BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 894
S
AUTHOR: Corbett
B
VERSION: March 26, 2014
HEARING DATE: April 8, 2014
8
FISCAL: Yes
9
4
CONSULTANT: Sara Rogers
SUBJECT
Residential Care Facilities for the Elderly: Revocation of
License
SUMMARY
This bill expands numerous requirements for Residential
Care Facility for the Elderly (RCFE) licensees in the event
of a temporary license suspension or license revocation.
Additionally, this bill expands the responsibilities of the
Department of Social Services (CDSS) in overseeing a
temporary suspension or revocation of an RCFE license and
in protecting the health and safety of affected residents.
This bill increases civil penalties to $500 per violation
per day for licensees that fail to comply with these
provisions. Furthermore, this bill establishes a private
right of action for residents of RCFEs in such instances.
ABSTRACT
Existing Law:
1.Establishes the Residential Care Facilities for the
Continued---
STAFF ANALYSIS OF SENATE BILL 894 (Corbett)
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Elderly Act which provides for the CDSS to license and
regulate RCFEs as a separate category within the existing
residential care licensing structure of CDSS. (HSC 1569
et seq.)
2.Provides that CDSS may deny an application for a license
or may suspend or revoke any license due to a licensee's
violation of the RCFE Act or related regulations. (HSC
1569.50)
3.Provides that procedures for the suspension, revocation
or denial of license shall be conducted in accordance
with the administrative adjudication provisions of the
Administrative Procedure Act that grants a licensee the
right to appeal a license denial, revocation or
suspension to the Office of Administrative Hearings. (HSC
1569.51 and GC 11500 et seq.)
4.Permits the director of CDSS to temporarily suspend any
license, prior to any hearing when, in the opinion of the
director, the action is necessary to protect residents or
clients of the facility from physical or mental abuse,
abandonment, or any other substantial threat to health or
safety. Requires the department to verify within 30 days
that the facility is nonoperational. (HSC 1569.50,
1569.510 and GC 11460.10 et seq.)
5.Provides that the failure of an applicant for licensure
or a licensee to pay all applicable and accrued fees and
civil penalties shall constitute grounds for denial or
forfeiture of a license. (HSC 1569.185)
6.Provides that a license shall be forfeited when a
licensee sells the facility, surrenders the license to
CDSS, is convicted of a prohibited offense, dies, or
abandons the facility. Defines "abandons the facility" in
regulation. (HSC 1569.19 and CCR Title 22 87112)
7.Requires the director, when it is necessary to suspend or
STAFF ANALYSIS OF SENATE BILL 894 (Corbett)
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revoke an RCFE license, to make every effort to minimize
trauma for residents. Permits CDSS to require the
licensee to prepare a written relocation plan for
residents. Requires the licensee to provide a 60 day
written notice of license revocation within 24 hours of
receipt of a revocation order. (HSC 1569.525)
8.Requires RCFE licensees, prior to transferring residents
as a result of a specified instances of license
forfeiture to take certain actions to minimize transfer
trauma including providing 60 day written notice,
preparing a relocation evaluation, providing a list of
nearby facilities, and other actions. (HSC 1569.682)
9.Provides that CDSS evaluations that find a deficiency
resulting in the sickness, injury or death of a resident,
as well as repeated deficiencies, shall require
correction within 24 hours. Additionally, provides that
CDSS evaluations finding any other deficiency shall
require correction no later than 30 calendar days
following service of notice, except as specified. (Title
22 CCR 87756)
10.Requires CDSS to notify the State Long-Term Care
Ombudsman (LTCO) whenever the department substantiates
serious violations posing a threat to health and safety
of any resident or causes an accusation to be filed for
license revocation. (HSC 1569.335)
11.Permits licensees of Skilled Nursing Facilities (SNF) or
Intermediate Care Facilities (ICF) to be enjoined from
permitting certain regulatory violations from continuing
or may be sued for civil damages. Permits a current or
former resident of a SNF or ICF to bring a civil action
against a licensee for violation of the resident's
rights, as defined, up to $500 and legal costs. (HSC
1430)
12.Permits residents of RCFEs to bring a civil action
against a licensee for violation of the requirements
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pertaining to resident transfers resulting from
forfeiture of license or facility change of use.
