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 MAY 23, 2014
AMENDED IN ASSEMBLY MAY 6, 2014
AMENDED IN ASSEMBLY APRIL 21, 2014
INTRODUCED BY Assembly Member Wieckowski
(Coauthor: Assembly Member Yamada)
(Coauthor: Senator Leno)
FEBRUARY 20, 2014
An act to amend Section 1569.886 of, to add Article 2.5
(commencing with Section 1569.261) to Chapter 3.2 of Division 2 of,
and to add Section 1569.425 1569.275
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. Existing law requires that an admission agreement for
a residential care facility for the elderly explain the resident's
right to notice prior to an involuntary transfer, discharge, or
eviction, as specified. 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 receive 90 days' notice before an involuntary
transfer, discharge, or eviction, to be
treated with accorded dignity and
respect in their personal relationships with staff
, to be granted a reasonable level of 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 authorize the department
to assess civil penalties, pursuant to specified provisions, for a
violation of these rights . The bill would also
, and would provide that a licensee who violates
the provisions of the Residential Care Facilities for the Elderly Act
these rights may be prosecuted by the Attorney
General in a civil action for an injunction or civil damages, or
both. The bill would also authorize a former or current
resident of a residential care facility for the elderly to bring a
civil action against any person or entity
facility that violates that act, any regulatory
requirements adopted by the department, or any right of the resident,
as prescribed these rights , but would require
the resident to provide the person or entity
facility alleged to have violated any of the rights described
above with a specified written notice at least 30 days prior to the
commencement of the action. The bill would prohibit the maintenance
of an action for damages if the person
facility alleged to have violated these rights ceases,
corrects, or otherwise rectifies the alleged violation and
provides the resident with an appropriate remedy within 30
days of the written notice.
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.
1569.265. 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, the 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 of the 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 of the 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 accorded
dignity and respect in their personal
relationships with staff, residents, and other persons .
(2) 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.
(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 be accorded a safe and homelike
habitable 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 be free from neglect, financial exploitation, involuntary
seclusion, punishment, humiliation, intimidation, and verbal, mental,
physical, or sexual abuse.
(11) 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, reprisal, or other retaliatory
actions. The licensee shall take prompt actions to resolve residents'
grievances.
(12) 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.
(13) 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.
(14) 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.
(15) 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.
(16) 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.
(17) To reasonable accommodation of resident preferences
concerning room and roommate choices.
(18) 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.
(19) 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.
(20) To select their own physicians, pharmacies, privately paid
personal assistants, hospice agency, and health care providers.
(21) 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.
(22) 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. A facility shall provide 90 days' notice to a
resident prior to involuntarily transfer, discharge, or eviction.
For purposes of this paragraph, "involuntary" means a transfer,
discharge, or eviction that is initiated by the facility, not by the
resident.
(23) To move from the facility.
(24) To have relatives and other individuals of the resident's
choosing visit at any time, subject to the resident's right to
withdraw consent.
(25) 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.
(26) 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.
(27) To organize and participate in a resident council that is
established pursuant to Section 1569.157.
(28) To protection of their property from theft or loss in
accordance with Sections 1569.152, 1569.153, and 1569.154.
(29) To manage their financial affairs. The facility shall not
require residents to deposit their personal funds with the
facility, and no facility. No licensee or
employee of a facility shall become or act as a
representative payee for any payments made to residents or
a resident, if the resident or the resident's
representative objects. No licensee or employee of a
facility shall serve as agent for a resident under a power of
attorney.
(30) Other rights as specified in this chapter or other state or
federal 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, 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 may assess
civil penalties pursuant to Section 1569.49 for a violation of a
right specified in this section.
1569.271. (a) Thirty days or more before the commencement of an
action for damages pursuant to Section 1569.425
1569.275 , the resident or the resident's representative
shall do both of the following:
(1) Notify the person facility
alleged to have violated any requirements of this article ,
any regulatory requirements adopted by the department, or any right
of the resident provided by federal or state law or regulation
of the particular alleged violation.
