BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                              2013-2014 Regular Session


          AB 2171 (Wieckowski)
          As Amended June 15, 2014
          Hearing Date: June 24, 2014
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                     Residential Care Facilities for the Elderly

                                      DESCRIPTION 

          This bill would establish a bill of rights for residents of  
          Residential Care Facilities for the Elderly (RCFEs) in order to  
          strengthen a resident's right to make choices about his or her  
          care, treatment, and daily life in the facility, ensure that the  
          resident's choices are respected, and protect residents from  
          physical or mental abuse, neglect, restraint, exploitation, or  
          endangerment.  This bill would also include discrimination and  
          retaliation protections for residents in the bill of rights.

          This bill would authorize a private right of action by a current  
          or former resident against the RCFE for violations and authorize  
          damages of $500 per violation, attorney's fees, and costs, and  
          injunctive relief.  This bill would provide a three-year statute  
          of limitations beginning when the violation has been discovered.  
           This bill would allow the RCFE to cure a violation before an  
          action can be filed.

                                      BACKGROUND  

          Residential Care Facilities for the Elderly (RCFEs) are assisted  
          living facilities for individuals over 60 years old, and  
          individuals under 60 with compatible needs, where varying levels  
          and intensities of care and supervision, protective supervision,  
          or personal care are provided.  As of 2013, there were over  
          7,500 licensed RCFEs in the state with a total capacity of  
          174,108 residents.  Approximately three-quarters of RCFEs are  
          licensed for six or fewer residents, yet the majority of RCFE  
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          residents (71 percent) live in a 50-plus bed RCFE.  The  
          Community Care Licensing Division (CCL) of the Department of  
          Social Services (DSS) administers RCFE licensing and, due to  
          recent budget cutbacks, inspects RCFE facilities once every five  
          years for licensing violations.

          This bill is part of a broad package of bills referred to as the  
          Residential Care Facilities for the Elder Reform Act of 2014,  
          which was prompted, in part, by the recent mishandling of an  
          RCFE closure following license revocation.  Eden Manor, a former  
          RCFE in Oakland, was in financial trouble in early 2012 but  
          continued operation until it was finally taken over by new  
          management in March 2013.  CCL began the process of revoking the  
          facility's license, but that process has not yet been finalized.  
           Meanwhile, two of the facility's managers were operating a  
          facility in Castro Valley called Valley Springs Manor which  
          itself was providing seriously deficient care and was ordered to  
          close in October 2013.  

          Following the revocation of the Valley Springs Manor license,  
          most of the staff did not return to work, and the 19 residents  
          were left to the care of a facility janitor and cook, who  
          finally called 911 for help.  According to a DSS departmental  
          report on the closure of Valley Springs Manor, "[DSS] fell short  
          of its mission to protect the health and safety of residents in  
          Valley Springs Manor.  [CCL] erred in not ensuring, through  
          successful engagement with local partners, that relocation  
          arrangements for all of the residents were complete.  [CCL] also  
          clearly erred in not directing existing staff or deploying  
          additional field staff to remain on site until the transfer of  
          the residents was completed and the facility was closed."

          A recent report has highlighted the problem with California's  
          RCFE laws:

            In 1985, the California Legislature passed the California  
            Residential Care Facilities for the Elderly Act, which  
            established a separate category for [RCFEs] licensed by [DSS].  
            . . . The legislative intent of the RCFE Act of 1985 was to  
            establish three levels of care within the RCFE regulatory  
            structure to address the fluctuating health and care needs of  
            older residents.  Unfortunately, this section of the act is  
            subject to Budget Act appropriations and has never been  
            implemented.  Thus, for the past 28 years, CCL has maintained  
            a "one size fits all" approach to residential care for elders,  
            stretching the regulations to accommodate an ever-growing  
                                                                      



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            acuity level among residents, and allowing non-medical RCFEs -  
            regardless of size - to accept and retain residents with acute  
            medical needs. . . . This "one size fits all" regulatory  
            approach no longer makes sense.  (Cal. Advocates for Nursing  
            Home Reform, Residential Care in California:  Unsafe,  
            Unregulated & Unaccountable (2013) pp. 4-5.)

          That report recommended that the Legislature and DSS take  
          immediate action to protect the elder and dependent adults  
          living in RCFEs by adopting recommendations, among other things,  
          to create a tiered level of care system, require CCL to conduct  
          annual RCFE inspections, strengthen complaint investigations and  
          appeal processes, increase penalties for violations, establish a  
          private right of action to stop illegal RCFE activities, and  
          establish a comprehensive statutory residents' bill of rights.   
          (Id. at pp. 12-13.)

          To better protect RCFE residents, this bill would establish a  
          bill of rights for residents and authorize a private right of  
          action by a current or former resident against the RCFE for  
          violations.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Residential Care Facilities for the  
          Elderly Act, provides a licensing structure administered by the  
          Department of Social Services (DSS) for residential care  
          facilities for the elderly (RCFEs).  (Health & Saf. Code Sec.  
          1569 et seq.)

