Legislative Priorities for 2019
CANHR is supporting, opposing and/or closely following the following pieces of legislation this session. This list is subject to change. Please check www.canhr.org for updated details on legislation, and leginfo.legislature.ca.gov for information on specific bills.
SNF - Amend Health & Safety Code §1430 to Protect Resident Rights
Health and Safety Code Section 1430(b) was meant to improve the lives of nursing home residents. The statute’s potential has been thwarted in recent years by its ambiguity and imprecision. In 2013, a court of appeal limited the damages available to nursing home residents whose rights have been violated to $500 per case, severely limiting resident rights enforcement. Section 1430(a) has never been understood or used. It clearly is meant to improve resident care but it has not served that purpose.
Meanwhile, nursing home care and enforcement of resident rights has never been worse. Last year, 10,021 complaints were filed against nursing homes in California, an all-time high. This number is up 54% from just four years ago. With such an overwhelming number of complaints, the Department of Public Health (“DPH”) backlog for nursing home complaint and incident investigations is at 15,889 open cases as of June 30, 2018.
Legislation is needed to restore Section 1430 to viability - giving nursing home residents a tool to meaningfully enforce their rights when violated. This legislation should:
Clarify that nursing homes that violate the rights of their residents are liable for statutory damages per violation.
Increase the damages to account for inflation since the statute’s passage in 1982 and make injunctive relief more accessible by prohibiting stays on appeal.
- SNF - Ban on Admissions and Penalties for Illegal Discharges & Refusals to Readmit
State and federal law guarantee that a hospitalized resident’s bed will be held for at least seven days if the resident elects. The bed hold protects a resident’s continuity of placement, ensures that a decision to go to a hospital is unaffected by the risk of losing his or her home, and protects residents from transfer trauma. Despite the bed hold requirements, nursing facilities often refuse to hold a resident’s bed, resulting in substantial costs to the state in reimbursing acute care hospitals for administrative days under Medi-Cal. A resident whose bed is not held may file a complaint with the Department of Public Health and request an appeal with the Department of Health Care Services. Even when a resident’s appeal is granted and the nursing facility is ordered to readmit the resident, many facilities refuse to comply and do not suffer any adverse consequences.
This bill would provide in part that, if readmission of a resident is ordered on appeal and the facility refuses to readmit the resident after it receives the decision, the Department of Health Care Services shall provide for the resident’s readmission and impose a ban on admissions to that facility until the resident is readmitted and impose specific civil monetary penalties.
- Elder Financial Abuse – Reverse Mortgage
In 2014, AB 1700 was passed creating a consumer’s reverse mortgage suitability worksheet that featured five potential problem areas that seniors need to contemplate before taking out a reverse mortgage loan (Civil Code Section 1923.5). This worksheet acts as a counterbalance to the reverse mortgage industry’s sales practices that accentuate the positives and ignore potential pitfalls of their products. Since AB 1700’s enactment, it has become apparent that additional warnings need to be added to the worksheet. California Advocates for Nursing Home Reform (CANHR) proposes legislation to add three questions to the suitability worksheet and include a civil remedy for any non-compliance of Civil Code Section 1923.5 by the lenders of reverse mortgages.
- The RCFE Emergency Preparedness Act of 2019 - (Senator Jackson)
The lives of assisted living facility residents in California are increasingly endangered by the extremely intense fire storms and other climate-related disasters that now ravage the state each year. This bill will help ensure that assisted living facilities adapt to the “new normal” in California and take steps to improve the safety of residents during disasters. RCFEs will be required to: maintain adequate numbers of trained staff available at all times to implement facility emergency plans; coordinate with local emergency authorities; modernize communication and transportation plans for emergencies; address known hazards and resident needs in emergency plans; maintain safe temperature levels during emergencies; and, for larger facilities, have back-up power sources for emergencies. The bill is co-sponsored by CANHR and Long Term Care Ombudsman Services of San Luis Obispo County and strongly supported by Consumer Attorneys of California.
- CCRC Reform Bill
As of June 2018, there were 110 (+3 pending) Continuing Care Retirement Communities (CCRCs) authorized to operate in California serving 25,000-30,000 residents. Residents of CCRCs make a substantial investment in entrance fees (often their life savings), pay hefty monthly payments and assume considerable risk of losing it all as providers appropriate “surpluses” from entrance fees to construct new facilities – scrimping on care, food and other amenities previously promised. While the majority of CCRCs (71%) purport to be not-for profit-entities, many of these “non-profits” contract with for-profit management groups to run the day-to-day operations and reap billions of dollars in revenue with little accountability. This CCRC reform bill would strengthen resident rights, increase resident participation in decision-making, increase transparency and accountability regarding fees and accountings, and create a duty of honesty, good faith and fair dealing on the part of CCRC providers.
- Homelessness Prevention – Increase Home Upkeep Allowance to $1,500
Maintaining a residence outside the nursing home is a major obstacle for Medi-Cal beneficiaries who want to return to the community. Under current law, Medi-Cal beneficiaries may retain a “Home Upkeep Allowance” of $209 per month to pay their rent, mortgage and utilities, if a doctor certifies they are likely to return home within six months. The rest of their income is applied towards their “Share of Cost” for nursing home care.
