BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2171 (Wieckowski)
As Amended June 15, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Residential Care Facilities for the Elderly
DESCRIPTION
This bill would establish a bill of rights for residents of
Residential Care Facilities for the Elderly (RCFEs) in order to
strengthen a resident's right to make choices about his or her
care, treatment, and daily life in the facility, ensure that the
resident's choices are respected, and protect residents from
physical or mental abuse, neglect, restraint, exploitation, or
endangerment. This bill would also include discrimination and
retaliation protections for residents in the bill of rights.
This bill would authorize a private right of action by a current
or former resident against the RCFE for violations and authorize
damages of $500 per violation, attorney's fees, and costs, and
injunctive relief. This bill would provide a three-year statute
of limitations beginning when the violation has been discovered.
This bill would allow the RCFE to cure a violation before an
action can be filed.
BACKGROUND
Residential Care Facilities for the Elderly (RCFEs) are assisted
living facilities for individuals over 60 years old, and
individuals under 60 with compatible needs, where varying levels
and intensities of care and supervision, protective supervision,
or personal care are provided. As of 2013, there were over
7,500 licensed RCFEs in the state with a total capacity of
174,108 residents. Approximately three-quarters of RCFEs are
licensed for six or fewer residents, yet the majority of RCFE
(more)
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residents (71 percent) live in a 50-plus bed RCFE. The
Community Care Licensing Division (CCL) of the Department of
Social Services (DSS) administers RCFE licensing and, due to
recent budget cutbacks, inspects RCFE facilities once every five
years for licensing violations.
This bill is part of a broad package of bills referred to as the
Residential Care Facilities for the Elder Reform Act of 2014,
which was prompted, in part, by the recent mishandling of an
RCFE closure following license revocation. Eden Manor, a former
RCFE in Oakland, was in financial trouble in early 2012 but
continued operation until it was finally taken over by new
management in March 2013. CCL began the process of revoking the
facility's license, but that process has not yet been finalized.
Meanwhile, two of the facility's managers were operating a
facility in Castro Valley called Valley Springs Manor which
itself was providing seriously deficient care and was ordered to
close in October 2013.
Following the revocation of the Valley Springs Manor license,
most of the staff did not return to work, and the 19 residents
were left to the care of a facility janitor and cook, who
finally called 911 for help. According to a DSS departmental
report on the closure of Valley Springs Manor, "[DSS] fell short
of its mission to protect the health and safety of residents in
Valley Springs Manor. [CCL] erred in not ensuring, through
successful engagement with local partners, that relocation
arrangements for all of the residents were complete. [CCL] also
clearly erred in not directing existing staff or deploying
additional field staff to remain on site until the transfer of
the residents was completed and the facility was closed."
A recent report has highlighted the problem with California's
RCFE laws:
In 1985, the California Legislature passed the California
Residential Care Facilities for the Elderly Act, which
established a separate category for [RCFEs] licensed by [DSS].
. . . The legislative intent of the RCFE Act of 1985 was to
establish three levels of care within the RCFE regulatory
structure to address the fluctuating health and care needs of
older residents. Unfortunately, this section of the act is
subject to Budget Act appropriations and has never been
implemented. Thus, for the past 28 years, CCL has maintained
a "one size fits all" approach to residential care for elders,
stretching the regulations to accommodate an ever-growing
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acuity level among residents, and allowing non-medical RCFEs -
regardless of size - to accept and retain residents with acute
medical needs. . . . This "one size fits all" regulatory
approach no longer makes sense. (Cal. Advocates for Nursing
Home Reform, Residential Care in California: Unsafe,
Unregulated & Unaccountable (2013) pp. 4-5.)
That report recommended that the Legislature and DSS take
immediate action to protect the elder and dependent adults
living in RCFEs by adopting recommendations, among other things,
to create a tiered level of care system, require CCL to conduct
annual RCFE inspections, strengthen complaint investigations and
appeal processes, increase penalties for violations, establish a
private right of action to stop illegal RCFE activities, and
establish a comprehensive statutory residents' bill of rights.
(Id. at pp. 12-13.)
To better protect RCFE residents, this bill would establish a
bill of rights for residents and authorize a private right of
action by a current or former resident against the RCFE for
violations.
