SENIOR ASSEMBLY PROPOSAL NO. 11

INTRODUCED BY SENIOR ASSEMBLY MEMBER AMBROGI

 

LEGISLATIVE COUNSEL'S DIGEST

AP 11:  NURSING HOME PATIENTS:  CIVIL ACTIONS.

UNDER EXISTING LAW, A RESIDENT OR A PATIENT OF A SKILLED NURSING FACILITY OR AN INTERMEDIATE CARE FACILITY MAY BRING A CIVIL ACTION AGAINST A LICENSEE OF THE FACILITY WHO VIOLATES SPECIFIED RIGHTS OF THE RESIDENT OR PATIENT.  EXISTING LAW PROVIDES THAT THE LICENSEES MAY BE LIABLE FOR UP TO $500, PLUS COSTS AND ATTORNEY'S FEES, AND MAY BE ENJOINED FROM PERMITTING THE VIOLATION TO CONTINUE.

THIS MEASURE WOULD MEMORIALIZE THE LEGISLATURE AND THE GOVERNOR TO ENACT LEGISLATION WHICH WOULD INCREASE THE AMOUNT FOR WHICH A LICENSEE MAY BE HELD LIABLE FROM $500 TO $5,000.  THIS MEASURE WOULD ALSO AMEND THAT PROVISION TO CLARIFY THAT IT APPLIES TO BOTH CURRENT AND FORMER RESIDENTS AND TO EXPAND THE SCOPE OF RIGHTS THAT ARE PROTECTED.

VOTE: MAJORITY.

AP11:  NURSING HOME PATIENTS:  CIVIL ACTIONS

WHEREAS, IT HAS BEEN 20 YEARS SINCE SECTION 1430 OF THE HEALTH AND SAFETY CODE WAS AMENDED TO ALLOW A PRIVATE RIGHT OF ACTION FOR RESIDENTS OF NURSING HOMES WHOSE RIGHTS HAVE BEEN VIOLATED. HOWEVER, SUBDIVISION (B) OF SECTION 1430 OF THE HEALTH AND SAFETY CODE (HEREAFTER SUBDIVISION (B) OF SECTION 1430), WHICH WAS ENACTED TO PROVIDE SUCH A REMEDY, HAS BEEN ALMOST COMPLETELY INEFFECTIVE. BECAUSE OF THE $500 LIMIT ON CIVIL DAMAGES, VIRTUALLY NO SUITS HAVE BEEN FILED BY RESIDENTS, DESPITE THE HUNDREDS OF DOCUMENTED VIOLATIONS OF RESIDENTS' RIGHTS; AND

WHEREAS, SUBDIVISION (B) OF SECTION 1430 ALLOWS FOR INJUNCTIVE RELIEF, WHICH CAN PROVIDE AN IMPORTANT REMEDY FOR MANY VIOLATIONS OF RESIDENTS' RIGHTS--FOR EXAMPLE, MAKING IT POSSIBLE FOR A RESIDENT WHO HAS BEEN ILLEGALLY EVICTED TO RETURN TO THE NURSING HOME WHICH EVICTED HIM OR HER.  THE $500 LIMIT ON DAMAGES SO REDUCES THE LIKELIHOOD OF LAWSUITS UNDER SUBDIVISION (B) OF SECTION 1430 THAT THE OPPORTUNITY FOR INJUNCTIVE RELIEF IS RENDERED INEFFECTIVE; AND

WHEREAS, THE APPROPRIATENESS OF THE PENALTY FOR A VIOLATION OF A RESIDENT'S RIGHTS SHOULD DEPEND ON THE SEVERITY OF THE HARM TO THE RESIDENT.   HOWEVER, THE CURRENT LIMIT OF $500 IN DAMAGES WHICH CAN BE AWARDED IN NURSING HOME RESIDENTS' RIGHTS CIVIL ACTIONS BEARS NO RELATIONSHIP TO THE SEVERITY OF THE VIOLATION OR THE HARM SUFFERED BY THE RESIDENT; AND

WHEREAS, LIKE CONTRACTORS, TAVERN OWNERS, OR ANY OTHER BUSINESS LICENSED BY THE STATE OF CALIFORNIA, NURSING HOME LICENSEES SHOULD NOT BE EXEMPT FROM POTENTIAL LIABILITY IN A PRIVATE CAUSE OF ACTION SIMPLY BECAUSE THEY MAY ALSO BE FINED BY THE STATE FOR VIOLATIONS OF STATE LAW; AND

WHEREAS, MANY RESIDENTS OF NURSING HOMES WHO HAVE SUFFERED HARM RESULTING FROM A VIOLATION OF THEIR RESIDENTS' RIGHTS HAVE LEFT THE FACILITIES WHICH WERE RESPONSIBLE FOR THE VIOLATION.  THESE RESIDENTS SHOULD ALSO BE ABLE TO SUE FOR DAMAGES UNDER SUBDIVISION (B) OF SECTION 1430; AND

