Amended in Assembly May 23, 2014

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 begin insert amend Section 1569.886 of, to end insert add Article 2.5 (commencing with Section 1569.261) to Chapter 3.2 of Division 2 of, and to add Section begin delete 1569.425 end delete begin insert 1569.275 end insert 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. begin insert Existing law requires that an admission agreement for a residential care facility for the elderly explain the resident’s right to notice prior to an involuntary transfer, discharge, or eviction, as specified. end insert 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, begin insert to receive 90 days’ notice before an involuntary transfer, discharge, or eviction, end insert to be begin delete treated with end delete begin insert accorded end insert dignity begin delete and respect end delete begin insert in their personal relationships with staff end insert , to begin insert be granted a reasonable level of end insert 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 begin delete require end delete begin insert authorize end insert the department to assess civil penalties, pursuant to specified provisions, for a violation of these rights begin delete . The bill would also end delete begin insert , and would end insert provide that a licensee who violates begin delete the provisions of the Residential Care Facilities for the Elderly Act end delete begin insert these rights end insert may be prosecuted by the Attorney General in a civil action for an injunction or civil damages, or both. The bill would begin insert also end insert authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any begin delete person or entity end delete begin insert facility end insert that violates begin delete that act, any regulatory requirements adopted by the department, or any right of the resident, as prescribed end delete begin insert these rights end insert , but would require the resident to provide the begin delete person or entity end delete begin insert facility end insert 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 begin delete person end delete begin insert facility end insert alleged to have violated these rights ceases, corrects, or otherwise rectifies the alleged violation begin delete and provides the resident with an appropriate remedy end delete 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 begin delete treated with end delete begin insert accorded end insert dignity begin delete and respect end delete begin insert in their
personal relationships with staff, residents, and other persons end insert .

(2) To begin insert be granted a reasonable level of end insert 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 begin insert be accorded end insert a safe and begin delete homelike end delete begin insert habitable end insert environment.

(6) To care, supervision, and services that meet their individual
needs and is delivered by staff that are begin delete at all times end delete 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 be free from neglect, financial exploitation, involuntary
seclusion, punishment, humiliation, intimidation, and verbal,
mental, physical, or sexual abuse.

(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.

(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.

(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.

(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.

(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.

(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.

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

(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.

(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.

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

(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.

(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. begin insert A facility shall provide 90 days’ notice to a resident
prior to involuntarily transfer, discharge, or eviction. end insert For purposes
of this paragraph, “involuntary” means a transfer, discharge, or
eviction that is initiated by the facility, not by the resident.

(23) To move from the facility.

(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.

(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.

(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.

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

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

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

begin delete

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

end delete

(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 begin delete shall end delete begin insert may end insert assess civil penalties pursuant to
Section 1569.49 for a violation of a right specified in this section.

1569.271.  

(a) Thirty days or more before the commencement
of an action for damages pursuant to Section begin delete 1569.425 end delete begin insert 1569.275 end insert ,
the resident or the resident’s representative shall do both of the
following:

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

(2) Demand that the begin delete person end delete begin insert facility end insert 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 begin delete 1569.425 end delete begin insert 1569.275 end insert if the begin delete person end delete
begin insert facility end insert ceases, corrects, or otherwise rectifies the alleged violation
begin delete and provides or agrees to provide an appropriate remedy to the
resident end delete within 30 days after receipt of the notice.

(c) No action for damages may be maintained under Section
begin delete 1569.425 end delete begin insert 1569.275 end insert upon a showing by a begin delete person end delete begin insert facility end insert alleged to
have violated any requirements of this article begin delete , any regulatory
requirements adopted by the department, or any right of the resident
provided by federal or state law or regulation end delete 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 begin delete upon their
request, the person end delete begin insert the facility end insert will cease, correct, or otherwise
rectify the practices, acts, or methods alleged to be in begin delete violation
and provide an appropriate remedy to the residents end delete begin insert violation end insert .

(3) The begin delete person end delete begin insert facility end insert 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.

begin delete

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

end delete

(d) An action for injunctive relief brought under the specific
provisions of Section begin delete 1569.425 end delete begin insert 1568.275 end insert 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 begin delete person end delete begin insert facility end insert
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 begin delete 1569.425 end delete begin insert 1569.275 end insert is added to begin insert Article 2.5
(commencing with Section 1569.261) of Chapter 3.2 of Division
2 of end insert the Health and Safety Code, immediately following Section
begin delete 1569.42 end delete begin insert 1569.271 end insert , to read:

begin delete 1569.425. end delete
begin insert 1569.275. end insert   

(a) A licensee who violates any provision of this
begin delete chapter end delete begin insert article end insert or regulations adopted by the department pursuant
to this begin delete chapter end delete begin insert article end insert , 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 begin delete attorney end delete begin insert attorney’s end insert 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 begin delete person or entity end delete begin insert facility end insert that
violates any requirements of this begin delete chapter, any regulatory
requirements adopted by the department, or any right of the resident
provided by federal or state law or regulation end delete begin insert article end insert . 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 begin delete attorney end delete begin insert attorney’s end insert 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 begin delete Article 2.5 end delete begin insert this article end insert 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.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 1569.886 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

1569.886.  

(a) The admission agreement shall not include any
ground for involuntary transfer or eviction of the resident unless
those grounds are specifically enumerated under state law or
regulation.

(b) The admission agreement shall list the justifications for
eviction permissible under state law or regulation, exactly as they
are worded in the applicable law or regulation.

(c) The admission agreement shall include an explanation of
the resident’s right to begin insert 90 days’ end insert notice prior to an involuntary
transfer, discharge, or eviction, the process by which the resident
may appeal the decision and a description of the relocation
assistance offered by the facility.

(d) The admission agreement shall state the responsibilities of
the licensee and the rights of the resident when a facility evicts
residents pursuant to Section 1569.682.

begin delete SEC. 3. end delete
begin insert SEC. 4. end insert   

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.