BILL ANALYSIS �
SB 1153
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
SB 1153 (Leno) - As Amended: April 10, 2014
SENATE VOTE : 36-0
SUBJECT : Residential Care Facilities for the Elderly (RCFE):
Admissions
SUMMARY : This measure permits the California Department of
Social Services (DSS) to suspend admissions to a RCFE if the
facility has violated the law, been cited for repeated
violations, or has failed to pay a civil penalty, as specified.
Specifically, this bill :
1)Authorizes DSS to order a suspension of new admissions for a
facility in either of the following circumstances:
a) The RCFE has violated statute or any applicable
regulations, the violation presents a direct and immediate
risk to the health, safety, or personal rights of a
resident or residents of the facility, and the violation is
not corrected immediately; or
b) The RCFE has failed to pay a fine assessed by the
department after the facility's appeal rights have been
exhausted.
2)Provides that any suspension of new admissions for a failure
to pay a fine, as specified, shall remain in effect until the
facility pays the assessed find.
3)Requires a suspension of new admissions to remain in effect
until DSS determines that the facility has corrected the
violation.
4)Requires DSS to conduct a follow-up visit to determine
compliance within 10 working days following the latest date of
correction specified in the notice of deficiency, unless the
licensee has demonstrated that the deficiency was corrected as
required in the notice.
5)Authorizes DSS to make unannounced visits after the suspension
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of new admissions is lifted to ensure that the facility
continues to maintain correction of the violation and permits
DSS to order another suspension of new admissions or take
other appropriate enforcement action if the facility does not
maintain correction of the violation.
6)Provides appeal rights for RCFEs who have received an
admissions suspension.
7)Requires DSS to adopt regulations that specify the appeal
procedure.
8)Provides that a suspension of new admissions ordered may not
be stayed pending the facility's appeal or request for review.
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 DSS. (H&S Code 1569 and 1569.1)
2)Permits any person to request an inspection of a RCFE through
the filing of a complaint, which may be made either orally or
in writing. (H&S Code 1569.35(a))
3)Requires DSS to assess a civil penalty of no less than $25 and
no more than $50 per violation per day for all serious
deficiencies, up to a maximum of $150 per day, unless the
seriousness or frequency of the violation warrants a higher or
immediate civil penalty. (H&S Code 1569.49(b) and Section
87761(a) of Title 22, CCR)
4)Requires DSS to assess an immediate civil penalty of $150 per
day per violation for serious violations, as specified. (H&S
Code 1569.49(c))
5)Pursuant to regulations, requires DSS to assess an immediate
civil penalty of $100 per violation per day for a maximum of
five days if a licensee if found to be employing an individual
who has not obtained a criminal background check and
clearance, as specified. (Section 87761(b) of Title 22, CCR)
6)Requires DSS to assess tiered immediate civil penalties for
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multiple repeated violations ranging from an immediate civil
penalty of $150 and $50 per an initial repeated violation per
day to an immediate civil penalty of $1,000 and $100 per
subsequent repeated violation per each day within a 12 month
period for each day the violation continues until the
deficiency is corrected. (H&S Code 1569.49(d) and (e))
7)Authorizes DSS to temporarily suspend or revoke any license of
a RCFE if it finds that the licensee has violated statue or
regulations governing the operation of a RCFE, as specified.
(H&S Code 1569.50)
8)Authorizes the Director of DSS to temporarily suspend any
license if he or she determines that the action is necessary
to protect the residents or clients of a RCFE from abuse,
abandonment, or any other substantial threat to health or
safety, as specified. (H&S Code 1569.50(e))
FISCAL EFFECT : According to the Senate Appropriations
Committee: None
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 health 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
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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.
Existing regulations also lay out the circumstances under which
an individual may be allowed to reside in RCFEs. 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
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<1> Section 87455(b) of Title 22, California Code of
Regulations.
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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
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 March 5, 2014 there are 7,589 licensed
RCFEs in California with a capacity to serve 176,317 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
---------------------------
<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.
<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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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
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
---------------------------
<7> Departmental (DSS) Report on the Closure of the Valley
Springs Residential Care Facility for the Elderly. Page 2
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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.
Need for the bill : Stating the need for the bill, the author
states:
It is unacceptable to allow elderly Californians,
especially those who are most vulnerable, to become
residents of care homes that we already know are unsafe.
Under no circumstances should new patients enter a facility
that has documented and unaddressed health and safety
violations.
SB 1153 provides serious consequences for a center's
failure to provide a safe living environment for its
elderly residents, which should be the top concern and
priority. It improves the state's ability to protect
vulnerable seniors who live in assisted living facilities.
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.
RELATED CURRENT LEGISLATION:
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.
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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.
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
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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.
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REGISTERED SUPPORT / OPPOSITION :
Support
AARP
Advocacy, Inc.
Alliance on Aging of Monterey County
American Federation of State County and Municipal Employees
(AFSCME)
Assisted Living Consumer Alliance
California Advocates for Nursing Home Reform (CANHR)
California Assisted Living Association (CALA)
California Association of Public Authorities for IHSS (CAPA)
California Commission on Aging (CCoA)
California Continuing Care Residents Association (CALCRA)
California Long-Term Care Ombudsman Association (CLTCOA)
California Senior Legislature (CSL)
Community Residential Care Association of California
Congress of California Seniors (CCS)
Consumer Attorneys of California
Consumer Federation of California
Contra Costa Advisor Council on Aging (CCACPA)
County of San Diego
Elder Abuse Task Force of Santa Clara County
Elder Law & Advocacy
JM Trial Lawyers (2 partners)
LeadingAge California
Long Term Care Ombudsman Services of San Luis Obispo County
Long Term Care Services of Ventura County, Inc.
National Association of Social Workers, California Chapter
(NASW-CA)
National Consumer Voice for Quality Long-Term Care
National Senior Citizens Law Center
Ombudsman & HICA) Services of Northern California
Ombudsman Services of Contra Costa
Stanislaus County Commission on Aging
Valentine Law Group, APC
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
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