CHANGES TO EXISTING LAW
Existing law , the California Residential Care Facilities for the
Elderly Act, provides a licensing structure administered by the
Department of Social Services (DSS) for residential care
facilities for the elderly (RCFEs). (Health & Saf. Code Sec.
1569 et seq.)
Existing law defines an RCFE to mean a housing arrangement
chosen voluntarily by persons 60 years of age or over, or their
authorized representative, where varying levels and intensities
of care and supervision, protective supervision, personal care,
or health-related services are provided, based upon their
varying needs, as determined in order to be admitted and to
remain in the facility. Persons under 60 years of age with
compatible needs may be allowed to be admitted or retained, as
specified. (Health & Saf. Code Sec. 1569.2(l).)
Existing law requires DSS to inspect and license RCFEs. (Health
& Saf. Code Sec. 1569.11.)
Existing law authorizes DSS to enter and inspect any place
providing personal care, supervision, and services, at any time,
with or without advance notice, to secure compliance with, or to
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prevent a violation of the Act. (Health & Saf. Code Sec.
1569.32; Cal Code Regs., tit. 22, art. 13, Sec. 87755.)
Existing law requires, within 90 days after a facility accepts
its first resident for placement following its initial
licensure, DSS to inspect the RCFE to evaluate compliance with
rules and regulations and to assess the RCFE's continuing
ability to meet regulatory requirements. The licensee shall
notify the department, within five business days after accepting
its first resident for placement, that the facility has
commenced operating. DSS is authorized to take appropriate
remedial action. (Health & Saf. Code Sec. 1569.24.)
Existing law prescribes maintenance and operational requirements
for RCFEs for the safety and well-being of the residents and
employees. (Cal. Code Regs., tit. 22, art. 5, Sec. 87303.)
Existing law requires RCFEs to implement a theft and loss
program, which must include establishment and posting of the
facility's policy regarding theft and investigative procedures,
orientation to the policies and procedures for all employees
within 90 days of employment; and documentation of lost and
stolen resident property. (Health & Saf. Code Sec. 1569.153.)
Existing law requires every licensed RCFE, at the request of a
majority of its residents, to assist the residents in
establishing and maintaining a resident-oriented facility
council, which must be composed of residents of the facility and
may include family members of residents of the facility.
Existing law authorizes that council, among other things, to
make recommendations to facility administrators to improve the
quality of daily living in the facility and may negotiate to
protect residents' rights with facility administrators. (Health
& Saf. Code Sec. 1569.157(a).)
Existing law provides that each RCFE resident has personal
rights, including but not limited to, 18 enumerated personal
rights. (Cal. Code Regs., tit. 22, art. 8, Sec. 87468.)
Existing law provides that no RCFE may prohibit the formation of
a family council, and, when requested by a member of the
resident's family or the resident's responsible party, the
family council shall be allowed to meet in a common meeting room
of the facility during mutually agreed upon hours. (Health &
Saf. Code Sec. 1569.158(a).)
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Existing law prohibits facility policies on family councils to
limit the right of residents and family members to meet
independently with outside persons, including members of
nonprofit or government organizations or with facility personnel
during nonworking hours, and the RCFE is required to provide the
family council with adequate space on a prominent bulletin board
or other posting area for the display of meeting notices,
minutes, and newsletters. (Health & Saf. Code Secs.
1569.158(b), (d).)
Existing law requires an RCFE admission agreement to include an
explanation of the resident's right to notice prior to an
involuntary transfer, discharge, or eviction. (Health & Saf.
Code Sec. 1569.886.(c).)
