Bill Text: CA AB2171 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Residential care facilities for the elderly.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2014-09-28 - Chaptered by Secretary of State - Chapter 702, Statutes of 2014. [AB2171 Detail]
Download: California-2013-AB2171-Amended.html
Bill Title: Residential care facilities for the elderly.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2014-09-28 - Chaptered by Secretary of State - Chapter 702, Statutes of 2014. [AB2171 Detail]
Download: California-2013-AB2171-Amended.html
BILL NUMBER: AB 2171 AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 21, 2014 INTRODUCED BY Assembly Member Wieckowski (Coauthor: Assembly Member Yamada) (Coauthor: Senator Leno) FEBRUARY 20, 2014 An act to add Article 2.5 (commencing with Section 1569.261) to Chapter 3.2 of Division 2 of, and to add Section 1569.425 to, the Health and Safety Code, relating to care facilities. LEGISLATIVE COUNSEL'S DIGEST AB 2171, as amended, Wieckowski. Residential care facilities for the elderly. Existing law, the Residential Care Facilities for the Elderly Act, provides for the licensure and regulation of residential care facilities for the elderly by the State Department of Social Services. A violation of these provisions is a misdemeanor. This bill would establish specified rights for residents of residential care facilities for the elderly, including, among other things, to be treated with dignity and respect, to personal privacy of accommodations, medical treatment, personal care and assistance, and to confidential treatment of their records and personal information, as specified. The bill would require, at admission, a facility staff person to personally advise a resident and the resident's representative, as described, of these and other specified rights and to provide them with a written copy. The bill would require the department to assess civil penalties, pursuant to specified provisions, for a violation of these rights. The bill would also provide that a licensee who violates the provisions of the Residential Care Facilities for the Elderly Act may be prosecuted by the Attorney General in a civil action for an injunction or civil damages, or both, and would authorize a former or current resident of a residential care facility for the elderly to bring a civil action against any person or entity that violates that act, any regulatory requirements adopted by the department, or any right of the resident, as prescribed. By expanding the scope of a crime, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Article 2.5 (commencing with Section 1569.261) is added to Chapter 3.2 of Division 2 of the Health and Safety Code, to read: Article 2.5. Resident's Bill of Rights 1569.261. (a) It is the intent of the Legislature in enacting this article to adopt fundamental rights for all persons residing in a residential care facility for the elderly, as defined in Section 1569.2, to ensure that facilities respect and promote these rights, and to provide residents the ability to enforce their rights. (b) In establishing this bill of rights, the Legislature intends that persons residing in residential care facilities for the elderly be treated with dignity, kindness, and respect, and that their civil liberties be fully honored. (c) A central purpose of the bill of rights is to strengthen a resident's right to make choices about his or her care, treatment, and daily life in the facility and to ensure that the resident's choices are respected. The Legislature intends to enhance each resident's autonomy and ability to make decisions concerning his or her life. (d) The Legislature also intends that each residential care facility for the elderly provide a safe, comfortable, and homelike environment for its residents and that it protect residents from any type of physical or mental abuse, neglect, restraint, exploitation, or endangerment.1569.263. For purposes of this article, the following definitions shall apply: (a) "Chemical restraint" means any drug that is used for discipline or convenience and not required to treat a medical condition. (b) "Inappropriate use of psychoactive drugs" means a psychoactive drug that is given to a resident under any of the following circumstances: (1) Without the informed consent of the resident or the resident's representative, as described in Section 1569.271. (2) To treat needs or symptoms associated with dementia or related diseases, unless the facility has first tried and documented appropriate nonpharmacological approaches to respond to the resident' s needs. (3) To treat needs or symptoms associated with dementia or related diseases, unless a physician has directly examined a resident for this purpose and determined that the medication is medically necessary for this purpose. (4) For purposes of discipline or convenience and not required to treat a medical condition. (5) On a pro re nata or as-needed basis. (c) "Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily and that restricts freedom of movement or normal access to one's body. (d) "Psychoactive drug" means a medication that is used to alter mood, level of anxiety, behavior, or cognitive processes.1569.265. Rights and liberties set forth in this article do not diminish a resident's constitutional rights or any other rights set forth in other state or federal laws and regulations. Persons residing in residential care facilities for the elderly shall continue to enjoy all of their civil and legal rights. 