BILL ANALYSIS Ó
SB 895
Page A
Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
SB 895 (Corbett) - As Amended: May 27, 2014
SENATE VOTE : 36-0
SUBJECT : Residential Care Facilities for the Elderly (RCFE):
unannounced visits
SUMMARY : Phases in the requirement of the California Department
of Social Services (DSS) to conduct annual unannounced
inspections of RCFEs over a three year period. Specifically,
this bill :
1)Requires DSS to conduct an unannounced inspection of each RCFE
once every three years by July 1, 2016.
2)Requires DSS to conduct an unannounced inspection of each RCFE
once every two years by July 1, 2017.
3)Requires DSS to conduct an unannounced inspection of each RCFE
annually by July 1, 2018.
4)Permits DSS to conduct additional unannounced inspection
visits of a RCFE for the following reasons:
a) When the license is on probation;
b) When the terms of agreement in a facility compliance
plan requires additional inspections;
c) When an accusation against a licensee is pending;
d) When a facility requires additional inspections as a
condition of receiving federal financial participation; and
e) In order to verify that a disallowed individual is no
longer present at the facility.
5)Eliminates the requirement that DSS conduct annual unannounced
visits for a random sample of facilities that would not
otherwise receive an annual visit for one of the reasons
listed in #4 above.
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6)Requires DSS to verify that a RCFE is in compliance no later
than ten days after the facility has been notified of
deficiencies as a result of an inspection, and permits DSS to
extend this time period for up to an additional 30 days, as
specified.
7)Requires DSS to make all inspection and consultation reports,
lists of deficiencies, and plans of correction available to
the public on its Internet Web site and in its district
offices.
EXISTING LAW
1)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in that facility
to be licensed by DSS. (H&S Code 1569 and 1569.1)
2)Requires DSS to conduct an unannounced inspection of a RCFE no
less than once every five years. (H&S Code 1569.33(d))
3)Requires DSS to conduct annual inspections of a RCFE for
specified reasons. (H&S Code 1569.33(b).
4)Requires DSS to perform random inspections each year on no
fewer than 20% of the RCFEs not otherwise subject to annual
inspections. Provides that this percentage shall increase by
10% if the total citations issued by DSS exceeds the previous
year by 10%. (H&S Code 1569.33(c))
5)Permits any person to request an inspection of a RCFE through
the filing of a complaint, which may be made either orally or
in writing. (H&S Code 1569.35(a))
6)Prohibits the substance of the complaint from being provided
to the licensee sooner than at the time of the inspection,
unless otherwise permitted by the complainant, as specified.
(H&S Code 1569.25(b))
7)Requires DSS to conduct a preliminary review of every
complaint and conduct an onsite inspection unless it is
determined that the complaint is willfully intended to harass
a licensee or is without any reasonable basis, as specified.
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(H&S Code 1569.35(c))
8)Requires DSS to promptly inform the complainant of its
proposed course of action in response to the inspection. (H&S
Code 1569.35(c))
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill will result in initial costs in the low
millions of dollars, increasing to about $5 million (General
Fund) per year once the inspection frequency has increased to at
least annually for all RCFEs.
COMMENTS :
Background : It is the intent of the Legislature, in
establishing the RCFE Act, to help provide a system of
residential care to allow older persons be able to voluntarily
live independently in a homelike environment as opposed to being
forced to live in an institutionalized facility, such as a
nursing home, or having to move between medical and nonmedical
environments. RCFEs, commonly referred to as assisted living
facilities, are licensed retirement residential homes and board
and care homes that accommodate and provide services to meet the
varying, and at times, fluctuating health care needs of
individuals who are 60 years of age and over, and persons under
the age of 60 with compatible needs. Licensed by DSS Community
Care Licensing Division (CCLD), they can range in size from
residential homes with six or less beds to more formal
residential facilities with 100 beds or more.
There is also no uniform common care model; rather the types of
assistive services can vary widely, which can include differing
levels of personal care and protective supervision, based upon
the needs of the resident.
If a resident needs medical care in his or her residence in
order to maintain an independent lifestyle, incidental medical
services are permitted to be provided by a licensed or otherwise
approved external provider, such as a home healthcare agency
(HHA), which is licensed by the California Department of Public
Health. Additionally, some RCFEs, upon approval of DSS and
after having met specified orientation and training
requirements, may provide assistive memory care services to
individuals with dementia or Alzheimer's disease.
