BILL ANALYSIS �
AB 2171
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2171 (Wieckowski) - As Amended: April 21, 2014
As Proposed to be Amended
SUBJECT : RESIDENTIAL CARE FACILITIES FOR THE ELDERLY
KEY ISSUE : SHOULD CALIFORNIA ESTABLISH A SET OF STATUTORY
RIGHTS, AS SPECIFIED, TO PROTECT THE WELFARE AND SAFETY OF
ELDERLY RESIDENTS OF ASSISTED LIVING FACILITIES, AND ENABLE
RESIDENTS TO ENFORCE THESE NEW RIGHTS THROUGH A PRIVATE RIGHT OF
ACTION?
SYNOPSIS
This bill seeks to establish a number of basic rights for
residents of residential care facilities for the elderly (RCFE),
including rights protecting the privacy, dignity, safety, and
health of residents. The bill provides for damages of $500 for
each violation of these rights and provides a private right of
action to residents to enforce these rights. The bill is
supported by advocates for the elderly and a number of other
groups, who contend that rapid growth, inadequate oversight and
outdated standards in the RCFE industry threaten the safety and
welfare of RCFE residents, and that strong statutory rights are
needed to improve residents' ability to make choices about their
care, treatment and daily life. Opponents contend, among other
things, that the private right of action will lead to frivolous
lawsuits based on technical infractions of the resident
protections, and that the bill will significantly add to an
already overburdened court system in California. After lengthy
discussion with stakeholders on both sides, the author proposes
several amendments seeking to address concerns raised by
opponents. Among other things, the proposed amendments: (1)
narrow the scope of resident rights to strike language relating
to the administration of medications; (2) provide a 30-day
notice of violation and opportunity to correct; (3) removes
provisions relating to incapacity determination to provide
stakeholders more time to revise those provisions; and (4)
clarify that federal protections related to hospice care
continue to apply under this bill. With these proposed
amendments, the California Hospice and Palliative Care
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Association and the California Association for Health Services
at Home have agreed to remove their opposition pending approval
by this Committee. This bill passed the Aging Committee by a
5-2 vote, and will be referred to the Appropriations Committee
should it pass this Committee.
SUMMARY : Establishes a number of specified rights for residents
of residential care facilities for the elderly, and provides a
private right of action to enforce these rights. Specifically,
this bill :
1)Enumerates a number of rights and protections that residents
of RCFE's shall have, among which are the following:
a) The right to be treated with dignity and respect.
b) The right to personal privacy in accommodations, medical
treatment, personal care and assistance, visits, and
communications, among other things.
c) The right to confidential treatment of their records and
personal information and to approve their release
d) The right to be encouraged and assisted in exercising
their rights.
e) The right to a safe, homelike environment.
f) The right to be given individualized care delivered by
adequate, competent staff.
g) The right to be allowed to make choices about their
daily life, and participate to the extent possible in their
care.
h) The right to be free from neglect, exploitation,
seclusion, punishment, humiliation, intimidation, verbal,
mental, and sexual abuse.
i) The right to be allowed to choose their own physician,
or pharmacist.
j) The right to be protected from involuntary transfers.
aa) The right to be allowed to contact licensing
authorities, or the long-term care ombudsman (LTCO).
2)Requires a facility staff person, at admission, to personally
advise a resident and the resident's representative of these
rights, to provide a copy of these rights for signature, and
to have the signed copy included in the resident's record.
3)Requires a RCFE to prominently post a copy of these rights in
areas accessible to the residents and their representatives.
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4)Permits a current or former resident to bring an action in a
court of competent jurisdiction for injunctive relief against
a licensee if a violation of one of these rights results in an
immediate or substantial threat to physical health, mental
health, or safety of residents, and provides for financial
liability of up to $500 for each violation, and for attorney's
fees. Further provides that this private right of action does
not expire upon the death of the resident, and that waiving
such rights is contrary to public policy, and voidable.
EXISTING LAW :
1)Establishes the California Community Care Facilities Act
(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
(Health and Safety Code Section 1501. All further references
are to this code unless otherwise stated.)
2)Defines a "community care facility" (CCF) as a facility,
place, or building maintained and operated to provide
nonmedical residential care, day treatment, adult day care, or
foster family agency services for children, adults, or
children and adults, including, but not limited to, the
physically handicapped, mentally impaired, incompetent
persons, and abused or neglected children. (Section 1502
(a).)
3)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in that facility
to be licensed by the Department of Social Services (DSS). In
establishing the RCFE Act, the Legislature finds and declares
that a separate licensing category is necessary for a humane
approach in meeting the housing, social and care needs of
older persons within homelike environments. (Section 1569.1
(g).)
