BILL ANALYSIS �
SB 894
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
SB 894 (Corbett) - As Amended: May 27, 2014
SENATE VOTE : 27-8
SUBJECT : Residential Care Facilities for the Elderly (RCFE):
revocation of license
SUMMARY : Increases the responsibilities of the California
Department of Social Services (DSS) when issuing a temporary
suspension order (TSO) or when revoking the license of a RCFE.
It also establishes a private right of action for RCFE residents
when a facility is alleged to have violated the law.
Specifically, this bill :
1)Requires DSS to provide the Office of the State Long-Term Care
(LTC) Ombudsman a pre-emptive notification for the purposes of
providing advocacy services to residents if the Director is
"reasonably contemplating" issuing a temporary suspension
order (TSO) to a RCFE or revoking a facility's license.
2)Requires DSS to contact the Office of the State LTC Ombudsman
and local placement and advocacy agencies, as specified, and
to work with local agencies and the licensee if DSS has issued
the facility a TSO or has revoked the facility's license.
3)Prohibits a facility from accepting new residents when it has
received a TSO or has had its license revoked.
4)Upon issuance of a TSO, requires the licensee to provide
written notice of the TSO to residents and the residents'
responsible person, if applicable, as soon as practically
possible, but no later than within 24 hours of receipt of the
TSO.
5)Upon issuance of a TSO, establishes a process by which the
facility's day-to-day operations may be managed by another
individual or entity designated by DSS until an administrative
law hearing is held, as specified.
6)Requires a resident to be refunded their paid preadmission fee
proportionate to the amount of time they have resided in a
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facility if that facility has been issued a TSO or has had its
license revoked, as specified.
7)Specifies that within 24 hours after each resident who is
transferring has left the facility, the licensee that had his
or her license temporarily suspended or revoked is required,
based on information provided by the resident or the
resident's responsible person, to submit a final list of names
and new locations of all residents to DSS and the Office of
the State LTC Ombudsman.
8)Requires DSS, if at any point during or following a TSO or
revocation of a license the director determines that there is
a risk to the residents of a facility from physical or mental
abuse, abandonment, or any other substantial threat to health
or safety, to take any necessary action to minimize trauma for
the residents, including, but not limited to, all of the
following:
a) Contact any local agency that may have placement or
advocacy responsibility for the residents, and work with
those agencies to locate alternative placement sites;
b) Contact the residents' relatives, legal
representatives, authorized agents in a health care
directive, or responsible parties;
c) Assist in the transfer of residents, and, if
necessary, arrange or coordinate transportation;
d) Provide onsite evaluation of the residents and use any
medical personnel deemed appropriate by DSS to provide
onsite evaluation of the residents and assist in any
transfers;
e) Arrange for or coordinate care and supervision;
f) Arrange for the distribution of medications;
g) Arrange for the preparation and service of meals and
snacks.
h) Arrange for the preparation of the residents' records
and medications for transfer of each resident;
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i) Assist in any way necessary to facilitate a safe
transfer of all residents; and
j) Check on the status of each transferred resident
within 24 hours of transfer.
9)Clarifies that DSS' and local agencies' participation in the
relocation of residents from an RCFE does not relieve the
licensee of any responsibility. A licensee that fails to
comply with the requirements, as specified, is required to
reimburse the DSS and local agencies for the cost of
providing these services.
10)Provides that if the licensee fails to provide the services
required, DSS is 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.
11)Holds a licensee who fails to comply with the requirements
to be liable for civil penalties in the amount of five
hundred dollars ($500) per violation, per day for each day
that the licensee is in violation, until the violation has
been corrected. Requires the civil penalties to be issued
immediately following the written notice of violation.
12)Permits a current or former resident of an RCFE to bring a
civil action against any person that owns, operates,
establishes, manages, conducts, or maintains an RCFE that
violates the rights of the resident, as specified.
13)Holds any person that owns, operates, establishes, manages,
conducts, or maintains an RCFE in violation responsible for
the acts of the facility employees and liable for costs and
attorney's fees. Also, permits the RCFE to be enjoined from
permitting the violation to continue.
