BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 895
S
AUTHOR: Corbett
B
VERSION: March 26, 2014
HEARING DATE: April 8, 2014
8
FISCAL: Yes
9
5
CONSULTANT: Sara Rogers
SUBJECT
Residential Care Facilities for the Elderly: unannounced
visits
SUMMARY
This bill requires the California Department of Social
Services (CDSS) to conduct unannounced inspections of
Residential Care Facilities for the Elderly (RCFEs) no less
than once every year and permits additional unannounced
inspections to be conducted as specified. Additionally,
this bill requires CDSS to verify that a deficiency has
been corrected no later than 10 days after notifying the
facility of the deficiency. This bill deletes the existing
provisions regarding timing of unannounced licensing
visits, and replaces the term "visit" with "inspection."
ABSTRACT
Existing Law:
1.Establishes the Residential Care Facilities for the
Continued---
STAFF ANALYSIS OF SENATE BILL 895 (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 RCFEs shall be subject to unannounced
visits by CDSS and that the department shall visit
facilities as often as necessary to ensure the quality of
care provided. (HSC 1569.33)
3.Requires annual unannounced inspections when a license is
on probation, when required by the terms of a facility
compliance plan, when an accusation is pending, when
required for federal financial participation, or to
verify that a person who has been ordered out of the
facility is no longer present. (HSC 1569.33)
4.Requires CDSS to perform random inspections each year on
no fewer than 20 percent of the RCFE facilities not
subject to annual inspections. Provides that this
percentage shall increase by 10 percent if the total
citations issued by the department exceeds the previous
year by 10 percent. As a result of this trigger, CDSS
currently is required to perform random inspections on 30
percent of the RCFE facilities not subject to annual
inspection. Requires CDSS to visit every facility no less
than every 5 years. (HSC 1569.33)
5.Requires CDSS to visit a newly licensed facility within
90 days after a facility accepts its first resident to
evaluate compliance with regulatory requirements. (HSC
1569.24)
6.Permits any person to request an inspection of any RCFE
by transmitting notice of an alleged violation orally or
in writing. Requires CDSS to make a preliminary review
and an onsite inspection within 10 days after receiving
the complaint except where the visit would adversely
affect the licensing investigation or the investigation
of other agencies, including, but not limited to, law
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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enforcement agencies (HSC 1569.35)
7.Through regulation, requires CDSS to conduct a follow-up
visit within 10 working days following the latest date of
correction specified in the notice of deficiency, unless
the licensee has demonstrated that the deficiency was
corrected as required. Provides that no penalty shall be
assessed unless a follow-up visit is conducted. (Title 22
CCR 87759)
This bill:
1.Requires CDSS to inspect all RCFEs at least once per year
and requires that with each annual inspection, the
department shall conduct a comprehensive evaluation of a
facility for compliance with the laws and regulations
governing residential care facilities for the elderly.
2.Permits CDSS to conduct additional unannounced
inspections when a license is on probation, when required
by the terms of a facility compliance plan, when an
accusation is pending, when required for federal
financial participation, or to verify that a person who
has been ordered out of the facility is no longer
present.
3.Requires that CDSS verify that a facility is in
compliance no later than 10 days after the notification
of a deficiency or up to an additional 30 days if the
department determines that the delay will not adversely
impact the health, safety, and security of facility
residents.
4.Deletes provisions requiring annual unannounced
inspections for 20 percent of RCFE facilities, and the
additional 10% trigger. Deletes provision requiring the
department to visit all facilities no less than once
every five years.
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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5.Requires all reports on the results of each inspection,
evaluation or consultation be available to the public on
the department's Internet Web site or its district
offices.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, California's current inspection
requirements for RCFEs fail to adequately ensure the health
and safety of our fast growing elderly population. A series
of recent events has drawn attention to questions about the
adequacy of CDSS oversight and the state's ability to
protect people who reside in RCFEs.
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
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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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. 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.
The author states this bill is part of a broad package of
legislation sponsored by California Advocates for Nursing
Home Reform in response to these and other instances of
inadequate regulatory oversight of RCFEs. According to the
author, this bill would "ensure that inspections for RCFEs
are conducted at least once per year with each inspection
being conducted to ensure that all applicable laws are
being followed."
Additionally the author states that this bill requires the
department to verify that an RCFE has complied with a
notice of deficiency within 10 days of its issuance, and
requires that the results of inspections, evaluations, or
consultation and that all inspection reports, consultation
reports, lists of deficiencies and plans of correction will
be open to public inspection by making them available on
the departments website or its district offices.
Residential Care Facilities for the Elderly
There are approximately 8,000 Assisted Living, Board and
Care, and Continuing Care Retirement homes that are
-------------------------
<2> "Care Home Deaths Show System Failures," San Diego
Union Tribune, Sept.7, 2013
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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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. The
RCFE licensure category includes facilities with as few as
six beds to those with hundreds of residents, whose needs
may vary widely.
Regulatory Oversight
The Community Care Licensing (CCL) division of CDSS
provides the primary public oversight over the quality and
care provided in RCFE facilities. Prior to January 2004,
CCL conducted annual visits of all RCFEs and other licensed
facilities within its jurisdiction. However, as a result of
a series of budget cuts beginning in 2003, CCL began
inspecting facilities based on a random sample protocol.
Under this scenario, those facilities that warrant close
monitoring because of a poor history of compliance are
monitored annually, as well as facilities that are
federally required to be inspected annually. Typically,
this comprises about 10 percent of all facilities. Of the
remaining 90 percent, approximately 30 percent are randomly
selected for inspection each year. The five-year inspection
mandate was intended to catch facilities that are not
randomly selected at least that often for inspection.
