The Advocate:
New Rights for Residents, Family Councils

While the Governor's Nursing Home Initiative —AB 1731(Shelley) —was not everything we had hoped for, it did include a number of new rights for nursing home residents that will become effective January 1, 2001.

These new provisions are highlighted as follows:

Prevention of Transfer Trauma

Current law already includes specific steps that a facility must take to minimize possible transfer trauma when 10 or more residents are likely to be transferred due to any voluntary change in the status of the license or the operation of the facility. (Health & Safety Code §1336.2)

These include medical assessments of residents, assessment of the relocation needs, adequate notice and the filing of a relocation plan prior to any transfer.

AB 1731 extends these requirements to circumstances where the change is involuntary, as well. For example, when the facility is involuntarily decertified from the Medicaid program.

The Complaint System

The current system is noted for its lack of response to consumers who file complaints and for the inadequacy of the investigation of complaints. AB 1731 revises current law (Health & Safety Code §1420) to require the department:

• To notify the complainant of the assigned inspector´s name within two (2) working days of receipt of the complaint;
• To make an onsite inspection or investigation within 24 hours of the receipt of the complaint if there is a serious threat of imminent danger of death or serious bodily harm;
• To notify the complainant of the results within ten (10) days of completion of the investigation;
• To send a copy of any citation issued as a result of the complaint to the complainant by registered or certified mail;
• To advise the facility that it is unlawful to discriminate or seek retaliation against a complainant.

Transfers and Evictions

Although facilities are required to hold a bed for 7 days for residents who are transferred from nursing homes to acute care hospitals, current law provides little protection if the nursing home refuses to readmit them.

Under AB 1731 the facility’s refusal to readmit a resident during a bed hold will be treated as an involuntary transfer, allowing the resident the right to appeal the transfer.

If the resident is Medi-Cal-eligible or has another source of payment, he/she can remain in the hospital until the final determination of the hearing officer.

If the resident is not on Medi-Cal or has no other source of payment, the hearing and final determination must be made within 48 hours. (Health & Safety Code §1599.1)

Medi-Cal Discrimination & Room-to-Room Transfers

Under current law, facilities can evict a resident for non-payment, even though it may take months for the Medi-Cal office to determine eligibility.

We’ve also all heard about the “Medi-Cal ghettos” in some facilities. A resident changes from private pay to Medi-Cal and he or she is suddenly transferred out of a two-bed room into a three-bed room in another, less attractive, part of the facility.

Currently, there are few protections for this type of Medi-Cal discrimination. AB 1731 prohibits facilities from transferring or evicting residents who have made a timely application for Medi-Cal and for whom an eligibility determination has not yet been made. (Welfare & Institutions Code §14124.7)

In addition, effective 1/1/02, if the resident changes to Medi-Cal payment status, facilities are prohibited from room-to-room transfers because of that payment change, except that the resident may be transferred from a private room to a semi-private room. (Health & Safety Code §1599.1)

AB 1731 includes a number of other provisions that will protect residents, including posting of surveys, posting of the long term care ombudsman number and mandatory reporting of abuse. These and other provisions will be highlighted in future issues of the Advocate.

New Rights for Family Councils

SB 1551 (Dunn), co-sponsored by CANHR and the California Attorney General’s Office, was signed by the Governor and will become effective January 1, 2001. This new law adds significant new rights for family councils in California nursing homes and new obligations for facilities with regard to family councils.

Current Law

Written and sponsored in 1987 by CANHR and the Santa Clara County Family Support Group, the current law simply permits family councils to meet in facilities at a mutually agreed-upon time, prohibits the facility from limiting the right of councils from meeting independently and allows the family councils to post notices and minutes of the meetings.

The New Law

SB 1551 adds new rights and conforms with federal law by adding the following:

• Family Councils may meet at least once a month
• The facility must designate a staff person who is responsible for providing assistance and responding to written requests that result from family council meetings.
• The facility must respond to written requests or concerns of the family council within 10 days.
• The facility must provide the council with adequate space to post notices, minutes, newsletters or other information pertaining to the operation or interest of the family council.
• The facility shall include notices of the meetings in quarterly mailings and inform new family members and representatives of new residents of the time, place and date of meetings.
• Facilities are prohibited from willfully interfering with the formation, maintenance or promotion of a family council. “Willful interference” includes discrimination, retaliation or the willful scheduling of events in conflict with a previously scheduled family council meeting.
• Violation of the law can result in a citation and penalty of up to $1,000.

Tips for Family Councils

The issues and/or concerns should be agreed upon at the end of each meeting, and the specific concerns should be put in writing and given to the designated staff person. If you don’t put it in writing, don’t expect a timely response.

For a copy of CANHR’s Family Council Organizing packet, contact the CANHR office at 800-474-1116.

From the December 2000 Advocate

< back to Advocate archives