           Existing law  defines an RCFE 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, personal care,  
          or health-related services are provided, based upon their  
          varying needs, as determined in order to be admitted and to  
          remain in the facility.  Persons under 60 years of age with  
          compatible needs may be allowed to be admitted or retained, as  
          specified.  (Health & Saf. Code Sec. 1569.2(l).)

           Existing law  requires DSS to inspect and license RCFEs.  (Health  
          & Saf. Code Sec. 1569.11.)

           Existing law  authorizes DSS to enter and inspect any place  
          providing personal care, supervision, and services, at any time,  
          with or without advance notice, to secure compliance with, or to  
                                                                      



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          prevent a violation of the Act.  (Health & Saf. Code Sec.  
          1569.32; Cal Code Regs., tit. 22, art. 13, Sec. 87755.)

           Existing law  requires, within 90 days after a facility accepts  
          its first resident for placement following its initial  
          licensure, DSS to inspect the RCFE to evaluate compliance with  
          rules and regulations and to assess the RCFE's continuing  
          ability to meet regulatory requirements.  The licensee shall  
          notify the department, within five business days after accepting  
          its first resident for placement, that the facility has  
          commenced operating.  DSS is authorized to take appropriate  
          remedial action.  (Health & Saf. Code Sec. 1569.24.)

           Existing law  prescribes maintenance and operational requirements  
          for RCFEs for the safety and well-being of the residents and  
          employees.  (Cal. Code Regs., tit. 22, art. 5, Sec. 87303.)

           Existing law  requires RCFEs to implement a theft and loss  
          program, which must include establishment and posting of the  
          facility's policy regarding theft and investigative procedures,  
          orientation to the policies and procedures for all employees  
          within 90 days of employment; and documentation of lost and  
          stolen resident property.  (Health & Saf. Code Sec. 1569.153.)

           Existing law  requires every licensed RCFE, at the request of a  
          majority of its residents, to assist the residents in  
          establishing and maintaining a resident-oriented facility  
          council, which must be composed of residents of the facility and  
          may include family members of residents of the facility.   
          Existing law authorizes that council, among other things, to  
          make recommendations to facility administrators to improve the  
          quality of daily living in the facility and may negotiate to  
          protect residents' rights with facility administrators. (Health  
          & Saf. Code Sec. 1569.157(a).)

           Existing law  provides that each RCFE resident has personal  
          rights, including but not limited to, 18 enumerated personal  
          rights.  (Cal. Code Regs., tit. 22, art. 8, Sec. 87468.)

           Existing law  provides that no RCFE may prohibit the formation of  
          a family council, and, when requested by a member of the  
          resident's family or the resident's responsible party, the  
          family council shall be allowed to meet in a common meeting room  
          of the facility during mutually agreed upon hours.  (Health &  
          Saf. Code Sec. 1569.158(a).)
          
                                                                      



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          Existing law  prohibits facility policies on family councils to  
          limit the right of residents and family members to meet  
          independently with outside persons, including members of  
          nonprofit or government organizations or with facility personnel  
          during nonworking hours, and the RCFE is required to provide the  
          family council with adequate space on a prominent bulletin board  
          or other posting area for the display of meeting notices,  
          minutes, and newsletters.  (Health & Saf. Code Secs.  
          1569.158(b), (d).)

           Existing law  requires an RCFE admission agreement to include an  
          explanation of the resident's right to notice prior to an  
          involuntary transfer, discharge, or eviction.  (Health & Saf.  
          Code Sec. 1569.886.(c).)

           This bill  would establish the RCFE residents' bill of rights,  
          with the following enumerated rights, which would not diminish a  
          resident's constitutional rights or any other rights set forth  
          in other state or federal laws and regulations:
           to be accorded dignity in their personal relationships with  
            staff, residents, and other persons;
           to be granted a reasonable level of personal privacy in  
            accommodations, medical treatment, personal care and  
            assistance, visits, communications, telephone conversations,  
            use of the Internet, and meetings of resident and family  
            groups;
           to confidential treatment of their records and personal  
            information and to approve their release, except as authorized  
            by law;
           to be encouraged and assisted in exercising their rights as  
            citizens and as residents of the facility;
           to be free from interference, coercion, discrimination, and  
            retaliation in exercising their rights;
           to be accorded a safe and habitable environment;
           to care, supervision, and services that meet their individual  
            needs and is delivered by staff that are sufficient in  
            numbers, qualifications, and competency to meet their needs;
           to be served food of the quality and in the quantity necessary  
            to meet their nutritional needs;
           to make choices concerning their daily life in the facility;
           to fully participate in planning their care, including the  
            right to attend and participate in meetings or communications  
            regarding the care and services, and to involve persons of  
            their choice in the planning process; the facility would be  
            required to provide necessary information and support to  
            ensure that residents direct the process to the maximum extent  
                                                                      