4)Prohibits any person, firm, partnership, association,
corporation or public agency from establishing, operating,
managing, conducting or maintaining a CCF or a RCFE without a
valid licensed provided by the DSS. (Section 1569.10.)
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5)Provides that any person who violates the CCFA or the RCFE Act
shall be guilty of a misdemeanor and upon conviction shall be
fined no more than $1,000, imprisoned in county jail for up to
one year, or both. (Section 1569.40(a).)
6)Establishes the office of Long-Term Care Ombudsman (LTCO)
program as a result of the federal Older Americans Act (OAA)
and places it within the California Department of Aging (CDA)
in order to encourage community contact and involvement with
elderly patients or residents of long-term health care
facilities or residential facilities through the use of
volunteers and volunteer programs. (Sections 9700 and 9710.5
(b).)
7)Requires the LTCO, either personally or through
representatives, to identify, investigate, and resolve
complaints that may adversely affect the health, safety,
welfare, or rights of residents of long-term care facilities.
(Section 9712.5.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill seeks to establish a number of basic rights
for residents of residential care facilities for the elderly
(RCFE), and provides a private right of action to residents to
enforce these rights. Supporters of the bill, including
co-sponsors California Advocates for Nursing Home Reform and the
Consumer Attorneys, note that RCFEs are increasingly growing in
number to keep up with demographic changes in California despite
the fact that they are largely unregulated. The proponents
explain:
Residential care facilities for the elderly are
increasingly becoming the answer for our mothers, fathers,
and other relatives in their later years of life as
California's population ages. Unfortunately, some
facilities have not maintained high standards of quality
of life for their residents. A report by the California
Advocates for Nursing Home Reform (CANHR) cites an "RCFE
crisis" in an industry that has undergone rapid growth
with little oversight. The report, "Residential Care in
California: Unsafe, Unregulated, and Unaccountable,"
describes a failed inspection system; a broken complaint
system; an ineffective system of penalties for violations;
and contract provisions that provide no enforcement power
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to residents. These and other systemic problems come
together and leave seniors to live out their remaining
years in deplorable conditions with no attention paid to
their complaints. This bill creates clarity for RCFE
operators and residents while ensuring that the elderly
are treated with decency and respect in the latter years
of life.
As the Department of Social Services has acknowledged, the
changing role of the RCFE "license" necessitates an
overhaul of regulatory roles, structure, and a more
sophisticated means to ensure that residents are safe and
secure. By establishing a modern bill of rights that fits
the needs of today's RCFE residents, AB 2171 will take a
major step toward that goal while giving residents and
their representatives the abilities to control decisions
affecting their lives.
Background on RCFEs : RCFEs are licensed, assisted living
(non-medical) facilities for persons 60 years of age and over
and other, younger persons with similar needs. Varying levels
of care and supervision, protective supervision, and personal
care such as assistance with hygiene, dressing, eating, bathing,
as well as storage and distribution of medications are provided,
based upon residents' needs. All RCFEs provide meals and
housekeeping. Ongoing medical care is not allowed except in
specific cases, although hospice care is allowed. People with
ongoing medical needs require a higher level of care in a
nursing home or an intermediate care facility.
California is home to the largest number of seniors in the
nation, and the older population is expanding at an
unprecedented historical pace. The California Department of
Finance's Demographic Research Unit estimates that California's
65+ population will grow by 43%, from 4.4 million in 2010 to
6.35 million by 2020; another 39%, to 8.83 million by 2030; and
an additional 21% to 10.5 million by 2040. The expanding
population of older Californians will impact housing policy, and
RCFE growth is reflected in the above described demographic
shift. In fact, the number of RCFE licenses has increased
nearly 30% since 2002.
RCFE care is one of the fastest growing components of the
long-term supports and services industries. There are currently
7,570 licensed RCFEs in California serving 176,026 people.
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According to DSS, approximately 80% of RCFEs are licensed for
four-six residents; the remaining 20% of RCFEs have an average
capacity of about 60 residents, though facilities can house over
100 people in some cases.
Recent media reports revealed misconduct, mistreatment, and
neglect of dependent elders living within licensed RCFEs. (See,
e.g., "With Good Info Hard to Find, Castro Valley Senior Home
Residents Left in the Dark." San Jose Mercury News , November 3,
2013.) Additionally, over the past several years, the
elimination of vacant staff positions, hiring moratoriums, and
rolling staff furloughs have challenged the Department of Social
Services in its mission to protect vulnerable populations living
within facilities that it licenses. These revelations have led
many to believe that RCFE residents are increasingly exposed to
harm.
