BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 601
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|Author: |Eggman |
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|Version: |April 23, 2015 |Hearing | June 23, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sara Rogers |
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Subject: Residential care facilities for the elderly:
licensing and regulation
SUMMARY
Requires an applicant for licensure of a Residential Care
Facility for the Elderly (RCFE) to disclose specified additional
information related to other facilities owned or controlled by
the licensee as well as information related to other persons,
organizations or entities having a 10 percent beneficial
ownership interest in the licensed facility or listed as the
owner of record in the real estate of the facility. Additionally
requires the California Department of Social Services (CDSS) to
cross-check all disclosed applicant information with the State
Department of Public Health (CDPH), as specified and, to the
extent the department's computer system can accommodate the
information, to post specified information on its internet
website. Requires licensees to report any changes to the
disclosed information within 30 calendar days.
ABSTRACT
Existing law:
1)Establishes the Residential Care Facilities for the Elderly
Act, which provides for CDSS to license and regulate RCFEs as
a separate category within the Department's existing
residential care licensing structure. (HSC 1569 et seq.)
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2)Requires applicants for an RCFE license to submit a criminal
record clearance, employment history, character references,
evidence of certification, and disclosure of previous service
in other RCFEs, outpatient health clinics, health facilities
(including hospitals, skilled nursing facilities or
intermediate care facilities), or a community care facility,
among other requirements. (HSC 1569.15)
3)If the licensee applicant is a firm, association,
organization, partnership, business trust, corporation, or
company, requires like evidence to be submitted regarding the
members or shareholders and for the person in charge of the
facility. (HSC 1569.15)
This bill:
1)Specifies that an applicant for an RCFE license who is a firm,
association, organization, partnership, business trust,
corporation, or company shall disclose required evidence that
the applicant is of reputable and responsible character only
for those members or shareholders holding a beneficial
ownership interest of 10 percent or more of the facility.
2)Requires applicants for an RCFE license to disclose the
following additional information:
a. Whether it is a for-profit or not-for-profit
provider.
b. The names and license numbers of other community
care or health facilities owned, managed or operated by
the same applicant and by any parent organization of the
applicant.
c. The names and business addresses of any person,
organization, or entity listed as the owner of record in
the real estate of the facilities, as specified.
d. The email address of the applicant.
e. The applicant's or the applicant's chief executive
officer, general partner, or like party's prior or
present service in California or any other state as an
administrator, general partner, corporate officer, or
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director of, or as a person who has held or holds a
beneficial ownership of 10 percent or more in, any RCFE,
outpatient health clinic, health facility (including
hospitals, skilled nursing facility or intermediate face
facility), or a community care facility within the past
10 years.
f. Any revocation, suspension, probation, or other
similar disciplinary action taken in California, or any
other state, against any of the identified facilities or
persons within in last 10 years.
g. Evidence of the right of possession of the facility
at the time the license is granted.
3)Requires CDSS to cross-check all applicant information
disclosed pertaining to prior service in another RCFE or
health related facility with the CDPH.
4)Provides that the required information shall be provided upon
initial application for licensure, that changes be updated
within 30 calendar days, that failure to cooperate in the
completion of the application, as defined, may result in the
denial of the application, and requires the department to deny
or revoke an application if the applicant knowingly made a
false statement of fact.
5)Provides that, to the extent that the department's computer
system can accommodate the additional information, the
department shall post the following information on its
internet website:
a. The current name, business address, and telephone
number of the licensee
b. The name of the owner of the RCFE, if not the
licensee.
c. The name of any parent corporation.
d. The licensed capacity of the facility, including the
capacity for nonambulatory residents.
e. Whether the facility is permitted to accept and
retain residents receiving hospice care services.
f. Whether the facility has a special care unit or
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program for people with Alzheimer's disease and other
dementia's and has a delayed egress or secured perimeter
system in place.
6)Permits CDSS to deny an application for licensure if an
applicant has a history of noncompliance with any of the
following:
a. Requirements imposed on a licensee or operator of an
RCFE, outpatient health clinic, health facility
(including hospitals, skilled nursing facility or
intermediate face facility), or a community care
facility, or similarly licensed facility in another
state.
b. Applicable state and federal laws and regulations.
c. Noncompliance as a chief executive officer, general
partner, or like party with the laws and regulations
governing RCFE licensure.
7)Provides that noncompliance by the chief executive officer,
general partner or like party with the requirements governing
RCFE licensure mat be the basis for license decisions against
the owner.
FISCAL IMPACT
According to an Assembly Appropriations Committee analysis there
are unknown, potentially moderate costs to CDSS to "cross-check"
information against CDPH information and minor costs to CDSS for
automation and staff training. Additionally, the analysis cites
cost pressure for CDSS to obtain available technology that would
enable the posting of identifying and descriptive information
for licensed providers on its website.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, there has been a marked increase in
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corporate ownership of residential care facilities for the
elderly (RCFE). Facilities may be operated by one business but
owned by another. The author states that complex ownership
structures make it difficult for consumers to determine who in
fact is the owner and/or licensee and can lead a consumer to
unknowingly transfer their loved one from one troubled facility
to another without knowing the facilities are part of the same
chain.
