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. A violation of these provisions is a misdemeanor.
This bill would establish specified rights for residents of privately operated residential care facilities for the elderly, including, among other things, 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 of these rights.
begin delete The
bill would authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any
licensee that violates these rights, as specified, but would require the resident to provide the licensee alleged to have violated any of those rights 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
licensee alleged to have violated these rights ceases, corrects, or otherwise rectifies the alleged violation within 30 days of receipt of the written notice.end delete
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:
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:
(a) It is the intent of the Legislature in enacting this
8article to adopt fundamental rights for all persons residing in a
9residential care facility for the elderly, as defined in Section 1569.2,
10 to ensure that facilities respect and promote these
begin delete rights, and rights.
11to provide residents the ability to enforce theirend delete
12(b) In establishing this bill of rights, the Legislature intends that
13persons residing in residential care facilities for the elderly be
P3 1treated with dignity, kindness, and respect, and that their civil
2liberties be fully honored.
3(c) A central purpose of the bill of rights is to strengthen a
4resident’s right to make choices about his or her care, treatment,
5and daily life in the facility and to ensure that the resident’s choices
6are respected. The Legislature intends to enhance each resident’s
7autonomy and ability to make decisions concerning his or her life.
8(d) The Legislature also intends that each residential care facility
9for the elderly provide a safe, comfortable, and homelike
10environment for its residents and that it protect residents from
11physical or mental abuse, neglect, exploitation, or endangerment.
(a) Rights and liberties set forth in this article do
13not diminish a resident’s constitutional rights or any other rights
14set forth in other state or federal laws and regulations. Persons
15residing in residential care facilities for the elderly shall continue
16to enjoy all of their civil and legal rights.
17(b) The provisions of this article apply only to privately operated
18residential care facilities for the elderly.
(a) At admission, a facility staff person shall
20personally advise a resident and the resident’s representative of,
21and give a complete written copy of, the rights in this article and
22the personal rights in Section 87468 of Title 22 of the California
23Code of Regulations. The licensee shall have each resident and
24the resident’s representative sign and date a copy of the resident’s
25rights, and the licensee shall include the signed and dated copy in
26the resident’s record.
27(b) Licensees shall prominently post, in areas accessible to the
28residents and their representatives, a copy of the residents’ rights.
29(c) The rights posted pursuant to subdivision (b) shall be posted
30both in English and in any other language in a facility in which 5
31percent or more of the residents can only read that other language.
32(d) The licensee shall provide initial and ongoing training for
33all members of its staff to ensure that residents’ rights are fully
34respected and implemented.
(a) Residents of residential care facilities for the
36elderly shall have all of the following rights:
37(1) To be accorded dignity in their personal relationships with
38staff, residents, and other persons.
39(2) To be granted a reasonable level of personal privacy in
40accommodations, medical treatment, personal care and assistance,
P4 1visits, communications, telephone conversations, use of the
2Internet, and meetings of resident and family groups.
3(3) To confidential treatment of their records and personal
4information and to approve their release, except as authorized by
6(4) To be encouraged and assisted in exercising their rights as
7citizens and as residents of the facility. Residents shall be free
8from interference, coercion, discrimination, and retaliation in
9exercising their rights.
10(5) To be accorded safe, healthful, and comfortable
11accommodations, furnishings, and equipment.
12(6) To care, supervision, and services that meet their individual
13needs and are delivered by staff that are sufficient in numbers,
14qualifications, and competency to meet their needs.
15(7) To be served food of the quality and in the quantity necessary
16to meet their nutritional needs.
17(8) To make choices concerning their daily life in the facility.
18(9) To fully participate in planning their care, including the right
19to attend and participate in meetings or communications regarding
20the care and services to be provided in accordance with Section
211569.80, and to involve persons of their choice in the planning
22process. The licensee shall provide necessary information and
23support to ensure that residents direct the process to the maximum
24extent possible, and are enabled to make informed decisions and
26(10) To be free from neglect, financial exploitation, involuntary
27seclusion, punishment, humiliation, intimidation, and verbal,
28mental, physical, or sexual abuse.
29(11) To present grievances and recommend changes in policies,
30procedures, and services to the staff of the facility, the facility’s
31management and governing authority, and to any other person
32without restraint, coercion, discrimination, reprisal, or other
33retaliatory actions. The licensee shall take prompt actions to
34 respond to residents’ grievances.