The allowance of $209 per month has not been updated in three decades and is not nearly enough to maintain a home in California. This legislation would increase the allowance up to $1500 -- allowing individuals to avoid needlessly losing their residences, allow them to return home, saving the state needed Medi-Cal resources by reducing long term care costs.
- SNF – Enhanced Nursing Home Enforcement for Abuse and Neglect
Deterrence of bad conduct at nursing homes has been undermined by two conditions. First, inflation has substantially eroded state fines levied against nursing homes. Second, enforcement is uneven when multiple residents are harmed by a nursing home. In many cases, multiple residents are victimized but the facility receives only one citation. Legislation is needed to increase fines against nursing homes that are found to have killed or harmed residents, with annual adjustments for inflation. The law also needs to be amended so that nursing home conduct harming multiple residents results in a number of citations equal to the number of residents harmed. These measures will restore and enhance the disincentives for harming nursing home residents.
Increased funding for DSS/Community Care LicensingCANHR will support budget bills that increase the funding for Community Care Licensing to allow it to perform more time-intensive and comprehensive inspections and to respond to complaints on a timely basis. Residents deserve a fully-funded regulatory oversight system to ensure compliance with the rules designed to protect them, and DSS deserves to have the funding needed to do its job.
California spends billions of dollars each year funding for-profit nursing homes, while refusing to adequately fund alternatives to institutionalized care. Nursing home occupancy rates decline each year, while demand for community-based alternatives such as residential care has never been higher. Meanwhile, the Department of Social Services’ (DSS) Community Care Licensing Division is responsible for regulatory oversight of over 74,000 different facilities statewide, including 13,698 Adult and Senior care facilities with a total licensed capacity of 285,595 aged and disabled adults - most of which are 24/7 residential facilities. Although DSS/Community Care Licensing is clearly dedicated to its mission of consumer protections, the DSS budget was drastically cut over the years resulting in reduced inspections and increased caseloads for LPAs (Licensed Program Analysts) who are responsible for evaluating community care facilities which include day care programs for adults, residential programs for children, adults and the elderly who require care and supervision because of age, physical, mental and/or developmental disabilities.
Assisted Living Waiver – AB 50 (Kalra) – Support
This bill is a second attempt to improve the Assisted Living Waiver (ALW) by increasing the number of participant slots and expanding the program geographically. Last year, AB 2233 (Kalra) passed the legislature unanimously, but was vetoed by the Governor.
The ALW gives seniors and persons with disabilities the option to receive Medi-Cal services in an assisted living facility or public subsidized housing, rather than a nursing facility. The program is cost-effective, and permits individuals to receive care in the most integrated setting possible. However, demand for the program has outpaced supply, and there is currently a wait list with over 5,000 individuals. This bill would address the unmet demand and fix a number of problems that have prevented the program from realizing its full potential.
CANHR strongly supports AB 50, but recommends that stronger language be adopted to require the state to increase provider rates to reflect the cost of care today, and to permit eligibility for Medi-Cal beneficiaries with a “Share of Cost.”
Medi-Cal Funding of SNFs - Tie Funding to Staffing and Ban Self-Dealing
The pending sunset of the AB 1629 Medi-Cal reimbursement system for skilled nursing facilities (SNFs) on August 1, 2020 is a critical opportunity to reform the payment system to improve resident care. Currently, California is spending about $5 billion annually on SNF care that is often dangerously inadequate. In 2018, the State Auditor found that SNF operators are siphoning off more than $1 billion each year through self-dealing arrangements. These scams should be banned and future Medi-Cal payments should be tied to safe staffing levels.
The widespread diversion of Medi-Cal funds by nursing home chains has caused rampant understaffing. In reforming the Medi-Cal payment system for SNFs, the Legislature should repeal the waiver process established by SB 97 (2017) that is allowing hundreds of SNFs to circumvent minimum staffing requirements. It should also establish a safe staffing standard for SNFs that would require each facility to provide at least 4.1 nursing hours per resident day, including at least 1.3 hours of care by licensed nurses (RNs and LVNs), of which the RN component would be at least 0.75 hprd. This approach would adopt the recommendations made in a 2001 report ordered by Congress that, although dated and far from ideal, would bring far-reaching improvements in nursing home care throughout California.
Federal Proposed Laws
H.R. 1215 – OPPOSE
Congress is considering a bill that will effectively end California’s 20-plus year civil protection system for victims of elder abuse or neglect perpetrated by health care providers. While California already has a $250,000 cap on non-economic damages – the centerpiece of H.R. 1215 - elder and dependent adult abuse cases are rightfully exempt. H.R. 1215 would end this critical exemption. H.R. 1215 inoculates an entire class of professionals and the health care industry from being held liable when their actions fall below, even far below, the acceptable standards or when they intentionally hurt a patient.
Status: Referred to Senate Judiciary Committee.
Read the Bill
Page Last Modified: January 14, 2019