BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 894 (Corbett)
As Amended April 9, 2014
Hearing Date: April 22, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Residential Care Facilities for the Elderly: Revocation of
License
DESCRIPTION
This bill would amend existing elderly residential care facility
license suspension and revocation laws by requiring additional
licensee notices to be provided to the facility residents,
expand the Department of Social Services (DSS) duties of care to
residents being relocated from a suspended facility, and require
DSS to provide onsite evaluations of residents and arrange for
resident care, meals, medication distribution, and transfer.
This bill would also allow those residents to bring a civil
action for licensee violations.
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
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.
(more)
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This bill is part of a 9-bill package 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. California Advocates
for Nursing Home Reform (CANHR), sponsor of this bill, prepared
a special report which detailed the license revocation incident:
Eden Manor, a former RCFE in Oakland, was in financial trouble
in early 2012. By June 2012, the facility building was in
foreclosure and resident care suffered. . . . Despite the
fact that CCL knew the facility was in major trouble, Eden
Manor kept operating until it was finally taken over by new
management in March 2013. CCL finally took action to have the
licenses of the facility's management revoked, but the process
has dragged on and will not be resolved until June 2014 at the
earliest. Meanwhile, two of those 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."
To better protect RCFE residents during the license suspension
and revocation process, this bill would require license
suspension notices to be provided to the facility 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. This bill would also allow an RCFE
resident to bring a civil action against an RCFE licensee for
violations.
This bill was heard by the Senate Human Services Committee on
April 8, 2014, and passed out on a vote of 3-2.
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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 provides that if the Director of Social Services
(Director) determines that it is necessary to temporarily
suspend or to revoke any license of an RCFE in order to protect
the residents or clients of the facility from physical or mental
abuse, abandonment, or any other substantial threat to health or
safety, DSS is required to make every effort to minimize trauma
for the residents, which includes taking the following actions:.
contact any local agency that may have placement or advocacy
responsibility for the residents after a decision is made to
temporarily suspend or to revoke the license of the facility
and prior to its implementation;
work with these agencies to locate alternative placement sites
and to contact relatives responsible for the care of these
residents; and
use physicians and surgeons and other medical personnel deemed
appropriate by DSS to provide onsite evaluation of the
residents and assist in any transfers. (Health & Saf. Code
Sec. 1569.525(a)-(c).)
Existing law provides that upon an order to revoke a license,
except an order to revoke a license following the temporary
suspension of a license, the following shall apply:
the licensee shall provide a 60-day written notice of license
revocation that may lead to closure to the resident and the
resident's responsible person within 24 hours of receipt of
DSS's order of revocation; and
DSS shall permit the licensee to secure the services of a
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person who is not an immediate family member of the licensee
or an entity that is not owned by the licensee to manage the
day-to-day operations of the residential care facility for the
elderly for a period of at least 60 days, as specified.
(Health & Saf. Code Sec. 1569.525(e)(1), (2).)
Existing law provides that for paid preadmission fees in excess
of $500, a resident who transfers from the facility during the
60-day period is entitled to a refund in accordance with all of
the following:
a 100-percent refund if preadmission fees were paid within six
months of the notice of closure;
a 75-percent refund if preadmission fees were paid more than
six months, but not more than 12 months, before the notice of
closure;
a 50-percent refund if preadmission fees were paid more than
12 months, but not more than 18 months, before the notice of
closure; and
a 25-percent refund if preadmission fees were paid more than
18 months, but not more than 25 months, before the notice of
closure.
However, no preadmission fee refund is required if preadmission
fees were paid 25 months or more before the notice of closure.
(Health & Saf. Code Sec. 1569.525(e)(3).)
Existing law also requires those preadmission fee refunds to be
paid within 15 days of issuing the notice of closure. In lieu
of the refund, the resident may request that the licensee
provide a credit toward the resident's monthly fee obligation in
an amount equal to the preadmission fee refund due. (Health &
Saf. Code Sec. 1569.525(e)(3).)