35(12) To contact the State Department of Social Services, the
36long-term care ombudsman, or both, regarding grievances against
37the licensee. The licensee shall post the telephone numbers and
38addresses for the local offices of the State Department of Social
39Services and ombudsman program, in accordance with Section
409718 of the Welfare and Institutions Code, conspicuously in the
P5 1facility foyer, lobby, residents’ activity room, or other location
2easily accessible to residents.
3(13) To be fully informed, as evidenced by the resident’s written
4acknowledgement, prior to or at the time of admission, of all rules
5governing residents’ conduct and responsibilities. In accordance
6with Section 1569.885, all rules established by a licensee shall be
7reasonable and shall not violate any rights set forth in this chapter
8or in other applicable laws or regulations.
9(14) To receive in the admission agreement a comprehensive
10description of the method for evaluating residents’ service needs
11and the fee schedule for the items and services provided, and to
12receive written notice of any rate increases pursuant to Sections
131569.655 and 1569.884.
14(15) To be informed in writing at or before the time of admission
15of any resident retention limitations set by the state or licensee,
16including any limitations or restrictions on the licensee’s ability
17to meet residents’ needs.
18(16) To reasonable accommodation of individual needs and
19preferences in all aspects of life in the facility, except when the
20health or safety of the individual or other residents would be
22(17) To reasonable accommodation of resident preferences
23concerning room and roommate choices.
24(18) To written notice of any room changes at least 30 days in
25advance unless the request for a change is
begin delete initiated by aend delete resident, required to fill a vacant bed, or necessary due to
28(19) To share a room with the resident’s spouse, domestic
29partner, or a person of resident’s choice when both spouses,
30partners, or residents live in the same facility and consent to the
32(20) To select their own physicians, pharmacies, privately paid
33 personal assistants, hospice agency, and health care
begin delete providers.end delete
37(21) To have prompt access to review all of their records and
38to purchase photocopies. Photocopied records shall be promptly
39provided, not to exceed two business days, at a cost not to exceed
40the community standard for photocopies.
P6 1(22) To be protected from involuntary transfers, discharges, and
2evictions in violation of state laws and regulations. Facilities shall
3not involuntarily transfer or evict residents for grounds other than
4those specifically enumerated under state law or regulations, and
5shall comply with enumerated eviction and relocation protections
6for residents. For purposes of this paragraph, “involuntary” means
7a transfer, discharge, or eviction that is initiated by the licensee,
8not by the resident.
9(23) To move from a facility.
10(24) To consent to have relatives and other individuals of the
11resident’s choosing visit
begin delete at any timeend delete,
12privately and without prior notice.
13(25) To receive written information on the right to establish an
14advanced health care directive and, pursuant to Section 1569.156,
15the licensee’s written policies on honoring those directives.
16(26) To be encouraged to maintain and develop their fullest
17 potential for independent living through participation in activities
18that are designed and implemented for this purpose, in accordance
19with Section 87219 of Title 22 of the California Code of
21(27) To organize and participate in a resident council that is
22established pursuant to Section 1569.157.
23(28) To protection of their property from theft or loss in
24 accordance with Sections 1569.152, 1569.153, and 1569.154.
25(29) To manage their financial affairs. A licensee shall not
26require residents to deposit their personal funds with the licensee.
27Except as provided in approved continuing care agreements, a
28licensee, or a spouse, domestic partner, relative, or employee of a
29licensee, shall not do any of the following:
30(A) Accept appointment as a guardian or conservator of the
31person or estate of a resident.
32(B) Become or act as a representative payee for any payments
33made to a resident, without the written and documented consent
34of the resident or the resident’s representative.
35(C) Serve as an
agent for a resident under any general or special
36power of attorney.
37(D) Become or act as a joint tenant on any account with a
39(E) Enter into a loan or promissory agreement or otherwise
40borrow money from a resident without a notarized written
P7 1agreement outlining the terms of the repayment being given to the
6(b) A licensed residential care facility for the elderly shall not
7discriminate against a person seeking admission or a resident based
8on sex, race, color, religion, national origin, marital status,
9registered domestic partner status, ancestry, actual or perceived
10sexual orientation, or actual or perceived gender identity.
