Amended in Assembly May 6, 2014

Amended in Assembly April 21, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2171

Introduced by Assembly Member Wieckowski

(Coauthor: Assembly Member Yamada)

(Coauthor: Senator Leno)

February 20, 2014

An act to add Article 2.5 (commencing with Section 1569.261) to Chapter 3.2 of Division 2 of, and to add Section 1569.425 to, the Health and Safety Code, relating to care facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 2171, as amended, Wieckowski. Residential care facilities for the elderly.

Existing law, the Residential Care Facilities for the Elderly Act, provides for the licensure and regulation of residential care facilities for the elderly by the State Department of Social Services. A violation of these provisions is a misdemeanor.

This bill would establish specified rights for residents of residential care facilities for the elderly, including, among other things, to be treated with dignity and respect, to personal privacy of accommodations, medical treatment, personal care and assistance, and to confidential treatment of their records and personal information, as specified. The bill would require, at admission, a facility staff person to personally advise a resident and the resident’s representative, as described, of these and other specified rights and to provide them with a written copy. The bill would require the department to assess civil penalties, pursuant to specified provisions, for a violation of these rights. The bill would also provide that a licensee who violates the provisions of the Residential Care Facilities for the Elderly Act may be prosecuted by the Attorney General in a civil action for an injunction or civil damages, or begin delete both, and end delete begin insert both. The bill end insert would authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any person or entity that violates that act, any regulatory requirements adopted by the department, or any right of the resident, as prescribed begin insert , but would require the resident to provide the person or entity alleged to have violated any of the rights described above with a specified written notice at least 30 days prior to the commencement of the action. The bill would prohibit the maintenance of an action for damages if the person alleged to have violated these rights ceases, corrects, or otherwise rectifies the alleged violation and provides the resident with an appropriate remedy within 30 days of the written notice end insert .

By expanding the scope of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Article 2.5 (commencing with Section 1569.261)
is added to Chapter 3.2 of Division 2 of the Health and Safety
Code, to read:

 

Article 2.5.  Resident’s Bill of Rights

 

1569.261.  

(a) It is the intent of the Legislature in enacting this
article to adopt fundamental rights for all persons residing in a
residential care facility for the elderly, as defined in Section 1569.2,
to ensure that facilities respect and promote these rights, and to
provide residents the ability to enforce their rights.

(b) In establishing this bill of rights, the Legislature intends that
persons residing in residential care facilities for the elderly be
treated with dignity, kindness, and respect, and that their civil
liberties be fully honored.

(c) A central purpose of the bill of rights is to strengthen a
resident’s right to make choices about his or her care, treatment,
and daily life in the facility and to ensure that the resident’s choices
are respected. The Legislature intends to enhance each resident’s
autonomy and ability to make decisions concerning his or her life.

(d) The Legislature also intends that each residential care facility
for the elderly provide a safe, comfortable, and homelike
environment for its residents and that it protect residents from any
type of physical or mental abuse, neglect, restraint, exploitation,
or endangerment.

1569.265.  

Rights and liberties set forth in this article do not
diminish a resident’s constitutional rights or any other rights set
forth in other state or federal laws and regulations. Persons residing
in residential care facilities for the elderly shall continue to enjoy
all of their civil and legal rights.

1569.267.  

(a) At admission, a facility staff person shall
personally advise a resident and the resident’s representative of,
and give a complete written copy of, the rights in this article and
the personal rights in Section 87468 of Title 22 of the California
Code of Regulations. The licensee shall have each resident and
the resident’s representative sign a copy of the resident’s rights,
and the licensee shall include the signed copy in the resident’s
record.

(b) Facilities shall prominently post, in areas accessible to the
residents and their representatives, a copy of the residents’ rights.

(c) The rights posted pursuant to subdivision (b) shall be posted
both in English and in any other language in a facility where 5
percent or more of the residents can only read that other language.

(d) The facility shall provide initial and ongoing training for all
members of its staff to ensure that residents’ rights are fully
respected and implemented.

1569.269.  

(a) Residents shall have all of the following rights:

(1) To be treated with dignity and respect.

(2) To personal privacy in accommodations, medical treatment,
personal care and assistance, visits, communications, telephone
conversations, use of the Internet, and meetings of resident and
family groups.