This bill would establish the RCFE residents' bill of rights,
with the following enumerated rights, which would not diminish a
resident's constitutional rights or any other rights set forth
in other state or federal laws and regulations:
to be accorded dignity in their personal relationships with
staff, residents, and other persons;
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;
to confidential treatment of their records and personal
information and to approve their release, except as authorized
by law;
to be encouraged and assisted in exercising their rights as
citizens and as residents of the facility;
to be free from interference, coercion, discrimination, and
retaliation in exercising their rights;
to be accorded a safe and habitable environment;
to care, supervision, and services that meet their individual
needs and is delivered by staff that are sufficient in
numbers, qualifications, and competency to meet their needs;
to be served food of the quality and in the quantity necessary
to meet their nutritional needs;
to make choices concerning their daily life in the facility;
to fully participate in planning their care, including the
right to attend and participate in meetings or communications
regarding the care and services, and to involve persons of
their choice in the planning process; the facility would be
required to provide necessary information and support to
ensure that residents direct the process to the maximum extent
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possible, and are enabled to make informed decisions and
choices;
to be free from neglect, financial exploitation, involuntary
seclusion, punishment, humiliation, intimidation, and verbal,
mental, physical, or sexual abuse;
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 would be
required to take prompt actions to resolve residents'
grievances;
to contact DSS, the long-term care ombudsman, or both,
regarding grievances against the facility, and the facility
would be required to post the telephone numbers and addresses
for the local offices of DSS and ombudsman program,
conspicuously in the facility foyer, lobby, residents'
activity room, or other location easily accessible to
residents;
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, and
all rules established by a facility would be required to be
reasonable and not violate any personal or lawful rights;
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;
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;
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;
to reasonable accommodation of resident preferences concerning
room and roommate choices;
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;
to share a room with the resident's spouse, domestic partner,
or a person of the resident's choice when both spouses,
partners, or residents live in the same facility and consent
to the arrangement;
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to select their own physicians, pharmacies, privately paid
personal assistants, hospice agency, and health care
providers;
to have prompt access to review all of their records and to
purchase photocopies, and photocopied records would be
required to be promptly provided, not to exceed two business
days, at a cost not to exceed the community standard for
photocopies;
to be protected from involuntary transfers, discharges, and
evictions in violation of state laws and regulations;
facilities would be prohibited from involuntarily transfer or
eviction of residents for grounds other than those
specifically enumerated under state law or regulations, and
facilities would be required to comply with enumerated
eviction and relocation protections for residents. Further, a
facility would be required to provide 90 days' notice to a
resident prior to involuntarily transfer, discharge, or
eviction, and this bill would define "involuntary" to mean a
transfer, discharge, or eviction that is initiated by the
facility, not by the resident;
to move from the facility;
to have relatives and other individuals of the resident's
choosing visit at any time, subject to the resident's right to
withdraw consent;
to receive written information on the right to establish an
advanced health care directive and, the facility's written
policies on honoring those directives;
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;
to organize and participate in a resident council;
to protection of their property from theft or loss; and
to manage their financial affairs, and the facility would be
prohibited from requiring residents to deposit their personal
funds with the facility. Further, a licensee and employee of
a facility would be prohibited from becoming or acting as a
representative payee for any payments made to a resident, if
the resident or the resident's representative objects, and the
licensee and employee of the facility would be prohibited from
serving as agent for a resident under a power of attorney.
This bill would prohibit a licensed RCFE from discriminating
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
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identity.
This bill would provide that 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 bill or provided by
federal or other state law or regulation.
This bill would authorize residents' family members, friends,
and representatives to organize and participate in a family
council.
This bill would authorize DSS to assess civil penalties, as
specified, for violation of the bill of rights.
This bill would require, at admission, an RCFE staff person to
personally advise a resident and the resident's representative
of, and give a complete written copy of, the rights enumerated
in this bill and the personal rights enumerated in the
California Code of Regulations.
This bill would require the licensee to 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.
This bill would require RCFEs to prominently post, in areas
accessible to the residents and their representatives, a copy of
the residents' rights, which would be required to be posted both
in English and in any other language in a facility where five
percent or more of the residents can only read that other
language.
This bill would require the RCFE to provide initial and ongoing
training for all members of its staff to ensure that residents'
rights are fully respected and implemented.
This bill would require, 30 days or more before filing an action
for damages, the resident or resident's representative to do
both of the following:
notify the facility alleged to have violated any requirements
of the particular alleged violation, and that notice must be
in writing and sent by certified or registered mail, return
receipt requested, to the RCFE in which the resident resides
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or resided or to the person's principal place of business
within California; and
demand that the facility cease, correct, or otherwise rectify
the alleged violation.
This bill would prohibit an action for damages if the facility
ceases, corrects, or otherwise rectifies the alleged violation
within 30 days after receipt of the above notice.
