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

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-Introduced.html

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BILL NUMBER: AB 2171	INTRODUCED
	BILL TEXT


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 introduced, 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 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, these rights 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 these 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 these 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 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) To be free from physical and chemical restraints and the
inappropriate use of psychoactive drugs.
   (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, reprisal 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, 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 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.
   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 residential care facility for the elderly may be enjoined from
permitting the violation to continue or 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 to one
thousand dollars ($1,000) per day 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.