BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 648| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 648 Author: Mendoza (D), et al. Amended: 1/26/16 Vote: 21 SENATE HEALTH COMMITTEE: 7-2, 4/15/15 AYES: Hernandez, Hall, Mitchell, Monning, Pan, Roth, Wolk NOES: Nguyen, Nielsen SENATE JUDICIARY COMMITTEE: 5-1, 4/28/15 AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski NOES: Anderson NO VOTE RECORDED: Moorlach SENATE APPROPRIATIONS COMMITTEE: 5-2, 1/21/16 AYES: Lara, Beall, Hill, Leyva, Mendoza NOES: Bates, Nielsen SUBJECT: Health and care facilities: referral agencies SOURCE: Consumer Federation of California DIGEST: This bill adds referrals to residential care facilities for the elderly (RCFFs) to the body of law requiring anyone who refers someone to a skilled nursing or intermediate care facility for compensation to be licensed as a referral agency, and establishes new requirements on referral agencies, including written disclosure of any agreement with the facilities clients are being referred to, any commissions or fees received, and a requirement for liability insurance. ANALYSIS: SB 648 Page 2 Existing law: 1) Licenses and regulates RCFEs by the Department of Social Services (DSS) as a separate category within the existing community care licensing structure of DSS. RCFEs are defined as 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. 2) Licenses and regulates skilled nursing facilities (SNFs) and intermediate care facilities (ICFs) by the Department of Public Health (DPH). SNFs are defined as a health facility that provides skilled nursing care and supportive care to patients who primary need is for availability of skilled nursing care on an extended basis. ICFs are defined as a health facility that provides inpatient care to ambulatory or non-ambulatory patients who have recurring need for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. 3) Prohibits any person, association, or corporation to establish, conduct, or maintain a referral agency or to refer any person for remuneration to any extended care, skilled nursing home or ICF, or a distinct part of a facility providing extended care, skilled nursing home care, or intermediate care, without being licensed as a referral agency by DPH. 4) Prohibits a licensed referral agency from having a direct or indirect financial interest in any medical facility doing business with the licensee. This bill: 1) Adds referrals to RCFEs to the body of existing law requiring licensure as a referral agency in order to refer persons for remuneration to skilled nursing or ICFs. 2) Requires any person, partnership, firm, corporation, or association desiring to obtain a license to refer persons to RCFEs to file an application with DSS, as specified. Specifies that DSS is not required to conduct an onsite SB 648 Page 3 licensing inspection, but may require the applicant to submit a copy of the disclosure statement that referral agencies are required to provide pursuant to this bill. 3) Excludes from the definition of "referral agency" all of the following: a) An RCFE that either provides discounts or other remuneration to residents or their families for referring new or prospective clients, or provides remuneration to staff for marketing or sales offers; and b) A resident who refers a new or prospective resident and receives a discount or other remuneration from an RCFE, or an RCFE staff member who receives remuneration from the facility for sales or marketing efforts. 4) Prohibits any person, association, or corporation from conducting a referral agency, or referring any person for remuneration to an RCFE, if that facility does not meet licensing standards, as specified, and permits the referral agency to satisfy this requirement by obtaining and relying on the licensing status information for an RCFE that is published on the Internet Web site of DSS. 5) Prohibits any extended care facility, SNF, ICF, or RCFE, from paying a commission or fee to a referral agency that does not have a license from DPH or DSS, as appropriate. 6) Requires all licensed referral agencies, prior to referring a person to any facility, to provide the person with a disclosure statement containing all of the following: a) Whether the licensee has an agreement or contract with the facility to which the person is being referred; b) That a commission or fee will be received by the agency from the facility as a result of the referral, if applicable; c) Any gift or exchange of monetary value between the facility and the licensee that is in addition to, or in lieu of, a commission or fee; d) Any fee charged to the person or persons by the referral agency, and requires this notice to include a description of the services being rendered for that fee and the referral agency's refund policy. SB 648 Page 4 e) The referral agency's contact information, including address and telephone number, and the referral agency's privacy policy. Requires the privacy policy to be provided as an Internet Web site link consistent with specified provisions of existing law; f) The date of the referral agency's most recent tour or visit to the facility and, as appropriate, a hyperlink to, or a copy of, the most recent DSS evaluation report for an RCFE to which the person is being referred, prepared pursuant to specified existing law that requires annual unannounced DSS inspections for certain RCFEs, and random inspections each year on 20 percent of the RCFEs not subject to annual inspections. g) Information regarding the type of facility and the services offered by the facility; h) The contact information, including address and telephone number, of DSS or DPH, as appropriate, and the contact information for filing consumer complaints, including contact information for the local long-term care ombudsman; Permits the contact information, if the disclosure statement is provided electronically, to be provided as a hyperlink. 