The author further states that current law does not require new
RCFE license applicants to disclose their operational history
under other facility licenses. Therefore, CDSS is often unaware
of other facilities that may be owned and operated by the same
licensee. The author cites the example last year of Valley
Springs Manor in Castro Valley, where 19 RCFE residents were
abandoned by the owner and staff to the care of a part-time cook
and janitor. The owner had a history of hundreds of thousands of
dollars in fines owed to the federal and state licensing
agencies for deficiencies and citations when she owned four
California nursing homes. The author states that had CDSS known
of her prior regulatory history, her RCFE licenses would not
have been granted.
Additionally, the author states that consumers of RCFEs are
currently only able to obtain very basic information online
about an RCFE, including the facility name, address, a contact
person, the facility's license status, and a district office
number that a consumer may call if they have a question about a
particular facility. However, the author states that a consumer
does not have access to more substantive public information that
may help them make a more informed choice when selecting a
facility. According to the author, the additional information
required to be disclosed to the CDSS and the public will
increase accountability and transparency, and allow the public
to make more informed decisions when choosing a RCFE facility
for a loved one.
Residential Care Facilities for the Elderly
Within California's continuum of long term care, situated
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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 residences are designed
to provide homelike housing options to seniors and other adults
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 the need for oxygen tanks,
catheters or colostomies.
The RCFE licensure category includes 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 residents.
Residents may live in their own apartment, or may share a
bedroom. Generally, residents are free to leave the facility if
they choose, and may entertain guests, 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 have a secure perimeter.
Recent Media
In July 2013, ProPublica and Frontline reporters wrote and
produced a series of stories on Emeritus, the 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
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<1>
http://www.propublica.org/article/life-and-death-in-assisted-livi
ng-single
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RCFEs under questionable circumstances that went ignored or
unpunished by CDSS.<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. 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.
More recently, a Sacramento Bee investigative series beginning
last November regarding skilled nursing facilities regulated by
CDPH, found that "regulators were not routinely monitoring
overall performance or looking for patterns of care in
California's largest nursing home chains." The article
investigates a particular California-based nursing home chain
with a long record of serious regulatory violations that has
steadily acquired skilled nursing facilities across the state -
now owning 1 in every 14 nursing homes in California (81
facilities). According to the Sacramento Bee report, the owner
"created a multilayered corporate network of limited liability
companies that is so complex that even state regulators and
elder-care advocates have had trouble connecting him to his
facilities."<3>
Financial Structure
More than 90 percent of RCFE licenses in California are held by
for-profit providers, and the majority of those facilities have
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<2> "Care Home Deaths Show System Failures," San Diego Union
Tribune, Sept.7, 2013
<3>
http://www.sacbee.com/news/investigations/nursing-homes/article24
015475.html
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six or fewer beds.<4> Most residents pay privately or with
long-term care insurance since there is very little public
funding available through Medi-Cal, Supplemental Security Income
(SSI/SSP) or Medicare, and fees can range from $2,500 to more
than $8,000 per month. Increasingly, complex corporate mergers
and acquisitions have meant that many RCFEs are owned by
national corporate chains that control more than one facility.
Administrators employed by these chains may also oversee
multiple facilities. This development has led to regulatory
challenges since Community Care Licensing citations and other
licensing reports are facility-specific, and management problems
common to multiple RCFEs with the same owner may easily go
unnoticed.
Licensee and administrator requirements
California statute differentiates between facility licensees,
who often are the business owners and may be property owners,
and administrators, who are charged with overseeing the quality
of the day-to-day operations and are generally required to be
present at the facility during normal working hours.
State law requires prospective RCFE licensees to provide
evidence of "reputable and responsible character"<5> including a
criminal background clearance, employment history and character
references. Licensees must document sufficient financial
resources to maintain the standard of care required by law, must
disclose any prior role as an administrator or owner of any
community care facility and any prior disciplinary action. In
order to be certified, each licensee must complete at least 40
hours of classroom instruction covering relevant laws and
regulations, management of staff, physical and psychosocial
needs of elderly residents, and other issues.
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<4> "Residential Care in California: Unsafe, Unregulated &
Unaccountable," California Advocates for Nursing Home Reform,
2013
<5> HSC 1569.15
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Administrators are required to hold a department-approved
certificate, similar to the licensee certificate, which must be
renewed every two years. Other requirements for administrators
are that they must be at least 21 years of age, have a
high-school diploma and undergo a criminal record clearance.
Those working in larger facilities are required to meet
additional educational or experience requirements. Facility
administrators may lose certification if they are found to have
"engaged in conduct which is inimical to the health, morals,
welfare, or safety of either an individual in or receiving
services from the facility or the people of the State of
California."<6>
Related legislation:
AB 927 (McCarty, 2015) would expand disclosure of ownership and
governance information for skilled nursing facilities and
intermediate care facilities regulated by CDPH. This bill is a
two year bill and currently in the Assembly Health Committee.
SB 855 (Committee on Budget and Fiscal Review, Chapter 29,
Statutes of 2014) adopted numerous provisions related to the
care and treatment of residents of community care facilities and
RCFEs in the event of a suspension or revocation of license.
