BILL ANALYSIS �
AB 1554
Page A
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 1554 (Skinner) - As Amended: March 25, 2014
SUBJECT : Residential Care Facilities for the Elderly.
SUMMARY : Makes various changes to the state's Residential Care
Facilities for the Elderly (RCFE) complaint procedures.
Specifically, this bill :
1)Requires the Department of Social Services (DSS) to notify a
complainant of the name of the licensing analyst who will be
responsible for the investigation within two days of receiving
a complaint.
2)Requires DSS to conduct an onsite inspection within ten days
if DSS determines that the complaint was not willfully filed
to harass a RCFE licensee or without reasonable basis.
3)Requires DSS to conduct an onsite inspection of a licensed
RCFE within 24 hours of receiving a complaint if the complaint
alleges abuse, neglect, or a threat of imminent danger or
serious harm.
4)Requires DSS to immediately review a complaint if it alleges
the denial of uninhibited access, as specified, to a
representative of the Office of the Long Term Care (LTC)
Ombudsman conducting a complaint investigation, and requires
DSS to confer with the LTC Ombudsman, and to notify the
complainant of its proposed course of action.
5)Requires DSS to contact, interview, and notify the complainant
of its proposed course of action prior to conducting an onsite
inspection in response to the complaint.
6)Requires DSS to coordinate its investigation with the
investigations of other agencies, including, but not limited
to the LTC Ombudsman and law enforcement agencies.
7)Requires DSS to conduct complaint investigations in the manner
required to ensure maximum effectiveness while respecting the
rights of residents.
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8)Requires DSS to interview any residents who are the subject of
the complaint and collect and evaluate all available evidence,
as specified.
9)Requires DSS to complete a complaint investigation within 90
days of the receipt of the complaint.
10)Requires DSS to complete an investigation of a complaint
alleging abuse, neglect, or a threat of imminent danger of
death or serious harm within 30 days of the receipt of the
complaint.
11)Requires DSS to notify the complainant of the findings of the
investigation and of his or her right to appeal in writing
within ten days of concluding its investigation, as specified.
12)Permits a complainant to appeal the department's findings to
the program manager who supervises the licensing analyst who
conducted the complaint investigation 15 days after receiving
the notice of the complaint investigation findings.
13)Requires the program manager to hold a meeting or
teleconference with the complainant within 30 days of
receiving an appeal and render a decision on the appeal within
ten days of holding a meeting or teleconference with the
complainant, as specified.
14)Permits the complainant to appeal the program manager's
appeal determination to DSS' Deputy Director for its Community
Care Licensing Division (CCLD), who shall interview the
complainant and render a final appeal decision within 10 days,
and notify the complainant in writing of the decision, as
specified.
15)Permits a complainant to be assisted or represented by any
person of his or her choice in the appeal process.
16)Prohibits a licensee or employee of a RCFE from interfering
with an investigation or inspection conducted in response to a
filed complaint and authorizes DSS to assess an immediate
civil penalty of $1,000 per day per violation of this
prohibition.
17)Requires DSS to ensure that a licensee or his or her employee
complies with existing law prohibiting them from retaliating
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against an employee or resident because of their involvement
in the filing or investigation of a complaint.
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)Prohibits the substance of the complaint from being provided
to the licensee sooner than at the time of the inspection,
unless otherwise permitted by the complainant, as specified.
(H&S Code 1569.25(b))
4)Requires DSS to conduct a preliminary review of every
complaint and conduct an onsite inspection unless it is
determined that the complaint is willfully intended to harass
a licensee or is without any reasonable basis, as specified.
(H&S Code 1569.35(c))
5)Requires DSS to promptly inform the complainant of its
proposed course of action in response to the inspection. (H&S
Code 1569.35(c))
6)Requires DSS to review a complaint alleging denial of a
statutory right of access to a RCFE and promptly notify the
complainant of the department's proposed course of action.
(H&S Code 1569.35(d))
7)Permits a RCFE to appeal a determination of a violation as the
result of a complaint investigation within ten days, as
specified, and requires DSS to dismiss the deficiency if it
was found to not have been issued in accordance with
applicable statute or regulations. (H&S Code 1569.335 and
Section 87763(a) and (b) of Title 22, CCR)
8)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
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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)
9)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))
10)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)
11)Requires DSS to assess tiered immediate civil penalties for
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))
12)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)
13)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))
14)Under the Mello-Granlund Older Californians Act (OCA),
establishes the California Long-Term Care Ombudsman Program
within the California Department of Aging (CDA) run by the
State Long-Term Care Ombudsman (LTC Ombudsman). (WIC 9700)
15)Provides specified authority for the LTC Ombudsman to
identify and investigate complaints made by, or on behalf of,
residents of long-term care facilities, recommend and advocate
for necessary changes to laws, regulations and policies, and
conduct other necessary activities for and on behalf of
residents of long-term care facilities, as specified. (WIC
9712.5)
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FISCAL EFFECT : Unknown.