(2) Demand that the person facility
cease, correct, or otherwise rectify the alleged violation.
The notice shall be in writing and shall be sent by certified or
registered mail, return receipt requested, to the residential care
facility in which the resident resides or resided or to the person's
principal place of business within California.
(b) Except as provided in subdivision (c), no action for damages
may be maintained under Section 1569.425
1569.275 if the person facility
ceases, corrects, or otherwise rectifies the alleged violation
and provides or agrees to provide an appropriate remedy to
the resident within 30 days after receipt of the notice.
(c) No action for damages may be maintained under Section
1569.425 1569.275 upon a showing by a
person facility alleged to have violated any
requirements of this article , any regulatory requirements
adopted by the department, or any right of the resident provided by
federal or state law or regulation that all of the
following exist:
(1) All residents similarly situated have been identified, or a
reasonable effort to identify those other residents has been made.
(2) All residents so identified have been notified that
upon their request, the person the facility will
cease, correct, or otherwise rectify the practices, acts, or methods
alleged to be in violation and provide an appropriate
remedy to the residents violation .
(3) The person facility has ceased
from engaging, or if immediate cessation is impossible or
unreasonably expensive under the circumstances, the person will,
within a reasonable time, cease to engage, in the alleged violation.
(4) The person has provided an appropriate remedy to the residents
or will do so in a reasonable amount of time.
(d) An action for injunctive relief brought under the specific
provisions of Section 1569.425 1568.275
may be commenced without compliance with subdivision (a). Not less
than 30 days after the commencement of an action for injunctive
relief, and after compliance with subdivision (a), the resident may
amend his or her complaint without leave of court to include a
request for damages. The appropriate provisions of subdivision (b) or
(c) shall be applicable if the complaint for injunctive relief is
amended to request damages.
(e) Attempts to comply with this section by a person
facility receiving a demand shall be construed
to be an offer to compromise and shall be inadmissible as evidence
pursuant to Section 1152 of the Evidence Code. Furthermore, these
attempts to comply with a demand shall not be considered an admission
of engaging in an act or practice declared unlawful under this
article. Evidence of compliance or attempts to comply with this
section may be introduced by a defendant for the purpose of
establishing good faith or to show compliance with this section.
SEC. 2. Section 1569.425 1569.275 is
added to Article 2.5 (commencing with Section 1569.261) of
Chapter 3.2 of Division 2 of the Health and Safety Code,
immediately following Section 1569.42
1569.271 , to read:
1569.425. 1569.275. (a) A licensee
who violates any provision of this chapter
article or regulations adopted by the department pursuant to
this chapter article , 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 continue and 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
attorney's fees if the plaintiff prevails in an action
pursuant to this subdivision.
(b) (1) 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 facility 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 article . 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 to five hundred dollars ($500) for each violation,
and for costs and attorney attorney's
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.
(2) The right to bring a civil action against any person or entity
for a violation of Article 2.5 this article
shall be subject to the requirements of Section 1569.271.
(c) The remedies specified in this section shall be in addition to
any other remedy provided by law.
SEC. 3. Section 1569.886 of the Health
and Safety Code is amended to read:
1569.886. (a) The admission agreement shall not include any
ground for involuntary transfer or eviction of the resident unless
those grounds are specifically enumerated under state law or
regulation.
(b) The admission agreement shall list the justifications for
eviction permissible under state law or regulation, exactly as they
are worded in the applicable law or regulation.
(c) The admission agreement shall include an explanation of the
resident's right to 90 days' notice prior to an
involuntary transfer, discharge, or eviction, the process by which
the resident may appeal the decision and a description of the
relocation assistance offered by the facility.
(d) The admission agreement shall state the responsibilities of
the licensee and the rights of the resident when a facility evicts
residents pursuant to Section 1569.682.
SEC. 3. SEC. 4. 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.