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            possible, and are enabled to make informed decisions and  
            choices;
           to be free from neglect, financial exploitation, involuntary  
            seclusion, punishment, humiliation, intimidation, and verbal,  
            mental, physical, or sexual abuse;
           to present grievances and recommend changes in policies,  
            procedures, and services to the staff of the facility, the  
            facility's management and governing authority, and to any  
            other person without restraint, coercion, discrimination,  
            reprisal, or other retaliatory actions; the licensee would be  
            required to take prompt actions to resolve residents'  
            grievances;
           to contact DSS, the long-term care ombudsman, or both,  
            regarding grievances against the facility, and the facility  
            would be required to post the telephone numbers and addresses  
            for the local offices of DSS and ombudsman program,  
            conspicuously in the facility foyer, lobby, residents'  
            activity room, or other location easily accessible to  
            residents;
           to be fully informed, as evidenced by the resident's written  
            acknowledgement, prior to or at the time of admission, of all  
            rules governing residents' conduct and responsibilities, and  
            all rules established by a facility would be required to be  
            reasonable and not violate any personal or lawful rights;
           to receive in the admission agreement a comprehensive  
            description of the method for evaluating residents' service  
            needs and the fee schedule for the items and services  
            provided, and to receive written notice of any rate increases;
           to be informed in writing at or before the time of admission  
            of any resident retention limitations set by the state or  
            facility, including any limitations or restrictions on the  
            facility's ability to meet residents' needs;
           to reasonable accommodation of individual needs and  
            preferences in all aspects of life in the facility, except  
            when the health or safety of the individual or other residents  
            would be endangered;
           to reasonable accommodation of resident preferences concerning  
            room and roommate choices;
           to written notice of any room changes at least 30 days in  
            advance unless the request for a change is initiated by a  
            resident, required to fill a vacant bed, or necessary due to  
            an emergency;
           to share a room with the resident's spouse, domestic partner,  
            or a person of the resident's choice when both spouses,  
            partners, or residents live in the same facility and consent  
            to the arrangement;
                                                                      



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           to select their own physicians, pharmacies, privately paid  
            personal assistants, hospice agency, and health care  
            providers;
           to have prompt access to review all of their records and to  
            purchase photocopies, and photocopied records would be  
            required to be promptly provided, not to exceed two business  
            days, at a cost not to exceed the community standard for  
            photocopies;
           to be protected from involuntary transfers, discharges, and  
            evictions in violation of state laws and regulations;  
            facilities would be prohibited from involuntarily transfer or  
            eviction of residents for grounds other than those  
            specifically enumerated under state law or regulations, and  
            facilities would be required to comply with enumerated  
            eviction and relocation protections for residents.  Further, a  
            facility would be required to provide 90 days' notice to a  
            resident prior to involuntarily transfer, discharge, or  
            eviction, and this bill would define "involuntary" to mean a  
            transfer, discharge, or eviction that is initiated by the  
            facility, not by the resident;
           to move from the facility;
           to have relatives and other individuals of the resident's  
            choosing visit at any time, subject to the resident's right to  
            withdraw consent;
           to receive written information on the right to establish an  
            advanced health care directive and, the facility's written  
            policies on honoring those directives;
           to be encouraged to maintain and develop their fullest  
            potential for independent living through participation in  
            activities that are designed and implemented for this purpose;
           to organize and participate in a resident council;
           to protection of their property from theft or loss; and
           to manage their financial affairs, and the facility would be  
            prohibited from requiring residents to deposit their personal  
            funds with the facility.  Further, a licensee and employee of  
            a facility would be prohibited from becoming or acting as a  
            representative payee for any payments made to a resident, if  
            the resident or the resident's representative objects, and the  
            licensee and employee of the facility would be prohibited from  
            serving as agent for a resident under a power of attorney.

           This bill  would prohibit a licensed RCFE from discriminating  
          against a person seeking admission or a resident based on sex,  
          race, color, religion, national origin, marital status,  
          registered domestic partner status, ancestry, actual or  
          perceived sexual orientation, or actual or perceived gender  
                                                                      



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          identity.

           This bill  would provide that no provision of a contract of  
          admission, including all documents that a resident or his or her  
          representative is required to sign at the time of, or as a  
          condition of, admission to a residential care facility for the  
          elderly, shall require that a resident waive benefits or rights  
          to which he or she is entitled under this bill or provided by  
          federal or other state law or regulation.

           This bill  would authorize residents' family members, friends,  
          and representatives to organize and participate in a family  
          council.

           This bill  would authorize DSS to assess civil penalties, as  
          specified, for violation of the bill of rights.

           This bill  would require, at admission, an RCFE staff person to  
          personally advise a resident and the resident's representative  
          of, and give a complete written copy of, the rights enumerated  
          in this bill and the personal rights enumerated in the  
          California Code of Regulations. 

           This bill  would require the licensee to have each resident and  
          the resident's representative sign a copy of the resident's  
          rights, and the licensee shall include the signed copy in the  
          resident's record.

           This bill  would require RCFEs to prominently post, in areas  
          accessible to the residents and their representatives, a copy of  
          the residents' rights, which would be required to be posted both  
          in English and in any other language in a facility where five  
          percent or more of the residents can only read that other  
          language.
           
          This bill  would require the RCFE to provide initial and ongoing  
          training for all members of its staff to ensure that residents'  
          rights are fully respected and implemented.

