BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair AB 2171 (Wieckowski) - Residential care facilities for the elderly: bill of rights. Amended: June 15, 2014 Policy Vote: Judiciary 5-2 Urgency: No Mandate: Yes Hearing Date: August 14, 2014 Consultant: Jolie Onodera SUSPENSE FILE. AS AMENDED. Bill Summary: AB 2171 would establish a bill of rights for residents of residential care facilities for the elderly (RCFE) in order to strengthen a resident's right to make choices about his or her care, treatment, and daily life in the facility. This bill would authorize a private right of action by a current or former resident against an RCFE for violations and authorize specified damages, attorney's fees, costs, and injunctive relief. This bill would provide for a three-year statute of limitations from the date of discovery of the violation, and would allow the RCFE to cure a violation before an action can be filed. Fiscal Impact (as approved on August 14, 2014): Potentially significant cost pressure (General Fund*) on trial courts under the new private right of action. There are nearly 7,500 RCFE facilities and 145,000 licensed beds in the state. Actual costs would be dependent on the number and complexity of cases brought forward. One-time costs to the Department of Social Services (DSS) of about $250,000 (General Fund) to promulgate regulations and review RCFE plans of operation to ensure compliance. *Trial Court Trust Fund Background: The Community Care Licensing Division (CCLD) of the DSS administers the licensure and oversight of over 7,500 assisted living, board and care, and continuing care retirement homes that are licensed as RCFEs in California. These residences are designed to provide home-like environment housing options to elderly residents who need assistance with activities of daily living but otherwise do not require continuous, 24-hour assistance or nursing care. The RCFE licensure category includes AB 2171 (Wieckowski) Page 1 facilities with as few as six beds to facilities with hundreds of residents whose needs may vary widely. In response to health and safety issues discovered at facilities licensed by the CCLD, the 2014 Budget Act includes a comprehensive plan to reform the CCLD program. The Budget includes an increase of $7.5 million ($5.8 million General Fund) and 71.5 positions to improve the timeliness of investigations, ensure the CCLD inspects all facilities at least once every five years, increase staff training, and establish clear fiscal, program, and corporate accountability. The Budget also increases licensing and application fees by 10 percent. Proposed Law: This bill would establish the "Resident's Bill of Rights" for current and former RCFE residents, including a statutory list of 29 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. The list includes but is not limited to the following: 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 free from interference, coercion, discrimination, and retaliation in exercising their rights; 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 possible, and are enabled to make informed decisions and choices; 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; AB 2171 (Wieckowski) Page 2 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 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 select their own physicians, pharmacies, privately paid personal assistants, hospice agency, and health care providers; 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 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 manage their financial affairs - 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 AB 2171 (Wieckowski) Page 3 under a power of attorney. This bill would provide for the enforcement of the statutory list of rights through a private right of action after the facility has been given at least a 30-day period to remedy an alleged violation. This bill authorizes the Attorney General to prosecute an action for an injunction or civil damages, and requires the DSS to assess civil penalties of up to $500 for each violation of a right defined by this bill. Related Legislation: The following bills regarding licensing and inspections at community care facilities, and RCFEs specifically, have been introduced this session: SB 894 (Corbett) RCFEs: revocation of license. SB 895 (Corbett) RCFEs: annual inspections. SB 911 (Block) RCFEs: training. SB 1153 (Leno) RCFEs: suspension of new admissions. SB 1382 (Block) RCFEs: licensure fees. AB 1436 (Waldron) RCFEs: internet posting of inspection reports. AB 1454 (Calderon) Care facilities: annual inspections. AB 1523 (Atkins) RCFEs: liability insurance. AB 1554 (Skinner) RCFEs: complaint procedures. AB 1570 (Chesbro) RCFEs: training. AB 1571 (Eggman) RCFEs: disclosure requirements. AB 1572 (Eggman) RCFEs: single resident council. AB 1899 (Brown) RCFEs: prohibitions on licensure reinstatement. AB 2044 (Rodriguez) RCFEs: 24-hour presence of administrator/staff. Staff Comments: The DSS would likely incur one-time costs potentially in excess of $250,000 (General Fund) to promulgate regulations and review RCFE plans of operation to ensure compliance with the provisions of this bill. The DSS would also incur potentially significant ongoing costs (General Fund) for enforcement of the mandatory assessment of penalties for violations of rights defined in the bill. The private right of action authorized in this measure could potentially result in significant cost pressure (General Fund) on trial courts. There are nearly 7,500 RCFE facilities and 145,000 licensed beds in the state. Actual costs would be dependent on the number and complexity of cases brought forward. As an example, should just one resident per 1,000 facilities AB 2171 (Wieckowski) Page 4 bring forth an action requiring one week of court time, at $4,000 per court day, costs to the courts would exceed $1.4 million (General Fund). Enforcement costs to the DOJ associated with cases prosecuted by the Attorney General would be dependent on the number and complexity of cases handled by the AG in any one year. As the California Department of Veterans Affairs (CDVA) operates seven RCFEs within the state, to the extent this bill increases litigation against CDVA facilities would also create cost pressure in terms of resources necessary to defend these cases. Committee amendments: Delete HSC § 1569.275(a)(1)-(4), involving the authority of the Attorney General to prosecute violations of provisions of the bill. Delete subdivision (e) of HSC § 1569.267, authorizing DSS to assess civil penalties for violations of rights in the section. Provide that the provisions of this article apply only to privately operated RCFEs. Delete the requirement for a facility to provide 90 days' notice to a resident prior to involuntarily transfer, discharge, or eviction. Make a conforming change to HSC § 1569.886, which deletes Section 2 of the bill in its entirety. Make numerous other technical changes.