Residential Care in California: Unsafe, Unregulated ...

Residential Care in California: Unsafe, Unregulated & Unaccountable

A SPECIAL REPORT BY: California Advocates for Nursing Home Reform 650 Harrison Street, 2nd Floor San Francisco, CA 94107 (415) 974-5171 or (800) 474-1116 (Consumers Only) ? 2013 California Advocates for Nursing Home Reform. All Rights Reserved

Table of Contents

Executive Summary

3

Overview

4

A New Model of Care

4

RCFE Inspections

5

Complaint Investigations

7

Penalties

8

Private Right of Action

9

Consumer Information System

9

Staffing Requirements

10

Resident Rights

11

Recommendations

12

2

RCFEs in California

Executive Summary

Over the past twenty years, residential care/assisted living has become the fastest growing component of long term care. With approximately 31,000 residential care/assisted living communities now serving one million residents across the country, the demand for assisted living will continue to grow with the rapid increase in the aging population.

In California, these facilities are licensed as Residential Care Facilities for the Elderly (RCFEs). The growth in the number of RCFEs in California mimics the growth nationwide. With 7,500 RCFEs currently licensed for 174,000+ beds, RCFE residents in California are facing a crisis in care. The recent Frontline/ProPublica documentary, "Life and Death in Assisted Living," and investigation, "Elderly, At Risk and Haphazardly Protected," highlighted some of the critical issues faced by RCFE residents in California. A September 2013 investigative report by the San Diego Union Tribune and the CHCF Center for Health Reporting revealed that hundreds of elders suffered broken bones, deadly bedsores and sexual assaults in San Diego RCFEs, while documenting at least 28 deaths in these facilities due to injuries and neglect.

California's current "one size fits all" approach to regulating RCFEs is clearly inadequate, given the growing acuity levels of RCFE residents. A failed inspection system; a broken complaint system; limited and ineffective penalties for violations; outdated and inadequate staffing and staff training requirements; the failure to provide consumers with any comparative information about the quality of care or enforcement actions against RCFEs; and "paper tiger" resident rights provisions that provide no enforcement power to residents - all contribute to a system that is unsafe for RCFE consumers, while leaving RCFEs essentially unregulated and unaccountable for their actions.

With this report and its recommendations, we call upon Community Care Licensing, the agency responsible for regulatory oversight and enforcement of the RCFE laws, to reclaim its role as a consumer protection agency, and we call upon California legislators and the Department of Social Services to address this crisis in care and to create a new model of care where the health and safety of residents takes priority.

3

RCFEs in California

Overview

In 1985, the California Legislature passed the California Residential Care Facilities for the Elderly Act, which established a separate category for Residential Care Facilities for the Elderly (RCFE) facilities licensed by the Department of Social Services (DSS). Until then, elders in need of care and supervision and wanting community-based housing resided in facilities that may or may not have been designed to meet their needs. RCFEs, also referred to as assisted living, are licensed as non-medical facilities serving individuals age 60 and older. RCFEs provide room, meals, supervision and, depending on the needs of the residents, assistance with activities of daily living and distribution of medications.

According to DSS, there are currently over 7,500 licensed RCFEs in California with a total bed capacity of 174,108, ranging in size from two-bed facilities to 200+bed facilities. A majority of RCFEs (79%) have six or fewer beds, while a majority of RCFE residents (71%) live in one of the 50+ bed RCFEs. Because these facilities are ? in theory at least - non-medical, RCFEs are regulated by the Department of Social Services, Community Care Licensing (CCL). Residents pay out of pocket for services, with fees ranging from $2,500 to as much as $8,000 for specialized care. In California, public funding from Medi-Cal or Supplemental Security Income (SSI) is extremely limited, so access to RCFE care is limited to those who can afford to pay privately.