           This bill  would require, 30 days or more before filing an action  
          for damages, the resident or resident's representative to do  
          both of the following:
           notify the facility alleged to have violated any requirements  
            of the particular alleged violation, and that notice must be  
            in writing and sent by certified or registered mail, return  
            receipt requested, to the RCFE in which the resident resides  
                                                                      



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            or resided or to the person's principal place of business  
            within California; and
           demand that the facility cease, correct, or otherwise rectify  
            the alleged violation.
           
          This bill  would prohibit an action for damages if the facility  
          ceases, corrects, or otherwise rectifies the alleged violation  
          within 30 days after receipt of the above notice.

           This bill  would prohibit an action for damages upon a showing by  
          the facility alleged to have violated any requirements of this  
          article that all of the following exist:
           all residents similarly situated have been identified, or a  
            reasonable effort to identify those other residents has been  
            made;
           all residents so identified have been notified that the  
            facility will cease, correct, or otherwise rectify the  
            practices, acts, or methods alleged to be in violation; and
           the facility has ceased from engaging, or if immediate  
            cessation is impossible or unreasonably expensive under the  
            circumstances, the person will, within a reasonable time,  
            cease to engage, in the alleged violation.

           This bill  would authorize an action for injunctive relief to be  
          commenced, and not less than 30 days after the commencement of  
          an action for injunctive relief, the resident may amend his or  
          her complaint without leave of court to include a request for  
          damages.

           This bill  would require attempts to comply by a facility  
          receiving a demand to be construed to be an offer to compromise  
          and would not be inadmissible as evidence.  Furthermore, these  
          attempts to comply with a demand would not be considered an  
          admission of engaging in an act or practice declared unlawful,  
          and evidence of compliance or attempts to comply may be  
          introduced by a defendant for the purpose of establishing good  
          faith or to show compliance.

           This bill  would authorize the Attorney General in the name of  
          the people of the State of California to bring an action for  
          injunction or civil damages, or both, upon his or her own  
          complaint or upon the complaint of a board, officer, person,  
          corporation, or association, or by a person acting for the  
          interests of itself, its members, or the general public. 

           This bill  would require every RCFE to provide access to the  
                                                                      



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          Office of the Attorney General during normal business hours or  
          at any time when the suspected violation presents an immediate  
          or substantial threat to the physical health, mental health, or  
          safety of a resident.

           This bill  would provide that the amount of civil damages that  
          may be recovered in an action brought by the Attorney General  
          shall not exceed the maximum amount of civil penalties, as  
          specified, that could be assessed on account of the violation or  
          violations. 

           This bill  would provide that a licensee who violates any of the  
          above provisions or regulations adopted by DSS pursuant to this  
          bill, and whose violation presents an immediate or substantial  
          threat to the physical health, mental health, or safety of an  
                                                    RCFE resident may be enjoined from permitting the violation to  
          continue and may be sued for civil damages within a court of  
          competent jurisdiction. 

           This bill  would authorize a current or former RCFE resident to  
          bring a civil action against any facility that violates the  
          above provisions, and the RCFE licensee would be liable for the  
          acts of the licensee's employees.

           This bill  would make the licensee liable for up to $500 for each  
          violation, and for costs and attorney's fees, and may be  
          enjoined from permitting the violation to continue.  Injunctive  
          relief granted would not be stayed pending appeal. 

           This bill  would establish a three-year statute of limitations to  
          bring an action, which shall not begin to run until the  
          violation has been discovered.

           This bill  would authorize the current or former resident to a  
          trial by jury.

           This bill  would establish the right to bring a civil action,  
          which would survive the death of the resident. 

           This bill  would deem an agreement by an RCFE resident to waive  
          his or her rights to sue contrary to public policy and make the  
          agreement be void and unenforceable.

           This bill  would require an RCFE admission agreement to include  
          an explanation of the resident's right to 90-days' notice prior  
          to an involuntary transfer, discharge, or eviction.
                                                                      



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                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            When the Residential Care Facilities for the Elderly Act was  
            established in 1985, the concept of assisted living for the  
            elderly was in its infancy, residents generally required  
            little care and almost all providers operated out of their own  
            homes.  Today, California has 7,500 RCFEs serving up to  
            170,000 residents, including many who have serious health  
            problems and need around-the-clock care.  Although there are  
            still a large number of mom & pop style facilities, most  
            California [residential care facilities for the elderly  
            (RCFE)] residents live in large facilities that are owned by  
            wealthy national or regional assisted living chains.

            California has responded poorly to this changing environment  
            and is far behind the times in regulating RCFEs.  Care  
            standards have not evolved to match residents' ever growing  
            needs and oversight of RCFEs has almost disappeared.  Dozens  
            of media stories in the last year have documented the great  
            harm caused by this toxic blend of negligent care and  
            regulatory collapse.  The media reports explored dozens of  
            outrageous cases of poor care leading to resident abandonment,  
            injury and death, all enabled by insufficient state oversight.  
             News coverage on the RCFE crisis can be found here:  
            http://canhr.org/newsroom/rcfe_crisis/news_coverage.html.