SB 895 (Corbett, Chapter 704, Statutes of 2014) required RCFEs
to correct licensing deficiencies within 10 days of
notification, except as specified. This bill additionally
requires CDSS to post information on its internet website
regarding how to obtain an inspection report, and requires CDSS
to make inspection reports available on its internet website by
January 1, 2020.
AB 1571 (Eggman, 2014) would have expanded the scope of
information that prospective RCFE licensees must provide.
Additionally, this bill would have required CDSS to cross-check
all applicant information with the California Department of
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<6> Title 22 CCR 87408
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Public Health (CDPH) and to post specified information about
RCFE facilities on its internet website within specified
timeframes. The bill died in the Senate Appropriations
Committee.
COMMENTS
The author proposes substantial amendments based on extended
conversations with stakeholders and the department. The
California Assisted Living Association writes that it supports
the goals of ensuring that CDSS knows who they are licensing and
the applicant's track record in California and other states,
however has expressed concerns with the current version of the
bill and earlier versions of proposed amendments and suggested
amendments, some of which are reflected in the authors proposed
amendments.
As proposed, the amendments would do all of the following:
1)Exempts from disclosure requirements, the names of investors
in a publicly traded company or investment fund, if those
investors are silent investors who do not have influence or
control over the investments or operations of the company or
fund.
2)Includes licensing agency names, in disclosure requirements
pertaining to other community care or health facilities owned,
managed or operated by the same applicant and parent
organization.
3)Requires an applicant that is part of a chain to provide a
diagram indicating the relationship between the applicant and
entities and persons that are part of the chain, as specified.
4)Requires the applicant to provide the following additional
information:
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a. Names and addresses of any persons, organizations or
entities that own real property on which the licensed
facilities are located.
b. Name and address of any management company serving
the facility, of persons or entities that control the
applicant, and entities and persons that are part of a
chain.
c. Identify the person with operational control of the
applicant, as specified, and state that person's prior or
present service in any RCFE or other licensed facility,
as specified.
d. Disclose all administrative disciplinary actions
taken against a facility that is identified pursuant to
(c) above, within the past 10 years.
e. Disclose any bankruptcy petitions involving
operation or closure of a care facility, as specified.
5)Permits a licensee of multiple facilities to provide a single
notice of changes to the department on behalf of all licensed
facilities, and narrows required updates regarding
out-of-state facilities, as specified.
6)Requires an applicant of licensee to maintain an email address
of record with the department, as specified.
7)Makes permissive the department's ability to deny an
application if the applicant knowingly withheld material
information or made a false statement of material fact.
8)Permits the department to assess a civil penalty of $1,000 for
a material violation of the above.
9)Provides that in the event there are co-applicants, and the
department denies a license due to concerns pertaining solely
to one of the co-applicants, the other applicants may withdraw
their application without being deemed to have a license
application denied.
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10)Defines "beneficial ownership" to mean an ownership interest
through the possession of stock, equity in capital or any
interest in the profits of the applicant or licensee or
through the possession of such an interest in other entities
that directly or indirectly hold an interest in the applicant
or licensee.
11)Defines "chain" to mean a group of two or more licensees that
are controlled, as defined, by the same person or entities.
12)Defines "control" to mean the ability to direct the operation
or management of the applicant or licensee, including through
an intermediary or subsidiary entity.
13)Defines "parent organization" to mean an organization in
control of another organization either directly or through one
or more intermediaries.
14)Permits CDSS to deny or revoke a license if any of the
following persons or entities have engaged in specified
conduct or violations of law:
a. Employee, administrator, partner, officer, director,
member or manager of the applicant or licensee;
b. Any person who controls the licensee, as defined;
c. Any person with a beneficial ownership interest of
10 percent or more in the applicant or licensee.
15)Permits CDSS to prohibit any person who has engaged in
specified conduct or violations of law from being a licensee,
owning a beneficial ownership interest of 10 percent or more
in a licensed facility, or being an administrator, officer,
director, member or manager of a licensee or entity
controlling a licensee.
PRIOR VOTES
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|Assembly Floor: |66 - |
| |7 |
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|Assembly Appropriations Committee: |12 - |
| |0 |
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|Assembly Human Services Committee: |7 - |
| |0 |
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POSITIONS
Support:
California Advocates for Nursing Home Reform
California Commission on Aging
California Long-Term Care Ombudsman Association
California State Retirees
Consumer Attorneys of California
Consumer Federation of California
Disability Rights California
Formation Capitol
Jewish Family Service of Los Angeles
National Association of Social Workers, California
Chapter
State of California Senior Legislature
Oppose:
None received.
-- END -
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Amendments Mock-up for 2015-2016 AB-601 (Eggman (A))
*********Amendments are in BOLD*********
Mock-up based on Version Number 98 - Amended Assembly 4/23/15
The people of the State of California do enact as follows:
SECTION 1. Section 1569.15 of the Health and Safety Code is
amended to read:
1569.15. (a) Any person seeking a license for a residential care
facility for the elderly under this chapter shall file with the
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department, pursuant to regulations, an application on forms
furnished by the department, that shall include, but not be
limited to, all of the following:
(1) Evidence satisfactory to the department of the ability of
the applicant to comply with this chapter and of rules and
regulations adopted under this chapter by the department.