Although over 90% of California's RCFEs are owned and operated by for-profit providers, most are small facilities, i.e., six or fewer beds. However, the past few years have shown a marked increase in the acquisition and development of RCFEs by corporate chains, mirroring the market growth of the nursing home industry in the 1990s. California has 867 facilities with 50 or more beds, and corporate chains dominate the large 100+ bed facilities. Emeritus Senior Living, for example, an assisted living corporation that was the focus of the recent Frontline/ProPublica story, "Life and Death in Assisted Living," is the largest assisted living operator in the country, and owns and operates approximately 70 large RCFEs in California.

There is nothing wrong, per se, with corporate ownership. However, we do know that the corporate chain ownership structures of nursing homes have had a lasting negative impact on transparency, staffing levels and quality of care. Complicated ownership structures with multiple stakeholders also obscure lines of ownership and accountability. Corporate owners of RCFEs are not accountable to the residents who pay the monthly fees, but to the stockholders who demand return on their investments. Thus, any new model of residential care should discourage corporate chain ownership if the hope is to foster better care in RCFEs.

A New Model of Care is Necessary - One Size Does Not Fit All

The legislative intent of the RCFE Act of 1985 was to establish three levels of care within the RCFE regulatory structure to address the fluctuating health and care needs of older residents. Unfortunately, this section of the act is subject to Budget Act appropriations and has never been implemented. Thus, for the past 28 years, CCL has maintained a "one size fits all" approach to residential care for elders, stretching the regulations to accommodate an ever-growing acuity level among residents, and allowing non-medical RCFEs ? regardless of size ? to accept and

4

RCFEs in California

retain residents with acute medical needs. Residents needing hospice care or specialized dementia services; residents with compromised health conditions, who have bedsores, are bedridden, use oxygen, have catheters or colostomies or ileostomies, have diabetes, have healing wounds or who are incontinent of bowel and bladder ? all can be accepted and retained by RCFEs under current law. The only prior approval required from CCL is if the facility accepts hospice?eligible residents.

California has not kept pace with the radical changes in health care provided by RCFEs and the type of high-risk residents they serve. Residents now are sicker, older (85+ on average), needing assistance with 3 or more activities of daily living (ADLs), taking multiple, complex medications, and dealing with many more chronic diseases. Some RCFEs serve residents who can direct their care and need only moderate assistance to meet their daily needs, while other facilities are providing a variety of health services by caring for residents with compromised health conditions. Regardless, all RCFEs are regulated under the same set of rules and requirements. This "one size fits all" regulatory approach no longer makes sense.

HUMAN TOLL: RCFE providers are pushing chemical restraints as evidenced by this fax message from a Sacramento-based RCFE to a doctor seeking an order for psychoactive drugs for a resident with common symptoms of dementia: "We are requesting a higher dosage in her sleeping medication so that she can be more rested and calmed. Also, medication for the daytime to keep her from getting

While RCFEs are described as an alternative to

aggressive."

institutionalized, impersonal nursing home care and pride

themselves on being non-medical models that provide a homelike environment and promote

consumer choice, too many RCFEs have become health care providers serving residents with the

same acute medical conditions who just years ago were being cared for in nursing homes.

It is no coincidence that, as the number of RCFEs grow, the occupancy rates in nursing homes decrease. RCFEs are growing in direct response to consumer demand. Consumers prefer to "age in place" ? at home or, at the very least, in a community facility with a home-like environment, regardless of their medical condition. The goal of any new model for RCFE care should not be to displace residents into nursing homes, but to implement an RCFE system that can meet the care needs of the residents.

In 1985, the California Legislature recognized a need for a tiered level of care system that would represent the range of care needs of elderly residents including basic care and supervision, nonmedical personal care, and health assistance. (Health & Safety Code ?1569.70) It is now time to establish this tiered level of care system.

RCFE Inspections ? Infrequent and Inadequate

California's current RCFE inspection system fails to meet the needs of consumers, providers, policy-makers or CCL.

Once a model for other states, California's inspection system for RCFEs is now one of the weakest in the nation. In the 1970's and 1980's, CCL inspected RCFEs twice per year. By the early 1990's, inspections were cut to once per year. In 2004, inspections were slashed to once

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RCFEs in California

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