§ 87468.2 — Additional Personal Rights of Residents in

PRIVATELY OPERATED FACILITIES

(a)  In addition to the rights listed in Section 87468.1, Personal Rights of Residents in All Facilities, residents in privately operated residential care facilities for the elderly shall have all of the following personal rights:

(1)  To have a reasonable level of 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.

(2)  To have their records and personal information remain confidential and to approve their release, except as authorized by law.

(3)  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.

(4)  To care, supervision, and services that meet their individual needs and are delivered by staff that are sufficient in numbers, qualifications, and competency to meet their needs.

(5)  To be served food of the quality and quantity necessary to meet their nutritional needs.

(6)  To make choices concerning their daily lives in the facility.

(7)  To fully participate in planning their care, including the right to attend and participate in meetings or communications regarding care and services to be provided, according to Health and Safety Code section 1569.80 and involve persons of their choice in this planning.  The licensee shall provide necessary information and support to ensure that residents direct the planning of their care to the maximum extent possible, and are enabled to make informed decisions and choices.

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Health and Safety Code section 1569.80 provides:

"(a)  A resident of a residential care facility for the elderly, or the resident’s representative, or both, shall have the right to participate in decisionmaking regarding the care and services to be provided to the resident.  Accordingly, prior to, or within two weeks after, the resident’s admission, the facility shall coordinate a meeting with the resident and the resident’s representative, if any, an appropriate member or members of the facility’s staff, if the resident is receiving home health services in the facility, a representative of the home health agency involved, and any other appropriate parties.  The facility shall ensure that participants in the meeting prepare a written record of the care the resident will receive in the facility, and the resident’s preferences regarding the services provided at the facility.

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(b)  Once prepared, the written record described in subdivision (a) shall be used by the facility, and, if applicable pursuant to Section 1569.725, the home health agency, to determine the care and services provided to the resident.  If the resident has a regular physician, the written record shall be sent by the facility to that physician.

(c)  The written record described in subdivision (a) shall be reviewed, and, if necessary, revised, at least once every 12 months, or upon a significant change in the resident’s condition, as defined by regulations, whichever occurs first.  The review shall take place at a meeting coordinated by the facility, and attended by the resident, the resident’s representative, if any, an appropriate member or members of the facility’s staff, and, if the resident is receiving home health services in the facility, a representative from the home health agency involved.

(d)  This section shall not preclude a residential care facility for the elderly or home health agency from satisfying other state or federal obligations at a meeting required by subdivision (a) or (c).

(e)  If the residential care facility for the elderly is a continuing care retirement community, as defined in paragraph (10) of subdivision (c) of Section 1771, this section shall apply only to residents who require care and supervision, as defined in subdivision (b) of Section 1569.2."

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(8)  To be free from neglect, financial exploitation, involuntary seclusion, punishment, humiliation, intimidation, and verbal, mental, physical, or sexual abuse.

(9)  To present grievances and recommend changes in policies, procedures, and services to the facility staff, management, and governing authority, and to any other person without restraint, coercion, discrimination, reprisal, or other retaliatory actions.  The licensee shall respond to residents’ grievances and recommendations promptly.

(10)  To contact the State Department of Social Services, the long-term care ombudsman, or both, regarding grievances in regard to the licensee.  The licensee shall post the telephone numbers and addresses for the local offices of the State Department of Social Services and ombudsman program, according to Section 9718 of the Welfare and Institutions Code, conspicuously in the facility foyer, lobby, residents’ activity room, or other location easily accessible to residents and their representatives.

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Welfare and Institutions Code section 9718 provides:

"Every long-term care facility, as defined in subdivision (b) of Section 9701, shall post in a conspicuous location a notice of the name, address, and phone number of the office and the nearest approved organization, and a brief description of the services provided by the office and the approved organization.  The form of the notice shall be approved by the office."

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(11)  To be fully informed, prior to or at the time of admission, of all rules that govern resident conduct and responsibilities while living at the facility, as evidenced by the resident’s written acknowledgement.  All rules established by a licensee shall be reasonable and not violate any rights in this section or other applicable laws or regulations, according to Health and Safety Code section 1569.885.

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Health and Safety Code section 1569.885 provides:

"(a)  When referring to a resident’s obligation to observe facility rules, the admission agreement shall indicate that the rules must be reasonable, and that there is a facility procedure for suggesting changes in the rules.  A facility rule shall not violate any right set forth in this article or in other applicable laws and regulations.

(b)  The admission agreement shall specify that a copy of the facility grievance procedure for resolution of resident complaints about facility practices shall be made available to the resident or his or her representative.

(c)  The admission agreement shall inform a resident of the right to contact the State Department of Social Services, the long-term care ombudsman, or both, regarding grievances against the facility.

(d)  A copy of any applicable resident’s rights specified by law or regulation shall be an attachment to all admission agreements.

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(e)  The statement of resident’s rights attached to admissions agreements by a residential care facility for the elderly shall include information on the reporting of suspected or known elder and dependent adult abuse, as set forth in Section 1569.889."

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(12)  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, and to receive written notice of any rate increases according to Health and Safety Code sections 1569.655 and 1569.884.

