Amended in Senate August 19, 2014

Amended in Senate June 15, 2014

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 delete amend Section 1569.886 of, to end delete add Article 2.5 (commencing with Section 1569.261) to Chapter 3.2 of Division 2 begin delete of, end delete begin insert of end insert 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 delete 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 delete A violation of these provisions is a misdemeanor.

This bill would establish specified rights for residents of begin insert privately operated end insert residential care facilities for the elderly, including, among other things, begin delete to receive 90 days’ notice before an involuntary transfer, discharge, or eviction, end delete to be accorded dignity in their personal relationships with staff, to be granted a reasonable level of 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 begin delete copy. The bill would authorize the department to assess civil penalties, pursuant to specified provisions, for a violation of these rights, and would provide that a licensee who violates these rights may be prosecuted by the Attorney General in a civil action for an injunction or civil damages, or both. end delete begin insert copy of these rights. end insert The bill would begin delete also end delete authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any begin delete facility end delete begin insert licensee end insert that violates these rights, begin insert as specified, end insert but would require the resident to provide the begin delete facility end delete begin insert licensee end insert alleged to have violated any of begin delete the end delete begin insert those end insert rights begin delete described above end delete 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 facility end delete begin insert licensee end insert alleged to have violated these rights ceases, corrects, or otherwise rectifies the alleged violation within 30 days of begin insert receipt of end insert 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 begin delete any
type of end delete physical or mental abuse, neglect, begin delete restraint, end delete exploitation,
or endangerment.

1569.265.  

begin insert (a) end insert begin insert   end insert 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.

begin insert

(b) The provisions of this article apply only to privately operated
residential care facilities for the elderly.

end insert

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 begin insert and date end insert a copy of the resident’s
rights, and the licensee shall include the signed begin insert and dated end insert copy in
the resident’s record.

(b)  begin delete Facilities end delete begin insert Licensees end insert 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 begin delete where end delete begin insert in
which end insert 5 percent or more of the residents can only read that other
language.

(d) The begin delete facility end delete begin insert licensee end insert 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 begin insert of residential care facilities for the
elderly end insert shall have all of the following rights:

(1) To be accorded dignity in their personal relationships with
staff, residents, and other persons.

(2) To be granted a reasonable level of 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 be accorded begin delete a safe and habitable environment. end delete begin insert safe,
healthful, and comfortable accommodations, furnishings, and
equipment. end insert

(6) To care, supervision, and services that meet their individual
needs and begin delete is end delete begin insert are end insert delivered by staff that are 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 begin delete facility end delete begin insert licensee end insert 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 begin delete resolve end delete
begin insert respond to end insert residents’ grievances.

(12) To contact the State Department of Social Services, the
long-term care ombudsman, or both, regarding grievances against
the begin delete facility. end delete begin insert licensee. end insert The begin delete facility end delete begin insert licensee end insert 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 begin delete facility end delete begin insert licensee end insert
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 begin delete facility, end delete
begin insert licensee, end insert including any limitations or restrictions on the begin delete facility’s end delete
begin insert licensee’s end insert 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 delete A facility shall provide 90 days’ notice to a resident
prior to involuntarily transfer, discharge, or eviction. end delete For purposes
of this paragraph, “involuntary” means a transfer, discharge, or
eviction that is initiated by the begin delete facility, end delete begin insert licensee, end insert not by the resident.

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

(24) To begin insert consent to end insert have relatives and other individuals of the
resident’s choosing visit at any time, begin delete subject to the resident’s right
to withdraw consent. end delete begin insert privately and without prior notice. end insert

(25) To receive written information on the right to establish an
advanced health care directive and, pursuant to Section 1569.156,
the begin delete facility’s end delete begin insert licensee’s end insert 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. begin delete The facility end delete begin insert A licensee end insert
shall not require residents to deposit their personal funds with the
begin delete facility. No licensee or employee of a facility shall become or act
as a representative payee for any payments made to a resident, if
the resident or the resident’s representative objects. No licensee
or employee of a facility shall serve as agent for a resident under
a power of attorney. end delete begin insert licensee. Except as provided in approved
continuing care agreements, a licensee, or a spouse, domestic
partner, relative, or employee of a licensee, shall not do any of
the following: end insert

begin insert

(A) Accept appointment as a guardian or conservator of the
person or estate of a resident.