(HSC1569.682)
13.Entitles RCFE residents who transfer from a facility due
to receipt of a 60 notice of license revocation to
receive a partial refund of preadmission fees and per
diem monthly fees, as specified. (HSC 1569.525)
14.Permits the department to assess civil penalties not
less than $25 and not more than $50 per violation per day
for each violation except where the seriousness of the
violation warrants a higher penalty, in no case to exceed
$150 per day per violation. (HSC 1569.49)
This bill:
1.Requires CDSS to provide a precautionary notification to
the State LTCO if the director is reasonably
contemplating a temporary suspension or revocation of any
license of an RCFE. Specifies the LTCO as a local agency
to be contacted following a decision to temporarily
suspend or revoke a RCFE license.
2.Requires, instead of permits, the department to require a
licensee to prepare a written plan for relocation of
residents following a license revocation or suspension.
3.Provides that upon receipt of an order to temporarily
suspend or revoke a license, the licensee shall be
prohibited from accepting new residents or entering into
admission agreements for new residents.
4.Requires a licensee, upon an order to temporarily suspend
a license, to provide written notice to the resident or
resident's responsible person within 24 hours following
receipt of the order.
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5.Permits the department or licensee to secure the services
of a person who is not an immediate family member of the
licensee or an entity that is not owned by the licensee
to manage the day-to-day operations of the facility until
the matter is heard pursuant to Section 1569.50, and for
at least 60 days thereafter, as specified.
6.Provides that final orders of license revocations, except
temporary suspension orders that led to transfer of all
residents, shall require 60-day written notice and that
licensees shall be permitted to secure the services of a
person to manage the day to day operations of the
facility for at least 60 days.
7.Provides that residents who transfer from a facility due
to being issued a license suspension shall be entitled to
a refund of a percentage of the preadmission fees and per
diem monthly fees, as specified.
8.Requires, within 24 hours instead of 10 days, a licensee
whose license has been revoked to submit to the
department and local LTCO a final list of names and new
locations for transferred residents.
9.Provides that the department shall be responsible for the
health and safety of all residents during a resident
relocation process as a result of a license revocation or
temporary suspension. Specifies that these
responsibilities shall include:
Contact any local agency that may have placement
responsibility to locate alternative placements.
Contact the resident's relatives; legal
representatives; authorized agents in a health care
directive or responsible parties.
Assist in the transfer of residents and, if
necessary, arrange or provide transportation.
Arrange for or provide care and supervision.
Distribute medications.
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Arrange for the preparation and service of meals
and snacks.
Prepare the residents records and medications for
transfer of each resident.
Assist in any way necessary to facilitate a safe
transfer of all residents.
Check on the status of each transferred resident
within 24 hours of transfer.
1.Provides that the participation of the department and
local agencies shall not relieve the licensee of any
responsibility. Requires a licensee to reimburse the
department and local agencies for the cost of providing
these services.
2.Provides that a licensee who violates these provisions
shall be liable for $500 in civil penalties per violation
per day until the violation has been corrected.
3.Permits a current or former RCFE resident to bring a
civil action against any person, firm, partnership, or
corporation who owns operates, establishes, manages,
conducts or maintains an RCFE who violates these
provisions and provides that such persons are responsible
for the actions of facility employees. Permits an RCFE to
be enjoined from permitting the violation to continue.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, this bill is part of a broad
package of legislation sponsored by California Advocates
for Nursing Home Reform in response to instances of
inadequate regulatory oversight of RCFEs. The author states
that current law neither provides adequately for the
STAFF ANALYSIS OF SENATE BILL 894 (Corbett)
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state's role in ensuring that RCFE licensees find
alternative placements for residents in their care, nor the
state's responsibility to protect the health and safety of
residents when it becomes clear that the licensee is
failing to do so.
The author states that this bill will provide for greater
notice requirements to residents following license
suspensions and revocations. Additionally, it will tighten
the timeframe of reporting requirements upon relocation of
residents, further define the department's role in
protecting the residents of RCFEs, raise civil penalties
for licensees who fail to comply and provide harmed
residents with a civil action against licensees.
Recent events
A series of recent events has drawn attention to questions
about the adequacy of CCL oversight and the state's ability
to protect people who receive services within CDSS-licensed
facilities.
In July 2013, ProPublica and Frontline reporters wrote
and produced a series of stories on Emeritus, the
nation's largest RCFE provider.<1> Featured in the
article was a woman who died after receiving poor care at
in a facility in Auburn, California. The series
documented chronic understaffing and a lack of required
assessments and substandard care.