            California is especially behind the times in establishing  
            meaningful rights for the extraordinarily vulnerable residents  
            of today's RCFEs.  Almost thirty years after its  
            establishment, the Residential Care Facilities for the Elderly  
            Act still does not include a bill of rights.  Residents are  
            protected only by a 1985 era personal rights regulation (22  
            CCR [Sec.] 87648) that is outdated and woefully inadequate.

            AB 2171 will help California move into the 21st century in  
            this area by establishing a modern bill of rights that is  
            based on best practices in many other states.  In so doing,  
            California will help protect the dignity, safety and  
            self-determination of the vulnerable and often fragile  
            residents of RCFEs.

                                                                      



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            Equally important, AB 2171 would establish a private right of  
            action giving residents the opportunity to enforce their own  
            rights when they are being mistreated, and prevent or stop  
            ongoing violations of their rights. Currently, residents' only  
            recourse when their rights are violated is to file a complaint  
            with Community Care Licensing (CCL), an agency that has been  
            decimated by cutbacks and often seems powerless to protect  
            residents.

          2.  RCFE resident bill of rights  

          Existing law provides that each RCFE resident maintains personal  
          rights, including, but not limited to, 18 enumerated personal  
          rights.  (Cal. Code Regs., tit. 22, art. 8, Sec. 87468.)  This  
          bill would codify some of these personal rights and enumerate  
          many more, including the right to be free from discrimination  
          and retaliation for presenting grievances and recommending RCFE  
          policy changes.

          The author states that the purpose of this bill "is to secure a  
          better, safer, more dignified future for RCFE residents in  
          California by strengthening their rights to make choices about  
          their care, treatment and daily life and to ensure that their  
          choices are respected. Additionally, it will enhance resident  
          safety and dignity by outlawing dangerous or abusive practices,  
          such as the use of restraints. In so doing, AB 2171 will bring  
          California in line with the best practices in many other states  
          that have bypassed us in securing meaningful rights for the ever  
          more vulnerable elders who live in assisted living facilities."   
          The author notes that many other states, most notably  
          Washington, have already established broad, progressive bills of  
          rights that protect their residents in ways California has yet  
          to consider.

          Consumer Attorneys of California (CAOC), co-sponsor, notes that  
          this bill tracks existing law applicable to nursing homes and  
          also reflects the "best practices" of other states.  (See Health  
          & Saf. Code Sec. 1599.1; Civ. Code Sec. 1430; Cal. Code Regs.,  
          tit. 22, Sec. 72527.)  CAOC asserts that these "code sections  
          have worked well for nursing homes and their residents and there  
          is no reason these protections should not apply to people  
          residing in RCFEs.  Unlike nursing homes which are more heavily  
          regulated, RCFEs, by comparison, lack even minimal government  
          oversight and inspections, making this population extremely  
          vulnerable to abuse and neglect."

                                                                      



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          In addition to the bill of rights, this bill would prohibit a  
          licensed RCFE from discriminating against a person seeking  
          admission or a resident based on sex, race, color, religion,  
          national origin, marital status, registered domestic partner  
          status, ancestry, actual or perceived sexual orientation, or  
          actual or perceived gender identity.  This provision reiterates  
          the protections under the Unruh Civil Rights Act, which provides  
          that all persons within California are free and equal, and no  
          matter what their sex, race, color, religion, ancestry, national  
          origin, disability, medical condition, genetic information,  
          marital status, or sexual orientation, are entitled to the full  
          and equal accommodations, advantages, facilities, or services in  
          all business establishments of every kind.  (Civ. Code Sec.  
          51(b).)

          3. Actions against an RCFE in violation and right to cure  

          This bill would establish a private right of action against an  
          RCFE, with a right to cure, and authorize the Attorney General  
          to bring an action on behalf of the public against the RCFE as  
          follows:

              a.   Limited private right of action  

            This bill would authorize a current or former RCFE resident to  
            bring a limited action against an RCFE that violates the  
            resident's rights, and provide that the RCFE licensee is  
            liable for the acts of its employees.  This bill would make  
            the licensee liable for up to $500 for each violation, and for  
            costs and attorney's fees, and provide that the licensee may  
            be enjoined from permitting the violation to continue.   
            Injunctive relief granted would not be stayed pending appeal.   
            Further, this bill would authorize the current or former RCFE  
            resident to amend a complaint to request damages after 30 days  
            of the initial filing.  However, this bill would prohibit an  
            action for damages if the facility corrects the violation  
            (discussed further below) or if all of the following apply:
                 all residents similarly situated have been identified,  
               or a reasonable effort to identify those other residents  
               has been made;
                 all residents so identified have been notified that the  
               facility will cease, correct, or otherwise rectify the  
               practices, acts, or methods alleged to be in violation; and
                 the facility has ceased from engaging, or if immediate  
               cessation is impossible or unreasonably expensive under the  
               circumstances, the person will, within a reasonable time,  
                                                                      



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               cease to engage, in the alleged violation.