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Existing regulations also lay out the circumstances under which
an individual may be allowed to reside in RCFEs. Specifically,
they include persons:<1>
1)Capable of administering their own medications;
2)Receiving medical care and treatment outside the facility or
who are receiving needed medical care from a visiting nurse;
3)Who because of forgetfulness or physical limitations need only
be reminded or to be assisted to take medication usually
prescribed for self-administration;
4)With problems including, but not limited to, forgetfulness,
wandering, confusion, irritability, and inability to manage
money;
5)With mild temporary emotional disturbance resulting from
personal loss or change in living arrangement;
6)Who are temporarily bedridden, as specified; and
7)Who are under 60 years of age whose needs are compatible with
other residents in care, if they require the same amount of
care and supervision as the other residents in the facility.
Regulations also provide specific prohibitions on individuals
who are allowed to reside in a RCFE, which includes whether the
resident has active communicable tuberculosis, requires 24-hour
skilled nursing or intermediate care, has an ongoing behavioral
or mental disorder, or has dementia, unless he or she is
otherwise permitted to be cared for in a RCFE by CCLD.
Growing demand : Over the past thirty years, the demand for
RCFEs has grown substantially. Although RCFEs have been
generally available, they experienced explosive growth in the
1990s, more than doubling the number of beds between 1990 and
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<1> Section 87455(b) of Title 22, California Code of
Regulations.
<2> Flores and Newcomer, "Monitoring Quality of Care in
Residential Care for the Elderly: The Information Challenge".
Journal of Aging and Social Policy, 21:225-242, 2009.
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2002,<2> and continued to grow 16% between 2001 and 2010.<3>
Nationwide, states reported 1.2 million beds in licensed RCFEs
in 2010.<4> That same year, the national Centers for Disease
Control reported that 40% of RCFE residents needed help with
three or more activities of daily living and three-fourths of
residents had at least two of the 10 most common chronic
conditions.<5>
According to DSS, as of June 2, 2014 there are 7,587 licensed
RCFEs in California with a capacity to serve 176,891 residents.
Capacity of CCLD and unannounced licensing inspection visits :
Prior to 2003, the required frequency of unannounced licensing
visits was annually for most facility types (and tri-annually
for family child care). However, due to the state's ongoing
budget deficit and declining revenues, it was deemed necessary
to find ways to reduce costs. As a result, the operational
budget for DSS' Community Care Licensing Division (CCLD) is now
required to do unannounced visits annually only when a facility
has a history of compliance problems, which has resulted in
annual visits for approximately 10% of facilities. For all
other facilities not subject to annual inspections, CCLD is
currently required to conduct comprehensive compliance
inspections of a 30% random sample of facilities each year, with
no facility being visited less than once every 5 years. There
are additional inspection requirements for new facilities or
when changes occur to the license, which helps to ensure that a
new licensee starts off correctly. However, in most cases five
years could pass before a residential facility is inspected by
CCLD.
Five years has created a tenuous situation for California's
infrastructure of community care facilities. In a Spring
Finance Letter from February, 2010, DSS stated that "[a]s the
result of several consecutive years of unallocated reductions
and position sweeps, CCLD is no longer able to sustain the
required inspection frequency." The letter went on to note that
"CCLD's experience with the random sample inspection protocol
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<3> SCAN Foundation. "Long Term Care Fundamentals: Residential
Care Facilities for the Elderly." March 2011.
http://thescanfoundation.org/sites/thescanfoundation.org/files/LT
C_Fundamental_7_0.pdf
<4> "Assisted Living and Residential Care in the States in
2010," Mollica, Robert, AARP Public Policy Institute
<5> "Residents Living in Residential Care Facilities: United
States, 2010, Caffrey, Christine, et al., US Centers for
Disease Control, April 2012
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and fluctuations in resources have put client health and safety
at risk."
According to DSS, as of June 2, 2014 there are 7,587 licensed
RCFEs in California with a capacity to serve 176,891 residents.
It is clear that the ongoing budget deficit of the last ten
years has had a significant impact on DSS' ability to monitor
the health and safety of residents and clients of community care
facilities throughout the state. An increase in oversight
responsibility combined with staff reductions and unfilled staff
positions, and on-again off-again work furloughs and hiring
freezes, have severely reduced its administrative capacity.
Although this does not clear the state of its responsibility to
ensure RCFEs' compliance with state law and resident health and
safety requirements, it significantly challenges the state's
ability to ensure that adults and seniors in need of care and
supervision are not put at risk.