A 2008 study published by the California Health Care
Foundation investigating the impact on the truncated
frequency of visits found that "routine visits were
replaced with significant increases in the number of
complaint and problem-driven visits" and that "the
monitoring of quality of care in RCFEs has become a
complaint and problem driven process."<3> CCL has
repeatedly sought to restore the cuts made to licensing,
arguing that the cuts to staff and resulting changed
-------------------------
<3> Inspection Visits in Residential Care Facilities for
the Elderly. C. Flores, A. Bostrom, and R. Newcomer.
California Health Care Foundation, 2008.
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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protocols "have put client health and safety at risk. By
not consistently inspecting facilities, or inspecting a
facility only as the result of a complaint, CCL LPAs have
lost rapport with licensees, which in turn has not been
conducive to helping clients in those facilities."<4>
Key Indicator Tool
In 2010, after several years of budget cuts and furloughs
that further reduced the ability of CCL to make regular
inspection visits to RCFEs, child care centers, foster care
group homes and other facilities, the department proposed
the use of "key indicator tools" (KIT) to shorten
inspection times. Under the KIT, licensing analysts review
an adult residential facility's compliance using a
single-page form listing 32 regulations to be reviewed for
compliance, as opposed to the comprehensive regulatory
packet. This was intended to allow analysts to visit more
facilities and to pinpoint facilities that were not in
compliance and needed further review. When it was proposed,
the department estimated that switching to use of the tool
would move the visit frequency from once every five years
to annually or biennially.<5> However, despite these
changes, the department is still merely meeting the five
year requirement.
The use of weighted, or key, indicators for child care
facilities had been well researched for child care centers.
More than three decades ago, the U.S. Department of Health
and Human Services began investigating the use of weighted
tools in evaluating safety in childcare centers. Ultimately
researchers and the federal HHS developed a 13-item list of
the most common indicators of overall compliance with child
care regulations. By 1994, the U.S. General Accounting
Office estimated that 30 states were using the indicator
-------------------------
<4> Department of Social Services spring finance letter
CCLD-1, 2011-12
<5> ibid
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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tool to streamline licensing enforcement systems. Various
states have adapted the tool for use in evaluating other
service providers, including mental health and long term
care facilities, although the same degree of validation and
research into the measurements has not been done.
CDSS has contracted with the Institute for Social Research
at California State University, Sacramento, to create a KIT
that is validated for use in this state. This requires a
data analysis that identifies well-performing and poorly
performing facilities and statistically correlates
recurring violations with overall poor care. However,
researchers testified at a February 11, 2014 joint hearing
of the Senate and Assembly Human Services Committee that
they have been unable to identify citations common to
poorly performing facilities due to CDSS's extremely
antiquated data collection system. They therefore cannot
readily identify appropriate indicators to use on the
abbreviated tool.
When the department requested the use of the Key Indicator
Tool be codified in Trailer Bill Language in 2010, concerns
about validation of the tool prompted the department and
legislature to postpone adopting it into statute. Citing
the need to find a way to provide more frequent visits,
CDSS proceeded with use of the KIT, without increasing
frequency of visits and contracted with CSUS to provide a
validated tool. This bill would require that CDSS perform a
comprehensive assessment, rather than the KIT, with each
inspection.
Governor's Budget Proposal
As part of the Governor's 2014-2015 proposed budget the
Administration has put forth a proposal that has
substantial overlap with provisions of this bill.
Specifically, the Administration proposes significant
additions to CCL staff with more specialized workloads that
are intended to free up the workload of its Licensing
Program Analysts, who then will presumably be able to
increase the frequency of inspections. The Governor's
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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budget proposal provides no statutory change to the
required visit frequency, though the department indicates
that visit frequency is expected to generally increase to
each facility being visited at least every two years. The
Governor's current budget proposal includes an assumption
that use of the Key Indicator Tool will be ongoing.
Prior/Related Legislation
Current legislation
SB 894 (Corbett) Would expand numerous requirements for
RCFE licensees in the event of a temporary license
suspension or license revocation. Additionally, would
expand the responsibilities of CDSS in overseeing a
temporary suspension or revocation of an RCFE license and
in protecting the health and safety of affected residents.
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
Health. Would require, by 2015, CDSS to create an online
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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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
departmental findings.
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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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 party,
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
alternative manager, as specified. Requires RCFEs to refund
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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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. At the Senate and Assembly Joint Hearing on
February 11, 2014, panelists said that use of a
validated KIT may be useful for evaluating facilities
that have good records of compliance with no
substantiated complaints, deficiencies or serious
incidents and for a limited number of years. Should
the bill move forward, the author may wish to consider
this approach.
2. The California Assisted Living Association and the
Community Residential Care Association of California
have requested a further amendment to this bill which
would provide that information posted to the internet
website reflect circumstances in which a facility has
appealed a deficiency and that, if the department
dismisses a deficiency, that it be removed from the
website. The author has expressed a willingness to
amend the bill to address these concerns should the
bill move forward.
POSITIONS
STAFF ANALYSIS OF SENATE BILL 895 (Corbett)
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Support: California Advocates for Nursing Home Reform
(Sponsor)
California Commission on Aging
California Continuing Care Residents
Association
Consumer Attorneys of California
Consumer Federation of California
County of San Diego
Elder Law and Advocacy
Jewish Family Service of Los Angeles
Johnson Moore Trial Lawyers
Ombudsman & HICAP Services of Northern
California
Ombudsman Services of Contra Costa
Stand Up for Rosie Coalition
195 individuals
Oppose:
California Assisted Living Association
(Unless Amended)
Community Residential Care Association of
California (Unless Amended)
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