Reports in September 2013, prompted by a consumer
watchdog group that had hand-culled through stacks of
documents in San Diego, revealed that more than two dozen
seniors had died in recent years in RCFEs under
questionable circumstances that went ignored or
-------------------------
<1>
http://www.propublica.org/article/life-and-death-in-assisted
-living-single
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unpunished by CCL.<2>
In late October 2013, 19 frail seniors were abandoned at
Valley Springs Manor in Castro Valley by the licensee and
all but two staff after the state began license
revocation proceedings for the facility. CDSS inspectors,
noting the facility had been abandoned, left the two
unpaid service staff to care for the abandoned residents
with insufficient food and medication, handing them a
$3,800 citation before leaving for the weekend. The next
day sheriff's deputies and paramedics sent the patients
to local hospitals.
Residential Care Facilities for the Elderly
Within California's continuum of long term care, situated
between in-home care and skilled nursing facilities, is the
RCFE, also commonly called Assisted Living, Board and Care,
or Residential Care. There are approximately 8,000 Assisted
Living, Board and Care, and Continuing Care Retirement
homes that are licensed as RCFEs in California. These
residences are designed to provide homelike housing options
to residents who need some help with activities of daily
living, such as cooking, bathing, or getting dressed, but
otherwise do not need continuous, 24-hour assistance or
nursing care. Increasingly residents are entering RCFEs
with significant health needs including diabetes, bedsores,
or require the use of oxygen tanks, catheters, colostomies
or ileostomies.
The RCFE licensure category includes facilities with as few
as six beds to those with hundreds of residents, whose
needs may vary widely. Typically, the smaller facilities
are homes in residential neighborhoods while the larger
facilities resemble apartment complexes with structured
activities for their residents. Generally, residents are
free to leave the facility if they choose, and may
-------------------------
<2> "Care Home Deaths Show System Failures," San Diego
Union Tribune, Sept.7, 2013
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entertain guests, and otherwise maintain a high level of
independence. Facilities licensed to serve residents with
dementia or Alzheimer's disease, also known as "memory care
units," may maintain a secure perimeter.
Joint Hearing on RCFEs
On February 11, 2014, the Senate and Assembly Human
Services Committees jointly held an informational hearing
investigating efforts to increase accountability and
oversight of Assisted Living Facilities. Testimony during
the hearing highlighted significant technological barriers
to the tracking of complaints and deficiencies, limited
follow-up practices by the department to ensure that
deficiencies are corrected, frequent failure to collect
assessed fines and penalties, a lengthy appeals process
that hinders immediate action when necessary, and use of a
shortened inspection tool that has not been validated for
use in RCFEs.
CDSS acknowledged at the hearing that there were serious
and historic failures of regulatory oversight over RCFEs,
highlighted most recently at Valley Springs Manor in
Alameda County. CDSS has acknowledged that it waited until
after the facility administrator abandoned the residents to
take emergency action, despite receiving no communication
or response from the licensee during the nearly five months
since the Department had initiated license revocation
proceedings. CDSS said it made a "judgment error" in
deciding that the facility, then staffed only by an
untrained janitor and cook, and without access to
medications or sufficient food, could function through the
weekend.
CDSS has additionally stated that the Community Care
Licensing division (CCL) 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. At the hearing, the Department
acknowledged that despite the severity of the violations of
the licensee, the maximum fine that could be imposed was a
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$150 fine/per violation per day.
The hearing included a discussion of the subsequent closure
of the Sundial Palms RCFE in Modesto, run by the same
licensee, which was handled very differently than the
Valley Springs closure. In the case of Sundial Palms, CDSS
has enlisted a temporary manager to operate the facility
until it is sold and the license transferred. In this case,
CDSS staff worked closely with the manager to ensure that
the health and safety of residents was protected, that
residents were evaluated for appropriate levels of care,
staffing regulations were adhered to, and needed capital
investments were made to the facility. It is unclear the
degree to which the CDSS will be reimbursed by the
licensee.
Governor's Budget Proposal
As part of the Governor's 2014-2015 proposed budget, the
Administration has put forth trailer bill language that has
substantial overlap with provisions of this bill. The
Administration proposes significant changes to the civil
penalty structure, deleting the existing language imposing
$25 to $50 penalties for lesser offenses or up to $150 for
serious offenses, and replacing it with a penalty structure
for serious offenses that is five times the amount of the
annual licensing fee per day per violation. It is unclear
what penalty structure would then govern the remaining less
serious violations. A similar statute regarding evictions
in case of license forfeiture currently includes a $100 per
violation / per day penalty that is not amended by the TBL,
however it is unclear what penalty structure would apply to
the section of law amended by this bill.