(2) Evidence satisfactory to the department that the applicant
is of reputable and responsible character. The evidence shall
include, but not be limited to, a criminal record clearance
pursuant to Section 1569.17, employment history, and character
references. If the applicant is a firm, association,
organization, partnership, business trust, corporation, or
company, like evidence shall be submitted as to the members or
shareholders thereof individuals or entities holding a
beneficial ownership interest of 10 percent or more, and the
person who has operational control of the residential care
facility for the elderly for which the application for issuance
of license or special permit is made. Notwithstanding anything
in this section to the contrary, an applicant or licensee is not
required to disclose the names of investors in a publicly traded
company or investment fund, if those investors are silent
investors who do not have influence or control over the
investments or operations of the company or fund.
(3) Where applicable, the The applicant shall :
(A) Indicate whether disclose whether it is a for-profit or
not-for-profit provider ; ,
(B) Disclose the names , addresses and license numbers , and
licensing agency names of other community care or health care
facilities owned, managed, or operated by the same applicant and
by any parent organization of the applicant; ,
(C) Disclose the names and business addresses of any person,
persons or entities that control the applicant as defined in
Section 1569.2 (e);
(D) If part of a chain, as defined in Section 1569.2 (d),
provide a diagram indicating the relationship between the
applicant and those entities or persons that are part of the
chain, including those that are controlled by the same parties,
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and provide in a separate list, the names, address and license
number, where applicable, for each entity or person in the
diagram;
(E) Provide the names and addresses of any persons,
organizations or entities that own the real property on which
the licensed facilities are located; and organization, or entity
listed as the owner of record in the real estate of the
facilities, including the buildings and grounds appurtenant to
the buildings, and the email address of the applicant.
(F) Provide the name and address of any management company
serving the facility and provide the same information required
of applicants in subdivision (C) and (D) above.
(4) Evidence satisfactory to the department that the applicant
has sufficient financial resources to maintain the standards of
service required by regulations adopted pursuant to this
chapter.
(5) Identify the person with operational control of the
applicant, such as the chief executive officer, general partner,
owner or like party, and state that person's Disclosure of the
applicant's or the applicant's chief executive officer, general
partner, or like party's prior or present service in California
or any other state as an administrator, chief executive officer,
general partner, corporate officer or director or like role of,
or as a person who has held or holds a beneficial ownership
interest of 10 percent or more in, any residential care facility
for the elderly, in any facility licensed pursuant to Chapter 1
(commencing with Section 1200), Chapter 2 (commencing with
Section 1250), or Chapter 3 (commencing with Section 1500), or a
similarly licensed facility in California or any other state,
within the past 10 years.
(6) Include the following information regarding the applicant
and each individual or entity identified pursuant to (a)(5):
(A) Disclosure of Disclose any revocation, suspension,
probation, exclusion order or other similar administrative
disciplinary action that was filed and sustained taken in
California or any other state, or in the process of being
adjudicated taken , against a facility identified in paragraph
(5) or by any authority responsible for the licensing of health,
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residential, or community care facilities against a license held
or previously held by the entities and persons specified in
paragraph (5) within the past 10 years.
(B) Provide copies of final findings or orders or both issued by
any health, residential or community care licensing agency or
any court relevant to the actions described in subsection (A).
(C) Disclose any petition for bankruptcy relief filed within
five years of the date of application, involving operation or
closure of a care facility licensed in California or any other
state, disclose the court, date and case number of the filing
and indicate whether a discharge was granted. If a discharge was
not granted, provide copies of any court findings supporting
denial of discharge.
(7) Any other information as may be required by the department
for the proper administration and enforcement of this chapter.
(8) Following the implementation of Article 7 (commencing with
Section 1569.70), evidence satisfactory to the department of the
applicant's ability to meet regulatory requirements for the
level of care the facility intends to provide.
(9) Evidence satisfactory to the department of adequate
knowledge of supportive services and other community supports
that may be necessary to meet the needs of elderly residents.
(10) A signed statement that the person desiring issuance of a
license has read and understood the residential care facility
for the elderly statute and regulations.
(11) Designation by the applicant of the individual who shall be
the administrator of the facility, including, if the applicant
is an individual, whether or not the licensee shall also be the
administrator.
(12) Evidence of the right of possession of the facility at
prior to the time the license is granted, which may be satisfied
by the submission of a copy of the entire applicable portions of
a lease agreement or deed.
(13) Evidence of successfully completing a certified
prelicensure education program pursuant to Section 1569.23.
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(14) For any facility that promotes or advertises or plans to
promote or advertise special care, special programming, or
special environments for persons with dementia, disclosure to
the department of the special features of the facility in its
plan of operation.
(b) The department shall cross-check all applicant information
disclosed pursuant to paragraph (5) of subdivision (a) with the
State Department of Public Health , if electronically available,
to determine if the applicant has a prior history of operating,
holding a position in, or having ownership in, any entity
specified in paragraph (5) of subdivision (a).
