BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 1153
S
AUTHOR: Leno
B
VERSION: February 20, 2014
HEARING DATE: April 8, 2014
1
FISCAL: Yes
1
5
CONSULTANT: Sara Rogers
3
SUBJECT
Residential Care Facilities for the Elderly
SUMMARY
This bill permits the California Department of Social
Services (CDSS) to order a suspension of new admissions, as
defined, to a Residential Care Facility for the Elderly
(RCFE) in which the licensee has violated statute or
regulation in specified circumstances, been cited for a
subsequent violation of the same law within 12 months, or
failed to pay an assessed fine. Provides that an ordered
suspension on new admissions shall remain in effect until a
fine is paid, or a violation has been corrected and
regulatory compliance maintained for a sufficient period of
time, as specified.
ABSTRACT
Existing Law:
1.Establishes the Residential Care Facilities for the
Elderly Act which provides for CDSS to license and
Continued---
STAFF ANALYSIS OF SENATE BILL 1153 (Leno)
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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.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)
4.Permits the department to assess civil penalties of 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)
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 upon issuing eviction notices to residents
or submitting a closure plan due to license forfeiture or
a facility change of use, that an RCFE shall not accept
new residents for admission. (HSC 1569.682)
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)
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This bill:
1.Permits the department to order a suspension of new
admissions, defined as a prohibition on admitting new
residents, for a facility in the following circumstances:
The facility has violated statute or regulation
and the violation indicates that the facility
presents a direct and immediate risk to the health,
safety or personal rights of a resident or residents
of the facility.
The facility has violated statute or regulation
and the violation indicates that the facility is not
providing adequate care and supervision to
residents.
The department has cited the facility for a
subsequent violation of the same law or applicable
regulation within 12 months of the first violation.
The facility has failed to pay a fine assessed
by the department.
1.Provides that the suspension on new admissions due to a
failure to pay a fine shall remain in effect until the
facility pays the fine.
2.Provides that suspension of new admissions due to
violations of statute or regulation shall remain in
effect until the department has corrected the violation
and regulatory compliance has been maintained for a
period of time sufficient to permit a conclusion that the
facility will maintain compliance indefinitely.
FISCAL IMPACT
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This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, this bill will give CDSS powerful
new enforcement tools to ensure that RCFEs comply with
critical health and safety regulations and pay civil
penalties and fines that have been assessed against them.
The author states that foremost among the many reasons for
the RCFE care crisis is a weak enforcement system that
results in virtually no accountability for facilities that
break the rules. The author states that the state's
enforcement tools are limited to levying a maximum fine of
$150 or revoking a facility's license. Additionally, the
author states that these fines are frequently not
collected, further diffusing their effectiveness.
The author states that other states use a ban on admissions
as a licensing tool to better ensure compliance with
regulatory standard including Arizona, Mississippi,
Nebraska, New Jersey, Ohio, North Carolina, Pennsylvania,
Rhode Island, Washington, West Virginia, Wisconsin and
Wyoming. Additionally, the author notes that California and
federal statute pertaining to nursing homes include this
enforcement tool.
Recent events
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 receive services within
CDSS-licensed facilities.
In July 2013, ProPublica and Frontline reporters wrote
and produced a series of stories on Emeritus, the
STAFF ANALYSIS OF SENATE BILL 1153 (Leno)
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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
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
-------------------------
<1>
http://www.propublica.org/article/life-and-death-in-assisted
-living-single
<2> "Care Home Deaths Show System Failures," San Diego
Union Tribune, Sept.7, 2013
STAFF ANALYSIS OF SENATE BILL 1153 (Leno)
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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.
Included in the RCFE licensure category are 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 may entertain guests, leave the facility when
they choose 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 oversight hearing about
the state's ability to safeguard residents in Assisted
Living Facilities. In the hearing, testimony from advocates
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 in testimony 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
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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 and in not directing
field staff to remain on site until the transfer of the
residents was completed. At the hearing, the Department
acknowledged that despite the severity of the violations of
the licensee in abandoning the facility and gravely risking
resident health and safety, the maximum fine that can be
imposed is a $150 fine/per violation per day.