7) Requires the above disclosure statement to be dated and to contain the name of the person being referred. 8) Requires the disclosure statement, if provided in written form, to be printed in 16-point bold type, and if provided electronically, to be consistent with specified provisions of existing law regarding electronic records, and to be displayed on a secured Internet Web site in a larger type than the surrounding text. 9) Requires a referral agency to provide the written disclosure statement required by this bill in the same language in which the referral agency negotiates any referral services with the person receiving services. 10)Requires the disclosure statement to be signed or otherwise acknowledged by the person being referred, or his or her conservator, guardian, family member, or agency under a power of attorney, stating that the disclosure statement required by this bill was received. Requires this acknowledgement to be executed with one of the following: SB 648 Page 5 a) The signature of the person being referred, or his or her conservator, guardian, family member, or agent under a power of attorney on the exact disclosure statement; b) An electronic signature that is consistent with specified provisions of existing law, and that includes the date, time, and Internet provider address and displays the exact disclosure statement document; or, c) A faxed confirmation that includes the date, time, and fax number and displays the exact disclosure statement document. 11)Requires the above signed acknowledgement to be retained for a period of no less than three years. 12)Requires a referral agency, if the disclosure statement or any other referral-related document is provided electronically, to provide a written copy, in a 16-point bold type, to the person being referred, or his or her conservator, guardian, family member, or agent under power of attorney, following any referral. Permits this written copy to be provided by fax, email, or other means of electronic communication, if appropriate. 13)Specifies that any violation of the provisions of this bill relating to the disclosure statement with the intent to directly or indirectly mislead the public on the nature of services provided by the referral agency will constitute unfair competition which includes unlawful, unfair, or fraudulent business acts or practices and unfair, deceptive, untrue, or misleading advertising. Specifies that any person or entity that engages in unfair competition is liable for a civil penalty not to exceed $2500 for each violation. 14)Prohibits a referral agency from sharing any personal information, including, but not limited to, the name, address, age, gender, or medical information of the person receiving services with any unauthorized person or third-party affiliate of the referral agency, unless expressly authorized, as specified. 15)Permits the person being referred, or his or her conservator, guardian, family member, or agent under power of attorney, before making a referral to any facility, to SB 648 Page 6 authorize the referral agency to share his or her personal information, as well as the name and a description of the care or services needed by the individual being referred, with a facility or facilities, for purposes of the referral. Limits the personal information, or other information shared, to only that information which is necessary to complete the referral process. 16)Requires the above authorization for sharing information to be obtained in either of the following ways: a) As a separate authorization form that clearly discloses that the individual is consenting to the disclosure of his or her personal information to a facility or facilities to which they are being referred, and requires this acknowledgement to include the name and location of the facilities that will receive the personal information and the format in which the personal information will be shared; or, b) As part of the disclosure statement required by this bill, if it clearly indicates that the individual is consenting to the referral agency's disclosure of his or her personal information to facilities for which he or she is being referred. Requires this authorization to include the name and location information of the facilities that will receive the personal information and the format in which the personal information will be shared. 17)Prohibits a referral agency from holding any power of attorney for a person receiving placement referral services from that agency, or to receive or hold a client's property in any capacity. 