1569.267. (a) At admission, a facility staff person shall personally advise a resident and the resident's representative of, and give a complete written copy of,thesethe rights in this article and the personal rights in Section 87468 of Title 22 of the California Code of Regulations. The licensee shall have each resident and the resident's representative sign a copy ofthesethe resident's rights, and the licensee shall include the signed copy in the resident's record. (b) Facilities shall prominently post, in areas accessible to the residents and their representatives, a copy ofthesethe residents ' rights. (c) The rights posted pursuant to subdivision (b) shall be posted both in English and in any other language in a facility where 5 percent or more of the residents can only read that other language. (d) The facility shall provide initial and ongoing training for all members of its staff to ensure that residents' rights are fully respected and implemented. 1569.269. (a) Residents shall have all of the following rights: (1) To be treated with dignity and respect. (2) To 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. (3) To confidential treatment of their records and personal information and to approve their release, except as authorized by law. (4) To be encouraged and assisted in exercising their rights as citizens and as residents of the facility. Residents shall be free from interference, coercion, discrimination, and retaliation in exercising their rights. (5) To a safe and homelike environment. (6) To care, supervision, and services that meet their individual needs and is delivered by staff that are at all times sufficient in numbers, qualifications, and competency to meet their needs. (7) To be served food of the quality and in the quantity necessary to meet their nutritional needs. (8) To make choices concerning their daily life in the facility. (9) To fully participate in planning their care, including the right to attend and participate in meetings or communications regarding the care and services to be provided in accordance with Section 1569.80, and to involve persons of their choice in the planning process. The facility shall 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. (10) To consent to or reject medication, care , or services after being fully informed of all material information relevant to the resident's decision. (11) To be free from neglect, financial exploitation, involuntary seclusion, punishment, humiliation, intimidation, and verbal, mental, physical, or sexual abuse. (12) (A) To be free from physical and chemical restraints and the inappropriate use of psychoactive drugs. (B) For purposes of this paragraph, the following definitions shall apply: (i) "Chemical restraint" means any drug that is used for discipline or convenience and not required to treat a medical condition. (ii) "Physical restraint" means any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident's body that the resident cannot remove easily and that restricts freedom of movement or normal access to one's body. (iii) "Psychoactive drug" means a medication that is used to alter mood, level of anxiety, behavior, or cognitive processes. (13) To present grievances and recommend changes in policies, procedures, and services to the staff of the facility, the facility's management and governing authority, and to any other person without restraint, coercion, discrimination,reprisalreprisal, or other retaliatory actions. The licensee shall take prompt actions to resolve residents' grievances. (14) To contact the State Department of Social Services, the long-term care ombudsman, or both, regarding grievances against the facility. The facility shall post the telephone numbers and addresses for the local offices of the State Department of Social Services and ombudsman program, in accordance with Section 9718 of the Welfare and Institutions Code, conspicuously in the facility foyer, lobby, residents' activity room, or other location easily accessible to residents. (15) 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. In accordance with Section 1569.885, all rules established by a facility shall be reasonable and shall not violate any rights set forth in this chapter or in other applicable laws or regulations. (16) To receive in the admission agreement a comprehensive description of the method for evaluating residents' service needs and the fee schedule for the items and services provided, and to receive written notice of any rate increases pursuant to Sections 1569.655 and 1569.884. (17) To be informed in writing at or before the time of admission of any resident retention limitations set by the state or facility, including any limitations or restrictions on the facility's ability to meet residents' needs. (18) To reasonable accommodation of individual needs and preferences in all aspects of life in the facility, except when the health or safety of the individual or other residents would be endangered. (19) To reasonable accommodation of resident preferences concerning room and roommate choices. (20) To written notice of any room changes at least 30 days in advance unless the request for a change is initiated by a resident, required to fill a vacant bed, or necessary due to an emergency. (21) To share a room with the resident's spouse, domestic partner, or a person of resident's choice when both spouses, partners, or residents live in the same facility and consent to the arrangement. (22) To select their own physicians, pharmacies,privately,privately paid personal assistants, hospice agency, and health care providers. (23) To have prompt access to review all of their records and to purchase photocopies. Photocopied records shall be promptly provided, not to exceed two business days, at a cost not to exceed the community standard for photocopies. (24) To be protected from involuntary transfers, discharges, and evictions in violation of state laws and regulations. Facilities shall not involuntarily transfer or evict residents for grounds other than those specifically enumerated under state law or regulations, and shall comply with enumerated eviction and relocation