Governor's Budget Proposal
As part of the Governor's 2014-2015 proposed budget, the
Administration has put forth trailer bill language that has
overlap with provisions of this bill. The Administration
proposes significant changes to the civil penalty
structure, deleting the existing language establishing a
$25-to-$50 penalty for lower level violations and up to
$150 for serious offenses. The Governor's proposal creates
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. The
Governor's proposal also would establish for late fees that
would represent an additional 10 percent of any unpaid
civil penalty assessed by the CDSS. Any person who fails to
pay late fees on or before the due date would be prohibited
from any new admissions or any expansions of capacity for
the licensed facility.
Whereas this bill provides for a regulatory tool to be used
in addition to penalties for unpaid fines, the Governor's
proposal does not.
Comments :
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This bill's description of the circumstances under which
the department may order a suspension of new admissions is
overly broad to be clearly and consistently enforced by the
department.
1. Staff recommends the following amendments to
clarify the circumstances in which the department may
order a suspension on new admissions and to codify
existing regulations that define the steps that the
department must take to follow up on deficiencies that
result in a license suspension.
2. Staff recommends the bill be amended to clarify
that an admission suspension due to failure to pay
civil penalties should occur only after the appeal
rights of the facility have been exhausted.
3. Staff recommends amending the bill to permit a
licensee to make an appeal to the department regarding
a suspension on new admissions.
1569.545. (a) For purposes of this section, "suspension of
new admissions" means a prohibition on admitting new
residents to receive care or services in the facility.
(b) The department may order a suspension of new admissions
for a facility in any of the following circumstances:
(1) The department finds that the facility has violated
this chapter or any applicable regulations and the
violation presents a direct and immediate risk to the
health, safety, or personal rights of a resident or
residents of the facility and the violation is not
immediately corrected .
(2) The department finds that the facility has violated
this chapter or any applicable regulations and the
violation indicates that the facility is not providing
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adequate care and supervision to its residents.
(3) The department has cited the facility for a subsequent
violation of the same law or applicable regulation within
12 months of the first violation.
(4) (2) The facility has failed to pay a fine assessed by
the department after appeal rights have been exhausted .
(c) A suspension of new admissions for a failure to pay a
fine, as described in paragraph (4) (2) of subdivision (b),
shall remain in effect until the facility pays the fine
assessed by the department.
(d) For all other a suspension of new admissions described
in paragraph (1) of subdivision (b), the suspension of new
admissions shall remain in effect until the department
determines that the facility has corrected the violation .
and, after the correction has been made, the facility has
maintained regulatory compliance for a period of time
sufficient to permit a conclusion that the facility will
maintain compliance indefinitely . The department shall
conduct a follow-up visit to determine compliance 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 in the notice. The department may make unannounced
visits after the suspension of new admissions is lifted to
ensure the facility maintains the correction of the
violation. The department may institute another suspension
of new admissions or take other appropriate enforcement
action if the facility has not maintained the correction of
the violation.
(e) A licensee may appeal the ban on admissions to the
director. The department shall adopt regulations setting
forth the appeal procedure.
(f) A suspension of new admissions shall not be stayed
pending the facility's appeal or request for review.
Prior/Related Legislation
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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 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 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 would 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 requires the facility to interact with the council in
specified ways.
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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 departments 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, increases training
requirements for RCFE staff that care for residents, and
increases training requirements for staff providing
dementia care.
AB 1554 (Skinner) Would make various changes to existing
RCFE complaint procedures including require 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
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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 prescribed.
Additionally would require complaints to be inspected
within 3 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
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.
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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.
POSITIONS
Support: California Advocates for Nursing Home Reform
(sponsor)
Advocacy, Inc.
AFSCME
California Continuing Care Residents
Association
California Commission on Aging
California Long-Term Care Ombudsman
Association
California Retired Teachers Association
California Senior Legislature
Congress of California Seniors
Consumer Attorneys of California
Consumer Federation of California
County of San Diego
Elder abuse Task Force of Santa Clara County
Elder Law & Advocacy
Jewish Family Services of Los Angeles
Johnson Moore Trial Lawyers
National Senior Citizens Law Center
Ombudsman & HICAP Services of Northern
California
Ombudsman Services of Contra
Costa
Valentine Law Group, APC
201 individuals
Oppose: None received.
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