BILL ANALYSIS �
AB 2171
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Date of Hearing: May 14, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 2171 (Wieckowski) - As Amended: May 6, 2014
Policy Committee: Aging Vote:5-2
Judiciary Vote: 8-2
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill creates a statutory list of rights for residents of
Residential Care Facilities for the Elderly (RCFEs), enforceable
through a private right of action after the facility has been
given a 30-day window to remedy an alleged violation.
Specifically, these rights include, among many others:
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 records and
personal information and to approve the release of
information.
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 daily
life.
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 a physician.
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).
This bill authorizes the Attorney General to prosecute an action
for an injunction or civil damages, and requires the Department
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of Social Services (DSS) to assess civil penalties for a
violation of a right defined by this bill.
FISCAL EFFECT
1)This bill could create GF cost pressure by potentially
significantly increasing workload for the trial courts. There
are approximately 7,455 RCFE facilities and 145,000 licensed
beds in California. As an example, assuming that one in 1,000
residents sought remedies through the court system, at a cost
of $10,000 per case, cost pressure would exceed $1.4 million
GF statewide. Actual costs would depend on the number and
complexity of cases. These are not direct costs. Instead, as
a practical matter, court filings under all newly enacted laws
exacerbate court backlogs. However, the amount of workload
directly affects the overall amount of state funding for
courts on a long-term basis.
The author implies lack of state oversight has resulted in
many residents not being able to resolve violations of their
rights. If this is true, and if this bill results in a
relatively high number of individuals seeking remedies through
the courts, cost pressure could be higher than the example
provided.
2)One-time costs to DSS estimated at $250,000 GF to review RCFE
plans of operations to ensure compliance, and to issue
regulations.
3)Unknown, potentially significant ongoing costs to DSS
associated with the mandatory assessment of penalties for
violations of rights defined in this bill. DSS is already
required to assess penalties for violations of certain rights
enumerated in this bill, while it has authority to assess
penalties in other cases. For new rights created by this
bill, however, DSS does not currently enforce or assess
penalties for violations.
4)Unknown, likely minor, potential enforcement costs to the
Department of Justice, offset to some extent by penalty
revenue, to the extent violations of the rights included in
this bill are prosecuted by the Attorney General.
5)Unknown GF cost pressure to the California Department of
Veterans Affairs (CDVA), which runs 7 RCFE facilities
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throughout the state. To the extent this bill increases
litigation against CDVA facilities, CDVA will experience
increased costs defending itself against litigation.
COMMENTS
1)Purpose . The author states the rights enumerated in this
bill, similar to those in place for nursing facility
residents, are basic rights necessary to protect the dignity
of RCFE residents. Furthermore, the author asserts these
rights must be protected through a private right of action,
given the inadequacy of state oversight of RCFEs.
2)Background . RCFEs, or assisted living facilities, are licensed
and overseen by the Department of Social Services (DSS).
RCFEs provide care, supervision and assistance with activities
of daily living, such as bathing, dressing, ambulating,
grooming, and other personal activities. They may also provide
incidental medical services under special care plans.
Residents in RCFEs require varying levels of personal care and
protective supervision.
Numerous recent reports and media attention have focused on
the adequacy of current RCFE oversight. A report commissioned
by the California Health Care Foundation finds the laws
governing assisted living are outdated and reflective of a
time where most residents required relatively limited
assistance. The report indicates the basic framework of the
law has not been altered in nearly three decades and that
California lags behind many other states in enacting somewhat
elevated care standards for RCFEs.
The Governor's 2014-15 budget proposes an additional 71.5
positions, as well as other enhancements, to allow the
Continuing Care Licensing division of DSS to enhance their
oversight of licensed facilities, including RCFEs.
3)Related Legislation .
a) SB 894 (Corbett), which strengthens and clarifies the
obligations of the department and the licensee when a
license is suspended or revoked, and creates timelines for
the safe relocation of residents when a facility's license
has been suspended or revoked, is pending in Senate
Appropriaitons.
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b) SB 895 (Corbett), which requires Community Care
Licensing to conduct unannounced, comprehensive inspections
of all RCFEs at least annually, is pending in Senate
Appropriaitons.
c) SB 911 (Block), which increases the qualifications and
training requirements for RCFE administrators and staff, is
pending in Senate Appropriations.
d) SB 1153 (Leno), which creates new penalties for
non-compliance, including authorizing the Department of
Social Services to suspend the admission of new residents
in facilities where there is a substantial probability of
harm, is pending in the Assembly.
e) AB 364 (Calderon), 2013, which increases DSS inspections
of community care facilities, was held on this committee's
Suspense File.
f) AB 1554 (Skinner), which requires DSS to start and
complete complaint investigations in a timely manner, give
complainants written notice of findings, and provide
complainants an opportunity to appeal, is pending in this
committee.
g) AB 1571 (Eggman), which requires the Department of
Social Services/Community Care Licensing establish an
on-line RCFE Consumer Information system to include
specified updated and accurate license, ownership, survey,
complaint and enforcement information on every licensed
RCFE in California, is pending in this committee.
h) AB 1572 (Eggman), which amends current laws to enhance
the rights of resident councils and family councils in
RCFEs, is pending in the Senate.
4)Opposition . RCFE facilities oppose this bill for numerous
reasons, pointing out it will invite more lawsuits and drive
up liability insurance costs, with no relationship to improved
safety. They also stress the private right of action is
broader than the one provided to residents of nursing homes.
The facilities have sponsored legislation calling for
increased inspections of facilities, including advocating for
increased licensing fees to support the additional workload.
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The Civil Justice Association of California, comprised of
insurers, large companies, and various industry associations,
opposes for similar reasons.
5)Staff Comment . A number of bills this session are attempting
to address oversight of RCFEs. The Legislature may wish to
consider the cumulative impact of bills addressing RCFEs and
seek balance, recognizing the twin goals of ideal care and
maintaining affordability and availability of RCFEs for
California residents will sometimes conflict.
Analysis Prepared by : Lisa Murawski / APPR. / (916) 319-2081