This bill would prohibit an action for damages upon a showing by
the facility alleged to have violated any requirements of this
article that all of the following exist:
all residents similarly situated have been identified, or a
reasonable effort to identify those other residents has been
made;
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; and
the facility 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.
This bill would authorize an action for injunctive relief to be
commenced, and not less than 30 days after the commencement of
an action for injunctive relief, the resident may amend his or
her complaint without leave of court to include a request for
damages.
This bill would require attempts to comply by a facility
receiving a demand to be construed to be an offer to compromise
and would not be inadmissible as evidence. Furthermore, these
attempts to comply with a demand would not be considered an
admission of engaging in an act or practice declared unlawful,
and evidence of compliance or attempts to comply may be
introduced by a defendant for the purpose of establishing good
faith or to show compliance.
This bill would authorize the Attorney General in the name of
the people of the State of California to bring an action for
injunction or civil damages, or both, 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.
This bill would require every RCFE to provide access to the
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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.
This bill would provide that 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, as
specified, that could be assessed on account of the violation or
violations.
This bill would provide that a licensee who violates any of the
above provisions or regulations adopted by DSS pursuant to this
bill, and whose violation presents an immediate or substantial
threat to the physical health, mental health, or safety of an
RCFE resident may be enjoined from permitting the violation to
continue and may be sued for civil damages within a court of
competent jurisdiction.
This bill would authorize a current or former RCFE resident to
bring a civil action against any facility that violates the
above provisions, and the RCFE licensee would be liable for the
acts of the licensee's employees.
This bill would make the licensee liable for up to $500 for each
violation, and for costs and attorney's fees, and may be
enjoined from permitting the violation to continue. Injunctive
relief granted would not be stayed pending appeal.
This bill would establish a three-year statute of limitations to
bring an action, which shall not begin to run until the
violation has been discovered.
This bill would authorize the current or former resident to a
trial by jury.
This bill would establish the right to bring a civil action,
which would survive the death of the resident.
This bill would deem an agreement by an RCFE resident to waive
his or her rights to sue contrary to public policy and make the
agreement be void and unenforceable.
This bill would require an RCFE admission agreement to include
an explanation of the resident's right to 90-days' notice prior
to an involuntary transfer, discharge, or eviction.
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COMMENT
1. Stated need for the bill
The author writes:
When the Residential Care Facilities for the Elderly Act was
established in 1985, the concept of assisted living for the
elderly was in its infancy, residents generally required
little care and almost all providers operated out of their own
homes. Today, California has 7,500 RCFEs serving up to
170,000 residents, including many who have serious health
problems and need around-the-clock care. Although there are
still a large number of mom & pop style facilities, most
California [residential care facilities for the elderly
(RCFE)] residents live in large facilities that are owned by
wealthy national or regional assisted living chains.
California has responded poorly to this changing environment
and is far behind the times in regulating RCFEs. Care
standards have not evolved to match residents' ever growing
needs and oversight of RCFEs has almost disappeared. Dozens
of media stories in the last year have documented the great
harm caused by this toxic blend of negligent care and
regulatory collapse. The media reports explored dozens of
outrageous cases of poor care leading to resident abandonment,
injury and death, all enabled by insufficient state oversight.
News coverage on the RCFE crisis can be found here:
http://canhr.org/newsroom/rcfe_crisis/news_coverage.html.
California is especially behind the times in establishing
meaningful rights for the extraordinarily vulnerable residents
of today's RCFEs. Almost thirty years after its
establishment, the Residential Care Facilities for the Elderly
Act still does not include a bill of rights. Residents are
protected only by a 1985 era personal rights regulation (22
CCR [Sec.] 87648) that is outdated and woefully inadequate.
AB 2171 will help California move into the 21st century in
this area by establishing a modern bill of rights that is
based on best practices in many other states. In so doing,
California will help protect the dignity, safety and
self-determination of the vulnerable and often fragile
residents of RCFEs.
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Equally important, AB 2171 would establish a private right of
action giving residents the opportunity to enforce their own
rights when they are being mistreated, and prevent or stop
ongoing violations of their rights. Currently, residents' only
recourse when their rights are violated is to file a complaint
with Community Care Licensing (CCL), an agency that has been
decimated by cutbacks and often seems powerless to protect
residents.