EXISTING LAW
1)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in that facility
to be licensed by the California Department of Social Services
(DSS). (H&S Code 1569 and 1569.1)
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2)Prohibits any person, firm, partnership, association,
corporation or public agency from establishing, operating,
managing, conducting or maintaining a community care facility
(CCF) or a RCFE without a valid license provided by DSS. (H&S
Code 1569.10)
3)Provides that any person who violates the RCFE Act shall be
guilty of a misdemeanor and upon conviction be fined no more
than $1,000, imprisoned in county jail for up to one year, or
both. (H&S Code 1549.40)
4)Provides that procedures for the suspension, revocation or
denial of license be conducted in accordance with the
Administrative Procedure Act, which grants a licensee the
right to appeal a license denial, revocation or suspension to
the Office of Administrative Hearings. (H&S Code 1569.51)
5)Permits DSS to temporarily suspend any license, prior to any
hearing when, in the opinion of the Director, the action is
necessary to protect residents or clients of the facility from
physical or mental abuse, abandonment, or any other
substantial threat to health or safety. (H&S Code 1569.50)
6)Requires the Director, when necessary to suspend or revoke a
facility's license, to make every effort to minimize trauma
for residents, to require the licensee to prepare a written
relocation plan for residents and to provide a 60-day written
notice of license revocation within 24 hours of receipt of a
revocation order. (H&S Code 1596.525)
7)Requires DSS to notify the Office of the State LTC Ombudsman
whenever DSS substantiates serious violations posing a threat
to health and safety of any resident or causes an accusation
to be filed for license revocation. (H&S Code 1596.335)
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)Potentially significant initial and future costs in the high
hundreds of thousands of dollars (General Fund/Special Fund).
One-time costs to establish the response plan and protocol
will likely be in the low hundreds of thousands of dollars.
Future costs will be dependent on the number of residents
requiring DSS to provide the expanded duties of care
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enumerated in this bill in the event of a license suspension
or revocation.
2)Unknown, additional state costs, should the DSS seek
injunctive relief and damages through the Attorney General for
reimbursement of costs from the licensee.
3)Minor fiscal impact to the Department of Aging to receive
additional notifications from DSS of pending suspension and
revocation orders.
COMMENTS :
Background : It is the intent of the Legislature, in
establishing the RCFE Act, to help provide a system of
residential care to allow older persons be able to voluntarily
live independently in a homelike environment as opposed to being
forced to live in an institutionalized facility, such as a
nursing home, or having to move between medical and nonmedical
environments. RCFEs, commonly referred to as assisted living
facilities, are licensed retirement residential homes and board
and care homes that accommodate and provide services to meet the
varying, and at times, fluctuating care needs of individuals who
are 60 years of age and over, and persons under the age of 60
with compatible needs. Licensed by DSS' Community Care
Licensing Division (CCLD), they can range in size from
residential homes with six or less beds to more formal
residential facilities with 100 beds or more.
There is also no uniform common care model; rather the types of
assistive services can vary widely, which can include differing
levels of personal care and protective supervision, based upon
the needs of the resident.
If a resident needs medical care in his or her residence in
order to maintain an independent lifestyle, incidental medical
services are permitted to be provided by a licensed or otherwise
approved external provider, such as a home healthcare agency
(HHA), which is licensed by the California Department of Public
Health. Additionally, some RCFEs, upon approval of DSS and
after having met specified orientation and training
requirements, may provide assistive memory care services to
individuals with dementia or Alzheimer's disease.
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Existing regulations also lay out the circumstances under which
an individual may be allowed to reside in a RCFE. Specifically,
they include persons:<1>
1)Capable of administering their own medications;
2)Receiving medical care and treatment outside the facility or
who are receiving needed medical care from a visiting nurse;
3)Who because of forgetfulness or physical limitations need only
be reminded or to be assisted to take medication usually
prescribed for self-administration;
4)With problems including, but not limited to, forgetfulness,
wandering, confusion, irritability, and inability to manage
money;
5)With mild temporary emotional disturbance resulting from
personal loss or change in living arrangement;
6)Who are temporarily bedridden, as specified; and
7)Who are under 60 years of age whose needs are compatible with
other residents in care, if they require the same amount of
care and supervision as the other residents in the facility.