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
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.
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>
Capable of administering their own medications;
Receiving medical care and treatment outside the
facility or who are receiving needed medical care from a
--------------------------
<1> Section 87455(b) of Title 22, California Code of
Regulations.
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visiting nurse;
Who because of forgetfulness or physical limitations
need only be reminded or to be assisted to take medication
usually prescribed for self-administration;
With problems including, but not limited to,
forgetfulness, wandering, confusion, irritability, and
inability to manage money;
With mild temporary emotional disturbance resulting from
personal loss or change in living arrangement.
Who are temporarily bedridden, as specified; and
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 do the other residents in
the facility.
Regulations also provides 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 otherwise permitted
by CCLD.<2>
Growing demand: Over the past thirty years, the demand for
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,<3> and continued to grow 16 percent between 2001 and
2010.<4> Nationwide, states reported 1.2 million beds in
licensed RCFEs in 2010.<5> 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
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<2> Section 87455(c) of Title 22, California Code of
Regulations.
<3> 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.
<4> 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
<5> "Assisted Living and Residential Care in the States in
2010," Mollica, Robert, AARP Public Policy Institute
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common chronic conditions.<6>
According to DSS, as of March 5, 2014 there are 7,589 licensed
RCFEs in California with a capacity to serve 176,317 residents.
Capacity of CCLD : Prior to 2003, the required frequency of
unannounced licensing visits was annually for most facility
types (and tri-annually for family child care). However, due to
the state's ongoing budget deficit and declining revenues, it
was deemed necessary to find ways to reduce costs. As a result,
CCLD, which enforces the RCFE Act, is now required to conduct
annual unannounced visits only when a facility has a history of
compliance problems, or in response to complaints filed by
residents or the public. This has resulted in annual visits for
approximately 10% of facilities.
For all other facilities not subject to annual inspections, CCLD
is currently required to conduct comprehensive compliance
inspections of a 30% random sample of facilities each year, with
no facility being visited less than once every 5 years. There
are additional inspection requirements for new facilities or
when changes occur to the license, which helps to ensure that a
new licensee starts off correctly. However, in most cases, five
years could pass before a RCFE is inspected by CCLD.
Five years has created a tenuous situation for California's
infrastructure of community care facilities. In a Spring
Finance Letter from February, 2010, DSS stated that "[a]s the
result of several consecutive years of unallocated reductions
and position sweeps, CCLD is no longer able to sustain the
required inspection frequency." The letter went on to note that
"CCLD's experience with the random sample inspection protocol
and fluctuations in resources have put client health and safety
at risk." Additionally, adding to CCLD's responsibilities, the
2012-13 budget included the elimination of the California
Department of Mental Health (DMH) and transferred its
programmatic and administrative responsibilities to other state
agencies and departments, including DSS, as deemed appropriate.
Today, according to DSS, there are approximately 462 licensing
analysts responsible for the more than 75,000 licensed
facilities and the nearly 1.4 million individuals they serve,
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<6> "Residents Living in Residential Care Facilities: United
States, 2010, Caffrey, Christine, et al., US Centers for
Disease Control, April 2012
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ranging from the earliest stages of life to the end of life
care. This means a ratio of one licensing analyst per 162
facilities and 3,030 individuals in care.
It is clear that the ongoing budget deficit of the last ten
years has had a significant impact on DSS' ability to monitor
the health and safety of residents and clients of community care
facilities throughout the state. An increase in oversight
responsibility of social rehabilitation facilities combined with
staff reductions and unfilled staff positions, and on-again
off-again work furloughs and hiring freezes have severely
reduced its administrative capacity. Although this does not
clear the state of its responsibility to ensure community care
facilities' compliance with the Community Care Facilities Act
(CCFA), it raises significant challenges to ensure that
children, adults and seniors in need of care and supervision are
not put at risk.
Complaints : Under current law, CCLD is supposed to respond to a
complaint against a RCFE within ten days. However, there is no
requirement of CCLD pertaining to whether it is supposed to
inform the complainant that it has received his or her
complaint, whether it has to be resolved, or how long CCLD may
take to investigate a complaint. Residents also have no recourse
if a complaint takes an unreasonable amount of time to
investigate or is not pursued. Additionally, neither current
law nor regulations provides an appeals process for residents
who have found the outcomes of the complaint as dissatisfactory.