(3) To confidential treatment of their records and personal
information and to approve their release, except as authorized by
law.

(4) To be encouraged and assisted in exercising their rights as
citizens and as residents of the facility. Residents shall be free
from interference, coercion, discrimination, and retaliation in
exercising their rights.

(5) To a safe and homelike environment.

(6) To care, supervision, and services that meet their individual
needs and is delivered by staff that are at all times sufficient in
numbers, qualifications, and competency to meet their needs.

(7) To be served food of the quality and in the quantity necessary
to meet their nutritional needs.

(8) To make choices concerning their daily life in the facility.

(9) To fully participate in planning their care, including the right
to attend and participate in meetings or communications regarding
the care and services to be provided in accordance with Section
1569.80, and to involve persons of their choice in the planning
process. The facility shall provide necessary information and
support to ensure that residents direct the process to the maximum
extent possible, and are enabled to make informed decisions and
choices.

begin delete

(10) To consent to or reject medication, care, or services after
being fully informed of all material information relevant to the
resident’s decision.

end delete begin delete

(11)

end delete

begin insert (10) end insert  To be free from neglect, financial exploitation, involuntary
seclusion, punishment, humiliation, intimidation, and verbal,
mental, physical, or sexual abuse.

begin delete

(12) (A) To be free from physical and chemical restraints and
the inappropriate use of psychoactive drugs.

(B) For purposes of this paragraph, the following definitions
shall apply:

(i) “Chemical restraint” means any drug that is used for
discipline or convenience and not required to treat a medical
condition.

(ii) “Physical restraint” means any manual method or physical
or mechanical device, material, or equipment attached or adjacent
to the resident’s body that the resident cannot remove easily and
that restricts freedom of movement or normal access to one’s body.

(iii) “Psychoactive drug” means a medication that is used to
alter mood, level of anxiety, behavior, or cognitive processes.

(13)

end delete

begin insert (11) end insert  To present grievances and recommend changes in policies,
procedures, and services to the staff of the facility, the facility’s
management and governing authority, and to any other person
without restraint, coercion, discrimination, reprisal, or other
retaliatory actions. The licensee shall take prompt actions to resolve
residents’ grievances.

begin delete

(14)

end delete

begin insert (12) end insert  To contact the State Department of Social Services, the
long-term care ombudsman, or both, regarding grievances against
the facility. The facility shall post the telephone numbers and
addresses for the local offices of the State Department of Social
Services and ombudsman program, in accordance with Section
9718 of the Welfare and Institutions Code, conspicuously in the
facility foyer, lobby, residents’ activity room, or other location
easily accessible to residents.

begin delete

(15)

end delete

begin insert (13) end insert  To be fully informed, as evidenced by the resident’s written
acknowledgement, prior to or at the time of admission, of all rules
governing residents’ conduct and responsibilities. In accordance
with Section 1569.885, all rules established by a facility shall be
reasonable and shall not violate any rights set forth in this chapter
or in other applicable laws or regulations.

begin delete

(16)

end delete

begin insert (14) end insert  To receive in the admission agreement a comprehensive
description of the method for evaluating residents’ service needs
and the fee schedule for the items and services provided, and to
receive written notice of any rate increases pursuant to Sections
1569.655 and 1569.884.

begin delete

(17)

end delete

begin insert (15) end insert  To be informed in writing at or before the time of admission
of any resident retention limitations set by the state or facility,
including any limitations or restrictions on the facility’s ability to
meet residents’ needs.

begin delete

(18)

end delete

begin insert (16) end insert  To reasonable accommodation of individual needs and
preferences in all aspects of life in the facility, except when the
health or safety of the individual or other residents would be
endangered.

begin delete

(19)

end delete

begin insert (17) end insert  To reasonable accommodation of resident preferences
concerning room and roommate choices.

begin delete

(20)

end delete

begin insert (18) end insert  To written notice of any room changes at least 30 days in
advance unless the request for a change is initiated by a resident,
required to fill a vacant bed, or necessary due to an emergency.

begin delete

(21)

end delete

begin insert (19) end insert  To share a room with the resident’s spouse, domestic
partner, or a person of resident’s choice when both spouses,
partners, or residents live in the same facility and consent to the
arrangement.