Existing law provides that if a resident transfers from the
facility during the 60-day period and the resident gives notice
at least five days before leaving the facility, the licensee
must refund to the resident or his or her legal representative a
proportional per diem amount of any prepaid monthly fees at the
time the resident leaves the facility and the unit is vacated.
Otherwise, the licensee must pay the refund within seven days
from the date that the resident leaves the facility and the unit
is vacated. (Health & Saf. Code Sec. 1569.525(e)(4).)
Existing law provides that within 10 days after all residents
who are transferring have left the facility, the licensee that
had his or her license revoked must, based on information
provided by the resident or the resident's legal representative,
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submit a final list of names and new locations of all residents
to DSS and the local ombudsman program. (Health & Saf. Code
Sec. 1569.525(e)(5).)
This bill would provide that if the Director is reasonably
contemplating a temporary suspension or revocation of any
license, DSS must provide the Office of the State Long-Term Care
Ombudsman with a precautionary notification so that the office
may properly prepare to intervene if and when necessary.
This bill , upon receipt of an order to suspend or revoke a
license, would prohibit the licensee from accepting new
residents or entering into admission agreements for new
residents and require the licensee to provide a written notice
of the license suspension to the resident or resident's
responsible person as soon as practically possible but not later
than within 24 hours of receipt of the DSS order of suspension.
This bill would delete the minimum preadmission fee entitling a
resident to preadmission fee refunds.
This bill , instead of 10 days, would require the revoked
licensee, within 24 hours after all residents who are
transferring have left the facility, to submit a final list of
names and new locations of all residents to DSS and the local
ombudsman program.
This bill would provide that if at any point during or following
a temporary suspension or revocation of a license the Director
determines that there is a risk to the RCFE residents from
physical or mental abuse, abandonment, or any other substantial
threat to health or safety, DSS would be required to take any
necessary action to minimize trauma for the residents,
including, but not limited to, all of the following:
contacting any local agency that may have placement or
advocacy responsibility for the residents, and working with
those agencies to locate alternative placement sites;
contacting the residents' relatives, legal representatives,
authorized agents in a health care directive, or responsible
parties;
assisting in the transfer of residents, and, if necessary,
arranging or coordinating transportation;
providing onsite evaluation of the residents and using any
medical personnel deemed appropriate by the department to
provide onsite evaluation of the residents and assist in any
transfers;
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arranging for or coordinating care and supervision;
arranging for the distribution of medications;
arranging for the preparation and service of meals and snacks;
arranging for the preparation of the residents' records and
medications for transfer of each resident;
assisting in any way necessary to facilitate a safe transfer
of all residents; and
checking on the status of each transferred resident within 24
hours of transfer.
This bill would provide that the participation of DSS and local
agencies in the relocation of residents from an RCFE would not
relieve the licensee of any responsibility. A licensee that
fails to comply with the above requirements would be required to
reimburse DSS and local agencies for the cost of providing these
services. If the licensee fails to provide the required
services, DSS would be required to request that the Attorney
General's office, the city attorney's office, or the local
district attorney's office seek injunctive relief and damages.
This bill would provide that a licensee who fails to comply with
the above requirements would be liable for civil penalties in
the amount of $500 per violation per day, until the violation
has been corrected. The civil penalties would be issued
immediately following the written notice of violation.
This bill would allow a current or former resident of an RCFE to
bring a civil action against any person, firm, partnership, or
corporation who owns, operates, establishes, manages, conducts,
or maintains an RCFE who violates the rights of a resident, as
specified.
This bill would provide that any person, firm, partnership, or
corporation who owns, operates, establishes, manages, conducts,
or maintains an RCFE in violation of this bill would be
responsible for the acts of the facility employees and be liable
for costs and attorney's fees.
This bill would provide that the RCFE may also be enjoined from
permitting the violation to continue.
