BILL NUMBER: AB 2171 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 6, 2014
AMENDED IN ASSEMBLY APRIL 21, 2014
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 both, and both. The bill
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
, 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 .
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.
(10) To consent to or reject medication, care, or services after
being fully informed of all material information relevant to the
resident's decision.
(11)
(10) To be free from neglect, financial exploitation,
involuntary seclusion, punishment, humiliation, intimidation, and
verbal, mental, physical, or sexual abuse.
(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)
(11) 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.
(14)
(12) 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.
(15)
(13) 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.
(16)
(14) 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.
(17)
(15) 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.
(18)
(16) 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.
(19)
(17) To reasonable accommodation of resident
preferences concerning room and roommate choices.
(20)
(18) 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.
(21)
(19) 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.
(22)
(20) To select their own physicians, pharmacies,
privately paid personal assistants, hospice agency, and health care
providers.
(23)
(21) 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.
(24)
(22) 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.
(25)
(23) To move from the facility.
(26)
(24) To have relatives and other individuals of the
resident's choosing visit at any time, subject to the resident's
right to withdraw consent.
(27)
(25) 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.
(28)
(26) 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.
(29)
(27) To organize and participate in a resident council
that is established pursuant to Section 1569.157.
(30)
(28) To protection of their property from theft or loss
in accordance with Sections 1569.152, 1569.153, and 1569.154.
(31)
(29) 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.
(32)
(30) Other rights as specified in this chapter or other
state or federal 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.
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.
1569.271. (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.
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) (1) 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.
(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.
(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.