11(c) No provision of a contract of admission, including all
12documents that a resident or his or her representative is required
begin delete at the time of,end delete or as a condition
14of, admission to a residential care facility for the elderly, shall
15require that a resident waive benefits or rights to which he or she
16is entitled under this chapter or provided by federal or other state
17law or regulation.
18(d) Residents’ family members, friends, and representatives
19have the right to organize and participate in a family council that
20is established pursuant to Section 1569.158.
24 The provisions of this section are severable. If any provision
25of this section or its application is held invalid, that invalidity shall
26not affect other provisions or applications that can be given effect
27without the invalid provision or application.
(a) Thirty days or more before the commencement
29of an action for damages pursuant to Section 1569.275, the current
30or former resident or the resident’s representative shall do both of
32(1) Notify the licensee alleged to have violated any requirements
33of this article of the particular alleged violation.
in writing that the
licensee cease, correct, or
35otherwise rectify the alleged violation.
36The notice shall be sent by certified or registered mail, return
37receipt requested, to the residential care facility in which the
38resident resides or resided or to the licensee’s principal place of
39business within California.
P8 1(b) No action
for damages may be maintained under Section
21569.275 if the licensee ceases, corrects, or otherwise rectifies the
3alleged violation within 30 days after receipt of the notice.
4(c) No action for damages may be maintained under Section
51569.275 upon a showing by a licensee alleged to have violated
6any requirements of this article thatthe licensee has ceased from
7engaging, or if immediate cessation is impossible or unreasonably
8expensive under the circumstances, that the licensee will, within
9a reasonable time, cease to engage, in the alleged violation.
10(d) An action for injunctive relief brought under the specific
11provisions of Section 1568.275 may be commenced without
12compliance with subdivision (a) if the alleged violation poses a
13threat to the health or safety of a resident. Not less than 30 days
14after the commencement of an action for injunctive relief, and after
15compliance with subdivision (a), the current or former resident
16may amend his or her complaint without leave of court to include
17a request for damages. The appropriate provisions of subdivision
18(b) or (c) shall be applicable if the complaint for injunctive relief
19is amended to request damages.
20(e) Attempts to comply with this section by a
21a demand shall be construed to be an offer to compromise and
22shall be inadmissible as evidence pursuant to Section 1152 of the
23Evidence Code. Furthermore, these attempts to comply with a
24demand shall not be considered an admission of engaging in an
25act or practice declared unlawful under this article. Evidence of
26compliance or attempts to comply with this section may be
27introduced by a defendant for the purpose of establishing good
28faith or to show compliance with this section.
(a) (1) A current or former resident of a residential
30care facility for the elderly, as defined in subdivision (k) of Section
311569.2, may bring a civil action against any licensee that violates
32any requirements of this article. The suit shall be brought in a court
33of competent jurisdiction. The licensee shall be liable for the acts
34of the licensee’s employees.
35(2) The licensee shall be liable for up to five hundred dollars
36($500) for each violation, and for costs and attorney’s fees, and
37may be enjoined from permitting the violation to continue.
38Injunctive relief granted under this section shall not be stayed
P9 1(3) The statute of limitations for suit under this subdivision shall
2be three years, which shall not begin to run until the violation has
4(4) The current or former resident has the right to a trial by jury.
5(5) The right to bring a civil action shall survive the death of
7(6) An agreement by a resident of a residential care facility for
8the elderly to waive his or her rights to sue pursuant to this
9subdivision shall be deemed contrary to public policy and shall be
10void and unenforceable.
11(b) The right to bring a civil action against any person or entity
12for a violation of this article shall be subject to the requirements
13of Section 1569.271.
14(c) The remedies specified in this section shall be in addition
15to any other remedy provided by law.
16(d) The provisions of this section are severable. If any provision
17of this section or its application is held invalid, that invalidity shall
18not affect other provisions or applications that can be given effect
19without the invalid provision or application.
No reimbursement is required by this act pursuant to
21Section 6 of Article XIII B of the California Constitution because
22the only costs that may be incurred by a local agency or school
23district will be incurred because this act creates a new crime or
24infraction, eliminates a crime or infraction, or changes the penalty
25for a crime or infraction, within the meaning of Section 17556 of
26the Government Code, or changes the definition of a crime within
27the meaning of Section 6 of Article XIII B of the California