Regulations also provide specific prohibitions on individuals
who are allowed to reside in a RCFE, which includes whether the
resident has active communicable tuberculosis, requires 24-hour
skilled nursing or intermediate care, has an ongoing behavioral
or mental disorder, or has dementia, unless he or she is
otherwise permitted to be cared for in a RCFE by CCLD.
Growing demand : Over the past thirty years, the demand for
RCFEs has grown substantially. Although RCFEs have been
generally available, they experienced explosive growth in the
1990s, more than doubling the number of beds between 1990 and
2002,<2> and continued to grow 16 percent between 2001 and
---------------------------
<1> Section 87455(b) of Title 22, California Code of
Regulations.
<2> Flores and Newcomer, "Monitoring Quality of Care in
Residential Care for the Elderly: The Information Challenge".
Journal of Aging and Social Policy, 21:225-242, 2009.
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2010.<3> Nationwide, states reported 1.2 million beds in
licensed RCFEs in 2010.<4> That same year, the national Centers
for Disease Control reported that 40% of RCFE residents needed
help with three or more activities of daily living and
three-fourths of residents had at least two of the 10 most
common chronic conditions.<5>
According to DSS, as of June 2, 2014 there are 7,587 licensed
RCFEs in California with a capacity to serve 176,891 residents.
Recent events : A series of recent events has drawn attention to
questions about the adequacy of RCFEs and the CCLD's ability to
comply with existing oversight and enforcement requirements to
help ensure for the health and safety of individuals who receive
services within CCLD-licensed facilities. Over the last several
years, numerous media outlets have documented chronic
understaffing and a lack of required assessments and substandard
care. Reports in September 2013, prompted by a consumer
watchdog group that had hand-culled through stacks of documents
in San Diego, revealed that more than two dozen seniors had died
in recent years in RCFEs under questionable circumstances that
went ignored or unpunished by CCLD.<6>
The coverage reached a climax with the abandonment of the Valley
Springs Manor, a RCFE with 29 residents in the city of Castro
Valley. The facility, licensed by CCLD in March 2008, had been
frequently visited by CCLD due to numerous violations relating
to the inadequacy of care during its five year existence. In
May 2013, CCLD, taking action in response to its poor care
history, revoked Valley Springs Manor's license. The revocation
was immediately appealed by the licensee, which delayed action
by CCLD and allowed the facility to remain operational. During
this time, CCLD continued to receive and investigate additional
complaints, which culminated with the licensee physically
abandoning the facility sometime in September or October 2013,
leaving its frail seniors under the care of the facility's
---------------------------
<3> SCAN Foundation. "Long Term Care Fundamentals: Residential
Care Facilities for the Elderly." March 2011.
http://thescanfoundation.org/sites/thescanfoundation.org/files/LT
C_Fundamental_7_0.pdf
<4> "Assisted Living and Residential Care in the States in
2010," Mollica, Robert, AARP Public Policy Institute
<5> "Residents Living in Residential Care Facilities: United
States, 2010, Caffrey, Christine, et al., US Centers for
Disease Control, April 2012
<6> "Care Home Deaths Show System Failures," San Diego Union
Tribune, Sept.7, 2013
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administrator and support staff.
Soon after, however, due to lack of compensation and leadership,
the administrator and a majority of the support staff quit,
leaving only the cook and janitor, still unpaid, to provide care
for residents. In response to its inability to reach the
licensee or any administrative staff, CCLD initiated its
temporary suspension order (TSO) process on October 17, 2013
whereby the license would be immediately revoked. The TSO was
delivered seven days later for enactment on Thursday, October
24, 2013. After the TSO was delivered, and the licensing
analyst's inspection was concluded, the analyst delivered a
$3,800 fine to the cook for operating an unlicensed facility,
even though the fine should have been delivered either to the
administrator or licensee, and left. No less than an hour after
the analyst left, feeling overwhelmed and unsure about what to
do, the cook and janitor called 911. Immediately thereafter,
emergency services arrived and worked to remove all of the
infirm and at-risk seniors and take them to local hospital or
known relatives.