Additionally, the Administration proposes that permits CDSS
to assign a temporary manager or a receiver over a facility
unable to maintain the health and safety of residents in
cases of license revocation or temporary suspension. While
existing law provides for a process for the licensee to
secure a temporary manager in cases of revocation, this
bill would permit both the department and the licensee to
STAFF ANALYSIS OF SENATE BILL 894 (Corbett)
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secure a temporary manager in cases of temporary
suspension. There are substantial differences between
budget TBL and this bill with regard to the standards and
procedures for assigning a temporary manager which may be
confusing to implement should both statutes be adopted.
Prior/Related Legislation
Current legislation
SB 895 (Corbett) Would require CDSS to conduct annual
unannounced comprehensive inspections for all facilities,
requires CDSS to verify compliance following deficiencies
within 10 days, and requires results of inspections to be
available on the CDSS website.
SB 1153 (Leno) Would permit CDSS to order a suspension of
new admissions for an RCFE when the facility has violated
applicable laws and regulations that present a direct risk
to the health and safety or residents, is not providing
adequate care and supervision, has been cited for
subsequent violations of the same law within 12 months, or
has failed to pay existing fines.
SB 911 (Block) Would increase certification training
requirements for RCFE licensees, and staff who care for
residents, increases training requirements for staff
providing dementia care.
SB 1382 (Block) Would increase the annual licensure fees by
30% and make related findings and declarations.
AB 1571 (Eggman) Would increase disclosure requirements for
RCFE licensee applicants and require applicant information
to be cross-referenced with the State Department of Public
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Health. Would require, by 2015, CDSS to create an online
inquiry system posting detailed information about RCFE
facilities including complaints, deficiencies and
enforcement actions resulting in fines. In subsequent
years, would require CDSS to post additional information,
as specified.
AB 1572 (Eggman) Would require RCFEs, at the request of two
or more residents, to assist the residents in establishing
and maintaining a single resident council, as specified,
and would require the facility to interact with the council
in specified ways.
AB 1523 (Atkins and Weber)Would require RCFEs to maintain
liability insurance covering injury to residents and guests
in the amount of $1 million per occurrence and $3 million
annually.
AB 1436 (Waldron) Would require the results of all reports
of inspections, evaluations or consultations and lists of
deficiencies to be posted on the department's Internet Web
site.
AB 1454 (Calderon) Would require all licensed community
care facilities, RCFEs, and child day care centers to be
subject to an annual unannounced visits visit by CDSS.
AB 1570 (Chesbro) Would increase the certification training
requirements for RCFE administrators, training requirements
for RCFE staff that care for residents, and training
requirements for staff providing dementia care.
AB 1554 (Skinner) Would make various changes to existing
RCFE complaint procedures including requiring the
department to make an onsite inspection within 24 hours of
a complaint alleging abuse, neglect or a threat of imminent
danger. Additionally would require the department to
complete its investigation within 90 days of receiving a
complaint. Would permit a complainant to file an appeal of
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departmental findings.
AB 1899 (Brown) Would make a person whose license is
revoked or forfeited for abandonment of the facility
ineligible for reinstatement of the license for a period of
10 years following the revocation or forfeiture.
Additionally would require CDSS to establish and maintain a
telephone hotline and an Internet Web site dedicated to
receiving complaints.
AB 2171 (Wieckowski) Would establish specified RCFE
resident's rights and require facilities to inform
residents of these rights as specified.
AB 2044 (Rodriguez) Would require every licensed
residential care facility to be subject to an annual
unannounced visit by the department, as specified.
Additionally, would require complaints to be inspected
within three days if the complaint involves alleged abuse
or serious neglect, or within 10 days for all other
complaints and would require investigations to be completed
within 30 days. Would provide a complainant with the right
to request an informal conference and subsequent appeal, as
specified. Also would require certain staff to be present
in the facility for specified times.
Prior legislation
AB 313 (Monning, Chapter 365, Statutes of 2011) Requires
each RCFE to provide residents, their responsible parties,
and the local long-term care ombudsman with a 10-day
written notice when CDSS commences proceedings to suspend
or revoke its license, or a criminal action relating to
health or safety of the residents is brought against the
facility, and makes other changes related to these actions.
AB 2066 (Monning, Chapter 643 Statutes of 2012) Requires
RCFEs to provide a 60 day written notice to residents or
the responsible person within 24 following receipt of CDSSs
order of revocation. Permits the licensee to secure an
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alternative manager, as specified. Requires RCFEs to refund
all or a portion of preadmission fees to residents
transferring as the result of a license revocation, as
specified.
