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  

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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  











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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






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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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