a safe and habitable environment.

19(6) To care, supervision, and services that meet their individual
20needs and is delivered by staff that are sufficient in numbers,
21qualifications, and competency to meet their needs.

22(7) To be served food of the quality and in the quantity necessary
23to meet their nutritional needs.

24(8) To make choices concerning their daily life in the facility.

25(9) To fully participate in planning their care, including the right
26to attend and participate in meetings or communications regarding
27the care and services to be provided in accordance with Section
281569.80, and to involve persons of their choice in the planning
29process. The facility shall provide necessary information and
30support to ensure that residents direct the process to the maximum
31extent possible, and are enabled to make informed decisions and
32choices.

33(10) To be free from neglect, financial exploitation, involuntary
34seclusion, punishment, humiliation, intimidation, and verbal,
35mental, physical, or sexual abuse.

36(11) To present grievances and recommend changes in policies,
37procedures, and services to the staff of the facility, the facility’s
38management and governing authority, and to any other person
39without restraint, coercion, discrimination, reprisal, or other
P5    1retaliatory actions. The licensee shall take prompt actions to resolve
2residents’ grievances.

3(12) To contact the State Department of Social Services, the
4long-term care ombudsman, or both, regarding grievances against
5the facility. The facility shall post the telephone numbers and
6addresses for the local offices of the State Department of Social
7Services and ombudsman program, in accordance with Section
89718 of the Welfare and Institutions Code, conspicuously in the
9facility foyer, lobby, residents’ activity room, or other location
10easily accessible to residents.

11(13) To be fully informed, as evidenced by the resident’s written
12acknowledgement, prior to or at the time of admission, of all rules
13governing residents’ conduct and responsibilities. In accordance
14with Section 1569.885, all rules established by a facility shall be
15reasonable and shall not violate any rights set forth in this chapter
16or in other applicable laws or regulations.

17(14) To receive in the admission agreement a comprehensive
18description of the method for evaluating residents’ service needs
19and the fee schedule for the items and services provided, and to
20receive written notice of any rate increases pursuant to Sections
211569.655 and 1569.884.

22(15) To be informed in writing at or before the time of admission
23of any resident retention limitations set by the state or facility,
24including any limitations or restrictions on the facility’s ability to
25meet residents’ needs.

26(16) To reasonable accommodation of individual needs and
27preferences in all aspects of life in the facility, except when the
28health or safety of the individual or other residents would be
29endangered.

30(17) To reasonable accommodation of resident preferences
31concerning room and roommate choices.

32(18) To written notice of any room changes at least 30 days in
33advance unless the request for a change is initiated by a resident,
34required to fill a vacant bed, or necessary due to an emergency.

35(19) To share a room with the resident’s spouse, domestic
36partner, or a person of resident’s choice when both spouses,
37partners, or residents live in the same facility and consent to the
38arrangement.

39(20) To select their own physicians, pharmacies, privately paid
40personal assistants, hospice agency, and health care providers.

P6    1(21) To have prompt access to review all of their records and
2to purchase photocopies. Photocopied records shall be promptly
3provided, not to exceed two business days, at a cost not to exceed
4the community standard for photocopies.

5(22) To be protected from involuntary transfers, discharges, and
6evictions in violation of state laws and regulations. Facilities shall
7not involuntarily transfer or evict residents for grounds other than
8those specifically enumerated under state law or regulations, and
9shall comply with enumerated eviction and relocation protections
10for residents. A facility shall provide 90 days’ notice to a resident
11prior to involuntarily transfer, discharge, or eviction. For purposes
12of this paragraph, “involuntary” means a transfer, discharge, or
13eviction that is initiated by the facility, not by the resident.

14(23) To move from the facility.

15(24) To have relatives and other individuals of the resident’s
16choosing visit at any time, subject to the resident’s right to
17withdraw consent.

18(25) To receive written information on the right to establish an
19advanced health care directive and, pursuant to Section 1569.156,
20the facility’s written policies on honoring those directives.

21(26) To be encouraged to maintain and develop their fullest
22potential for independent living through participation in activities
23that are designed and implemented for this purpose, in accordance
24with Section 87219 of Title 22 of the California Code of
25Regulations.

26(27) To organize and participate in a resident council that is
27established pursuant to Section 1569.157.

28(28) To protection of their property from theft or loss in
29 accordance with Sections 1569.152, 1569.153, and 1569.154.

30(29) To manage their financial affairs. The facility shall not
31require residents to deposit their personal funds with the facility.
32No licensee or employee of a facility shall become or act as a
33representative payee for any payments made to a resident, if the
34resident or the resident’s representative objects. No licensee or
35employee of a facility shall serve as agent for a resident under a
36power of attorney.