Private Right of Action and the Consumer Legal Remedies Act.
Currently, residents of long-term healthcare facilities (also
known as "nursing homes" or skilled nursing facilities), are
availed injunctive relief to compel compliance by a licensee
with state or other laws related to individual resident rights.
California established a statutory bill of rights for residents
of nursing homes in Division 2, Chapter 3.9, of the Health &
Safety Code. The statutory rights are supplemented with a
regulatory bill of rights within title 22 (CC section 72527).
Health & Safety Code Section 1430(b) gives residents the right
to obtain an injunction to prevent future violations of the
rights and attorneys' fees from a provider. In the absence of
departmental oversight, the injunctive relief and attorneys'
fees provided by Section 1430(b) are powerful tools to ensure
the rights of residents of skilled nursing facilities.
This bill provides a private right of action to a current or
former resident for injunctive relief against a licensee if a
violation of one of the rights outlined in the bill results in
an immediate or substantial threat to physical health, mental
health, or safety of residents. The bill also provides for
damages of up to $500 for each violation and for attorney's
fees. Finally, the bill provides that the private right of
action does not expire upon the death of the resident, and that
waiving such rights is contrary to public policy, and voidable.
According to proponents, the private right of action in this
bill seeks to extend to residents of RCFEs the same powerful
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protection mechanism that patients of skilled nursing facilities
currently enjoy. They contend that without a private right of
action, the protections outlined in this bill may go largely
unenforced. The private right of action is especially important
in this bill because the current economic climate makes it
highly unlikely that local prosecutors with limited resources
will ever pursue claims of violations or abuse in RCFEs. On
the other hand, opponents, including the Civil Justice
Association of California (CJAC), contend that the private right
of action will create legal traps that will lead to frivolous
lawsuits based on technical infractions of the resident
protections. These opponents contend that the bill will
significantly add to an already overburdened court system in
California and increase court caseloads. Opponents also argue
that sufficient protections exist under the Elder Abuse and
Dependent Adult Civil Protection Act, which already provides for
private, civil enforcement of elder abuse and neglect with
strong remedies.
Proposed amendment to require 30-day notice and opportunity to
correct. In order to address opposition concerns, the author
proposes to amend the enforcement provisions of the bill to
include a 30-day notice rule, similar to that found in the
Consumer Legal Remedies Act (see Civil Code Section 1782). As
proposed to be amended, the RCFE resident would have to give
written notice to the person alleged to have violated any
requirements of this bill, and the alleged violator would then
have thirty days to cease, correct, or otherwise rectify the
alleged violation. If the alleged violation is still in place
after thirty days, the potential plaintiff may then commence an
action for damages.
Additional Author's Amendments. To address opposition concerns
that the bill may interfere with the ability to provide hospice
care to RCFE residents in conflict with state and federal
regulations, the author proposes the following amendments:
On page 5, delete lines 1 to 3, and delete lines 7 to 19,
inclusive.
Under federal law, hospice patients enjoy certain protections
such as the right to refuse care or treatment, choice of
physician, and the right to be involved in the development of
the hospice plan of care. (42 C.F.R. section 418.52). As
proposed to be amended, the bill clarifies that RCFE residents
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must comply with federal laws regulating hospice care in
addition to the rights proposed in this bill. The amendment is:
On page 7, line 21, after "state", insert "or federal"
Finally, in order to address concerns that the bill may
contradict longstanding principles of capacity and surrogacy
law, the author proposes to remove Section1569.271 of the bill
so that he can continue to work with stakeholders to seek
language that appropriately strikes the right balance with
existing law but furthers protections for RCFE residents in the
area of incapacity. The amendment is:
On page 7, delete lines 39-40, and on page 8, delete lines
1 to 11.
ARGUMENTS IN SUPPORT : The Office of the State Long Term Care
Ombudsman (OSLTCO), an office within the California Department
of Aging, authorized by the federal Older Americans Act and the
Older Californians Act, with primary responsibility to
investigate and endeavor to resolve complaints made by, or on
behalf of, individual residents in long-term care facilities,
cites troubling developments in the past year that have focused
upon mistreatment of older, frail and vulnerable Californians
living in RCFEs. Without programmatic resources that are scaled
to respond to the growth in long-term care facilities, and
without the ability to maintain their presence in a rapidly
expanding industry, the OSLTCO believes that the mere existence
of statutory rights compels facilities to remain in compliance
with standards that support safe and adequate care.
Consumer Attorneys of California describes this bill as the
linchpin of the package of bills introduced this year to protect
seniors and those with disabilities who reside in RCFEs.
