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  








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          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;








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                 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  








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               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  








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          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.