BILL ANALYSIS �
AB 1554
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 1554 (Skinner) - As Amended: April 22, 2014
SUBJECT : Residential care facilities for the elderly (RCFE):
complaint investigations.
SUMMARY : Requires the Department of Social Services (DSS)
Community Care Licensing Division (CCLD) to investigate
complaints involving abuse, neglect, or serious harm
to a RCFE resident within 24 hours, or 10 days depending on the
nature of the complaint, and to complete investigations within
30 or 90 days, depending on the nature of the complaint.
Specifically, this bill :
1)Clarifies that complainants may seek investigations, instead
of inspections, when credible, non-harassing assertions of
violations of law or regulation are made by any person.
2)Allows complaints to be made electronically or verbally, as
well as in writing.
3)Requires DSS to make a preliminary review of the complaint
upon receipt.
4)Requires DSS to notify the complainant of the name of the
investigator within 2 working days, and then make an onsite
investigation within 10 days after receiving the complaint.
5)Provides for a more immediate investigation within 24 hours if
the complaint alleges credible abuse (including neglect), or
an imminent threat of death or serious harm.
6)Assures priority action by DSS when the Long-Term Care
Ombudsman submits a complaint that a licensee fails to provide
the Ombudsman with a roster, census, or list of names and room
numbers and locations of residents, or is restricting the
Ombudsman's ability to:
a. enter a facility;
b. conduct unescorted and unhindered movement within the
facility in order to provide visits, or hear, investigate
and resolve complaints;
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c. observe and monitor conditions of residents and the
facility;
d. speak confidentially with residents; and
e. assist residents to protect their health, safety and
rights.
7)Requires investigators to confer with complainants before
conducting an onsite investigation in order to convey the
proposed course of action.
8)Allows DSS to coordinate investigations when existing
investigations are underway.
9)Maintains the confidentiality of the complainant unless the
complainant specifically requests his/her name be released,
and prohibits the department from giving a licensee advance
notice of an inspection.
10)Provides for immediate civil monetary penalty of $1000 for
each day, of each violation and allows the department to take
any other authorized enforcement actions for violations.
11)Itemizes the elements of the investigation to include all
evidence, observed conditions, witness statements, interviews
with facility staff, other residents, family members,
visitors, long-term care ombudsman, and others who may have
information about the complaint, or facility records.
12)Requires the investigation to be completed within 90 days
unless law enforcement has established an investigation
already, in which case DSS may extend the investigation if the
department notifies the complainant with 48 hours; or 30 days
for complaints involving imminent harm.
13)Provides for an appeal process in the event the complainant
is dissatisfied with the department's findings or
investigation, or enforcement actions resulting therein.
14)Specifically exempts from the California Public Records Act,
disclosure of names of individuals identified in records
collected by the Department of Social Services related to
investigations and inspections of RCFEs.
15) Requires DSS to assure that licensees, officers and
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employees of licensees comply with anti-retaliation and
anti-discrimination provisions of the RCFE Act.
EXISTING LAW :
1)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
2)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.
3)Prohibits any person, firm, partnership, association,
corporation or public agency from establishing, operating,
managing, conducting or maintaining a Community Care Facility
(CCF) or RCFE without a valid license provided by DSS.
4)Provides that any person who violates the RCFE Act shall be
guilty of a misdemeanor and upon conviction be fined no more
than $1,000, imprisoned in county jail for up to one year, or
both.
5)Establishes the Long-Term Care Ombudsman program as a result
of the federal Older Americans Act (OAA) and the
Mello-Granlund Older Californians Act (OCA), and places it
within the California Department of Aging to encourage
community contact and involvement with elderly patients or
residents of long-term care facilities through the use of
volunteers and volunteer programs.
6)Requires the Ombudsman, either personally or through
representatives, to identify, investigate, and resolve
complaints that may adversely affect the health, safety,
welfare, or rights of residents of long-term care facilities.
7)Provides that representatives of the Ombudsman program have
access to long-term care facilities and residents, and the
medical and social records of residents.
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8)Prohibits willful interference with the functions of the
Ombudsman representative and the Ombudsman program.
9)Prohibits retaliation and reprisals by a long-term care
facility, and provides for sanctions with respect to
interference, retaliation, and reprisals.
10)Provides that representatives of the Ombudsman program have
the right to enter and move about long-term care facilities to
identify, hear, investigate, and resolve complaints; observe
and monitor conditions of residents and facilities; speak
confidentially with residents; and provide services to assist
residents in protecting their health, safety, welfare, and
rights.
11)Prohibits RCFE licensees or their staff from discriminating
or retaliating against a resident if the resident has
participated in the filing of a complaint, grievance, or
request for inspection with the California Department of
Social Services (DSS) or with a local or state ombudsman.
12)Prohibits an RCFE licensee or their staff from discriminating
or retaliating against a fellow staff person, as specified, if
the staff person has participated in the filing of a
complaint, grievance, or request for inspection with DSS or
with a local or state ombudsman.
FISCAL EFFECT : Unknown
COMMENTS :
Author's Statement : "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
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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 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
FY 2012, 1,673 of which involved abuse.
