BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Jim Beall, Chair
BILL NO: AB 1554
A
AUTHOR: Skinner
B
VERSION: May 23, 2014
HEARING DATE: June 24, 2014
1
FISCAL: Yes
5
5
CONSULTANT: Sara Rogers
4
SUBJECT
Residential Care Facilities for the Elderly
SUMMARY
This bill makes numerous changes to the complaint
investigation process used by the California Department of
Social Services (CDSS) when responding to complaints
submitted against Residential Care Facilities for the
Elderly (RCFEs). This bill requires CDSS to provide notice
to the complainant of specified information regarding the
status of the complaint, requiring CDSS to attempt to
interview the complainant and subjects of the complaint and
permitting the complainant to appeal a decision made by
CDSS. Additionally this bill requires CDSS to conduct an
onsite investigation within one working day of the receipt
of the complaint if a complaint alleges physical abuse,
sexual abuse, or a threat of imminent danger of death or
serious harm. This bill further establishes an immediate
civil penalty of $1,000 for interfering with a complaint
investigation and for retaliating against residents or
staff involved in the complaint investigation, as
specified. This bill additionally establishes timeframes
for conducting a complaint investigation, as specified.
Continued---
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ABSTRACT
Existing Law:
1.Establishes the Residential Care Facilities for the
Elderly Act which provides for the CDSS to license and
regulate RCFEs as a separate category within the existing
residential care licensing structure of CDSS. (HSC 1569
et seq.)
2.Provides that RCFEs shall be subject to unannounced
visits by CDSS and be visited as often as necessary to
ensure the quality of care provided. (HSC 1569.33)
3.Requires annual unannounced inspections when a license is
on probation, when required by the terms of a facility
compliance plan, when an accusation is pending, when
required for federal financial participation, or to
verify that a person who has been ordered out of the
facility is no longer present. (HSC 1569.33)
4.Requires CDSS to perform random inspections each year on
no fewer than 20 percent of the RCFE facilities not
subject to annual inspections. Provides that this
percentage shall increase by 10 percent if the total
citations issued by the department exceeds the previous
year by 10 percent. As a result of this trigger, CDSS
currently is required to perform random inspections on 30
percent of the RCFE facilities not subject to annual
inspection. Requires CDSS to visit every facility no less
than every 5 years. (HSC 1569.33)
5.Requires CDSS to visit a newly licensed facility within
90 days after a facility accepts its first resident to
evaluate compliance with regulatory requirements. (HSC
1569.24)
6.Permits any person to request an inspection of any RCFE
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by transmitting notice of an alleged violation orally or
in writing. Requires CDSS to make a preliminary review
and an onsite inspection within 10 days after receiving
the complaint except where the visit would adversely
affect the licensing investigation or the investigation
of other agencies, including, but not limited to, law
enforcement agencies (HSC 1569.35)
7.Through regulation, requires CDSS to conduct a follow-up
visit within 10 working days following the latest date of
correction specified in the notice of deficiency, unless
the licensee has demonstrated that the deficiency was
corrected as required. Provides that no penalty shall be
assessed unless a follow-up visit is conducted. (Title 22
CCR 87759)
This bill:
1.Permits a person to request an investigation of an RCFE
by electronically making a complaint to CDSS alleging a
violation state statute or regulation, in addition to
current law providing for oral or written submission.
2.Requires CDSS to notify the complainant of the name of
the officer, employee, or agent of the department who
will conduct the complaint investigation within two
working days of receiving the complaint.
3.Requires CDSS to conduct an onsite investigation of a
complaint alleging physical abuse, sexual abuse, or a
threat of imminent danger of death or serious harm,
within one working day of the receipt of the complaint.
4.Requires CDSS to give priority to a complaint filed by a
local long-term care ombudsman or the State Long-Term
Care Ombudsman alleging denial of a statutory right of
access to a residential care facility for the elderly.
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5.Requires CDSS to make a good-faith effort to contact and
interview the complainant and inform the complainant of
the proposed course of action and the relevant
investigation deadlines; and to the extent practicable,
specifies that the officer, employee, or agent of the
department who will conduct the investigation will be the
representative who interviews and makes contact with the
complainant.
6.Requires CDSS, when conducting an investigation to
consult with and, to the extent practicable, coordinate
an investigation of an RCFE with the investigation of the
facility by other agencies, including, but not limited
to, the Office of the State Long-Term Care Ombudsman and
law enforcement agencies.
7.Requires that if CDSS suspends an investigation upon
request of a law enforcement agency, it shall maintain
written documentation of the request, continue to ensure
the safety of all residents, and immediately resume any
investigation upon consent of law enforcement or
completion of the criminal investigation.