            CAOC argues that a resident's bill of rights is largely  
            meaningless if the rights are not enforceable.  The author  
            states that "[t]he private right of action is a strategy for  
            resident empowerment and compensates for CCL's negligible  
            oversight of RCFEs.  Enhancing resident rights by adding a  
            private right of action will provide a much needed enforcement  
            alternative to CCL without cost to the state.  From an  
            enforcement perspective, residents, family and friends are  
            best suited to monitor care and pursue remedies where  
            appropriate."  Notably, this bill would also establish a  
            3-year statute of limitations, which would not begin to run  
            until the violation has been discovered, for a suit to be  
            brought against the RCFE licensee by the current or former  
            resident, or his or her legal representative in the event the  
            resident has died.

              a.   Right to cure  
             
             Before an RCFE resident can file an action for damages, this  
            bill would require the resident to notify, in writing sent by  
            certified or registered mail, the RCFE of the particular  
            alleged violation and demand that the RCFE cease, correct, or  
            otherwise rectify the alleged violation.  This notice would  
            have to be sent 30 days before an action could be filed by the  
            resident, and any action requesting damages would be  
            prohibited if the RCFE ceases, corrects, or otherwise  
            rectifies the alleged violation within 30 days after receipt  
            of the notice.  

            This provision arguably helps the RCFE to keep litigation  
            costs minimal since it would be given the opportunity to cure  
            the alleged violation before an action is commenced.  In the  
            event the RCFE fails to cure the violation, the resident would  
            have judicial oversight of the conditions of the facility and  
            be able to recover damages from inattentive or irresponsible  
            RCFE licensees.

              b.   Damages, attorney's fees, and costs
             
            This bill would authorize an award of damages for RCFE  
            violations that are not corrected within 30 days.  This bill  
            would make the licensee liable for up to $500 for each  
            violation, and for attorney's fees and costs.

                                                                      



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              c.   Attorney General action on behalf of the public  

            This bill would authorize the Attorney General in the name of  
            the people of the State of California to bring an action for  
            injunction or civil damages, or both, upon his or her own  
            complaint or upon the complaint of a board, officer, person,  
            corporation, or association, or by a person acting for the  
            interests of itself, its members, or the general public.  This  
            action would be authorized against a licensee in violation  
            which presents an immediate or substantial threat to the  
            physical health, mental health, or safety of a resident.  This  
            bill would provide that the amount of civil damages that may  
            be recovered in an action shall not exceed the maximum amount  
            of civil penalties that could be assessed on account of the  
            violation or violations. 

            This provision would allow an elder protection group to lodge  
            a complaint with the Attorney General against an RCFE  
            licensee, and the Attorney General could then bring an action  
            against the licensee.  This provision is useful in situations  
            where the residents of an entire facility are at serious risk,  
            as in the Valley Springs Manor incident, where two RCFE  
            employees were left by the licensee to care for 19 residents  
            following a notice of license suspension.  (See Background.)   
            In these types of situations needing immediate attention, the  
            Attorney General would be able to file an action immediately,  
            while the residents would have to wait for 30 days after first  
            notifying the RCFE licensee of the alleged violations.

          4.  Evidentiary privilege  

          Existing law provides that a person has, in compromise or from  
          humanitarian motives, furnished or offered or promised to  
          furnish money or any other thing, act, or service to another who  
          has sustained or will sustain or claims that he or she has  
          sustained or will sustain loss or damage, as well as any conduct  
          or statements made in negotiation thereof, is inadmissible to  
          prove his or her liability for the loss or damage or any part of  
          it.  (Evid. Code Sec. 1152.)  Similarly, this bill would make  
          the RCFE resident's demand to correct an alleged violation prior  
          to filing an action inadmissible as evidence because this bill  
          would make that demand an offer to compromise.

          In addition, this bill would provide that an RCFE's attempts to  
          comply with a demand would not be considered an admission of  
          engaging in an act or practice declared unlawful.  However,  
                                                                      



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          evidence of compliance or attempts to comply by the RCFE may be  
          introduced by a defendant RCFE for the purpose of establishing  
          good faith or to show compliance.

          5.  Oppositions' concerns
           
          Opponents of this bill assert that it would create legal traps  
          for a business trying to comply with the ambiguous and broad new  
          bill of rights.  Opponents also contend that this bill, by  
          authorizing "a person acting for the interests of itself, its  
          members or the general public" creates a new private attorney  
          general enforcement scheme with a long statute of limitations by  
          predicating the right to bring an action with three years on the  
          date the violation was discovered, rather than when the  
          violation actually occurred.  Opponents argue this bill is  
          another attempt of an ongoing effort by the plaintiff's bar to  
          expand litigation in the area of care for the growing elder  
          population, which will encourage unwarranted lawsuits against  
          residential care facilities for the elder, drive up costs, and  
          reduce services provided for the elderly.  Opponents note that  
          existing law allows for elder abuse actions under the Elder  
          Abuse and Dependent Adult Civil Protection Act, which does not  
          have the reduced standard of proof of a preponderance of  
          evidence as in this bill for RCFE employers to be held  
          responsible for the acts of employees.  Opponents also argue  
          that because this bill would prohibit mandatory arbitration  
          agreements between elders and RCFEs, which has recently been  
          held as preempted by federal law, this bill would not help  
          elders and would only help lawyers.