(c) Failure of the applicant to cooperate with the licensing
agency in the completion of the application may result in the
denial of the application. Failure to cooperate means that the
information described in this section and in the regulations of
the department has not been provided, or has not been provided
in the form requested by the licensing agency, or both.
(d) The information required by this section shall be provided
to the department upon initial application for licensure, and
any change in the information shall be provided to the
department within 30 calendar days of that change unless a
shorter timeframe is required by the department . A licensee of
multiple facilities may provide a single notice of changes to
the department on behalf of all licensed facilities within the
chain. Information pertaining to facilities operated in other
states may be updated annually except the following information
shall be provided within 30 calendar days:
(1) Information required to be provided pursuant to (a)(6).
(2) Information regarding newly acquired community care or
health care facilities owned, managed, or operated by the same
applicant and by any parent organization of the applicant.
(e) An applicant or licensee shall maintain an email address of
record with the department. The applicant or licensee shall
provide written notification to the department of the email
address and of any change to the email address within 10
business days.
(e) (f) (1) The department shall may deny an application for
licensure or may subsequently revoke a license under this
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chapter if the applicant knowingly withheld material information
or made a false statement of material fact with regard to
information that was required by the application for licensure.
(2) The department may deny an application for licensure or may
subsequently revoke a license under this chapter if the
applicant did not disclose enforcement administrative
disciplinary actions on the application as required by paragraph
(6) of subdivision (a).
(3) In addition to the remedies provided under this chapter, the
department may assess a civil penalty of one thousand dollars
($1,000.00) for a material violation of this section subsequent
to licensure.
ADD NEW SECTION
SEC 2. Section 1569.16 of the Health and Safety Code is amended
to read:
1569.16.
(a) (1) If an application for a license indicates, or the
department determines during the application review process,
that the applicant previously was issued a license under this
chapter or under Chapter 1 (commencing with Section 1200),
Chapter 2 (commencing with Section 1250), Chapter 3 (commencing
with Section 1500), Chapter 3.01 (commencing with Section
1568.01), Chapter 3.4 (commencing with Section 1596.70), Chapter
3.5 (commencing with Section 1596.90), or Chapter 3.6
(commencing with Section 1597.30) and the prior license was
revoked within the preceding two years, the department shall
cease any further review of the application until two years have
elapsed from the date of the revocation. All residential care
facilities for the elderly are exempt from the health planning
requirements contained in Part 2 (commencing with Section
127125) of Division 107.
(2) If an application for a license or special permit
indicates, or the department determines during the application
review process, that the applicant previously was issued a
certificate of approval by a foster family agency that was
revoked by the department pursuant to subdivision (b) of Section
1534 within the preceding two years, the department shall cease
any further review of the application until two years shall have
elapsed from the date of the revocation.
(3) If an application for a license or special permit
indicates, or the department determines during the application
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review process, that the applicant was excluded from a facility
licensed by the department pursuant to Section 1558, 1568.092,
1569.58, or 1596.8897, the department shall cease any further
review of the application unless the excluded individual has
been reinstated pursuant to Section 11522 of the Government Code
by the department.
(b) If an application for a license or special permit
indicates, or the department determines during the application
review process, that the applicant had previously applied for a
license under any of the chapters listed in paragraph (1) of
subdivision (a) and the application was denied within the last
year, the department shall, except as provided in Section
1569.22, cease further review of the application until one year
has elapsed from the date of the denial letter. In those
circumstances where denials are appealed and upheld at an
administrative hearing, review of the application shall cease
for one year from the date of the decision and order being
rendered by the department. The cessation of review shall not
constitute a denial of the application. In the event there are
co-applicants and the department denies a license due to
concerns pertaining solely to one of the co-applicants, the
other applicant(s) may withdraw their application pursuant to
Section 1569.52 and, with the department's written consent,
shall not be deemed to have a license application denied.
(c) If an application for a license or special permit
indicates, or the department determines during the application
review process, that the applicant had previously applied for a
certificate of approval with a foster family agency and the
department ordered the foster family agency to deny the
application pursuant to subdivision (b) of Section 1534, the
department shall cease further review of the application as
follows:
(1) In cases where the applicant petitioned for a hearing, the
department shall cease further review of the application until
one year has elapsed from the effective date of the decision and
order of the department upholding a denial.
(2) In cases where the department informed the applicant of his
or her right to petition for a hearing and the applicant did not
petition for a hearing, the department shall cease further
review of the application until one year has elapsed from the
date of the notification of the denial and the right to petition
for a hearing.
(3) The department may continue to review the application if it
has determined that the reasons for the denial of the
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application were due to circumstances and conditions that either
have been corrected or are no longer in existence.
(d) The cessation of review shall not constitute a denial of
the application for purposes of Section 1526 or any other law.
ADD NEW SECTION
SEC. 3 Section 1569.2 of the Health and Safety Code, is amended
to read:
As used in this chapter:
(a) "Administrator" means the individual designated by the
licensee to act on behalf of the licensee in the overall
management of the facility. The licensee, if an individual and
the administrator may be one and the same person.
(b) "Beneficial Ownership" means an ownership interest through
the possession of stock, equity in capital or any interest in
the profits of the applicant or licensee or through the
possession of such an interest in other entities that directly
or indirectly hold an interest in the applicant or licensee.