The following day, upon initial review, according to DSS, the
CCLD "made a judgment call that the facility could continue to
function for several more days while the last residents were
relocated, but that judgment was in error." DSS acknowledges,
in retrospect, that CCLD "staff should have been engaged on
Friday to address the developing crisis and make appropriate
arrangements to ensure the safety of remaining residents."<7>
Exacerbating the circumstances of the Castro Valley situation
was the discovery that its licensee also owned and operated two
other RCFEs; a smaller facility in Oakland and another larger
facility in Modesto. Concerned that similar circumstances would
occur at these two facilities, CCLD acted quickly to help
transfer the license of the Oakland facility to another
operator, however, it faced a much more difficult task of
stabilizing and transferring the Modesto facility; Sundial Palms
to another operator. Over the course of three months, CCLD and
DSS executive leadership worked to put in place an intermediate
facility administrator at Sundial Palms, which had nearly twice
the number of residents than Valley Springs Manor in Castro
Valley, and worked to identify and transfer the license to
another operator.
---------------------------
<7> Departmental (DSS) Report on the Closure of the Valley
Springs Residential Care Facility for the Elderly. Page 2
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Need for the bill : Stating the need for the bill, the author
writes:
SB 894 strives to prevent the unimaginable tragedy that
happened at Valley Springs Manor from ever happening again.
SB 894 prioritizes ongoing safety of elderly and sick
residents at assisted living facilities in California by
ensuring that the facility closure process is both robust
and comprehensive.
Writing in support of the bill, the National Consumer Voice for
Quality Long-Term Care states:
Current state law does not adequately protect consumers
when the license of a Residential Care Facility for the
Elderly is suspended or revoked. Because California
statutes are ineffective, the Department of Social Services
is unable to adequately safeguard the health and safety of
elder and dependent adults living in residential care
facilities whose licenses have been suspended or revoked.
In addition, when facilities close, there are insufficient
protections to facilitate the safe transfer of residents.
SB 894 would strengthen and improve the procedures
regarding suspension and/or revocation of licenses and
create expedited timelines for the safe relocation of
residents when a facility's license has been revoked. This
bill would also protect the rights of residents who are
being evicted from RCFEs.
RECOMMENDED AMENDMENTS:
Amendment #1
This bill proposes to require the Director of DSS to notify the
state's LTC ombudsman if the Director is "reasonably
contemplating" issuing a RCFE a TSO or revoking a RCFE's
license. It is unclear what "reasonably contemplating" means
and it could be open to wide interpretation. In order to
provide a clearer trigger as to when the Director shall inform
the state's LTC ombudsman that a TSO or licensure revocation is
being considered, the bill should be amended to require the
Director to notify the state's LTC ombudsman when DSS has
commenced a review of a RCFE for the purposes of issuing a TSO
or licensure revocation.
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Specifically, committee staff recommends amending the following
language on page three, lines three through nine to read:
The department shall provide the Office of the State
Long-Term Care Ombudsman, as defined in subdivision (c) of
Section 9701 of the Welfare and Institutions Code, with a
precautionary notification if the director is reasonably
contemplating department begins to prepare to issue a
temporary suspension or revocation of any license, so that
the office may properly prepare to provide advocacy
services if and when necessary.
Staff also recommends deleting the language on lines 39 and 40
of page four and lines one and two on page five because it is
redundant. This same language appears in Section One of the
bill on page three, lines three through nine.
Amendment #2
This bill proposes to prohibit the admission of new residents to
a RCFE that has been issued a TSO or has had its licensed
revoked. Although intended to ensure that no new residents are
admitted into a RCFE due to its poor performance, this
prohibition could also dissuade another licensee from entering
into an agreement to take over the facility or have the license
transferred under its control. In order to ensure that both the
health and safety of existing and new residents are taken into
account while balancing the need to identify and secure another
licensee to take over the suspended or revoked license, the bill
should be amended to allow the Director of DSS to determine
whether new admissions may be allowed in a RCFE that has been
issued a TSO or license revocation order but is in the process
of having its license transferred to another RCFE.
Specifically, committee staff recommends amending the following
language on page five, lines 11 through 13 to read:
Upon receipt of an order to temporarily suspend or revoke a
license, the licensee shall be prohibited from accepting
new residents or entering into admission agreements for new
residents , unless the license is being transferred to
another entity and the Director determines that the new
licensee is capable of accepting new admissions.