According to this co-sponsor, the bill reflects a model of
resident rights and enforcement that has been effective for
nursing homes and their residents for over 30 years. They
assert there is no reason these protections should not be as
successful when applied to RCFEs. Consumer Attorneys argues
that unlike nursing homes which are more heavily regulated,
RCFEs, by comparison, lack even minimal government oversight and
inspections, making this population extremely vulnerable to
abuse and neglect.
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The California Commission on Aging, an independent state agency
made up of gubernatorial and legislative appointees, writes that
the lives of RCFE residents are often "limited and bleak," and
that a resident's bill of rights is a positive step toward
assuring that residents are treated with dignity and respect.
The American Association of Retired Persons (AARP) supports the
bill because they strongly believe that the legislature should
explicitly provide a private right of action in all legislation
intended to protect individual rights, as this bill does.
ARGUMENTS IN OPPOSITION : The California Assisted Living
Association (CALA), an organization representing licensed RCFEs
throughout the state, asserts that the primary impact of this
bill would be more lawsuits, as the rights that currently exist
in regulation would be codified as law, and could be enforced
via a private individual's right to seek relief through the
courts. Such a prospect, they contend, would carry significant
financial implications in terms of fines, liability insurance,
reputation and particularly attorney's fees. CALA remains
concerned about language which may inappropriately place
facilities in the position of judging and becoming liable for,
actions of a resident's physician. CALA also stresses that the
private right of action is broader than the one provided to
residents of nursing homes, and that the effect is to invite
more law suits and to increase liability insurance costs, with
no relationship to improved safety.
Leading Age California which represents more than 400 providers
of not-for-profit senior care and living opportunities, such as
affordable housing, continuing care retirement communities,
assisted living (RCFE), skilled nursing, and community-based
care, is concerned that AB 2171 invites litigation and does
little to improve oversight. They cite Title 22's resident
rights, and is concerned that AB 2171 would add current
regulatory requirements as new "rights," which would allow for
private enforcement outside of the state's regulatory agency.
Leading Age is also concerned that AB 2171 inserts RCFE
caregiving staff into the physician's treatment plan regarding
the use of medications. RCFEs do not prescribe medications and
under existing law and practice, all medications must be
self-administered. Requiring RCFEs to verify "informed consent"
is beyond the scope of the social model of care RCFEs provide.
The California Hospice and Palliative Care Association (CHAPCA)
and the California Association for Health Services at Home have
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cited similar concerns with the bill. The Committee has
received a letter from CHAPCA stating that their concerns have
been addressed by the author's proposed amendments to the bill,
and that their organization will be neutral on the bill once the
amendments are adopted.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform (CANHR)
(co-sponsor)
Consumer Attorneys of California (co-sponsor)
Alliance on Aging
American Association of Retired Persons (AARP)
Assisted Living Consumer Alliance (ALCA)
Bet Tzedek Legal Services
California Alliance for Retired Americans (CARA)
California Commission on Aging
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Continuing Care Residents Association
California Long-Term Ombudsman Association (CLTCOA)
California Senior Legislature
California Teamsters Public Affairs Council
Congress of California Seniors
Consumer Advocates for RCFE Reform (CARR)
Consumer Attorneys of California - Co-Sponsor
Consumer Federation of California
Contra Costa Advisory Council on Aging (CCACOA)
Elder Abuse Task Force of Santa Clara County
Elder Law & Advocacy
Engineers and Scientists of CA, IFPTE Local 20, AFL-CIO
International Longshore and Warehouse Union
Johnson Moore Trial Lawyers
Long Term Care Services of Ventura County, Inc.
Moran Law
National Association of Social Workers (NASW) California Chapter
National Consumer Voice for Quality Long-Term Care
National Senior Citizens Law Center
Office of the State Long-Term Care Ombudsman
Older Women's League (OWL)
Ombudsman Services of Contra Costa
Professional & Technical Engineers, IFPTE Local 21, AFL-CIO
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Sonoma County Area Agency on Aging
Stebner and Associates
Utility Workers Union of America, Local 132
UNITE-HERE, AFL-CIO
Valentine Law Group
WISE & Healthy Aging
Oppose
Barney & Barney
California Assisted Living Association (CALA)
Channing House
Community Residential Care Association of California
Civil Justice Association of California (CJAC)
Leading Age California
Oppose (Unless Amended)
California Hospice and Palliative Care Association
California Association for Health Services at Home
Analysis Prepared by : Anthony Lew and Vincent Wiraatmadja /
JUD. / (916) 319-2334