COMMENT
1. Stated need for the bill
The author writes:
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For two days in October 2013, nineteen elderly residents at
Valley Manor Residential Care Center - an assisted living
facility in Castro Valley - were stranded without adequate
care after the owners, managers and the majority of paid staff
members walked out. The facility, plagued with violations
dating back a number of years, had received notification of
its impending license revocation. In the end, the stranded
residents were cared for by two unpaid and untrained employees
- a cook and a janitor. The California Department of Social
Services (DSS) inspected the facility during those two days,
wrote reports and then left the elderly residents, some
bedridden, without adequate care. In its report on this
incident, DSS simply stated that it "fell short of its mission
to protect the health and safety of residents" at Valley
Springs and that its "judgment call" on the facility closure
process was incorrect. Clearly, it is time for reform.
Current law neither adequately provides for either the State's
role in ensuring that Residential Care Facility for the
Elderly [(RCFE)] licensees find alternative placements for
residents in their care, or the State's responsibility to
protect the health and safety of the residents of RCFEs when
it becomes clear that the RCFE licensees are failing to do so.
SB 894 would provide for greater notice requirements to
residents in the case of orders to suspend licenses; tightens
the time frame of reporting requirements for licensees upon
the relocation of residents; further outlines the State's role
in protecting the residents of RCFEs; raises the limit on
civil penalties for licensees who fail to comply with the law
from $100 to $500 per day per violation for each violation;
and provides for civil action for residents against licensees
for any violation of this law.
2. Additional DSS duties of care
Existing law requires DSS to take any necessary action,
including working with placement agencies to locate alternative
resident placement sites, contacting relatives, providing onsite
evaluations of residents, and assisting in the transfer of the
residents, to minimize trauma for RCFE residents if a licensee
fails to comply with its duties of care following an RCFE
license forfeiture. (Health & Saf. Code Sec. 1569.682(c)(1).)
Existing law also requires DSS to take any necessary action,
including contacting a local agency that may have placement or
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advocacy responsibility, working with these agencies to locate
alternative placement sites, contacting relatives, use
physicians, surgeons, and other medical personnel to provide
onsite evaluations of the residents, and assist in resident
transfers, following an RCFE license suspension or revocation.
(Health & Saf. Code Sec. 1569.525(a)-(c).)
This bill, following a temporary suspension or revocation of an
RCFE license, would require DSS to take the following additional
actions:
if necessary, arrange or coordinate transportation for
resident transfer;
arrange for or coordinate care and supervision;
arrange for the distribution of medications;
arrange for the preparation and service of meals and snacks;
arrange for the preparation of the residents' records and
medications for transfer of each resident;
assist in any way necessary to facilitate a safe transfer of
all residents; and
check on the status of each transferred resident within 24
hours of transfer.
The author argues these additional duties of care are necessary,
especially in light of the Valley Manor Residential Care Center
situation, where the Community Care Licensing Division (CCL) of
the DSS inspected the facility, wrote reports about the
deficiencies at the facility, and then left the elderly
residents, some bedridden, without adequate care. Even DSS
admitted that it "fell short of its mission to protect the
health and safety of residents in Valley Springs. [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."
Advocacy, Inc., in support, asserts that "[t]he current process
in place around revocation or suspension of RCFE licensees as a
result of sub-standard care is detrimental and horribly
disruptive to the seniors and disable adults living in those
facilities. They are twice victimized by an ineffective and,
all too often, unaccountable system. Prior to revocation or
suspension these residents suffer poor care for long periods of
time. Once the state licensing agency actually decides to
revoke or suspend, their existing poor care often worsens as
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they are facing displacement." Given that DSS is the only
entity aside from the licensee aware of the license suspension
or revocation, and as demonstrated by the Valley Manor incident,
a licensee may abandon its residents and statutory obligations,
it is critical that DSS provide adequate care and support for
abandoned RCFE residents.
3. Civil right of action for RCFE residents
Existing law provides a civil right of action by an RCFE
resident against an RCFE licensee who violates the rights of the
resident, as specified, prior to transferring the resident to
another facility as a result of the forfeiture of a license,
makes the operating entity of the RCFE responsible for
violations of its employees, and authorizes an award of
attorney's fees and costs against the operating entity. (Health
& Saf. Code Sec. 1569.682.) This bill would add similar
provisions that would allow an RCFE resident to bring an action
against the licensee for violations of the resident's rights
during license suspension or revocation.