8.Prohibits CDSS from giving a licensee advance notice of
an investigation conducted pursuant to this section.
9.Prohibits a licensee from interfering with or obstructing
a complaint investigation and establishes an immediate
civil penalty of one thousand dollars ($1,000) for doing
so.
10.Prohibits a licensee from retaliating or discriminating
against residents or staff involved in the complaint
investigation and establishes an immediate civil penalty
of one thousand dollars ($1,000) for doing so.
11.Requires CDSS to collect and evaluate all available
evidence necessary to complete a complaint investigation,
including, but not limited to, the following:
STAFF ANALYSIS OF ASSEMBLY BILL 1554 (Skinner)
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Observed conditions;
Statements of witnesses;
Interviews with administration, staff, other
residents, family members, visitors, the long-term
care ombudsman, and other individuals or agencies that
provide services at the facility, which may have
information about the complaint;
Records from the facility and any other relevant
sources.
1.Requires CDSS to complete an investigation of a complaint
alleging physical abuse, sexual abuse, or a threat of
imminent danger of death or serious harm within 30 days
of receiving the complaint.
2.Requires CDSS to complete an investigation of all other
complaints within 90 days of receiving the complaint.
3.Provides that the 30-day and 90-day deadlines may be
extended for an additional 30 days if the department has
diligently attempted, but has not been able, to obtain
necessary evidence related to the investigation.
4.Requires CDSS to notify the complainant in writing of the
basis for the extension, and to include in the notice any
outstanding evidence, the sources from which the evidence
has been sought, and the anticipated completion date.
5.Requires CDSS to notify the complainant in writing of the
department's determination and of the complainant's right
to appeal and requires the notice to describe the appeal
process and to include a copy of any reports and
documents describing violations and enforcement actions
resulting from the investigation.
6.Permits a complainant who is dissatisfied with the
department's investigation, findings, or enforcement
actions resulting from the investigation to file an
STAFF ANALYSIS OF ASSEMBLY BILL 1554 (Skinner)
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appeal by notifying the program manager of the officer,
employee, or agent of the department conducting the
investigation in writing within 15 days after receiving
the notice of the department's determination.
7.Requires the CDSS program manager to schedule a meeting
or teleconference with the complainant within 30 days of
receiving an appeal and to carefully review the concerns,
information, and evidence presented by the complainant to
determine whether the department's findings or actions
should be modified or whether further investigation is
necessary.
8.Provides that if a complainant is dissatisfied with the
program manager's determination on an appeal, the
complainant may file an appeal in writing with the
department's Deputy Director of the Community Care
Licensing Division and requires the deputy director or
his or her designee to interview the complainant,
consider any information presented or submitted by the
complainant, and review the complaint record to determine
whether the department's findings or actions should be
modified or whether further investigation is necessary.
9.Establishes that the above provisions become operative on
July 1, 2015.
FISCAL IMPACT
An Assembly Appropriations analysis states there are
on-going costs to CDSS, likely in the range of $200,000 to
$400,000, for additional personnel to review complaints,
confer with complainants, and potentially investigate
complaints within the required time frame.
BACKGROUND AND DISCUSSION
Purpose of the bill:
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According to the author, California's current inspection
requirements for RCFEs fail to adequately ensure the health
and safety of our fast growing elderly population. The
author states that due to the lack of regular inspections
of RCFEs, it is critical that the Community Care Licensing
Division (CCL) have a strong and effective complaint
investigation system to identify and stop instances of
abuse and neglect.
Specifically, the author states that 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. Additionally, the author notes that CCL does not
send written findings to complainants except upon request,
and does not give complainants an opportunity to appeal
CCL's findings. The author states that even when complaints
are substantiated, meaningful enforcement action by CCL is
very rare.
The sponsor states that this bill is one of a package of
bills responding to recent events that have led to concerns
with the adequacy of CDSS oversight and the state's ability
to protect people who reside in RCFEs.
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
-------------------------
<1>
http://www.propublica.org/article/life-and-death-in-assisted
-living-single
STAFF ANALYSIS OF ASSEMBLY BILL 1554 (Skinner)
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documents in San Diego, revealed that more than two dozen
seniors had died in recent years in RCFEs under
questionable circumstances that went ignored or
unpunished by CCL.<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.
In February, 2013, a Sacramento-based RCFE provider with
an extensive 17-year history of licensing violations was
charged with involuntary manslaughter by the state
Attorney General after a resident died as the result of
developing stage IV bedsores while under the care of the
facility.
Residential Care Facilities for the Elderly
Within California's continuum of long-term care, situated
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
-------------------------
<2> "Care Home Deaths Show System Failures," San Diego
Union Tribune, Sept.7, 2013
STAFF ANALYSIS OF ASSEMBLY BILL 1554 (Skinner)
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diabetes, bedsores, or require the use of oxygen tanks,
catheters, colostomies or ileostomies.