18)Requires, on and after July 1, 2016, all licensed referral agencies to maintain liability insurance coverage in an amount of at least $1 million per person occurrence and $3 million in the total annual aggregate, for negligent acts or omissions by the referral agency. Comments Author's statement. According to the author, a gap in licensing requirements has allowed RCFE referral agencies to operate without oversight in California. Current licensing requirements SB 648 Page 7 do not include agencies that make referrals to RCFE's. This bill requires all referral agencies in California to be licensed and subject to oversight by DPH, or DSS, as appropriate. This bill also expands consumer protections by requiring referral agencies to provide written notification to the senior, or their families, when the agency has a motivated interest in a referral to a specific care facility. For example, the agency receives a commission or finder's fee from the specific care facility. Seniors and their families have a right to know whether a referral agency is recommending a care facility based on the client's needs, or if they are recommending a care facility because they are receiving a commission or finder's fee. SB 648 will require all elder care referral agencies, which perform a useful and important service for seniors, to be licensed and therefore subject to oversight, that they disclose the financial interest they may have in a facility they recommend, and that they provide adequate privacy protections for the information of their client. RCFEs. 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 home-like housing options to residents who need some help with activities of daily living, such as cooking, bathing, or getting dressed, but otherwise do not need continuous, 24-hour assistance or nursing care. The RCFE licensure category includes facilities with as few as six beds to those with hundreds of residents, whose needs may vary widely. More than 90 percent of RCFEs in California are for-profit homes, the majority of which are small facilities. Most residents pay privately or with long-term care insurance, and fees can range from $1,500 to more than $8,000 per month. In recent years, there have been several high-profile incidents and investigative articles that have drawn attention to questions about the adequacy of DSS oversight of RCFEs. In July 2013, ProPublica and Frontline reporters wrote and produced a series of stories on Emeritus, the nation's largest RCFE provider. Featured in the stories was a woman who died after receiving poor care at a facility in Auburn, California. The series documented chronic understaffing and a lack of required assessments and substandard care. 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 SB 648 Page 8 license revocation proceedings for the facility. DSS 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to Senate Appropriations Committee, minor, one-time costs to update existing regulations by the Department of Social Services (special fund). One-time costs of about $2.5 million over two years for initial licensure of additional referral agencies by the Department of Social Services (special fund). The total number of referral agencies that are referring consumers to residential care facilities for the elderly is not known, as there are not current licensing requirements for this segment of the referral agency market. It is estimated that there are about 2,000 such agencies statewide. Under this assumption, it will require about $2.5 million in staff costs over two years to complete the initial licensing process. After that, ongoing licensing and enforcement costs are anticipated to be minor. SUPPORT: (Verified 1/26/16) Consumer Federation of California (source) AARP AFSCME California Alliance for Retired Americans California Chapter National Association of Social Workers California Long-Term Care Ombudsman Association CALPIRG Institute on Aging Older Women's League of Sacramento Capitol 6Beds, Inc. OPPOSITION: (Verified 1/26/16) SB 648 Page 9 None received ARGUMENTS IN SUPPORT: This bill is sponsored by the Consumer Federation of California (CFC), which states that this bill would require all referral agencies that assist seniors and their families in finding the right elder care options to obtain a license, and to provide their client with disclosure of the commissions they will receive for the referral. CFC states that the referral agencies that make referrals to RCFEs operate without oversight, and that this is a significant gap in current law as the number of RCFEs has grown exponentially in California. According to CFC, referral agency services are generally offered at no charge to seniors, and that instead, the agencies receive a commission or finders' fee from the care facility after they have successfully referred a senior for care and housing. CFC states that the commission is typically calculated as a percentage of the seniors' monthly rent, creating an incentive for the referral agent to place the senior in a specific facility or one where the agency has an exclusive referral contract, even if it is more expensive for the senior. The California Long-Term Care Ombudsman Association states in support that its members often work with residents and their loved ones on complaints where the resident is harmed because of a bad or inappropriate placement, and that this bill's requirement for referral agencies to maintain liability insurance would provide recourse for these residents. The Institute on Aging states in support that it has experienced problems with referral agencies and agents misrepresenting themselves to its organization's intake and fiduciary departments, and asserts that seniors and families have a right to know when they are dealing with salespeople who may have ulterior motives. 6Beds.Inc, an association representing 1,100 RCFEs, states in SB 648 Page 10 support that the practice of referral agencies in senior placement is inherently flawed and seniors and their families are being misled by the current practices of some of the larger agencies that dominate this space. Prepared by:Vince Marchand / HEALTH / 1/26/16 16:39:34 **** END ****