2. RCFE resident bill of rights
Existing law provides that each RCFE resident maintains personal
rights, including, but not limited to, 18 enumerated personal
rights. (Cal. Code Regs., tit. 22, art. 8, Sec. 87468.) This
bill would codify some of these personal rights and enumerate
many more, including the right to be free from discrimination
and retaliation for presenting grievances and recommending RCFE
policy changes.
The author states that the purpose of this bill "is to secure a
better, safer, more dignified future for RCFE residents in
California by strengthening their rights to make choices about
their care, treatment and daily life and to ensure that their
choices are respected. Additionally, it will enhance resident
safety and dignity by outlawing dangerous or abusive practices,
such as the use of restraints. In so doing, AB 2171 will bring
California in line with the best practices in many other states
that have bypassed us in securing meaningful rights for the ever
more vulnerable elders who live in assisted living facilities."
The author notes that many other states, most notably
Washington, have already established broad, progressive bills of
rights that protect their residents in ways California has yet
to consider.
Consumer Attorneys of California (CAOC), co-sponsor, notes that
this bill tracks existing law applicable to nursing homes and
also reflects the "best practices" of other states. (See Health
& Saf. Code Sec. 1599.1; Civ. Code Sec. 1430; Cal. Code Regs.,
tit. 22, Sec. 72527.) CAOC asserts that these "code sections
have worked well for nursing homes and their residents and there
is no reason these protections should not apply to people
residing in RCFEs. 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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In addition to the bill of rights, this bill would prohibit a
licensed RCFE from discriminating 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. This provision reiterates
the protections under the Unruh Civil Rights Act, which provides
that all persons within California are free and equal, and no
matter what their sex, race, color, religion, ancestry, national
origin, disability, medical condition, genetic information,
marital status, or sexual orientation, are entitled to the full
and equal accommodations, advantages, facilities, or services in
all business establishments of every kind. (Civ. Code Sec.
51(b).)
3. Actions against an RCFE in violation and right to cure
This bill would establish a private right of action against an
RCFE, with a right to cure, and authorize the Attorney General
to bring an action on behalf of the public against the RCFE as
follows:
a. Limited private right of action
This bill would authorize a current or former RCFE resident to
bring a limited action against an RCFE that violates the
resident's rights, and provide that the RCFE licensee is
liable for the acts of its employees. This bill would make
the licensee liable for up to $500 for each violation, and for
costs and attorney's fees, and provide that the licensee may
be enjoined from permitting the violation to continue.
Injunctive relief granted would not be stayed pending appeal.
Further, this bill would authorize the current or former RCFE
resident to amend a complaint to request damages after 30 days
of the initial filing. However, this bill would prohibit an
action for damages if the facility corrects the violation
(discussed further below) or if all of the following apply:
all residents similarly situated have been identified,
or a reasonable effort to identify those other residents
has been made;
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; and
the facility has ceased from engaging, or if immediate
cessation is impossible or unreasonably expensive under the
circumstances, the person will, within a reasonable time,
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cease to engage, in the alleged violation.
CAOC argues that a resident's bill of rights is largely
meaningless if the rights are not enforceable. The author
states that "[t]he private right of action is a strategy for
resident empowerment and compensates for CCL's negligible
oversight of RCFEs. Enhancing resident rights by adding a
private right of action will provide a much needed enforcement
alternative to CCL without cost to the state. From an
enforcement perspective, residents, family and friends are
best suited to monitor care and pursue remedies where
appropriate." Notably, this bill would also establish a
3-year statute of limitations, which would not begin to run
until the violation has been discovered, for a suit to be
brought against the RCFE licensee by the current or former
resident, or his or her legal representative in the event the
resident has died.
a. Right to cure
Before an RCFE resident can file an action for damages, this
bill would require the resident to notify, in writing sent by
certified or registered mail, the RCFE of the particular
alleged violation and demand that the RCFE cease, correct, or
otherwise rectify the alleged violation. This notice would
have to be sent 30 days before an action could be filed by the
resident, and any action requesting damages would be
prohibited if the RCFE ceases, corrects, or otherwise
rectifies the alleged violation within 30 days after receipt
of the notice.