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 their residents. Residents may live in their
own apartments, 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 maintain a secure perimeter.
Regulatory Oversight
The Community Care Licensing (CCL) division of CDSS
provides the primary public oversight over the quality and
care provided in RCFE facilities. Prior to January 2004,
CCL conducted annual visits of all RCFEs and other licensed
facilities within its jurisdiction. However, as a result of
a series of budget cuts beginning in 2003, CCL began
inspecting facilities based on a random sample protocol.
Under this scenario, those facilities that warrant close
monitoring because of a poor history of compliance are
monitored annually, as well as facilities that are
federally required to be inspected annually. Typically,
this comprises about 10 percent of all facilities. Of the
remaining 90 percent, approximately 30 percent are randomly
selected for inspection each year. The five-year inspection
mandate was intended to catch facilities that are not
randomly selected at least that often for inspection.
A 2008 study published by the California Health Care
Foundation investigating the impact on the truncated
frequency of visits found that "routine visits were
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replaced with significant increases in the number of
complaint and problem-driven visits" and that "the
monitoring of quality of care in RCFEs has become a
complaint and problem driven process."<3> CCL has
repeatedly sought to restore the cuts made to licensing,
arguing that the cuts to staff and resulting changed
protocols "have put client health and safety at risk. By
not consistently inspecting facilities, or inspecting a
facility only as the result of a complaint, CCL LPAs have
lost rapport with licensees, which in turn has not been
conducive to helping clients in those facilities."<4>
Joint Hearing on RCFEs
On February 11, 2014, the Senate and Assembly Human
Services Committees jointly held an informational hearing
investigating efforts to increase accountability and
oversight of Assisted Living Facilities. Testimony during
the hearing highlighted significant technological barriers
to the tracking of complaints and deficiencies, limited
follow-up practices by the department to ensure that
deficiencies are corrected, frequent failure to collect
assessed fines and penalties, a lengthy appeals process
that hinders immediate action when necessary, and use of a
shortened inspection tool that has not been validated for
use in RCFEs.
2014-15 Budget Act
The 2014-2015 budget includes new staff resources, proposed
by the Governor, to establish a statewide quality assurance
unit, which will report directly to the Deputy Director of
Community Care Licensing to focus on conducting reviews at
-------------------------
<3> Inspection Visits in Residential Care Facilities for
the Elderly. C. Flores, A. Bostrom, and R. Newcomer.
California Health Care Foundation, 2008.
<4> Department of Social Services spring finance letter
CCLD-1, 2011-12
STAFF ANALYSIS OF ASSEMBLY BILL 1554 (Skinner)
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the division, program and regional office levels to do the
following:
Identify immediate health and safety risks to clients and
ensure appropriate follow-up
Develop a statewide quality assurance review model
Identify training needs on the basis of quality assurance
reviews
Coordinate licensing case file responses to Public Record
Act requests, include redaction as necessary
Identify policy, procedural, and information systems
weaknesses, and
Ensure that policies, procedures, laws and regulations
are followed consistently.
Additionally, the Governor proposed the addition of six new
Special Investigator Assistants to support the CDSS
Investigators who have peace officer status and who are
cited as essential to improving the timeliness of
investigations, and the establishment of a statewide
toll-free hotline to receive and review public complaints.
He also proposed an expansion of the Licensing Program
Analyst training for the LPAs who are responsible for
responding to complaints.
Related Legislation
SB 895 (Corbett) 2014 requires CDSS to conduct annual
unannounced comprehensive inspections for all facilities by
2018, requires CDSS to verify compliance following
deficiencies within 10 days, and requires results of
inspections to be available on the CDSS website. This bill
is before the Assembly Appropriations Committee.
AB 1436 (Waldron) 2014 would have required the results of
all reports of inspections, evaluations or consultations
and lists of deficiencies to be posted on the department's
Internet Web site. This bill was held in Assembly
Appropriations.
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AB 1454 (Calderon) 2014 would require all licensed
community care facilities, RCFEs, and child day care
centers to be subject to an annual unannounced visits visit
by CDSS. This bill is before the Senate Appropriations
Committee.
AB 2171 (Wieckowski) 2014 would establish specified RCFE
resident's rights and require facilities to inform
residents of these rights as specified. This bill is before
the Senate Judiciary Committee.
AB 2236 (Mainschein) 2014 would establish a new civil
penalty structure for RCFEs. This bill is being heard by
this committee today.
AB 581 (Ammiano) Chapter 295, Statutes of 2013 strengthened
protections against retaliation or discrimination when
complaints are made.