Importance of unannounced licensing visits : Unannounced
licensing visits are of fundamental importance in protecting the
health and safety of children and adults receiving care through
facility- or home-based care. They ensure that basic health and
safety requirements are being met and also provide opportunities
for increased technical assistance to programs, enhanced
information sharing, the development of best practices, and
ultimately lead to an improvement in the quality of life for
clients under care.
Numerous studies have also been conducted, which document a
connection between increased licensing visits with a decrease in
accidents requiring medical attention<6> and greater provider
compliance with health and safety standards.<7>
Additionally, regular and frequent unannounced inspection visits
allow for state and local agencies to provide relevant and
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<6> Fiene, R. (2002). 13 indicators of quality child care:
Research update. U.S. Department of Health and Human Services,
Office of Assistant Secretary for Planning and Evaluation, at
http://aspe.hhs.gov/hsp/ccquality-ind02/
<7> Koch Consulting. (2005). Report on effective legal
proceedings to ensure provider compliance: Prepared for the
State of Washington Department of Social and Health Services.
http://www.naralicensing.drivehq.com/publications/archives/nara/E
ffective_Legal_Proceedings.pdf
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up-to-date information to the public on the quality of care
being provided to consumers. According to Child Care Aware of
America (CCAA), formerly the National Association of Child Care
Resource and Referral Agencies (NACCRRA), a study conducted by
the National Bureau of Economic Research in Florida found that
frequent inspections, which were made available to the public,
"increased the quality of the inspections and the productivity
of the inspectors" and resulted in increased inspections that
were carried out more consistently. Further, in a 2010-11
Spring Finance Letter, DSS stated that "regular and frequent
inspections of facilities improve client health and safety as
evidenced by reductions in the percentage of the more serious
imminent risk to total citations." More specifically, DSS went
on to state, "more annual inspections equates to better quality
of care" and "more annual inspections equates to a smaller risk
to the health and safety of clients."
Recent events : A series of recent events has drawn attention to
questions about the adequacy of RCFEs and the CCLD's ability to
comply with existing oversight and enforcement requirements to
help ensure for the health and safety of individuals who receive
services within CCLD-licensed facilities. Over the last several
years, numerous media outlets have documented chronic
understaffing, 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 unpunished by CCLD.<8>
The coverage reached a climax with the abandonment of the Valley
Springs Manor, a RCFE with 29 residents in the city of Castro
Valley. The facility, licensed by CCLD in March 2008, had been
frequently visited by CCLD due to numerous violations relating
to the inadequacy of care during its five year existence. In
May 2013, CCLD, taking action in response to its poor care
history, revoked Valley Springs Manor's license. The revocation
was immediately appealed by the licensee, which delayed action
by CCLD and allowed the facility to remain operational. During
this time, CCLD continued to receive and investigate additional
complaints, which culminated with the licensee physically
abandoning the facility sometime in September or October 2013,
leaving its frail seniors under the care of the facility's
---------------------------
<8> "Care Home Deaths Show System Failures," San Diego Union
Tribune, Sept.7, 2013
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administrator and support staff.
Soon after, however, due to lack of compensation and leadership,
the administrator and a majority of the support staff quit,
leaving only the cook and janitor, still unpaid, to provide care
for residents. In response to its inability to reach the
licensee or any administrative staff, CCLD initiated its
temporary suspension order (TSO) process on October 17, 2013
whereby the license would be immediately revoked. The TSO was
delivered seven days later for enactment on Thursday, October
24, 2013. After the TSO was delivered, and the licensing
analyst's inspection was concluded, the analyst delivered a
$3,800 fine to the cook for operating an unlicensed facility,
even though the fine should have been delivered either to the
administrator or licensee, and left. No less than an hour after
the analyst left, feeling overwhelmed and unsure about what to
do, the cook and janitor called 911. Immediately thereafter,
emergency services arrived and worked to remove all of the
infirm and at-risk seniors and take them to local hospital or
known relatives.
The following day, upon initial review, according to DSS, the
CCLD "made a judgment call that the facility could continue to
function for several more days while the last residents were
relocated, but that judgment was in error." DSS acknowledges,
in retrospect, that CCLD "staff should have been engaged on
Friday to address the developing crisis and make appropriate
arrangements to ensure the safety of remaining residents."<9>
Exacerbating the circumstances of the Castro Valley situation
was the discovery that its licensee also owned and operated two
other RCFEs; a smaller facility in Oakland and another larger
facility in Modesto. Concerned that similar circumstances would
occur at these two facilities, CCLD acted quickly to help
transfer the license of the Oakland facility to another
operator, however, it faced a much more difficult task of
stabilizing and transferring the Modesto facility; Sundial Palms
to another operator. Over the course of three months, CCLD and
DSS executive leadership worked to put in place an intermediate
facility administrator at Sundial Palms, which had nearly twice
the number of residents than Valley Springs Manor in Castro
Valley, and worked to identify and transfer the license to
another operator.