This provision arguably helps the RCFE to keep litigation
costs minimal since it would be given the opportunity to cure
the alleged violation before an action is commenced. In the
event the RCFE fails to cure the violation, the resident would
have judicial oversight of the conditions of the facility and
be able to recover damages from inattentive or irresponsible
RCFE licensees.
b. Damages, attorney's fees, and costs
This bill would authorize an award of damages for RCFE
violations that are not corrected within 30 days. This bill
would make the licensee liable for up to $500 for each
violation, and for attorney's fees and costs.
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c. Attorney General action on behalf of the public
This bill would authorize the Attorney General in the name of
the people of the State of California to bring an action for
injunction or civil damages, or both, 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. This
action would be authorized against a licensee in violation
which presents an immediate or substantial threat to the
physical health, mental health, or safety of a resident. This
bill would provide that the amount of civil damages that may
be recovered in an action shall not exceed the maximum amount
of civil penalties that could be assessed on account of the
violation or violations.
This provision would allow an elder protection group to lodge
a complaint with the Attorney General against an RCFE
licensee, and the Attorney General could then bring an action
against the licensee. This provision is useful in situations
where the residents of an entire facility are at serious risk,
as in the Valley Springs Manor incident, where two RCFE
employees were left by the licensee to care for 19 residents
following a notice of license suspension. (See Background.)
In these types of situations needing immediate attention, the
Attorney General would be able to file an action immediately,
while the residents would have to wait for 30 days after first
notifying the RCFE licensee of the alleged violations.
4. Evidentiary privilege
Existing law provides that a person has, in compromise or from
humanitarian motives, furnished or offered or promised to
furnish money or any other thing, act, or service to another who
has sustained or will sustain or claims that he or she has
sustained or will sustain loss or damage, as well as any conduct
or statements made in negotiation thereof, is inadmissible to
prove his or her liability for the loss or damage or any part of
it. (Evid. Code Sec. 1152.) Similarly, this bill would make
the RCFE resident's demand to correct an alleged violation prior
to filing an action inadmissible as evidence because this bill
would make that demand an offer to compromise.
In addition, this bill would provide that an RCFE's attempts to
comply with a demand would not be considered an admission of
engaging in an act or practice declared unlawful. However,
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evidence of compliance or attempts to comply by the RCFE may be
introduced by a defendant RCFE for the purpose of establishing
good faith or to show compliance.
5. Oppositions' concerns
Opponents of this bill assert that it would create legal traps
for a business trying to comply with the ambiguous and broad new
bill of rights. Opponents also contend that this bill, by
authorizing "a person acting for the interests of itself, its
members or the general public" creates a new private attorney
general enforcement scheme with a long statute of limitations by
predicating the right to bring an action with three years on the
date the violation was discovered, rather than when the
violation actually occurred. Opponents argue this bill is
another attempt of an ongoing effort by the plaintiff's bar to
expand litigation in the area of care for the growing elder
population, which will encourage unwarranted lawsuits against
residential care facilities for the elder, drive up costs, and
reduce services provided for the elderly. Opponents note that
existing law allows for elder abuse actions under the Elder
Abuse and Dependent Adult Civil Protection Act, which does not
have the reduced standard of proof of a preponderance of
evidence as in this bill for RCFE employers to be held
responsible for the acts of employees. Opponents also argue
that because this bill would prohibit mandatory arbitration
agreements between elders and RCFEs, which has recently been
held as preempted by federal law, this bill would not help
elders and would only help lawyers.