2013-14 RELATED LEGISLATION:
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SB 895 (Corbett) Would require CDSS to conduct annual
unannounced comprehensive inspections for all facilities,
requires CDSS to verify compliance following deficiencies within
10 days, and requires results of inspections to be available on
the CDSS website.
SB 1153 (Leno) Would permit CDSS to order a suspension of new
admissions for an RCFE when the facility has violated applicable
laws and regulations that present a direct risk to the health
and safety or residents, is not providing adequate care and
supervision, has been cited for subsequent violations of the
same law within 12 months, or has failed to pay existing fines.
SB 911 (Block) Would increase certification training
requirements for RCFE licensees, and staff who care for
residents, increases training requirements for staff providing
dementia care.
SB 1382 (Block) Would increase the annual licensure fees by 30%
and make related findings and declarations.
AB 1571 (Eggman) Would increase disclosure requirements for RCFE
licensee applicants and require applicant information to be
cross-referenced with the State Department of Public Health.
Would require, by 2015, CDSS to create an online inquiry system
posting detailed information about RCFE facilities including
complaints, deficiencies and enforcement actions resulting in
fines. In subsequent years, would require CDSS to post
additional information, as specified.
AB 1572 (Eggman) Would require RCFEs, at the request of two or
more residents, to assist the residents in establishing and
maintaining a single resident council, as specified, and would
require the facility to interact with the council in specified
ways.
AB 1523 (Atkins and Weber) Would require RCFEs to maintain
liability insurance covering injury to residents and guests in
the amount of $1 million per occurrence and $3 million annually.
AB 1436 (Waldron) Would require the results of all reports of
inspections, evaluations or consultations and lists of
deficiencies to be posted on the department's Internet Web site.
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AB 1454 (Calderon) Would require all licensed community care
facilities, RCFEs, and child day care centers to be subject to
an annual unannounced visits visit by CDSS.
AB 1570 (Chesbro) Would increase the certification training
requirements for RCFE administrators, training requirements for
RCFE staff that care for residents, and training requirements
for staff providing dementia care.
AB 1554 (Skinner) Would make various changes to existing RCFE
complaint procedures including requiring the department to make
an onsite inspection within 24 hours of a complaint alleging
abuse, neglect or a threat of imminent danger. Additionally
would require the department to complete its investigation
within 90 days of receiving a complaint. Would permit a
complainant to file an appeal of departmental findings.
AB 1899 (Brown) Would make a person whose license is revoked or
forfeited for abandonment of the facility ineligible for
reinstatement of the license for a period of 10 years following
the revocation or forfeiture. Additionally would require CDSS
to establish and maintain a telephone hotline and an Internet
Web site dedicated to receiving complaints.
AB 2171 (Wieckowski) Would establish specified RCFE resident's
rights and require facilities to inform residents of these
rights as specified.
AB 2044 (Rodriguez) Would require every licensed residential
care facility to be subject to an annual unannounced visit by
the department, as specified. Additionally, would require
complaints to be inspected within three days if the complaint
involves alleged abuse or serious neglect, or within 10 days for
all other complaints and would require investigations to be
completed within 30 days. Would provide a complainant with the
right to request an informal conference and subsequent appeal,
as specified. Also would require certain staff to be present in
the facility for specified times.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Committee on Aging and Long-Term Care.
REGISTERED SUPPORT / OPPOSITION :
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Support
AARP
Assisted Living Consumer Alliance
California Advocates for Nursing Home Reform (CANHR)
California Association of Public Authorities for IHSS (CAPA)
California Commission on Aging
California Continuing Care Residents Association (CALCRA)
California Long-Term Care Ombudsman Association (CLTCOA)
California Retired Teachers Association (CalRTA)
Consumer Attorneys of California
Consumer Federation of California
County of San Diego
Elder Law 7 Advocacy
Long Term Care Ombudsman Services of San Luis Obispo County
Los Angeles County District Attorney's Office
Monterey County Long Term Care Ombudsman Program and Advisory
Council
National Association of Social Workers, CA Chapter (NASW)
National Consumer Voice for Quality Long-Term Care (Consumer
Voice)
National Senior Citizens Law Center
Ombudsman Services of Contra Costa
Stanislaus County Commission on Aging
Valentine Law Group
196 Individuals
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089