The percentage of beneficial ownership in the applicant or
licensee that is held by any other entity is determined by
multiplying the other entities' percentage of ownership interest
at each level.
(b) (c) "Care and supervision" means the facility assumes
responsibility for, or provides or promises to provide in the
future, ongoing assistance with activities of daily living
without which the resident's physical health, mental health,
safety, or welfare would be endangered. Assistance includes
assistance with taking medications, money management, or
personal care.
(d) "Chain" means a group of two or more licensees that are
controlled, as defined in this section, by the same person
or entities.
(e) "Control" means the ability to direct the operation or
management of the applicant or licensee. For purposes of
this chapter control includes the ability to exercise
control through intermediary or subsidiary entities.
(c) (f) "Department" means the State Department of Social
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Services.
(d) (g) "Director" means the Director of Social Services.
(e) (h) "Health-related services" mean services that shall be
directly provided by an appropriate skilled professional,
including a registered nurse, licensed vocational nurse,
physical therapist, or occupational therapist.
(f) (i) "Instrumental activities of daily living" means any of
the following: housework, meals, laundry, taking of medication,
money management, appropriate transportation, correspondence,
telephoning, and related tasks.
(g) (j) "License" means a basic permit to operate a residential
care facility for the elderly.
(k) "Parent organization" means an organization in control of
another organization either directly or through one or more
intermediaries.
(h) (l) "Personal activities of daily living" means any of the
following: dressing, feeding, toileting, bathing, grooming, and
mobility and associated tasks.
(i) (m) "Personal care" means assistance with personal activities
of daily living, to help provide for and maintain physical and
psychosocial comfort.
(j) (n) "Protective supervision" means observing and assisting
confused residents, including persons with dementia, to
safeguard them against injury.
(k) (o) "Residential care facility for the elderly" means a
housing arrangement chosen voluntarily by persons 60 years of
age or over, or their authorized representative, where varying
levels and intensities of care and supervision, protective
supervision, or personal care are provided, based upon their
varying needs, as determined in order to be admitted and to
remain in the facility. Persons under 60 years of age with
compatible needs may be allowed to be admitted or retained in a
residential care facility for the elderly as specified in
Section 1569.316.
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This subdivision shall be operative only until the enactment of
legislation implementing the three levels of care in residential
care facilities for the elderly pursuant to Section 1569.70.
(l) (p) "Residential care facility for the elderly" means a
housing arrangement chosen voluntarily by persons 60 years of
age or over, or their authorized representative, where varying
levels and intensities of care and supervision, protective
supervision, personal care, or health-related services are
provided, based upon their varying needs, as determined in order
to be admitted and to remain in the facility. Persons under 60
years of age with compatible needs may be allowed to be admitted
or retained in a residential care facility for the elderly as
specified in Section 1569.316.
This subdivision shall become operative upon the enactment of
legislation implementing the three levels of care in residential
care facilities for the elderly pursuant to Section 1569.70.
(m) (q) "Sundowning" means a condition in which persons with
cognitive impairment experience recurring confusion,
disorientation, and increasing levels of agitation that coincide
with the onset of late afternoon and early evening.
(n) (r) "Supportive services" means resources available to the
resident in the community that help to maintain their functional
ability and meet their needs as identified in the individual
resident assessment. Supportive services may include any of the
following: medical, dental, and other health care services;
transportation; recreational and leisure activities; social
services; and counseling services.
SEC. 2. SEC 4.
Section 1569.356 is added to the Health and Safety Code, to
read:
1569.356. To the extent that the department's computer system
can electronically accommodate additional residential care
facility for the elderly profile information, the department
shall post on its Internet Web site the current name, business
address, and telephone number of the licensee, the name of the
owner of the residential care facility for the elderly, if not
the same as the licensee, the name of any parent organization
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corporation , the licensed capacity of the facility, including
the capacity for nonambulatory residents, whether the facility
is permitted to accept and retain residents receiving hospice
care services, whether the facility has a special care unit or
program for people with Alzheimer's disease and other dementias
and has a delayed egress or secured perimeter system in place,
or both and information required pursuant to Section 1569.15
(a)(3)(B) .
ADD NEW SECTION
SEC 5. Amend Section 1569.50 of the Health and Safety Code to
read:
(a) The department may deny an application for a license or may
suspend or revoke a license issued under this chapter upon any
of the following grounds and in the manner provided in this
chapter:
(1) Violation by the licensee of this chapter or of the rules
and regulations adopted under this chapter.
(2) Aiding, abetting, or permitting the violation of this
chapter or of the rules and regulations adopted under this
chapter.
(3) Conduct that is inimical to the health, morals, welfare, or
safety of either an individual in or receiving services from the
facility or the people of the State of California.
(4) The conviction of a licensee, or other person mentioned in
Section 1569.17 at any time before or during licensure, of a
crime as defined in Section 1569.17.
(5) Engaging in acts of financial malfeasance concerning the
operation of a facility, including, but not limited to, improper
use or embezzlement of client moneys and property or fraudulent
appropriation for personal gain of facility moneys and property,
or willful or negligent failure to provide services for the care
of clients.