37(b) A licensed residential care facility for the elderly shall not
38discriminate against a person seeking admission or a resident based
39on sex, race, color, religion, national origin, marital status,
P7    1registered domestic partner status, ancestry, actual or perceived
2sexual orientation, or actual or perceived gender identity.

3(c) No provision of a contract of admission, including all
4documents that a resident or his or her representative is required
5to sign at the time of, or as a condition of, admission to a residential
6care facility for the elderly, shall require that a resident waive
7benefits or rights to which he or she is entitled under this chapter
8or provided by federal or other state law or regulation.

9(d) Residents’ family members, friends, and representatives
10have the right to organize and participate in a family council that
11is established pursuant to Section 1569.158.

12(e) The department may assess civil penalties pursuant to Section
131569.49 for a violation of a right specified in this section.

14

1569.271.  

(a) Thirty days or more before the commencement
15of an action for damages pursuant to Section 1569.275, the resident
16or the resident’s representative shall do both of the following:

17(1) Notify the facility alleged to have violated any requirements
18of this article of the particular alleged violation.

19(2) Demand that the facility cease, correct, or otherwise rectify
20the alleged violation.

21The notice shall be in writing and shall be sent by certified or
22registered mail, return receipt requested, to the residential care
23facility in which the resident resides or resided or to the person’s
24principal place of business within California.

25(b) Except as provided in subdivision (c), no action for damages
26may be maintained under Section 1569.275 if the facility ceases,
27corrects, or otherwise rectifies the alleged violation within 30 days
28after receipt of the notice.

29(c) No action for damages may be maintained under Section
301569.275 upon a showing by a facility alleged to have violated
31any requirements of this article that all of the following exist:

32(1) All residents similarly situated have been identified, or a
33reasonable effort to identify those other residents has been made.

34(2) All residents so identified have been notified that the facility
35will cease, correct, or otherwise rectify the practices, acts, or
36methods alleged to be in violation.

37(3) The facility has ceased from engaging, or if immediate
38cessation is impossible or unreasonably expensive under the
39circumstances, the person will, within a reasonable time, cease to
40engage, in the alleged violation.

P8    1(d) An action for injunctive relief brought under the specific
2provisions of Section 1568.275 may be commenced without
3compliance with subdivision (a). Not less than 30 days after the
4commencement of an action for injunctive relief, and after
5compliance with subdivision (a), the resident may amend his or
6her complaint without leave of court to include a request for
7damages. The appropriate provisions of subdivision (b) or (c) shall
8be applicable if the complaint for injunctive relief is amended to
9request damages.

10(e) Attempts to comply with this section by a facility receiving
11a demand shall be construed to be an offer to compromise and
12shall be inadmissible as evidence pursuant to Section 1152 of the
13Evidence Code. Furthermore, these attempts to comply with a
14demand shall not be considered an admission of engaging in an
15act or practice declared unlawful under this article. Evidence of
16compliance or attempts to comply with this section may be
17introduced by a defendant for the purpose of establishing good
18faith or to show compliance with this section.

begin insert
19

begin insert1569.275.end insert  

(a) (1) An action for injunction or civil damages,
20or both, against a residential care facility for the elderly that
21violates any provision of this article may be prosecuted by the
22Attorney General in the name of the people of the State of
23California upon his or her own complaint or upon the complaint
24of a board, officer, person, corporation, or association, or by a
25person acting for the interests of itself, its members, or the general
26public.

27(2) Every facility shall provide access to the Office of the
28Attorney General during normal business hours or at any time
29when the suspected violation presents an immediate or substantial
30threat to the physical health, mental health, or safety of a resident.

31(3) The amount of civil damages that may be recovered in an
32action brought by the Attorney General shall not exceed the
33maximum amount of civil penalties that could be assessed on
34account of the violation or violations provided for in paragraph
35(2) of subdivision (b).

36(4) A licensee who violates any provision of this article or
37regulations adopted by the department pursuant to this article,
38and whose violation presents an immediate or substantial threat
39to the physical health, mental health, or safety of a resident of a
40residential care facility for the elderly may be enjoined from
P9    1permitting the violation to continue and may be sued for civil
2damages within a court of competent jurisdiction.

3(b) (1) A current or former resident of a residential care facility
4for the elderly, as defined in subdivision (k) of Section 1569.2, may
5bring a civil action against any facility that violates any
6requirements of this article. The suit shall be brought in a court
7of competent jurisdiction. The licensee shall be liable for the acts
8of the licensee’s employees.