Conversely, in cases where a RCFE has been found to have a
deficiency or be in violation of law during a regular inspection
visit or complaint investigation, regulations provide a process
for appeal and possible expulsion of the deficiency or
complaint.
DSS states that thousands of complaints are received every year.
However, advocates state that complaints are frequently ignored
or remain unaddressed, and that CCLD staff is struggling to meet
the statutory requirement to visit facilities no less than once
every 5 years.
The Governor's 2014-15 CCLD budget proposal : In response to a
growing number of highly publicized incidents at licensed
community care facilities throughout the state, most notably the
abandonment of Valley Springs Manor, a licensed RCFE in Castro
Valley, CA, by its owner and licensee, the Governor has proposed
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an increase of $7.5 million for CCLD. The proposal includes a
request to increase the number of administrative and inspection
analyst positions to:
"enhance health and safety outcomes for children and adults
in Community Care Facilities by ensuring a robust
enforcement program with a continued emphasis on increasing
visits to facilities, qualifications of facility
administrators, and civil penalties; updating facility
fees; establishing clear fiscal, program and corporate
accountability; developing necessary resources for
populations with medical and mental health needs; and
efficiently deploying staff and managers."<7>
Although this proposal attempts to address over ten years of
budget reductions experienced by CCLD, it raises questions as to
whether it is adequate to cover existing statutory licensing
requirements, let alone reverting to a state policy requirement
that every facility is inspected at least once per year.
Need for this bill : Stating the need for the bill, the author
writes:
"Due to the lack of regular inspections of RCFEs, it is
critical that CCL have a strong and effective complaint
investigation system to identify and stop instances of
abuse and neglect. Yet the opposite is true. CCL's current
complaint investigation system is plagued by problems of
inadequate investigation, poor communication with
complainants, lack of transparency, weak enforcement, and
appeal procedures that protect operators and imperil
residents. CCL does not send written findings to
complainants except upon request, and does not give
complainants an opportunity to appeal CCL's findings. Even
when complaints are substantiated, meaningful enforcement
action by CCL is very rare.
"Elders living in RCFEs today are especially vulnerable to
abuse, neglect and other types of mistreatment. Many, if
not most of them, suffer from dementia, are in poor health
and are physically and emotionally fragile. Despite their
growing needs, they live in facilities that are loosely
regulated and are not necessarily designed or required to
-------------------------
<7> 2014-15 Budget Change Proposal #CCLD-2; Department of Social
Services; Social Services and Licensing. 2014-15 Budget.
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accommodate their needs.
"According to CCL, it received nearly 3,000 complaints
against RCFEs in FY 2011/12, an astounding number when one
considers that many residents and their families may have
never seen a CCL inspector. These complaints may be the
tip of the iceberg. The California Long Term Care
Ombudsman Program reported receiving 11,673 complaints
against RCFEs in 2012, 1,673 of which involved abuse.
"From one end of the state to the other, there has been an
explosion of media and other reports documenting that CCL
is failing its mission to protect RCFE residents from harm
and to ensure they are treated with dignity. The broken
complaint investigation system is central to these
failures. AB 1554 responds to this crisis by requiring CCL
to conduct timely, thorough investigations of complaints
against RCFEs."
RECOMMENDED AMENDMENTS :
Should the committee choose to pass this measure, committee
staff recommends it be amended as follows:
Amendment #1 - Delete sections one and four of the bill
Section one of the bill prohibits personal information of any
person, other than individual(s) conducting the complaint
investigation on behalf of the state, from being included in any
documents released pursuant to a California Public Records Act
(PRA) request. Section two is language constitutionally required
to accompany any legislative measure seeking exemption from the
PRA.
As proposed, the PRA exemption could prohibit the public from
requesting complaint investigation or other inspection records
that could prove useful to identifying issues of ongoing or
chronic abuse among specific licensees, staff or residents. It
does not appear to comply with the author's intent of increasing
transparency in RCFE accountability and therefore should be
deleted.
Amendment #2 - "Investigation" or "inspection" and submittal of
complaints electronically
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Under current law, and as proposed to be amended, the bill uses
the terms "investigation" and "inspection" interchangeably when
referring to actions required of DSS in response the filing of a
complaint against a RCFE. Under current practice, and in
congruence with the author's intent, the term "investigation"
refers to the actions that should be undertaken to discover,
assess, and propose for resolution the circumstances that led
the filing of a complaint. Whereas, the term "inspection" is
used for the observation, typically of the physical plant
services, of a facility and does not reflect the appropriate
actions that should be included in the response to a complaint.