begin delete

(22)

end delete

begin insert (20) end insert  To select their own physicians, pharmacies, privately paid
personal assistants, hospice agency, and health care providers.

begin delete

(23)

end delete

begin insert (21) end insert  To have prompt access to review all of their records and
to purchase photocopies. Photocopied records shall be promptly
provided, not to exceed two business days, at a cost not to exceed
the community standard for photocopies.

begin delete

(24)

end delete

begin insert (22) end insert  To be protected from involuntary transfers, discharges, and
evictions in violation of state laws and regulations. Facilities shall
not involuntarily transfer or evict residents for grounds other than
those specifically enumerated under state law or regulations, and
shall comply with enumerated eviction and relocation protections
for residents. For purposes of this paragraph, “involuntary” means
a transfer, discharge, or eviction that is initiated by the facility,
not by the resident.

begin delete

(25)

end delete

begin insert (23) end insert  To move from the facility.

begin delete

(26)

end delete

begin insert (24) end insert  To have relatives and other individuals of the resident’s
choosing visit at any time, subject to the resident’s right to
withdraw consent.

begin delete

(27)

end delete

begin insert (25) end insert  To receive written information on the right to establish an
advanced health care directive and, pursuant to Section 1569.156,
the facility’s written policies on honoring those directives.

begin delete

(28)

end delete

begin insert (26) end insert  To be encouraged to maintain and develop their fullest
potential for independent living through participation in activities
that are designed and implemented for this purpose, in accordance
with Section 87219 of Title 22 of the California Code of
Regulations.

begin delete

(29)

end delete

begin insert (27) end insert  To organize and participate in a resident council that is
established pursuant to Section 1569.157.

begin delete

(30)

end delete

begin insert (28) end insert  To protection of their property from theft or loss in
accordance with Sections 1569.152, 1569.153, and 1569.154.

begin delete

(31)

end delete

begin insert (29) end insert  To manage their financial affairs. The facility shall not
require residents to deposit their personal funds with the facility,
and no licensee or employee of a facility shall become a
representative payee for any payments made to residents or serve
as agent for a resident under a power of attorney.

begin delete

(32)

end delete

begin insert (30) end insert  Other rights as specified in this chapter or other state begin insert or
federal end insert laws or regulations.

(b) A licensed residential care facility for the elderly shall not
discriminate against a person seeking admission or a resident based
on sex, race, color, religion, national origin, marital status,
registered domestic partner status, ancestry, actual or perceived
sexual orientation, or actual or perceived gender identity.

(c) No provision of a contract of admission, including all
documents that a resident or his or her representative is required
to sign at the time of, or as a condition of, admission to a residential
care facility for the elderly, shall require that a resident waive
benefits or rights to which he or she is entitled under this chapter
or provided by federal or other state law or regulation.

(d) Residents’ family members, friends, and representatives
have the right to organize and participate in a family council that
is established pursuant to Section 1569.158.

(e) The department shall assess civil penalties pursuant to
Section 1569.49 for a violation of a right specified in this section.

begin delete

1569.271.  

(a) If a resident lacks the capacity to exercise the
rights under this chapter or provided by federal or other state law
or regulation, the resident’s representative shall have the authority
to exercise the resident’s rights, but may not act in any way to
restrict them. The resident’s incapacity shall be determined by a
court in accordance with state law or by the resident’s physician,
unless the physician’s determination is disputed by the resident or
resident’s representative.

(b) Persons who may act as the resident’s representative include
a conservator, guardian, person authorized as agent in the resident’s
valid advance health care directive, the resident’s spouse, registered
domestic partner, or family member, or other surrogate
decisionmaker designated consistent with statutory and case law.

end delete begin insert

begin insert 1569.271. end insert   

(a) Thirty days or more before the commencement
of an action for damages pursuant to Section 1569.425, the resident
or the resident’s representative shall do both of the following:

(1) Notify the person alleged to have violated any requirements
of this article, any regulatory requirements adopted by the
department, or any right of the resident provided by federal or
state law or regulation of the particular alleged violation.

(2) Demand that the person cease, correct, or otherwise rectify
the alleged violation.

The notice shall be in writing and shall be sent by certified or
registered mail, return receipt requested, to the residential care
facility in which the resident resides or resided or to the person’s
principal place of business within California.