           Support  :  American Association of Retired Persons; California  
          Alliance for Retired Americans; California Commission on Aging;  
          California Conference Board of the Amalgamated Transit Union;  
          California Conference of Machinists; California Conference Board  
          of Amalgamated Transit Union; California Continuing Care  
          Residents Association; California Long-Term Ombudsman  
          Association; California Professional Firefighters; California  
          Senior Legislature; California State Retirees; California  
          Teamsters Public Affairs Council; Congress of California  
          Seniors; Consumer Federation of California; County of San  
          Bernardino; County of San Diego; Elder Abuse Task Force of Santa  
          Clara County; Elder Law & Advocacy; Engineers and Scientists of  
          CA, IFPTE Local 20, AFL-CIO; Equality California; International  
          Longshore and Warehouse Union; Johnson Moore Trial Lawyers; Long  
          Term Care Services of Ventura County, Inc.; Moran Law; National  
                                                                      



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          Association of Social Workers - California Chapter; National  
          Senior Citizens Law Center; Office of the State Long-Term Care  
          Ombudsman; Ombudsman Services of Contra Costa; Professional &  
          Technical Engineers, IFPTE Local 21, AFL-CIO; SEIU United Long  
          Term Care Workers; Stanislaus County Commission on Aging;  
          Utility Workers Union of America, Local 132; UNITE-HERE,  
          AFL-CIO; Valentine Law Group; One individual

           Opposition  :  ActivCare at Bressi Ranch; ActivCare at Rolling  
          Hills Ranch; Air Force Village West; Alder Bay Assisted Living;  
          AlmaVia of Camarillo; Alma Via of San Rafael; Belmont Village of  
          Burbank; Belmont Village of Rancho Palos Verdes; Belmont Village  
          of Sunnyvale; Belmont Village of Westwood; Blossom Grove  
          Alzheimer's Special Care Center; BridgePoint of Los Altos;  
          Brookdale - Inn at the Park; Brookdale Lodge at Paulin Creek;  
          Brookdale Mirage Inn; Byron Park; California Assisted Living  
          Association; California Association of Continuing Care  
          Retirement Communities; CalPACE; Carrington of Shafter; Cedar  
          Creek Senior Living; Chancellor Health Care; Civil Justice  
          Association of California; Community Home Partners dba Pacific  
          Gardens; Continuing Life; Cypress Court; De Palma Terrace Senior  
          Living; Del Obispo Terrace Senior living; Drake Terrace; Elder  
          Care Alliance; Elmcroft of La Mesa; Elmcroft Senior Living;  
          Emerald Court; Emeritus at Austin Gardens; Emeritus at Casa  
          Glendale; Emeritus at Laguna Creek; Emeritus at Manteca;  
          Emeritus at Rancho Solano; Emeritus at Rohnert Park; Emeritus at  
          Villa de Anza; Emeritus at Whittier; Five Star Senior Living;  
          Gables of Ojai; Gold Country Retirement Community; Grossmont  
          Gardens; Hallmark of Bakersfield; Hialeah Terrace; Home Again I  
          & II; Huntington Terrace Senior Living; J-Sei Home; Koelsch  
          Senior Communities; La Vida Del Mar; Mature Adult Day Assistance  
          dba Garden House, Morro Bay; MBK's Casa de Santa Fe; MBK Senior  
          Living; Meadowlark Assisted Living; Merrill Gardens; Merrill  
          Gardens at Bankers Hill; Merrill Gardens at Santa Maria; Merrill  
          Gardens at Willow Glen; Milestone Retirement Communities; Monte  
          Vista Village; Murrieta Gardens Assisted Living/Integral Senior  
          Living; New West Haven/Cameo RCFE, Inc.; Nohl Ranch Inn at  
          Brookdale Community; Oak Tree Villa; Oakdale of La Mesa; Oakmont  
          Gardens; Oakmont of Roseville; O'Connor Woods; Our Lady of  
          Fatima Village; Pacific Gardens; Pacific Place, A Merrill  
          Gardens Community; Paramount Court Senior Living; Park Plaza;  
          Park Terrace; Parsons Group; Regency Fallbrook Assisted Living &  
          Alzheimer's Care; R.A.C. Bressi, LP dba ActivCare at Bressi  
          Ranch; R.A.C. Brittany Ltd. dba Brittany House; R.A.C. Rollings  
          Hills, LP dba ActivCare at Rolling Hills Ranch; Rancho Stony  
          Knoll; Raya's Paradise, Inc.; Regency Fallbrook; Regency of  
                                                                      



