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