Bill Text: CA AB2171 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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BILL NUMBER: AB 2171	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 19, 2014
	AMENDED IN SENATE  JUNE 15, 2014
	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,   of  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 
privately operated  residential care facilities for the elderly,
including, among other things,  to receive 90 days' notice
before an involuntary transfer, discharge, or eviction,  to
be accorded dignity 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 authorize the department
to assess civil penalties, pursuant to specified provisions, for a
violation of these rights, and would provide that a licensee who
violates these rights may be prosecuted by the Attorney General in a
civil action for an injunction or civil damages, or both. 
 copy of these rights.  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
 facility   licensee  that violates these
rights,  as specified,  but would require the resident to
provide the  facility   licensee  alleged
to have violated any of  the   those 
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
 facility   licensee  alleged to have
violated these rights ceases, corrects, or otherwise rectifies the
alleged violation within 30 days of  receipt 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.   (a)    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. 
   (b) The provisions of this article apply only to privately
operated residential care facilities for the elderly. 
   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  and date  a copy of the
resident's rights, and the licensee shall include the signed  and
dated  copy in the resident's record.
   (b)  Facilities   Licensees  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   in which  5 percent or more of the
residents can only read that other language.
   (d) The  facility   licensee  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  of residential care facilities for
the elderly  shall have all of the following rights:
   (1) To be accorded dignity 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 habitable environment.
  safe, healthful, and comfortable accommodations,
furnishings, and equipment. 
   (6) To care, supervision, and services that meet their individual
needs and  is   are  delivered by staff
that are 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   licensee 
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
  respond to  residents' grievances.
   (12) To contact the State Department of Social Services, the
long-term care ombudsman, or both, regarding grievances against the
 facility.   licensee.  The
facility   licensee  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
  licensee  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,   licensee,  including any limitations or
restrictions on the  facility's   licensee'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,   licensee,  not by the resident.
   (23) To move from the   a  facility.
   (24) To  consent to  have relatives and other individuals
of the resident's choosing visit at any time,  subject to
the resident's right to withdraw consent.   privately
and without prior notice. 
   (25) To receive written information on the right to establish an
advanced health care directive and, pursuant to Section 1569.156, the
 facility's   licensee'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
  A licensee  shall not require residents to
deposit their personal funds with the  facility. No licensee
or employee of a facility shall become or act as a representative
payee for any payments made to 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.   licensee.   Except as provided in
approved continuing care agreements, a licensee, or a spouse,
domestic partner, relative, or employee of a licensee, shall not do
any of the following:  
   (A) Accept appointment as a guardian or conservator of the person
or estate of a resident.  
   (B) Become or act as a representative payee for any payments made
to a resident, without the written and documented consent of the
resident or the resident's representative.  
   (C) Serve as an agent for a resident under any general or special
power of attorney.  
   (D) Become or act as a joint tenant on any account with a
resident.  
   (E) Enter into a loan or promissory agreement or otherwise borrow
money from a resident without a notarized written agreement outlining
the terms of the repayment being given to the resident. 
   (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 may assess civil penalties pursuant to Section
1569.49 for a violation of a right specified in this section.
 
   (e) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
   1569.271.  (a) Thirty days or more before the commencement of an
action for damages pursuant to Section 1569.275, the  current or
former  resident or the resident's representative shall do both
of the following:
   (1) Notify the facility   licensee 
alleged to have violated any requirements of this article of the
particular alleged violation.
   (2) Demand  in writing  that the  facility
  licensee  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   licensee's 
principal place of business within California.
   (b)  Except as provided in subdivision (c), no 
 No  action for damages may be maintained under Section
1569.275 if the  facility   licensee 
ceases, corrects, or otherwise rectifies the alleged violation within
30 days after receipt of the notice.
   (c) No action for damages may be maintained under Section 1569.275
upon a showing by a  facility   licensee 
alleged to have violated any requirements of this article 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 the
facility will cease, correct, or otherwise rectify the practices,
acts, or methods alleged to be in violation. 
    (3)     The facility
  the licensee  has ceased from engaging, or if
immediate cessation is impossible or unreasonably expensive under the
circumstances,  that  the  person  
licensee  will, within a reasonable time, cease to engage, in
the alleged violation.
   (d) An action for injunctive relief brought under the specific
provisions of Section 1568.275 may be commenced without compliance
with subdivision (a)  if the alleged violation poses a threat to
the health or safety of a resident  . Not less than 30 days
after the commencement of an action for injunctive relief, and after
compliance with subdivision (a), the  current or former 
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  facility
  licensee  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.

   1569.275.  (a) (1) An action for injunction or civil damages, or
both, against a residential care facility for the elderly that
violates any provision of this article 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.
   (2) Every facility shall provide access to the Office of the
Attorney General during normal business hours or at any time when the
suspected violation presents an immediate or substantial threat to
the physical health, mental health, or safety of a resident.
   (3) The amount of civil damages that may be recovered in an action
brought by the Attorney General shall not exceed the maximum amount
of civil penalties that could be assessed on account of the violation
or violations provided for in paragraph (2) of subdivision (b).
   (4) A licensee who violates any provision of this article or
regulations adopted by the department pursuant to this 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.


   (b) 
    1569.275.    (a)    (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  facility   licensee 
that violates any requirements of this 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.
   (2) The licensee shall be liable for up to five hundred dollars
($500) for each violation, and for costs and attorney's fees, and may
be enjoined from permitting the violation to continue. Injunctive
relief granted under this section shall not be stayed pending appeal.

   (3) 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.
   (4) The current or former resident has the right to a trial by
jury.
   (5) The right to bring a civil action shall survive the death of
the resident.
   (6) 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) 
    (b)  The right to bring a civil action against any
person or entity for a violation of this article shall be subject to
the requirements of Section 1569.271. 
   (d) 
    (c)  The remedies specified in this section shall be in
addition to any other remedy provided by law. 
   (d) The provisions of this section are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.  
  SEC. 2.    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. 2.   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.