end insert begin insert

(B) Become or act as a representative payee for any payments
made to a resident, without the written and documented consent
of the resident or the resident’s representative.

end insert begin insert

(C) Serve as an agent for a resident under any general or special
power of attorney.

end insert begin insert

(D) Become or act as a joint tenant on any account with a
resident.

end insert begin insert

(E) Enter into a loan or promissory agreement or otherwise
borrow money from a resident without a notarized written
agreement outlining the terms of the repayment being given to the
resident.

end insert

(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.

begin delete

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

end delete begin insert

(e) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

end insert

1569.271.  

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

(1) Notify the begin delete facility end delete begin insert licensee end insert alleged to have violated any
requirements of this article of the particular alleged violation.

(2) Demand begin insert in writing end insert that the begin delete facility end delete begin insert licensee end insert cease, correct,
or otherwise rectify the alleged violation.

The notice begin delete shall be in writing and end delete 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 begin delete person’s end delete
begin insert licensee’s end insert principal place of business within California.

(b)  begin delete Except as provided in subdivision (c), no end delete begin insert No end insert action for
damages may be maintained under Section 1569.275 if the begin delete facility end delete
begin insert licensee end insert ceases, corrects, or otherwise rectifies the alleged violation
within 30 days after receipt of the notice.

(c) No action for damages may be maintained under Section
1569.275 upon a showing by a begin delete facility end delete begin insert licensee end insert alleged to have
violated any requirements of this article that begin delete all of the following
exist: end delete

begin delete

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

end delete begin delete

(2) All residents so identified have been notified that the facility
will cease, correct, or otherwise rectify the practices, acts, or
methods alleged to be in violation.

end delete

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

(d) An action for injunctive relief brought under the specific
provisions of Section 1568.275 may be commenced without
compliance with subdivision (a) begin insert if the alleged violation poses a
threat to the health or safety of a resident end insert . Not less than 30 days
after the commencement of an action for injunctive relief, and after
compliance with subdivision (a), the begin insert current or former end insert 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 facility end delete begin insert licensee 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.

begin delete

1569.275.  

(a) (1) An action for injunction or civil damages,
or both, against a residential care facility for the elderly that
violates any provision of this article 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.

(2) Every facility shall provide access to the Office of the
Attorney General during normal business hours or at any time
when the suspected violation presents an immediate or substantial
threat to the physical health, mental health, or safety of a resident.

(3) The amount of civil damages that may be recovered in an
action brought by the Attorney General shall not exceed the
maximum amount of civil penalties that could be assessed on
account of the violation or violations provided for in paragraph
(2) of subdivision (b).

(4) A licensee who violates any provision of this article or
regulations adopted by the department pursuant to this article, 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.

(b) 

end delete

begin insert

begin insert 1569.275. end insert   

end insert

begin insert (a) end insert begin insert   end insert (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 facility end delete begin insert licensee end insert that
violates any requirements of this article. The suit shall be brought
in a court of competent jurisdiction. The licensee shall be liable
for the acts of the licensee’s employees.

(2) The licensee shall be liable for up to five hundred dollars
($500) for each violation, and for costs and attorney’s fees, and
may be enjoined from permitting the violation to continue.
Injunctive relief granted under this section shall not be stayed
pending appeal.

(3) 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.

(4) The current or former resident has the right to a trial by jury.

(5) The right to bring a civil action shall survive the death of
the resident.

(6) 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 delete

(c)

end delete

begin insert (b) end insert  The right to bring a civil action against any person or entity
for a violation of this article shall be subject to the requirements
of Section 1569.271.

begin delete

(d)

end delete

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

begin insert

(d) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.

end insert

begin delete

SEC. 2.  

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

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 90 days’ 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.

end delete

begin delete SEC. 3. end delete
begin insert SEC. 2. 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.