(b) The remedies provided in this section may be applied when
the department finds that any employee, administrator, partner,
officer, director, member or manager of the applicant or
licensee, any person who controls the licensee as described in
section 1569.2(e), or any person who holds a beneficial
ownership interest of 10 percent or more in the applicant or
licensee has engaged in the conduct described in section (a)
related to any facility licensed pursuant to Chapter 1
(commencing with Section 1200), Chapter 2 (commencing with
Section 1250), or Chapter 3 (commencing with Section 1500), or a
similarly licensed facility in California or any other state.
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(b) (c) The director may temporarily suspend a license, prior to
a hearing when, in the opinion of the director, the action is
necessary to protect residents or clients of the facility from
physical or mental abuse, abandonment, or any other substantial
threat to health or safety. The director shall notify the
licensee of the temporary suspension and the effective date of
the temporary suspension and at the same time shall serve the
provider with an accusation. Upon receipt of a notice of defense
to the accusation by the licensee, the director shall, within 15
days, set the matter for hearing, and the hearing shall be held
as soon as possible but not later than 30 days after receipt of
the notice. The temporary suspension shall remain in effect
until the time the hearing is completed and the director has
made a final determination on the merits. However, the temporary
suspension shall be deemed vacated if the director fails to make
a final determination on the merits within 30 days after the
original hearing has been completed.
(c) (d) A licensee who abandons the facility and the residents
in care resulting in an immediate and substantial threat to the
health and safety of the abandoned residents, in addition to
revocation of the license pursuant to this section, shall be
excluded from licensure in facilities licensed by the department
without the right to petition for reinstatement.
SEC. 3. Section 1569.501 is added to the Health and Safety Code,
immediately following Section 1569.50, to read:
1569.501. (a) The department may deny an application for
licensure under this chapter if the applicant has a history of
noncompliance with any of the following:
(1) Requirements imposed upon any residential care facility for
the elderly license, any facility licensed pursuant to Chapter 1
(commencing with Section 1200), Chapter 2 (commencing with
Section 1250), or Chapter 3 (commencing with Section 1500), or a
similarly licensed facility in another state.
(2) Applicable state and federal laws and regulations.
(3) Requirements governing the operators of the facilities
specified in paragraph (1).
(b) This section applies to an applicant that is or was an
administrator, general partner, chief executive officer or like
party, corporate officer or director of, or is a person who has
held or holds a beneficial ownership of 10 percent or more in,
any residential care facility for the elderly, in any facility
licensed pursuant to Chapter 1 (commencing with Section 1200),
Chapter 2 (commencing with Section 1250), or Chapter 3
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(commencing with Section 1500), or a similarly licensed facility
in another state.
(c) Noncompliance by the chief executive officer, general
partner, or like party with the requirements of this chapter and
its implementing regulations may be the basis for license
decisions against the owner.
ADD NEW SECTION
SEC 6. Section 1569.58 of the Health and Safety Code is amended
to read:
1569.58.
(a) The department may prohibit any person from being a
licensee, owning a beneficial ownership interest of 10 percent
or more in a licensed facility, or being an administrator,
officer, director, member, or manager of a licensee or entity
controlling a licensee, and the department may further prohibit
any licensee from employing, or continuing the employment of, or
allowing in a licensed facility, or allowing contact with
clients of a licensed facility by, any employee, prospective
employee, or person who is not a client who has:
(1) Violated, or aided or permitted the violation by any other
person of, any provisions of this chapter or of any rules or
regulations promulgated under this chapter.
(2) Engaged in conduct that is inimical to the health, morals,
welfare, or safety of either an individual in or receiving
services from the facility, or the people of the State of
California.
(3) Been denied an exemption to work or to be present in a
facility, when that person has been convicted of a crime as
defined in Section 1569.17.
(4) Engaged in any other conduct that would constitute a basis
for disciplining a licensee.
(5) Engaged in acts of financial malfeasance concerning the
operation of a facility, including, but not limited to, improper
use or embezzlement of client moneys and property or fraudulent
appropriation for personal gain of facility moneys and property,
or willful or negligent failure to provide services for the care
of clients.
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(b) The excluded person, the facility, and the licensee shall be
given written notice of the basis of the department's action and
of the excluded person's right to an appeal. The notice shall be
served either by personal service or by registered mail. Within
15 days after the department serves the notice, the excluded
person may file with the department a written appeal of the
exclusion order. If the excluded person fails to file a written
appeal within the prescribed time, the department's action shall
be final.
(c) (1) The department may require the immediate removal of a
member of the board of directors, an executive director, or an
officer of a licensee or exclusion of an employee, prospective
employee, or person who is not a client from a facility pending
a final decision of the matter, when, in the opinion of the
director, the action is necessary to protect residents or
clients from physical or mental abuse, abandonment, or any other
substantial threat to their health or safety.
(2) If the department requires the immediate removal of a member
of the board of directors, an executive director, or an officer
of a licensee or exclusion of an employee, prospective employee,
or person who is not a client from a facility the department
shall serve an order of immediate exclusion upon the excluded
person that shall notify the excluded person of the basis of the
department's action and of the excluded person's right to a
hearing.