protections for residents. For purposes of this paragraph, "involuntary" means a transfer, discharge, or eviction that is initiated by the facility, not by the resident. (25) To move from the facility. (26) To have relatives and other individuals of the resident's choosing visit at any time, subject to the resident's right to withdraw consent. (27) To receive written information on the right to establish an advanced health care directive and, pursuant to Section 1569.156, the facility's written policies on honoring those directives. (28) To be encouraged to maintain and develop their fullest potential for independent living through participation in activities that are designed and implemented for this purpose, in accordance with Section 87219 of Title 22 of the California Code of Regulations. (29) To organize and participate in a resident council that is established pursuant to Section 1569.157. (30) To protection of their property from theft or loss in accordance with Sections 1569.152, 1569.153, and 1569.154. (31) To manage their financial affairs. The facility shall not require residents to deposit their personal funds with the facility, and no licensee or employee of a facility shall become a representative payee for any payments made to residents or serve as agent for a resident under a power of attorney. (32) Other rights as specified in this chapter or other state laws or regulations. (b) A licensed residential care facility for the elderly shall not discriminate against a person seeking admission or a resident based on sex, race, color,disability,religion, national origin, marital status, registered domestic partner status, ancestry, actual or perceived sexual orientation, or actual or perceived gender identity. (c) No provision of a contract of admission, including all documents that a resident or his or her representative is required to sign at the time of, or as a condition of, admission to a residential care facility for the elderly, shall require that a resident waive benefits or rights to which he or she is entitled under this chapter or provided by federal or other state law or regulation. (d) Residents' family members, friends, and representatives have the right to organize and participate in a family council that is established pursuant to Section 1569.158. (e) The department shall assess civil penalties pursuant to Section 1569.49 for a violation of a right specified in this section. 1569.271. (a) If a resident lacks the capacity to exercise the rights under this chapter or provided by federal or other state law or regulation, the resident's representative shall have the authority to exercise the resident's rights, but may not act in any way to restrict them. The resident's incapacity shall be determined by a court in accordance with state law or by the resident's physician, unless the physician's determination is disputed by the resident or resident's representative. (b) Persons who may act as the resident's representative include a conservator, guardian, person authorized as agent in the resident's valid advance health care directive, the resident's spouse, registered domestic partner, or family member, or other surrogate decisionmaker designated consistent with statutory and case law. SEC. 2. Section 1569.425 is added to the Health and Safety Code, immediately following Section 1569.42, to read: 1569.425. (a) A licensee who violates any provision of this chapter or regulations adopted by the department pursuant to this chapter, and whose violation presents an immediate or substantial threat to the physical health, mental health, or safety of a resident of a residential care facility for the elderly may be enjoined from permitting the violation to continueorand may be sued for civil damages within a court of competent jurisdiction. An action for injunction or civil damages, or both, may be prosecuted by the Attorney General in the name of the people of the State of California upon his or her own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person acting for the interests of itself, its members, or the general public. The amount of civil damages that may be recovered in an action brought pursuant to this section shall not exceed the maximum amount of civil penalties that could be assessed on account of the violation or violations. The licensee shall be liable for costs and attorney fees if the plaintiff prevails in an action pursuant to this subdivision. (b) A current or former resident of a residential care facility for the elderly, as defined in subdivision (k) of Section 1569.2, may bring a civil action against any person or entity that violates any requirements of this chapter, any regulatory requirements adopted by the department, or any right of the resident provided by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee's employees. The licensee shall be liable for up toone thousand dollars ($1,000) per dayfive hundred dollars ($500) for each violation, and for costs and attorney fees, and may be enjoined from permitting the violation to continue. Injunctive relief granted under this section shall be deemed prohibitory, and shall not be stayed pending appeal. The statute of limitations for suit under this subdivision shall be three years, which shall not begin to run until the violation has been discovered. The current or former resident has the right to a trial by jury. The right to bring a civil action shall survive the death of the resident. An agreement by a resident of a residential care facility for the elderly to waive his or her rights to sue pursuant to this subdivision shall be deemed contrary to public policy and shall be void and unenforceable. (c) The remedies specified in this section shall be in addition to any other remedy provided by law. SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.