BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2171|
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THIRD READING
Bill No: AB 2171
Author: Wieckowski (D), et al.
Amended: 8/19/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 6/24/14
AYES: Jackson, Corbett, Lara, Leno, Monning
NOES: Anderson, Vidak
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 42-23, 5/28/14 - See last page for vote
SUBJECT : Residential care facilities for the elderly
SOURCE : California Advocates for Nursing Home Reform
Consumer Attorneys of California
DIGEST : This bill establishes a bill of rights for residents
of Residential Care Facilities for the Elderly (RCFEs). This
bill authorizes a private right of action by a current or former
resident against the RCFE for violations and authorizes damages
of $500 per violation, attorney's fees, and costs, and
injunctive relief. This bill also provides a three-year statute
of limitations beginning when the violation has been discovered,
this bill allows the RCFE to cure a violation before an action
can be filed.
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ANALYSIS : Existing law:
1. The California Residential Care Facilities for the Elderly
Act, provides a licensing structure administered by the
Department of Social Services (DSS) for RCFEs.
2. 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.
3. Requires DSS to inspect and license RCFEs, and authorizes it
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 prevent a
violation of the Act.
4. 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.
5. Prescribes maintenance and operational requirements for
RCFEs for the safety and well-being of the residents and
employees.
6. 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
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protect residents' rights with facility administrators.
7. Provides that each RCFE resident has personal rights,
including but not limited to, 18 enumerated personal rights.
8. 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.
9. 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.
10.Requires an RCFE admission agreement to include an
explanation of the resident's right to notice prior to an
involuntary transfer, discharge, or eviction.
This bill:
1. Establishes the RCFE residents' bill of rights, with some of
the following enumerated rights, which do 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;
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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, that is delivered by staff, that are
sufficient in numbers, qualifications, and competency to
meet their 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 is required to 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;
To be free from neglect, financial exploitation,
involuntary seclusion, punishment, humiliation,
intimidation, and verbal, mental, physical, or sexual
abuse;
To contact DSS, the long-term care ombudsman, or both,
regarding grievances against the facility, and the facility
is 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
is required to be reasonable and not violate any personal
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or lawful rights;
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;
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 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 organize and participate in a resident council; and
To protection of their property from theft or loss.
1. Provides that provisions of this bill apply to privately
owned RCFEs.
2. Prohibits 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.
3. Provides that no provision of a contract of admission 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.
4. Authorizes residents' family members, friends, and
representatives to organize and participate in a family
council.
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5. Requires, 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.
6. Requires 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.
7. Requires 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 in which
5% or more of the residents can only read that other
language.
8. Requires the RCFE to provide initial and ongoing training
for all members of its staff to ensure that residents' rights
are fully respected and implemented.
9. Requires, 30 days or more before filing an action for
damages, the current or former resident or resident's
representative to do both of the following:
Notify the licensee 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 or resided or to the person's
principal place of business within California; and
Demand in writing that the licensee cease, correct, or
otherwise rectify the alleged violation.
1. Prohibits an action for damages if the licensee ceases,
corrects, or otherwise rectifies the alleged violation within
30 days after receipt of the above notice.
2. Prohibits an action for damages upon a showing by the
licensee alleged to have violated specified provisions of
this bill if the licensee has ceased from engaging, or if
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immediate cessation is impossible or unreasonably expensive
under the circumstances, the person will, within a reasonable
time, cease to engage, in the alleged violation.
3. Authorizes an action for injunctive relief to be commenced,
if the violation poses a threat to the resident, 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.
4. Requires attempts to comply by a facility receiving a demand
to be construed to be an offer to compromise and is not be
inadmissible as evidence. Furthermore, these attempts to
comply with a demand are not to 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.
5. Authorizes a current or former RCFE resident to bring a
civil action against any facility that violates the above
provisions, and the RCFE licensee is be liable for the acts
of the licensee's employees.
6. Makes 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.
7. Establishes a three-year statute of limitations to bring an
action, which shall not begin to run until the violation has
been discovered.
8. Authorizes the current or former resident to a trial by
jury.
9. Establishes the right to bring a civil action, which
survives the death of the resident.