SB 897 (Leno, Chapter 376, Statutes of 2011) Requires
licensed residential care facilities for the elderly
(RCFEs) to notify CDSS, the state's Long-Term Care
Ombudsman and the facility's residents when the property is
subject to foreclosure or certain other events occur due to
financial distress.
AB 419 (Mitchell, 2011) Would have required every community
care facility licensed by CDSS to be inspected unannounced
at least once per year using research based, field tested
inspection protocols, as specified. This bill died in the
Assembly Appropriations Committee.
Comments:
1. Concerns have been raised that this bill would require
the Department of Social Services to directly provide care
and supervision, distribute medications, or transport
residents. Staff recommends that should the bill move
forward, the following amendments be taken up in the Senate
Judiciary Committee to instead require the department to
arrange for or coordinate those services:
Amend Page 7, Lines 38-40 and Page 8, Lines 1-26 as follows
(k) If at any point during the relocation process or
following a temporary suspension or revocation of a
license the director determines that it is necessary
to protect there is a risk to the residents of a
facility from physical or mental abuse, abandonment,
or any other substantial threat to health or safety,
the department shall take any necessary action to
minimize trauma for the residents. The department is
responsible for the health and safety of all residents
until all residents have been appropriately placed.
These responsibilities shall include, residents,
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including , but not be limited to, all of the
following:
(1) Contact any local agency that may have placement
or advocacy responsibility for the residents, and work
with those agencies to locate alternative placement
sites.
(2) Contact the residents' relatives, legal
representatives, authorized agents in a health care
directive, or responsible parties.
(3) Assist in the transfer of residents, and, if
necessary, arrange or provide coordinate
transportation.
(4) Provide onsite evaluation of the residents and use
any medical personnel deemed appropriate by the
department to provide onsite evaluation of the
residents and assist in any transfers.
(5) Arrange for or provide coordinate care and
supervision.
(6) Arrange for the distribution of Distribute
medications.
(7) Arrange for the preparation and service of meals
and snacks.
(8) Arrange for the preparation of Prepare the
residents' records and medications for transfer of
each resident.
(9) Assist in any way necessary to facilitate a safe
transfer of all residents.
(10) Check on the status of each transferred residents
resident within 24 hours of transfer.
2. To address concerns that HSC 1569.335 referenced in this
bill is outdated and confusing for the agencies mentioned,
the author would like to add a new section to this bill to
clarify the notice requirements under that section and to
ensure that the California Long Term Care Ombudsman
receives a precautionary notice regarding a potential
temporary suspension. Staff proposes that should the bill
move forward these amends be taken up in Senate Judiciary
Committee to reflect the following language:
Section 1569.335 of the Health and Safety Code is amended
to read:
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(a) The department shall notify affected placement agencies
and provide the Office of the State Long-Term Care
Ombudsman, as defined in subdivision (c) of Section 9701 of
the Welfare and Institutions Code with a precautionary
notification if the director is reasonably contemplating a
temporary suspension or revocation of any license, so that
the office may properly prepare to provide advocacy
services if and when necessary.
(b) The department shall notify affected public placement
agencies, including the Office of the State Long Term Care
Ombudsman, whenever the department substantiates that a
violation has occurred which poses a serious threat to the
health and safety of any resident when the violation
results in the assessment of any penalty or causes an
accusation to be filed for the revocation of a license.
(1) If the violation is appealed by the facility within
10 days, the department shall only notify placement
agencies of the violation when the appeal has been
exhausted.
(2) If the appeal process has not been completed within
60 days, the placement agency shall be notified with a
notation which indicates that the case is still under
appeal.
(3) The notice to each placement agency shall be updated
monthly for the following 24-month period and shall
include the name and location of the facility, the amount
of the fine, the nature of the violation, the corrective
action taken, the status of the revocation, and the
resolution of the complaint.
POSITIONS
Support: California Advocates for Nursing Home Reform
(Sponsor)
Advocacy Inc.
California Continuing Care Residents
Association
California retired Teachers Association
Consumer Attorneys of California
Consumer Federation of California
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County of San Diego
Elder Law & Advocacy
Jewish Family Services of Los Angeles
Johnson Moore Trial Lawyers
Ombudsman & HICAP Services of Northern
California
Ombudsman Services of Contra Costa
195 Individuals
Oppose: None received.
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