WHEREAS, RESIDENTS' RIGHTS HAVE BEEN SUBSTANTIALLY EXPANDED BY BOTH STATE AND FEDERAL LAW OVER THE PAST 20 YEARS, BUT SUBDIVISION (B) OF SECTION 1430 HAS NOT BEEN AMENDED ACCORDINGLY.  AS A RESULT, RESIDENTS OF NURSING HOMES WHO SUFFER FROM RESIDENT RIGHTS VIOLATIONS, OTHER THAN THOSE RIGHTS WHICH ARE SET FORTH IN THE PATIENTS' BILL OF RIGHTS IN SECTION 72527 OF TITLE 22 OF THE CALIFORNIA CODE OF REGULATIONS, HAVE FEW LEGAL REMEDIES AVAILABLE.  RIGHTS INCLUDED IN STATE AND FEDERAL LAW AND REGULATIONS WHICH ARE NOT CURRENTLY PROTECTED UNDER SUBDIVISION (B) OF SECTION 1430 INCLUDE, AMONG MANY OTHERS, THE RIGHT OF THE RESIDENT'S LEGAL REPRESENTATIVE TO HAVE ACCESS TO THE RESIDENT'S MEDICAL RECORDS, BED HOLD RIGHT IN THE EVENT OF HOSPITALIZATION, PROHIBITION AGAINST EVICTION BECAUSE OF CHANGES IN HIS OR HER MANNER OF PURCHASING SERVICES FROM PRIVATE PAYMENT TO MEDI-CAL, PROTECTION AGAINST MISAPPROPRIATION OF PERSONAL BELONGINGS, PROHIBITION AGAINST RETALIATION FOR VOICING GRIEVANCES, ADVANCE NOTICE OF A ROOM OR ROOMMATE CHANGE, AND THE RIGHT TO FORM A RESIDENTS' COUNCIL AND A FAMILY COUNCIL AT THE FACILITY; AND 

WHEREAS, GIVEN THE BUDGETARY CUTS IN THE ENFORCEMENT SYSTEM AT THE STATE DEPARTMENT OF HEALTH SERVICES, RESIDENTS' RIGHTS VIOLATIONS HAVE NOT BEEN A PRIORITY FOR THE STATE DEPARTMENT OF HEALTH SERVICES.  AS A RESULT, THOUSANDS OF NURSING HOME RESIDENTS HAVE NO RECOURSE, GIVEN THE LIMITATIONS OF THE CURRENT LAW; AND

WHEREAS, THE PROVISIONS OF SUBDIVISION (B) OF SECTION 1430 NEED TO BE AMENDED TO CONFORM TO CURRENT LAW AND TO MAKE MORE EFFECTIVE THE RESIDENTS' ABILITY TO SUE FOR VIOLATIONS OF THEIR RIGHTS AS RESIDENTS; NOW, THEREFORE, BE IT 

RESOLVED, BY THE SENIOR ASSEMBLY AND THE SENIOR SENATE, JOINTLY, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA AT ITS 2003 REGULAR SESSION, A MAJORITY OF THE MEMBERS VOTING THEREFOR, HEREBY PROPOSES THAT THE AMOUNT OF DAMAGES FOR WHICH A NURSING HOME LICENSEE MAY BE LIABLE IN A CAUSE OF ACTION BROUGHT BY A NURSING HOME RESIDENT FOR A VIOLATION OF THE RESIDENT'S RIGHTS PURSUANT TO SUBDIVISION (B) OF SECTION 1430 SHOULD BE INCREASED TO $5,000 FROM THE CURRENT AMOUNT OF $500; AND BE IT FURTHER

RESOLVED, THAT SUBDIVISION (B) OF SECTION 1430 SHOULD BE AMENDED TO CLARIFY THAT THE PRIVATE RIGHT OF ACTION IS AVAILABLE TO BOTH FORMER RESIDENTS AND CURRENT RESIDENTS WHOSE RIGHTS HAVE BEEN VIOLATED; AND BE IT FURTHER

RESOLVED, THAT THIS CHANGE IN THE LAW WOULD CLARIFY THAT THE RESIDENTS' RIGHTS PROTECTED UNDER SUBDIVISION (B) OF SECTION 1430 INCLUDE ALL RIGHTS SET FORTH IN STATE AND FEDERAL LAW AND REGULATIONS, AND ARE NOT LIMITED ONLY TO THOSE SPECIFICALLY ENUMERATED IN THE PATIENTS' BILL OF RIGHTS; AND BE IT FURTHER

RESOLVED, THAT THE SENIOR LEGISLATURE OF THE STATE OF CALIFORNIA RESPECTFULLY MEMORIALIZES THE LEGISLATURE AND THE GOVERNOR TO ENACT APPROPRIATE LEGISLATION THAT WOULD ADDRESS THE CONCERNS SET FORTH IN THIS MEASURE; AND BE IT FURTHER

RESOLVED, THAT A COPY OF THIS MEASURE BE TRANSMITTED TO THE SPEAKER OF THE ASSEMBLY, THE PRESIDENT PRO TEMPORE OF THE SENATE, AND THE GOVERNOR OF THE STATE OF CALIFORNIA.


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