According to a special report prepared by the California
Advocates for Nursing Home Reform (CANHR), sponsor, providing a
private right of action for RCFE residents would increase
enforcement of RCFE licensing protections without requiring any
additional expenditure of state resources. (Cal. Advocates for
Nursing Home Reform, Residential Care in California: Unsafe,
Unregulated & Unaccountable (2013) p. 9.) That report noted
that after "California nursing home residents were granted a
private right of action to counter declining regulatory
enforcement in 1982 (Health & Safety Code [Section] 1430(b)) . .
. [s]taffing, evictions, and privacy rights such as visitation
have been successfully fought and won by thousands of nursing
home residents since the adoption of the private right of
action. Major class action cases have transformed the quality
of care in large nursing home chains." (Id.) The report
asserts that "[f]rom an enforcement perspective, residents,
family and friends are best suited to monitor care and pursue
remedies." (Id.)
Although extending the existing civil action provisions to RCFE
licensee violations relating to license suspension and
revocation could be seen as a minimal change to RCFE laws, that
extension furthers the public policy of providing RCFE residents
protection against RCFE neglect during license suspension and
revocation.
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4. Notice to RCFE residents of license suspension
Existing law, upon receipt of an order revoking an RCFE's
license, requires the RCFE licensee to provide a 60-day written
notice of license revocation to the resident and the resident's
responsible person within 24 hours of receipt of the DSS order
of revocation. (Health & Saf. Code Sec. 1569.525(e)(1), (2).)
This bill would also require the RCFE licensee immediately, and
not later than 24 hours after receipt by the licensee of an
order temporarily suspending the license, to provide license
suspension notice to the RCFE residents. Since the RCFE
licensee may abandon the RCFE residents entirely upon license
suspension, it is appropriate to require the licensee to provide
immediate notice to residents during a license suspension.
5. Author's amendment
In order to clarify that the Office of the State Long-Term Care
Ombudsman is not a public placement agency but a separate entity
to be notified regarding a license violation, the author has
agreed to take the following amendment in committee:
Author's amendment :
On page 3, in line 12, remove and replace ", including" with
"and"
Support : AARP California; Advocacy, Inc.; Assisted Living
Consumer Alliance; California Commission on Aging; California
Continuing Care Residents Association; California Long-Term Care
Ombudsman Association; California Retired Teachers Association;
Consumer Attorneys of California; County of San Diego; Elder
Abuse Task Force of Santa Clara County; Elder Law & Advocacy;
Johnson Moore Trial Lawyers; Long Term Care Services of Ventura
County, Inc.; Monterey County Long Term Care Ombudsman Program
and Advisory Council; National Association of Social Workers -
California Chapter; National Consumer Voice for Quality
Long-Term Care; National Senior Citizens Law Center; Ombudsman
Services of Contra Costa; Valentine Law Group, APC
Opposition : None Known
HISTORY
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Source : California Advocates for Nursing Home Reform
Related Pending Legislation :
SB 1153 (Leno, 2014) would authorize the Department of Social
Services to order a suspension of new admissions to an RCFE in
specified circumstances. SB 911 is currently in the Senate
Committee on Appropriations.
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 Senate Committee on
Appropriations.
SB 895 (Corbett, 2014) would require annual unannounced
inspections of Residential Care Facilities for the Elderly
(RCFEs). SB 895 is currently in the Senate Committee on
Appropriations.
AB 2632 (Mainschein, 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 Assembly Committee on Human
Services.
AB 2171 (Wieckowski, 2014) would establish a statutory bill of
rights for RCFE residents. AB 2171 is currently in the Assembly
Committee on Aging and Long Term Care.
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 Assembly 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 Assembly Committee on Human Services.
AB 1554 (Skinner, 2014) would increase DSS requirements
regarding RCFE complaints. AB 1554 is currently in the Assembly
Committee on Aging and Long Term Care.
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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.
Prior Vote : Senate Committee on Human Services (Ayes 3, Noes 2)
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