9(2) The licensee shall be liable for up to five hundred dollars
10($500) for each violation, and for costs and attorney’s fees, and
11may be enjoined from permitting the violation to continue.
12Injunctive relief granted under this section shall not be stayed
13pending appeal.

14(3) The statute of limitations for suit under this subdivision shall
15be three years, which shall not begin to run until the violation has
16been discovered.

17(4) The current or former resident has the right to a trial by
18jury.

19(5) The right to bring a civil action shall survive the death of
20the resident.

21(6) An agreement by a resident of a residential care facility for
22the elderly to waive his or her rights to sue pursuant to this
23subdivision shall be deemed contrary to public policy and shall
24be void and unenforceable.

25(c) The right to bring a civil action against any person or entity
26for a violation of this article shall be subject to the requirements
27of Section 1569.271.

28(d) The remedies specified in this section shall be in addition
29to any other remedy provided by law.

end insert
begin delete
30

SEC. 2.  

Section 1569.275 is added to Article 2.5 (commencing
31with Section 1569.261) of Chapter 3.2 of Division 2 of the Health
32and Safety Code
, immediately following Section 1569.271, to
33read:

34

1569.275.  

(a) A licensee who violates any provision of this
35article or regulations adopted by the department pursuant to this
36article, and whose violation presents an immediate or substantial
37threat to the physical health, mental health, or safety of a resident
38of a residential care facility for the elderly may be enjoined from
39permitting the violation to continue and may be sued for civil
40damages within a court of competent jurisdiction. An action for
P10   1injunction or civil damages, or both, may be prosecuted by the
2Attorney General in the name of the people of the State of
3California upon his or her own complaint or upon the complaint
4of a board, officer, person, corporation, or association, or by a
5person acting for the interests of itself, its members, or the general
6public. The amount of civil damages that may be recovered in an
7action brought pursuant to this section shall not exceed the
8maximum amount of civil penalties that could be assessed on
9account of the violation or violations. The licensee shall be liable
10for costs and attorney’s fees if the plaintiff prevails in an action
11pursuant to this subdivision.

12(b) (1) A current or former resident of a residential care facility
13for the elderly, as defined in subdivision (k) of Section 1569.2,
14may bring a civil action against any facility that violates any
15requirements of this article. The suit shall be brought in a court of
16competent jurisdiction. The licensee shall be liable for the acts of
17the licensee’s employees. The licensee shall be liable for up to five
18hundred dollars ($500) for each violation, and for costs and
19attorney’s fees, and may be enjoined from permitting the violation
20to continue. Injunctive relief granted under this section shall be
21deemed prohibitory, and shall not be stayed pending appeal. The
22statute of limitations for suit under this subdivision shall be three
23years, which shall not begin to run until the violation has been
24discovered. The current or former resident has the right to a trial
25by jury. The right to bring a civil action shall survive the death of
26the resident. An agreement by a resident of a residential care
27facility for the elderly to waive his or her rights to sue pursuant to
28this subdivision shall be deemed contrary to public policy and shall
29be void and unenforceable.

30(2) The right to bring a civil action against any person or entity
31for a violation of this article shall be subject to the requirements
32of Section 1569.271.

33(c) The remedies specified in this section shall be in addition
34to any other remedy provided by law.

end delete
35

begin deleteSEC. 3.end delete
36begin insertSEC. 2.end insert  

Section 1569.886 of the Health and Safety Code is
37amended to read:

38

1569.886.  

(a) The admission agreement shall not include any
39ground for involuntary transfer or eviction of the resident unless
P11   1those grounds are specifically enumerated under state law or
2regulation.

3(b) The admission agreement shall list the justifications for
4eviction permissible under state law or regulation, exactly as they
5are worded in the applicable law or regulation.

6(c) The admission agreement shall include an explanation of
7the resident’s right to 90 days’ notice prior to an involuntary
8transfer, discharge, or eviction, the process by which the resident
9may appeal the decision and a description of the relocation
10assistance offered by the facility.

11(d) The admission agreement shall state the responsibilities of
12the licensee and the rights of the resident when a facility evicts
13residents pursuant to Section 1569.682.

14

begin deleteSEC. 4.end delete
15begin insertSEC. 3.end insert  

No reimbursement is required by this act pursuant to
16Section 6 of Article XIII B of the California Constitution because
17the only costs that may be incurred by a local agency or school
18district will be incurred because this act creates a new crime or
19infraction, eliminates a crime or infraction, or changes the penalty
20for a crime or infraction, within the meaning of Section 17556 of
21the Government Code, or changes the definition of a crime within
22the meaning of Section 6 of Article XIII B of the California
23Constitution.



O

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