COMMENTS
CDSS is unable to provide any substantive information
regarding the actions taken in response to complaints aside
from whether the complaint was substantiated. It is not
clear whether the department returns to the facility to
ensure compliance, despite existing law that requires they
do so, and despite daily penalties that are required to be
assessed until the facility complies with the requirements
of the deficiency notice.
Currently, CDSS is required to visit RCFE facilities only
once every five years and those required inspections have
been significantly abbreviated using a "key indicator tool"
which has not been validated as a sound method for
predicting whether a facility is adequately meeting the
needs of residents. As a result, the complaint process is
often the only effective tool to enforce quality issues in
community care facilities, including RCFEs. In this regard,
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this bill makes helpful statutory changes that increase the
department's accountability to ensuring that complaints are
thoroughly considered.
Staff notes that provisions of this bill that permit any
and every complaint to be brought before the Deputy
Director of the Community Care Licensing Division appear
excessive, though an internal level of review within the
department may be appropriate. Additionally, provisions of
this bill require the department to provide notice to a
complainant of any "outstanding evidence and the sources
from which the evidence has been sought" when seeking to
extend the timeframe needed to conduct an investigation.
Further, staff notes that this bill would establish an
immediate civil penalty of $1,000 for interfering with a
complaint investigation, which is substantially higher than
the $150 maximum for serious offenses under current law,
including death of a resident. Staff notes that the
recently enacted budget included intent language for the
legislature to comprehensively address penalties for all
community care facilities.
Staff recommends the following amendments:
Page 6, Lines 16-23:
(2) The 30-day and 90-day deadlines in paragraph (1) may be
extended for an additional 30 days if the department has
diligently attempted, but has not been able, to obtain
necessary evidence related to the investigation. Whenever
the department exercises this authority, it shall notify
the complainant in writing of the basis for the extension,
and shall include in the notice any outstanding evidence,
the sources from which the evidence has been sought, and
the anticipated completion date.
Page 6, Lines 36-40 and Page 7, Lines 1-11:
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(j) (1) A complainant who is dissatisfied with the
department's investigation, findings, or enforcement
actions resulting from the investigation may file an appeal
by notifying the program manager of the officer, employee,
or agent of the department conducting the investigation in
writing within 15 working days after receiving the notice
described in subdivision (i). The program manager shall
schedule a meeting or teleconference with the complainant
within 30 working days of receiving an appeal. The program
manager shall carefully review the concerns, information,
and evidence presented by the complainant to determine
whether the department's findings or actions should be
modified or whether further investigation is necessary.
Within 10 working days after conducting the meeting or
teleconference with the complainant, the program manager
shall notify the complainant in writing of the department's
determinations and actions concerning the appeal and of the
appeal rights provided in paragraph (2).
(2) If a complainant is dissatisfied with the program
manager's determination on an appeal, the complainant may,
within 15 working days after receipt of this determination,
file an appeal in writing with the department's Deputy
Director Quality Assurance Unit of the Community Care
Licensing Division. Within 30 working days of receiving an
appeal, a representative of the Quality Assurance Unit
shall interview the complainant, consider any information
presented or submitted by the complainant, and review the
complaint record to determine whether the department's
findings or actions should be modified or whether further
investigation is necessary. No later than 10 working days
after completing this review, the deputy director shall
notify the complainant in writing of the department's
determinations and actions concerning the appeal.
Page 5, Lines 31-38
(f) A licensee, or officer or employee of the licensee,
shall not interfere with or obstruct an investigation
conducted pursuant to this section. The department shall
assess an immediate civil penalty of one thousand dollars
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($1,000) equal to the penalty established for a serious
violation under Section 1569.49 (c) per day per violation
for violations of this subdivision. In addition to
assessing that penalty, the department may take any other
enforcement actions authorized by this chapter for
violations of this subdivision.
Page 11, Lines 17-23
(b) The department shall assess an immediate civil penalty
in the amount of one thousand dollars ($1,000) equal to the
penalty established for a serious violation under Section
1569.49 (c) per day for each violation of this section. In
addition to assessing that penalty, the department may take
any other enforcement actions authorized by this chapter
for violations of this section.
PRIOR VOTES
Assembly Floor 78 - 0
Assembly Appropriations 16 - 0
Assembly Aging and Long Term Care 7 - 0
Assembly Human Services 6 - 0
POSITIONS
Support: California Advocates for Nursing Home Reform
(Sponsor)
AARP
California Long-Term Care Ombudsman
Association
California Retired Teachers Association
Consumer Federation of California
County of San Diego
County Welfare Directors Association
Law Offices of Sanford Horowitz
National Association of Social Workers
Retired Public Employees Association
Stanislaus County Commission on Aging
2 individuals
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Oppose: None received.
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