(3) Within 15 days after the department serves an order of
immediate exclusion, the excluded person may file a written
appeal of the exclusion with the department. The department's
action shall be final if the excluded person does not appeal the
exclusion within the prescribed time. The department shall do
the following upon receipt of a written appeal:
(A) Within 30 days of receipt of the appeal, serve an accusation
upon the excluded person.
(B) Within 60 days of receipt of a notice of defense by the
excluded person pursuant to Section 11506 of the Government
Code, conduct a hearing on the accusation.
(4) An order of immediate exclusion of the excluded person from
the facility shall remain in effect until the hearing is
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completed and the director has made a final determination on the
merits. However, the order of immediate exclusion shall be
deemed vacated if the director fails to make a final
determination on the merits within 60 days after the original
hearing has been completed.
(d) An excluded person who files a written appeal of the
exclusion order with the department pursuant to this section
shall, as part of the written request, provide his or her
current mailing address. The excluded person shall subsequently
notify the department in writing of any change in mailing
address, until the hearing process has been completed or
terminated.
(e) Hearings held pursuant to this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of
Division 3 of Title 2 of the Government Code. The standard of
proof shall be the preponderance of the evidence and the burden
of proof shall be on the department.
(f) The department may institute or continue a disciplinary
proceeding against a member of the board of directors, an
executive director, or an officer of a licensee or an employee,
prospective employee, or person who is not a client upon any
ground provided by this section. The department may enter an
order prohibiting any person from being a member of the board of
directors, an executive director, or an officer of a licensee,
or prohibiting the excluded person's employment or presence in
the facility, or otherwise take disciplinary action against the
excluded person, notwithstanding any resignation, withdrawal of
employment application, or change of duties by the excluded
person, or any discharge, failure to hire, or reassignment of
the excluded person by the licensee or that the excluded person
no longer has contact with clients at the facility.
(g) A licensee's failure to comply with the department's
exclusion order after being notified of the order shall be
grounds for disciplining the licensee pursuant to Section
1569.50.
(h) (1) (A) In cases where the excluded person appealed the
exclusion order and there is a decision and order of the
department upholding the exclusion order, the person shall be
prohibited from working in any facility or being licensed to
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operate any facility licensed by the department or from being a
certified foster parent for the remainder of the excluded
person's life, unless otherwise ordered by the department.
(B) The excluded individual may petition for reinstatement one
year after the effective date of the decision and order of the
department upholding the exclusion order pursuant to Section
11522 of the Government Code. The department shall provide the
excluded person with a copy of Section 11522 of the Government
Code with the decision and order.
(2) (A) In cases where the department informed the excluded
person of his or her right to appeal the exclusion order and the
excluded person did not appeal the exclusion order, the person
shall be prohibited from working in any facility or being
licensed to operate any facility licensed by the department or a
certified foster parent for the remainder of the excluded
person's life, unless otherwise ordered by the department.
(B) The excluded individual may petition for reinstatement after
one year has elapsed from the date of the notification of the
exclusion order pursuant to Section 11522 of the Government
Code. The department shall provide the excluded person with a
copy of Section 11522 of the Government Code with the exclusion
order.
SEC. 4. SEC 7. Section 1569.618 of the Health and Safety Code is
amended to read:
1569.618. (a) The administrator designated by the licensee
pursuant to paragraph (11) of subdivision (a) of Section 1569.15
shall be present at the facility during normal working hours. A
facility manager designated by the licensee with notice to the
department, shall be responsible for the operation of the
facility when the administrator is temporarily absent from the
facility.
(b) At least one administrator, facility manager, or designated
substitute who is at least 21 years of age and has
qualifications adequate to be responsible and accountable for
the management and administration of the facility pursuant to
Title 22 of the California Code of Regulations shall be on the
premises 24 hours per day. The designated substitute may be a
direct care staff member who shall not be required to meet the
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educational, certification, or training requirements of an
administrator. The designated substitute shall meet
qualifications that include, but are not limited to, all of the
following:
(1) Knowledge of the requirements for providing care and
supervision appropriate to each resident of the facility.
(2) Familiarity with the facility's planned emergency
procedures.
(3) Training to effectively interact with emergency personnel in
the event of an emergency call, including an ability to provide
a resident's medical records to emergency responders.
(c) The facility shall employ, and the administrator shall
schedule, a sufficient number of staff members to do all of the
following:
(1) Provide the care required in each resident's written record
of care as described in Section 1569.80.
(2) Ensure the health, safety, comfort, and supervision of the
residents.
(3) Ensure that at least one staff member who has
cardiopulmonary resuscitation (CPR) training and first aid
training is on duty and on the premises at all times. This
paragraph shall not be construed to require staff to provide
CPR.
(4) Ensure that the facility is clean, safe, sanitary, and in
good repair at all times.
(d) "Facility manager" means a person on the premises with the
authority and responsibility necessary to manage and control the
day-to-day operation of a residential care facility for the
elderly and supervise the clients. The facility manager,
licensee, and administrator, or any combination thereof, may be
the same person provided he or she meets all applicable
requirements. If the administrator is also the facility manager
for the same facility, he or she shall be limited to the
administration and management of only one facility.
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