(b) Except as provided in subdivision (c), no action for damages
may be maintained under Section 1569.425 if the person ceases,
corrects, or otherwise rectifies the alleged violation and provides
or agrees to provide an appropriate remedy to the resident within
30 days after receipt of the notice.

(c) No action for damages may be maintained under Section
1569.425 upon a showing by a person alleged to have violated
any requirements of this article, any regulatory requirements
adopted by the department, or any right of the resident provided
by federal or state law or regulation that all of the following exist:

(1) All residents similarly situated have been identified, or a
reasonable effort to identify those other residents has been made.

(2) All residents so identified have been notified that upon their
request, the person will cease, correct, or otherwise rectify the
practices, acts, or methods alleged to be in violation and provide
an appropriate remedy to the residents.

(3) The person has ceased from engaging, or if immediate
cessation is impossible or unreasonably expensive under the
circumstances, the person will, within a reasonable time, cease to
engage, in the alleged violation.

(4) The person has provided an appropriate remedy to the
residents or will do so in a reasonable amount of time.

(d) An action for injunctive relief brought under the specific
provisions of Section 1569.425 may be commenced without
compliance with subdivision (a). Not less than 30 days after the
commencement of an action for injunctive relief, and after
compliance with subdivision (a), the resident may amend his or
her complaint without leave of court to include a request for
damages. The appropriate provisions of subdivision (b) or (c) shall
be applicable if the complaint for injunctive relief is amended to
request damages.

(e) Attempts to comply with this section by a person receiving
a demand shall be construed to be an offer to compromise and
shall be inadmissible as evidence pursuant to Section 1152 of the
Evidence Code. Furthermore, these attempts to comply with a
demand shall not be considered an admission of engaging in an
act or practice declared unlawful under this article. Evidence of
compliance or attempts to comply with this section may be
introduced by a defendant for the purpose of establishing good
faith or to show compliance with this section.

end insert

SEC. 2.  

Section 1569.425 is added to the Health and Safety
Code, immediately following Section 1569.42, to read:

1569.425.  

(a) A licensee who violates any provision of this
chapter or regulations adopted by the department pursuant to this
chapter, and whose violation presents an immediate or substantial
threat to the physical health, mental health, or safety of a resident
of a residential care facility for the elderly may be enjoined from
permitting the violation to continue and may be sued for civil
damages within a court of competent jurisdiction. An action for
injunction or civil damages, or both, may be prosecuted by the
Attorney General in the name of the people of the State of
California upon his or her own complaint or upon the complaint
of a board, officer, person, corporation, or association, or by a
person acting for the interests of itself, its members, or the general
public. The amount of civil damages that may be recovered in an
action brought pursuant to this section shall not exceed the
maximum amount of civil penalties that could be assessed on
account of the violation or violations. The licensee shall be liable
for costs and attorney fees if the plaintiff prevails in an action
pursuant to this subdivision.

(b)  begin insert (1) end insert begin insert   end insert A current or former resident of a residential care facility
for the elderly, as defined in subdivision (k) of Section 1569.2,
may bring a civil action against any person or entity that violates
any requirements of this chapter, any regulatory requirements
adopted by the department, or any right of the resident provided
by federal or state law or regulation. The suit shall be brought in
a court of competent jurisdiction. The licensee shall be liable for
the acts of the licensee’s employees. The licensee shall be liable
for up to five hundred dollars ($500) for each violation, and for
costs and attorney fees, and may be enjoined from permitting the
violation to continue. Injunctive relief granted under this section
shall be deemed prohibitory, and shall not be stayed pending
appeal. The statute of limitations for suit under this subdivision
shall be three years, which shall not begin to run until the violation
has been discovered. The current or former resident has the right
to a trial by jury. The right to bring a civil action shall survive the
death of the resident. An agreement by a resident of a residential
care facility for the elderly to waive his or her rights to sue pursuant
to this subdivision shall be deemed contrary to public policy and
shall be void and unenforceable.

begin insert

(2) The right to bring a civil action against any person or entity
for a violation of Article 2.5 shall be subject to the requirements
of Section 1569.271.

end insert

(c) The remedies specified in this section shall be in addition
to any other remedy provided by law.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.