BILL ANALYSIS Ó SB 1153 Page A Date of Hearing: June 17, 2014 ASSEMBLY COMMITTEE ON HUMAN SERVICES Mark Stone, Chair SB 1153 (Leno) - As Amended: April 10, 2014 SENATE VOTE : 36-0 SUBJECT : Residential Care Facilities for the Elderly (RCFE): Admissions SUMMARY : This measure permits the California Department of Social Services (DSS) to suspend admissions to a RCFE if the facility has violated the law, been cited for repeated violations, or has failed to pay a civil penalty, as specified. Specifically, this bill : 1)Authorizes DSS to order a suspension of new admissions for a facility in either of the following circumstances: a) The RCFE has violated statute or any applicable regulations, 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 corrected immediately; or b) The RCFE has failed to pay a fine assessed by the department after the facility's appeal rights have been exhausted. 2)Provides that any suspension of new admissions for a failure to pay a fine, as specified, shall remain in effect until the facility pays the assessed find. 3)Requires a suspension of new admissions to remain in effect until DSS determines that the facility has corrected the violation. 4)Requires DSS to 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. 5)Authorizes DSS to make unannounced visits after the suspension SB 1153 Page B of new admissions is lifted to ensure that the facility continues to maintain correction of the violation and permits DSS to order another suspension of new admissions or take other appropriate enforcement action if the facility does not maintain correction of the violation. 6)Provides appeal rights for RCFEs who have received an admissions suspension. 7)Requires DSS to adopt regulations that specify the appeal procedure. 8)Provides that a suspension of new admissions ordered may not be stayed pending the facility's appeal or request for review. 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)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)) 3)Requires DSS to assess a civil penalty of no less than $25 and no more than $50 per violation per day for all serious deficiencies, up to a maximum of $150 per day, unless the seriousness or frequency of the violation warrants a higher or immediate civil penalty. (H&S Code 1569.49(b) and Section 87761(a) of Title 22, CCR) 4)Requires DSS to assess an immediate civil penalty of $150 per day per violation for serious violations, as specified. (H&S Code 1569.49(c)) 5)Pursuant to regulations, requires DSS to assess an immediate civil penalty of $100 per violation per day for a maximum of five days if a licensee if found to be employing an individual who has not obtained a criminal background check and clearance, as specified. (Section 87761(b) of Title 22, CCR) 6)Requires DSS to assess tiered immediate civil penalties for SB 1153 Page C multiple repeated violations ranging from an immediate civil penalty of $150 and $50 per an initial repeated violation per day to an immediate civil penalty of $1,000 and $100 per subsequent repeated violation per each day within a 12 month period for each day the violation continues until the deficiency is corrected. (H&S Code 1569.49(d) and (e)) 7)Authorizes DSS to temporarily suspend or revoke any license of a RCFE if it finds that the licensee has violated statue or regulations governing the operation of a RCFE, as specified. (H&S Code 1569.50) 8)Authorizes the Director of DSS to temporarily suspend any license if he or she determines that the action is necessary to protect the residents or clients of a RCFE from abuse, abandonment, or any other substantial threat to health or safety, as specified. (H&S Code 1569.50(e)) FISCAL EFFECT : According to the Senate Appropriations Committee: None 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 SB 1153 Page D 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. 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 --------------------------- <1> Section 87455(b) of Title 22, California Code of Regulations. SB 1153 Page E 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 2002,<2> and continued to grow 16 percent 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 March 5, 2014 there are 7,589 licensed RCFEs in California with a capacity to serve 176,317 residents. 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 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 CCLD.<6> 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 --------------------------- <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. <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 <6> "Care Home Deaths Show System Failures," San Diego Union Tribune, Sept.7, 2013 SB 1153 Page F 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 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."<7> 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 --------------------------- <7> Departmental (DSS) Report on the Closure of the Valley Springs Residential Care Facility for the Elderly. Page 2 SB 1153 Page G 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. Need for the bill : Stating the need for the bill, the author states: It is unacceptable to allow elderly Californians, especially those who are most vulnerable, to become residents of care homes that we already know are unsafe. Under no circumstances should new patients enter a facility that has documented and unaddressed health and safety violations. SB 1153 provides serious consequences for a center's failure to provide a safe living environment for its elderly residents, which should be the top concern and priority. It improves the state's ability to protect vulnerable seniors who live in assisted living facilities. DOUBLE REFERRAL . This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Committee on Aging and Long Term Care. RELATED CURRENT LEGISLATION: SB 895 (Corbett) Would require CDSS to conduct annual unannounced comprehensive inspections for all facilities, requires CDSS to verify compliance following deficiencies within 10 days, and requires results of inspections to be available on the CDSS website. SB 1153 (Leno) Would permit CDSS to order a suspension of new admissions for an RCFE when the facility has violated applicable laws and regulations that present a direct risk to the health and safety or residents, is not providing adequate care and supervision, has been cited for subsequent violations of the same law within 12 months, or has failed to pay existing fines. SB 1153 Page H 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 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 SB 1153 Page I 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. SB 1153 Page J REGISTERED SUPPORT / OPPOSITION : Support AARP Advocacy, Inc. Alliance on Aging of Monterey County American Federation of State County and Municipal Employees (AFSCME) Assisted Living Consumer Alliance California Advocates for Nursing Home Reform (CANHR) California Assisted Living Association (CALA) California Association of Public Authorities for IHSS (CAPA) California Commission on Aging (CCoA) California Continuing Care Residents Association (CALCRA) California Long-Term Care Ombudsman Association (CLTCOA) California Senior Legislature (CSL) Community Residential Care Association of California Congress of California Seniors (CCS) Consumer Attorneys of California Consumer Federation of California Contra Costa Advisor Council on Aging (CCACPA) County of San Diego Elder Abuse Task Force of Santa Clara County Elder Law & Advocacy JM Trial Lawyers (2 partners) LeadingAge California Long Term Care Ombudsman Services of San Luis Obispo County Long Term Care Services of Ventura County, Inc. National Association of Social Workers, California Chapter (NASW-CA) National Consumer Voice for Quality Long-Term Care National Senior Citizens Law Center Ombudsman & HICA) Services of Northern California Ombudsman Services of Contra Costa Stanislaus County Commission on Aging Valentine Law Group, APC Opposition None on file. Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089 SB 1153 Page K