The bill should also be amended to allow a complaint to be filed
electronically, in addition to orally and in writing.
Specifically, the recommended amendments should delete all
references to "inspection" and replace with "investigation"
where necessary, and add language allowing a complaint to be
filed electronically.
Amendment #3 - Interactions with law enforcement
The bill deletes language permitting DSS to halt its
investigation of a complaint if their investigation would
interfere with the investigatory actions of other agencies.
Although current language does not specify "other agencies," it
is presumed that its practical effect is to allow DSS, upon
request of a law enforcement agency, to not interfere with a
police investigation. The language appears to provide for this
consideration by requiring DSS to coordinate its investigation
with the Office of the State Long-Term Care Ombudsman and law
enforcement agencies. However, although this could be
interpreted to ensure that DSS works with other agencies in its
investigation, it does not specifically permit DSS to
temporarily cease its investigation if it would adversely affect
a law enforcement agency's investigation.
Specifically, the language should amend newly proposed
subdivision (c) of 1569.35 to allow DSS to temporarily cease a
complaint investigation if it would adversely affect a law
enforcement investigation.
Amendment #4 - Investigation process and timeline
The bill requires CCLD to complete a complaint investigation
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within 90 days of receipt of the complaint. However, there are
no permissions allowing for an extension of this timeline should
CCLD have to temporarily cease an investigation due to a law
enforcement investigation.
It also requires that CCLD interview any person who has
information about the complaint. However, this could be
interpreted to mean everyone and anyone associated with the
complainant or the RCFE in order to determine if they do or do
not have any information about the complaint. This could be
burdensome to CCLD and lead to delayed or otherwise
unnecessarily labor intensive complaint investigations.
Lastly, current law prohibits CCLD from sharing the names of any
individuals named in the complaint with the RCFE licensee or
administrator. However, there are a number of scenarios where
the licensee and/or administrator should be made aware of
individuals named in the complaint who are the focus of the
investigation. Precluding CCLD from sharing the names of
individuals identified in the complaint, other than the
complainant, could preclude the RCFE from taking immediate
action against an employee who has been alleged to have
intentionally harmed or abused a resident.
Specifically, the amendments should do the following:
Allow CCLD to extend the investigation beyond the 90
days allowed in cases where the investigation would have to
be delayed in order to not interfere with a law enforcement
investigation as permitted by the CCLD Director.
Require CCLD to notify the complainant within 48 if his
or her complaint investigation is being delayed for this
reason.
Clarify that interviews be conducted with individuals
who may have information relating to the complaint.
Permit CCLD to share the names of individuals who are
alleged to be a part or the basis of a complaint.
Amendment #5 - Complaint related to interference with a LTC
Ombudsman investigation
Current law states that when a RCFE denies a LTC Ombudsman of
his or her statutory right of access to a RCFE, as provided by
the Older Californians Act (OCA), DSS shall immediately review
the complaint, confer with the Office of the State's LTC
Ombudsman, and notify the complainant of the DSS' proposed
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course of action. The purpose of this requirement is unclear,
as the LTC Ombudsman has existing recourse to penalize a RCFE
for interference with his or her investigation under the OCA.
This includes the authority to assess a $2,500 fine on a RCFE
for interfering with any lawful action of the office and report
the interference as an "act of isolation" to local law
enforcement and the responsible licensing agency.<8> It further
requires any agency that is referred a complaint by the LTC
Ombudsman to prioritize the complaint for investigation.<9> To
align with existing authority, language in the bill should be
amended to comply with existing requirements under the OCA.
Specifically, the amendment should require CCLD to immediately
investigate a complaint referred by the LTC Ombudsman, pursuant
to Welfare and Institutions Code 9721 and to confer with the LTC
Ombudsman in its investigation of the complaint.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (CANHR)
California Assisted Living Association (CALA)
California Continuing Care Residents Association (CALCRA)
California Long-Term Care Ombudsman Association (CLTCOA)
California Retired Teachers Association (CalRTA)
Consumer Federation of CA
Consumers Advocates for RCFE Reform (CARR)
Elder Abuse Task Force of Santa Clara County
Elder Law and Advocacy
JM Trial Lawyers
LeadingAge California
Long Term Care Services of Ventura County, Inc.
National Association of Social Workers, CA Chapter (NASW-CA)
Ombudsman & HICAP Services of Northern California
Ombudsman Services of Contra Costa
Valentine Law Group
261 Individuals
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<8> Welfare and Institutions Code 9732
<9> Welfare and Institutions Code 9721
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Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089