"AB 1554 would require CCL to begin investigations of complaints
involving abuse, neglect, or serious harm to a RCFE resident
within 24 hours, complete investigations of these highest
priority complaints within 30 days, and ensure the
confidentiality of patients, staff, and whistleblowers.
Additionally, the bill would require CCL to complete
investigations of all other complaints within 90 days; to
interview complainants, residents and other pertinent parties
during investigations; to send written findings to complainants;
and to provide complainants an opportunity to appeal complaint
findings."
Background : California has the largest population of people age
65 and older of any state in the nation. California's 65+
population is projected to double from its 2010 census of about
4.3, to 8.4 million 2030. By 2035, the 65+ population will
exceed 20% of the population. This year, California's 65+
population will reach 5 million people. Although research shows
that older, low-income women's life-spans are decreasing, most
other populations are experiencing longer life-spans. As
California's population ages, it is becoming more culturally and
ethnically diverse. Disability is highly associated with age,
and as the aged population expands, so will the presence of
disabilities within our communities.
RCFE is a model of care overseen by the Department of Social
Services. RCFEs provide care, supervision and assistance with
activities of daily living, such as bathing, dressing,
ambulating, grooming, and other personal activities. They may
also provide incidental medical services under special care
plans. Facilities provide services to persons 60 years of age
and over and persons under 60 with compatible needs. RCFEs are
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also referred to as assisted living facilities or board and care
homes. Facilities can range in size from six or fewer, to over
100 beds. Residents in RCFEs require varying levels of personal
care and protective supervision. Since RCFEs are non-medical
facilities, they are not required to have nurses or other health
personnel on staff. Oversight of RCFEs consists of licensing
visits once every 5 years. For RCFEs under the scrutiny of the
CCL division, or on probation, annual unannounced visits from
CCL occur.
The number of RCFEs, and corresponding workload to oversee and
enforce laws and regulations therein, has grown rapidly during
the past decade. In 2004, there were about 6,500 licensed
facilities. By 2014, nearly 7,600 facilities housing over
175,000 people are in operation throughout the state. Recent
media has captured the ramifications of the rapid expansion, and
diversification of the RCFE industry, as it struggles to meet
the housing and care needs of a growing aged population, and the
growing presence of more disabilities. Although most RCFE's are
administered and staffed by competent caregivers and people
committed to the wellbeing of their clients, frightening
accounts of poor care and administration has focused policy
makers on the RCFE model of care. In September 2013, the
California Health Care Foundation (CHCF) Center for Health
Reporting and San Diego Union Tribune reported that at least 27
San Diego County seniors died from neglect and injuries in
RCFEs, in some cases with no investigation by CCL. Also
reported, The CCL Investigations Branch, an internal police
force, has not made an arrest in nine years even though the
investigation found that hundreds of RCFE residents have
suffered sexual assaults, physical abuse, medication errors,
life threatening bedsores and other abuses. During the past
year, Californians monitoring local, state and national media
have been confronted with no less than the following range of
media reports about RCFEs:
PBS Frontline/ProPublica: "Life and Death in Assisted Living"
and "Elderly, At Risk and Haphazardly Protected" July, 2013.
San Diego Union Tribune, California Health Care Foundation
Center for Health Reporting: "Deadly Neglect, Medical Errors,
Weaker Rules Signal Safety Problems in California Assisted
Living Homes" September, 2013.
San Jose Mercury: "Shuttering Castro Valley Senior Care
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Facility Sparks Criminal Investigation" October, 2013.
The Sacramento Bee: "Care Home Owner to Stand Trial" March
2013.
Governor's Budget Proposal : Coinciding with critical media
coverage of RCFE oversight, Governor Brown proposed the
following budget concepts:
1)Additional positions. The additional 71.5 positions to assist
in CCL enforcement activities include six special investigator
assistants, a nurse practitioner, five licensing program
managers, and others.
2)Staff training and development for new field staff and
training for supervisors and managers by expanding the
Licensing Program Analyst academy, implementing ongoing
training, and strengthening the Administrator Certification
Section.
3)Create a Mental Health Populations Unit which would provide
technical assistance to enforcement staff and licensees, as
well as to individuals who reside in facilities who have
increasing mental health care needs.
4)Establish a Corporate Accountability Unit. With increased
applications for Residential Care Facilities for the Elderly
and corporate mergers and acquisitions for facilities, the
additional attorney and associate governmental program analyst
would perform systemic noncompliance analysis and ensure
corrective actions; create management reports that identify
patterns and trends; make corrective action recommendations;
and, follow-up on corrective action plans to ensure that
licensees with poor compliance patterns do not support
operational expansions.
5)Increased civil penalties. Because the current civil penalty
structure is related to a "per violation" event, the current
maximum civil penalty, even in response to serious injury or
death of a resident, is $150.
6)Establish a Temporary Manager and Receivership Process, to
appoint a temporary manager or receiver to act as the
provisional licensee, if DSS determines that residents of a
facility are likely to be in danger of serious injury or
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death, and the immediate relocation of clients is not
feasible.