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          Evergreen Valley; Retirement Housing Foundation; Rio Las Palmas,  
          Five Star Senior Living; Salem Lutheran Home; Silverado;  
          Silverado - Belmont Hills; Silverado Escondido; Silverado Senior  
          Living; Silverado Tustin Hacienda Memory Care Community; Skyline  
          Place Senior Living; Somerford Place-Encinitas, Five Star Senior  
          Living; Somerford Place, Five Start Senior Living; Somerford  
          Place-Stockton, Five Star Senior Living; Summerhill Villa;  
          Summitt Hills I & II; Sunrise of Danville; Sunrise Senior Living  
          of Belmont; Sunrise Senior Living of Bonita; Sunrise Senior  
          Living of Huntington Beach; The Carlisle/Sunrise Senior Living;  
          The Cherry Hills Club a Brookdale Senior Living Community; The  
          Gables a Brookdale Community; The Meadows Senior Living; The  
          Patrician; The Peninsula Regent; The Remington Club, Five Star  
          Senior Living; The Reutlinger Community for Jewish Living; The  
          Stratford; The Vistas Assisted Living & Memory Care Community;  
          The Windham; Tiffany Court of Walnut Creek; Valencia Terrace;  
          Villa Bonita Senior Living; Villa Valencia, Five Star Senior  
          Living; Vintage Burbank Assisted Living; Vintage Simi Hills;  
          Westminster Terrace Assisted Living; Whittier Place Senior  
          Living; Woodside Terrace; 14 individuals


                                        HISTORY
           
           Source  :  California Advocates for Nursing Home Reform; Consumer  
          Attorneys of California
           Related Pending Legislation  :

          SB 1153 (Leno, 2014) would authorize the Department of Social  
          Services (DSS) to order a suspension of new admissions to a  
          Residential Care Facility for the Elderly (RCFE) in specified  
          circumstances.  SB 1153 is currently in the Assembly Committee  
          on Human Services.

          SB 911 (Block, 2014) would require additional training of RCFE  
          licensees and staff and prohibit discrimination and retaliation  
          against any person receiving the services of RCFE, or against  
          any employee of the facility, on the basis, or for the reason  
          that, the person, employee, or any other person dialed or called  
          911.  SB 911 is currently in the Assembly Committee on Human  
          Services.

          SB 895 (Corbett, 2014) would require annual unannounced  
          inspections of Residential Care Facilities for the Elderly  
          (RCFEs).  SB 895 is currently in the Assembly Committee on Human  
          Services.
                                                                      



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          SB 894 (Corbett, 2014) would require license suspension notices  
          to be provided to RCFE residents, expand DSS duties of care to  
          residents being relocated from a suspended facility, require DSS  
          to provide onsite evaluations of residents and arrange for  
          resident care, meals, medication distribution, and transfer, and  
          authorize an RCFE resident to bring a civil action against an  
          RCFE licensee for violations.  SB 894 is currently in the  
          Assembly Committee on Human Services.

          AB 2236 (Maienschein and Stone, 2014) would provide that if the  
          facility appeals the Department's findings of deficiencies, a  
          notice of appeal would be required to be given to the  
          complainant, affected residents, and their legal  
          representatives, and the opportunity to participate in the  
          appeal, and the appeal procedure would have to include an option  
          for administrative law judge review.  AB 2236 would increase  
                                                    civil penalties for violations from not less than $100 to not  
          more than $250 per day for each violation, increase an immediate  
          civil penalty issued by the Department from $150 to $1,000 per  
          day per violation for specified serious violations, and would  
          increase civil penalties for violations resulting in death to a  
          resident, serious bodily injury, or physical abuse.  AB 2236 is  
          currently in the Senate Committee on Human Services.

          AB 2632 (Maienschein, 2014) would prohibit DSS, with regard to  
          RCFEs and other specified care facilities, from issuing a  
          criminal record clearance to a person with a record of an arrest  
          prior to DSS's completion of an investigation of that arrest  
          record.  AB 2632 is currently in the Senate Committee on Human  
          Services.

          AB 1572 (Eggman, 2014) would require an RCFE to establish a  
          single resident council, as specified, at the facility.  AB 1572  
          is currently in the Senate Committee on Appropriations.

          AB 1571 (Eggman, 2014) would strengthen RCFE licensee  
          requirements and require DSS to establish an online inquiry  
          system accessible through an Internet Web site and post RCFE  
          profiles containing specified information.  AB 1571 is currently  
          in the Senate Committee on Human Services.

          AB 1554 (Skinner, 2014) would increase DSS requirements  
          regarding RCFE complaints.  AB 1554 is currently in the Senate  
          Committee on Human Services.

                                                                      



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           Prior Legislation  :

          AB 2066 (Monning, Ch. 643, Stats. 2012) required RCFE licensees  
          to provide a 60-day written notice to RCFE residents following a  
          license revocation and required DSS to minimize trauma to RCFE  
          residents, as specified.

          SB 1166 (Mello, Ch. 1115, Stats. 1989) enacted the Residential  
          Care Facilities for the Elderly Reform Act of 1989.

          SB 1676 (Wyman, Ch. 1372, Stats. 1985) authorized a series of  
          civil penalties that could be imposed against an RCFE in  
          addition to license revocation or suspension.

           Prior Vote  :

          Assembly Floor (Ayes 42, Noes 23)
          Assembly Committee on Appropriations (Ayes 12, Noes 0)
          Assembly Committee on Judiciary (Ayes 8, Noes 2)
          Assembly Committee on Aging and Long Term Care (Ayes 5, Noes 2)

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