---------------------------
<9> Departmental (DSS) Report on the Closure of the Valley
Springs Residential Care Facility for the Elderly. Page 2
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Need for the bill : Stating the need for the bill, the author
writes:
It is clear that what happened at Valley Springs Manor in
Castro Valley last year was both tragic and disgraceful.
[This bill] will help detect and correct problems at
assisted living facilities well before a facility closure
becomes necessary. This bill is a critical component of an
overall legislative effort this year to bolster protections
for assisted living residents before another horrible
situation occurs again.
Staff comments : In addition to increasing the frequency by
which a RCFE is inspected, this bill also seeks to require DSS
to verify whether a facility has rectified any noticed areas of
noncompliance within a ten-day period. It further allows this
period to be extended up to an additional 30 days if the delay
will not negatively impact the health, safety and security of
the residents. This is a laudable goal; to ensure corrective
actions are made in a timely manner in response to identified
areas of noncompliance. However, the timeframe in which the
corrections would have to be made may be unrealistic depending
on the nature of the identified issue of noncompliance. For
example, if a DSS licensing analyst finds that a RCFE has an
inoperable smoke detector, it can be easily replaced within a
ten day period. Conversely, however, a facility could also be
found to have a more substantial issue; one that could require
work by a licensed contractor that could require more than 30
days to correct.
Accommodations for such situations are already provided for
under regulation, specifically, under Section 87756 of Title 22
of the California Code of Regulations, which states that if a
facility cannot rectify a deficiency within 30 calendar days as
determined by a licensing analyst, then the date by which the
repair is required to be completed is noted the facility's
evaluation report.
RECOMMENDED AMENDMENTS
Amendment #1
In order to allow a reasonable period of time for RCFEs to
correct a deficiency that requires more than 30 days to correct,
the bill should be amended to align current statute with
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regulations governing how and when a deficiency may be corrected
beyond 30 days.
Specifically, committee staff recommends the following
amendment:
On page three, lines 20 through 27, amend proposed subdivision
(d) of Section 1569.33 of the Health and Safety Code to read:
(d) The department shall notify the residential care
facility for the elderly in writing of all deficiencies in
its compliance with the provisions of this chapter and the
rules and regulations adopted pursuant to this chapter, and
shall verify that the facility is in compliance no later
than 10 days after the notification.
(1) The 10-day compliance period may be extended 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.
(2) If the department determines that the deficiency
cannot be corrected within 30 days following
notification, and the delayed correction will not
adversely impact the health, safety, and security of
facility residents, the notice shall specify
corrective actions that must be taken within 30
calendar days and the date by which the deficiency
shall be corrected.
Amendment #2
As proposed, this measure would require DSS to post all RCFE
inspection reports, consultation reports, lists of deficiencies,
and plans of correction on its website. However, current law
lacks provisions that provide for the protection of the privacy
and confidentiality of the complainant's information, which is
included in the information this measure seeks to have posted to
DSS website. This requirement should include a requirement that
DSS redact all personally identifiable information from
information that is made publicly available.
Specifically, committee staff recommends the following
amendment:
On page three, line 33 after "offices." add the following
language to read "The department shall redact all personally
identifiable information of residents prior to making
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information pursuant to this subdivision publicly available.
2013-14 RELATED 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 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
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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.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
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Alliance on Aging of Monterey County
Assisted Living Consumer Alliance
California Advocates for Nursing Home Reform (CANHR)
California Alliance for Retired Americans (CARA)
California Commission on Aging
California Communities United Institute
California Continuing Care Residents Association (CALCRA)
California Long-Term Care Ombudsman Association (CLTCOA)
Consumer Attorneys of California
Consumer Federation of California
County of San Diego
Disability Rights California
Elder Law and Advocacy
Jewish Family Service of Los Angeles (JFS)
Long Term Care Ombudsman Services of San Luis Obispo County
National Association of Social Workers, CA Chapter (NASW-CA)
National Consumer Voice
National Senior Citizens Law Center
Ombudsman Services of Contra Costa
Stanislaus County Commission on Aging
Valentine Law Group
110 Individuals
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089