7)Specialized complaint hotline. Create a specialized and
centralized toll-free public complaint hotline, which can help
acquire better initial information, conduct consistent
prioritization, and dispatch incoming complaints to regional
offices.
8)Centralize application processing for Adult and Senior Care
facilities, which is expected to increase inspections of
licensed facilities to at least once every two years.
9)Establish a statewide Quality Assurance Unit to track
information statewide, including complaints, actions, or
performance.
10)Establish an Emergency Client/Resident Contingency Account to
be used at the discretion of the Director of DSS for the care
and relocation of clients and residents, when a facility's
license is revoked or temporarily suspended.
Supporters : The California Advocates for Nursing Home Reform,
the measure's sponsor, writes that "the last year has brought
many shocking revelations about the mistreatment of California
elders who live in Residential Care Facilities for the Elderly
(RCFEs). A central theme of the media and advocacy reports is
that RCFE residents are increasingly exposed to serious harm and
death due to their extraordinary vulnerability and California's
failure to respond when their mistreatment is reported or
discovered. AB 1554 will help protect California's at-risk
elders in RCFEs by requiring Community Care Licensing (CCL) -
the state agency charged with investigating complaints about
RCFEs - to begin investigations of the most serious complaints
within 24 hours and to complete these investigations within 30
days. The bill also sets standards for completing
investigations of less serious complaints and establishes basic
due process rights for complainants."
Previous Hearing : AB 1554 was previously heard and amended in
the Assembly Human Services Committee where it passed on a vote
of 6-0-1 (Hall).
Related Legislation :
AB 1816 (Yamada) Nursing Home Investigations: would establish
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time-frames for investigations of complaints and reports of
abuse, misconduct, and mistreatment within skilled nursing
facilities.
AB 1554 is one-of a multi-bill package of reform measures
currently pending in the legislature:
SB 894 (Corbett) Suspensions and Revocation: would amend current
law to strengthen and improve the procedures regarding
suspension and/or revocation of licenses and to create expedited
timelines for the safe relocation of residents when a facility's
license has been revoked.
SB 895 (Corbett) Annual Inspections: would amend Health and
Safety Code section 1569.33 to require CCL to conduct
unannounced, comprehensive inspections of all RCFEs at least
annually.
SB 911 (Block) Administrator and Staff Training: would increase
the hours of training for both administrators and direct care
staff, and increase the training requirements for staff serving
persons with dementia or who distribute medication for resident
self-administration.
SB 1153 (Leno) Ban on Admissions: would give DSS the ability to
impose a ban on new admissions to a RCFE to protect unknowing
future residents and give the facility time to focus their
resources on fixing its problems before taking on additional
care responsibilities.
AB 1554 (Skinner) Complaint Investigations: would require CCL to
begin investigations of complaints involving abuse, neglect, or
serious harm to a RCFE resident within 24 hours; to complete
investigations of these highest priority complaints within 30
days; and to ensure the confidentiality of patients, staff and
whistleblowers.
AB 1571 (Eggman) Online Consumer Information System: would
require that DSS/CCL establish an on-line RCFE Consumer
Information system to include specified, updated and accurate
license, ownership, survey and enforcement information on every
licensed RCFE in California with components to be phased in over
a five (5) year period ending June 30, 2019.
AB 1572 (Eggman) Resident and Family Councils: would promote the
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development of Resident Councils and Family Councils in RCFEs by
requiring RCFEs to, among other things, assist in the formation
of Resident Councils at the request of two or more residents and
prohibit RCFEs from interfering with the formation of Family
Councils.
AB 2171 (Wieckowski) Resident Bill of Rights: would establish a
statutory bill of rights to address the needs and interests of
RCFE residents in areas such as visitation, privacy,
confidentiality, personalized care, autonomy, informed consent,
freedom from abuse and restraint, adequate staffing and others.
AB 2236 (Stone and Maienschein) would increase fines for
violating laws and regulations and give "teeth" to CCL to stop
and deter threats to resident health and safety.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (CANHR) - Sponsor
Alliance on Aging
American Association of Retired Persons (AARP)
American Federation of State, County and Municipal Employees
(AFSCME). AFL-CIO
Assisted Living Consumer Alliance (ALCA)
California Advocates for Nursing Home Reform (CANHR)
California Assisted Living Association (CALA)
California Communities United Institute
California Continuing Care Residents Association (CALCRA)
California Long-Term Care Ombudsman Association (CLTCOA)
California Retired Teachers Association (CalRTA)
Consumer Federation of California (CRC)
Contra Costa Advisory Council on aging (CCACOA)
County of San Diego
County Welfare Directors Association of California (CWDA)
Disability Rights California (DRC)
Elder Abuse Task Force of Santa Clara County
Elder Law & Advocacy
Jewish Family Service of Los Angeles
Johnson Moore Trial Lawyers
LeadingAge California
Long Term Care Services of Ventura County, Inc.
National Association of Social Workers-California Chapter
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(NASW-CA)
National Consumer Voice for Quality Long-Term Care
Ombudsman & HICAP Services of Northern California
Ombudsman Services of Contra Costa
Valentine Law Group
One individual.
Opposition
Numerous individuals (tens).
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990