10.Deems 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.
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Background
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 residents (71%) live in a 50-plus bed
RCFE. The Community Care Licensing Division (CCL) of 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:
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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 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.)
Prior Legislation
SB 1166 (Mello, Chapter 1115, Statutes of 1989) enacted the
Residential Care Facilities for the Elderly Reform Act of 1989.
SB 1676 (Wyman, Chapter 1372, Statutes of 1985) authorized a
series of civil penalties that could be imposed against an RCFE
in addition to license revocation or suspension.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Potentially significant cost pressure (General Fund*) on trial
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courts under the new private right of action. There are nearly
7,500 RCFE facilities and 145,000 licensed beds in the state.
Actual costs would be dependent on the number and complexity
of cases brought forward.
One-time costs to DSS of about $250,000 (General Fund) to
promulgate regulations and review RCFE plans of operation to
ensure compliance.
*Trial Court Trust Fund
SUPPORT : (Verified 8/18/14)
California Advocates for Nursing Home Reform (co-source)
Consumer Attorneys of California (co-source)
Alliance on Aging
American Association of Retired Persons
Assisted Living Consumer Alliance
Bet Tzedek Legal Services
California Alliance for Retired Americans
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
California Professional Firefighters
California Senior Legislature
California Teamsters Public Affairs Council
Congress of California Seniors
Consumer Advocates for RCFE Reform
Consumer Federation of California
Contra Costa Advisory Council on Aging
County of San Bernardino
County of San Diego
Elder Abuse Task Force of Santa Clara County
Elder Law & Advocacy
Engineers and Scientists of California - 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 Association of Social Workers - California Chapter
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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
Ombudsman Services of Contra Costa
Professional & Technical Engineers, IFPTE Local 21 - AFL-CIO
SEIU United Long Term Care Workers
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
OPPOSITION : (Verified 8/18/14)
Atherton Baptist Homes
Barney & Barney
Be.Group
Bethesda Home
Birch Patrick
California Assisted Living Association
Carlsbad by the Sea Retirement Community
Channing House
Community Residential Care Association of California
Continuing Care Retirement Communities
Civil Justice Association of California
Claremont Manor
Elder Care Alliance
Freedom Management Company
Freedom Village
Fredericka Manor Retirement Community
Front Porch
Gold Country Retirement Community
Hollenbeck Palms
Kingsley Manor Retirement Community
Leading Age California
Los Angeles Jewish Home
Masonic Homes of California
Mather LifeWays
Meadowood Health and Rehabilitation
Motion Picture and Television Fund
O'Connor Woods
Our Lady of Fatima Villa
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Retirement Housing Foundation
Salem Lutheran Home
Sharp Chula Vista Medical Center
Sierra View Homes
St. John's Retirement Village
Sunny View Retirement Community
The British Home in California
The Peninsula Regent
The Sequois Portola Valley
The Tamalpais
The Village Retirement Community
Walnut Village
ARGUMENTS IN SUPPORT : 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."
ARGUMENTS IN OPPOSITION : 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
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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.
ASSEMBLY FLOOR : 42-23, 5/28/14
AYES: Alejo, Ammiano, Bloom, Bocanegra, Bonta, Bradford, Brown,
Campos, Chau, Cooley, Dababneh, Daly, Dickinson, Fong, Fox,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gray, Roger Hern�ndez,
Holden, Jones-Sawyer, Levine, Linder, Mullin, Muratsuchi,
Nazarian, John A. P�rez, Quirk, Rendon, Ridley-Thomas, Salas,
Skinner, Stone, Ting, Weber, Wieckowski, Williams, Yamada,
Atkins
NOES: Achadjian, Allen, Bigelow, Ch�vez, Conway, Donnelly, Beth
Gaines, Gorell, Grove, Hagman, Harkey, Jones, Logue,
Maienschein, Mansoor, Medina, Melendez, Nestande, Olsen,
Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Bonilla, Buchanan, Ian Calderon, Chesbro,
Dahle, Eggman, Frazier, Hall, Lowenthal, Pan, Perea, V. Manuel
P�rez, Quirk-Silva, Rodriguez, Vacancy
AL:nl 8/19/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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