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 (more) AB 2171 (Wieckowski) Page 2 of ? 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 AB 2171 (Wieckowski) Page 3 of ? 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 AB 2171 (Wieckowski) Page 4 of ? 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).) AB 2171 (Wieckowski) Page 5 of ? 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 AB 2171 (Wieckowski) Page 6 of ? 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; AB 2171 (Wieckowski) Page 7 of ? 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 AB 2171 (Wieckowski) Page 8 of ? 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 AB 2171 (Wieckowski) Page 9 of ? 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 AB 2171 (Wieckowski) Page 10 of ? 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. AB 2171 (Wieckowski) Page 11 of ? 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. AB 2171 (Wieckowski) Page 12 of ? 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." AB 2171 (Wieckowski) Page 13 of ? 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, AB 2171 (Wieckowski) Page 14 of ? 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. AB 2171 (Wieckowski) Page 15 of ? 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, AB 2171 (Wieckowski) Page 16 of ? 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 AB 2171 (Wieckowski) Page 17 of ? 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 AB 2171 (Wieckowski) Page 18 of ? 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. AB 2171 (Wieckowski) Page 19 of ? 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. AB 2171 (Wieckowski) Page 20 of ? 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) **************