Support : American Association of Retired Persons; California
Alliance for Retired Americans; California Commission on Aging;
California Conference Board of the Amalgamated Transit Union;
California Conference of Machinists; California Conference Board
of Amalgamated Transit Union; California Continuing Care
Residents Association; California Long-Term Ombudsman
Association; California Professional Firefighters; California
Senior Legislature; California State Retirees; California
Teamsters Public Affairs Council; Congress of California
Seniors; Consumer Federation of California; County of San
Bernardino; County of San Diego; Elder Abuse Task Force of Santa
Clara County; Elder Law & Advocacy; Engineers and Scientists of
CA, IFPTE Local 20, AFL-CIO; Equality California; International
Longshore and Warehouse Union; Johnson Moore Trial Lawyers; Long
Term Care Services of Ventura County, Inc.; Moran Law; National
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Association of Social Workers - California Chapter; National
Senior Citizens Law Center; Office of the State Long-Term Care
Ombudsman; Ombudsman Services of Contra Costa; Professional &
Technical Engineers, IFPTE Local 21, AFL-CIO; SEIU United Long
Term Care Workers; Stanislaus County Commission on Aging;
Utility Workers Union of America, Local 132; UNITE-HERE,
AFL-CIO; Valentine Law Group; One individual
Opposition : ActivCare at Bressi Ranch; ActivCare at Rolling
Hills Ranch; Air Force Village West; Alder Bay Assisted Living;
AlmaVia of Camarillo; Alma Via of San Rafael; Belmont Village of
Burbank; Belmont Village of Rancho Palos Verdes; Belmont Village
of Sunnyvale; Belmont Village of Westwood; Blossom Grove
Alzheimer's Special Care Center; BridgePoint of Los Altos;
Brookdale - Inn at the Park; Brookdale Lodge at Paulin Creek;
Brookdale Mirage Inn; Byron Park; California Assisted Living
Association; California Association of Continuing Care
Retirement Communities; CalPACE; Carrington of Shafter; Cedar
Creek Senior Living; Chancellor Health Care; Civil Justice
Association of California; Community Home Partners dba Pacific
Gardens; Continuing Life; Cypress Court; De Palma Terrace Senior
Living; Del Obispo Terrace Senior living; Drake Terrace; Elder
Care Alliance; Elmcroft of La Mesa; Elmcroft Senior Living;
Emerald Court; Emeritus at Austin Gardens; Emeritus at Casa
Glendale; Emeritus at Laguna Creek; Emeritus at Manteca;
Emeritus at Rancho Solano; Emeritus at Rohnert Park; Emeritus at
Villa de Anza; Emeritus at Whittier; Five Star Senior Living;
Gables of Ojai; Gold Country Retirement Community; Grossmont
Gardens; Hallmark of Bakersfield; Hialeah Terrace; Home Again I
& II; Huntington Terrace Senior Living; J-Sei Home; Koelsch
Senior Communities; La Vida Del Mar; Mature Adult Day Assistance
dba Garden House, Morro Bay; MBK's Casa de Santa Fe; MBK Senior
Living; Meadowlark Assisted Living; Merrill Gardens; Merrill
Gardens at Bankers Hill; Merrill Gardens at Santa Maria; Merrill
Gardens at Willow Glen; Milestone Retirement Communities; Monte
Vista Village; Murrieta Gardens Assisted Living/Integral Senior
Living; New West Haven/Cameo RCFE, Inc.; Nohl Ranch Inn at
Brookdale Community; Oak Tree Villa; Oakdale of La Mesa; Oakmont
Gardens; Oakmont of Roseville; O'Connor Woods; Our Lady of
Fatima Village; Pacific Gardens; Pacific Place, A Merrill
Gardens Community; Paramount Court Senior Living; Park Plaza;
Park Terrace; Parsons Group; Regency Fallbrook Assisted Living &
Alzheimer's Care; R.A.C. Bressi, LP dba ActivCare at Bressi
Ranch; R.A.C. Brittany Ltd. dba Brittany House; R.A.C. Rollings
Hills, LP dba ActivCare at Rolling Hills Ranch; Rancho Stony
Knoll; Raya's Paradise, Inc.; Regency Fallbrook; Regency of
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Evergreen Valley; Retirement Housing Foundation; Rio Las Palmas,
Five Star Senior Living; Salem Lutheran Home; Silverado;
Silverado - Belmont Hills; Silverado Escondido; Silverado Senior
Living; Silverado Tustin Hacienda Memory Care Community; Skyline
Place Senior Living; Somerford Place-Encinitas, Five Star Senior
Living; Somerford Place, Five Start Senior Living; Somerford
Place-Stockton, Five Star Senior Living; Summerhill Villa;
Summitt Hills I & II; Sunrise of Danville; Sunrise Senior Living
of Belmont; Sunrise Senior Living of Bonita; Sunrise Senior
Living of Huntington Beach; The Carlisle/Sunrise Senior Living;
The Cherry Hills Club a Brookdale Senior Living Community; The
Gables a Brookdale Community; The Meadows Senior Living; The
Patrician; The Peninsula Regent; The Remington Club, Five Star
Senior Living; The Reutlinger Community for Jewish Living; The
Stratford; The Vistas Assisted Living & Memory Care Community;
The Windham; Tiffany Court of Walnut Creek; Valencia Terrace;
Villa Bonita Senior Living; Villa Valencia, Five Star Senior
Living; Vintage Burbank Assisted Living; Vintage Simi Hills;
Westminster Terrace Assisted Living; Whittier Place Senior
Living; Woodside Terrace; 14 individuals
HISTORY
Source : California Advocates for Nursing Home Reform; Consumer
Attorneys of California
Related Pending Legislation :
SB 1153 (Leno, 2014) would authorize the Department of Social
Services (DSS) to order a suspension of new admissions to a
Residential Care Facility for the Elderly (RCFE) in specified
circumstances. SB 1153 is currently in the Assembly Committee
on Human Services.
SB 911 (Block, 2014) would require additional training of RCFE
licensees and staff and prohibit discrimination and retaliation
against any person receiving the services of RCFE, or against
any employee of the facility, on the basis, or for the reason
that, the person, employee, or any other person dialed or called
911. SB 911 is currently in the Assembly Committee on Human
Services.
SB 895 (Corbett, 2014) would require annual unannounced
inspections of Residential Care Facilities for the Elderly
(RCFEs). SB 895 is currently in the Assembly Committee on Human
Services.
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SB 894 (Corbett, 2014) would require license suspension notices
to be provided to RCFE residents, expand DSS duties of care to
residents being relocated from a suspended facility, require DSS
to provide onsite evaluations of residents and arrange for
resident care, meals, medication distribution, and transfer, and
authorize an RCFE resident to bring a civil action against an
RCFE licensee for violations. SB 894 is currently in the
Assembly Committee on Human Services.
AB 2236 (Maienschein and Stone, 2014) would provide that if the
facility appeals the Department's findings of deficiencies, a
notice of appeal would be required to be given to the
complainant, affected residents, and their legal
representatives, and the opportunity to participate in the
appeal, and the appeal procedure would have to include an option
for administrative law judge review. AB 2236 would increase
civil penalties for violations from not less than $100 to not
more than $250 per day for each violation, increase an immediate
civil penalty issued by the Department from $150 to $1,000 per
day per violation for specified serious violations, and would
increase civil penalties for violations resulting in death to a
resident, serious bodily injury, or physical abuse. AB 2236 is
currently in the Senate Committee on Human Services.
AB 2632 (Maienschein, 2014) would prohibit DSS, with regard to
RCFEs and other specified care facilities, from issuing a
criminal record clearance to a person with a record of an arrest
prior to DSS's completion of an investigation of that arrest
record. AB 2632 is currently in the Senate Committee on Human
Services.
AB 1572 (Eggman, 2014) would require an RCFE to establish a
single resident council, as specified, at the facility. AB 1572
is currently in the Senate Committee on Appropriations.
AB 1571 (Eggman, 2014) would strengthen RCFE licensee
requirements and require DSS to establish an online inquiry
system accessible through an Internet Web site and post RCFE
profiles containing specified information. AB 1571 is currently
in the Senate Committee on Human Services.
AB 1554 (Skinner, 2014) would increase DSS requirements
regarding RCFE complaints. AB 1554 is currently in the Senate
Committee on Human Services.
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Prior Legislation :
AB 2066 (Monning, Ch. 643, Stats. 2012) required RCFE licensees
to provide a 60-day written notice to RCFE residents following a
license revocation and required DSS to minimize trauma to RCFE
residents, as specified.
SB 1166 (Mello, Ch. 1115, Stats. 1989) enacted the Residential
Care Facilities for the Elderly Reform Act of 1989.
SB 1676 (Wyman, Ch. 1372, Stats. 1985) authorized a series of
civil penalties that could be imposed against an RCFE in
addition to license revocation or suspension.
Prior Vote :
Assembly Floor (Ayes 42, Noes 23)
Assembly Committee on Appropriations (Ayes 12, Noes 0)
Assembly Committee on Judiciary (Ayes 8, Noes 2)
Assembly Committee on Aging and Long Term Care (Ayes 5, Noes 2)
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