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Health and Safety Code section 1569.655 provides:

"(a)  If a licensee of a residential care facility for the elderly increases the rates of fees for residents or makes increases in any of its rate structures for services, the licensee shall provide no less than 60 days’ prior written notice to the residents or the residents’ representatives setting forth the amount of the increase, the reason for the increase, and a general description of the additional costs, except for an increase in the rate due to a change in the level of care of the resident. This subdivision shall not apply to optional services that are provided by individuals, professionals, or organizations under a separate fee-for-service arrangement with residents.

(b)  No licensee shall charge nonrecurring lump-sum assessments.  The notification requirements contained in subdivision (a) shall apply to increases specified in this subdivision.  For purposes of this subdivision, "nonrecurring lump-sum assessments" mean rate increases due to unavoidable and unexpected costs that financially obligate the licensee.  In lieu of the lump-sum payment, all increases in rates shall be to the monthly rate amortized over a 12-month period.  The prohibition against a lump-sum assessment shall not apply to charges for specific goods or services provided to an individual resident.

(c)  If a licensee increases rates for a recipient under the State Supplementary Program for the Aged, Blind and Disabled, described in Article 5 (Commencing with Section 12200) of Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions Code, the licensee shall meet the requirements for SSI/SSP rate increases, as prescribed by law.

(d)  This section shall not apply to licensees of residential care facilities for the elderly that have obtained a certificate of authority to offer continuing care contracts, as defined in paragraph (5) of subdivision (c) of Section 1771."

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Health and Safety Code section 1569.884 provides:

"The admission agreement shall include all of the following:

(a)  A comprehensive description of any items and services provided under a single fee, such as a monthly fee for room, board, and other items and services.

(b)  A comprehensive description of, and the fee schedule for, all items and services not included in a single fee.  In addition, the agreement shall indicate that the resident shall receive a monthly statement itemizing all separate charges incurred by the resident.

(c)  A facility may assess a separate charge for an item or service only if that separate charge is authorized by the admission agreement.  If additional services are available through the facility to be purchased by the resident that were not available at the time the admission agreement was signed, a list of these services and charges shall be provided to the resident or the resident’s representative.  A statement acknowledging the acceptance or refusal to purchase the additional services shall be signed and dated by the resident or the resident’s representative and attached to the admission agreement.

(d)  An explanation of the use of third-party services within the facility that are related to the resident’s service plan, including, but not limited to, ancillary, health, and medical services, how they may be arranged, accessed, and monitored, any restrictions on third-party services, and who is financially responsible for the third-party services.

(e)  A comprehensive description of billing and payment policies and procedures.

(f)  The conditions under which rates may be increased pursuant to Section 1569.655.

(g)  The facility’s policy concerning family visits and other communication with residents, pursuant to Section 1569.313.

(h)  The facility’s policy concerning refunds, including the conditions under which a refund for advanced monthly fees will be returned in the event of a resident’s death, pursuant to Section 1569.652.

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(i)  Conditions under which the agreement may be terminated.

(j)  An explanation of the facility’s responsibility to prepare a relocation evaluation, for each resident and a closure plan and to provide notice in the case of an eviction pursuant to Section 1569.682."

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(13)  To be informed in writing prior to or at the time of admission, of any resident retention limitations set by the state or licensee, including any limitations or restrictions on the licensee’s ability to meet residents’ needs.

(14)  To reasonable accommodation of their individual needs and preferences in all aspects of life in the facility, except when accommodation would endanger the health or safety of the individual resident or other residents.

(15)  To reasonable accommodation of their preferences concerning room and roommate choices.

(16)  To written notice of any room changes at least 30 days in advance unless a room change is agreed to by the resident, required to fill a vacant bed, or necessary due to an emergency.

(17)  To share a room with their spouse, domestic partner, or a person of their choice when both spouses, partners, or residents live in the facility and both consent to the arrangement.

(18)  To select their own physicians, pharmacies, privately paid personal assistants, hospice agency, and health care providers in a manner that is consistent with the resident’s admission agreement or other rules of the facility, and according to these personal rights.

(19)  To have prompt access to review all of their records and to purchase photocopies of their records.  Photocopied records shall be provided within two (2) business days and at a cost that does not exceed the community standard for photocopies.

(20)  To be protected from involuntary transfers, discharges, and evictions.  A licensee shall not involuntarily transfer or evict residents for reasons other than those permitted by state law or regulations and shall comply with all eviction and relocation protections for residents.  For purposes of this paragraph, "involuntary" means a transfer, discharge, or eviction that is initiated by the licensee, not by the resident.

(21)  To consent to have their relatives and other individuals of their choosing visit during reasonable hours, privately, and without prior notice.

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(22)  To receive written information on the right to establish an advance health care directive and the licensee’s written policies on honoring an advance health care directive according to Health and Safety Code section 1569.156.

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Health and Safety Code section 1569.156 provides:

"(a)  A residential care facility for the elderly shall do all of the following:

(1)  Not condition the provision of care or otherwise discriminate based on whether or not an individual has executed an advance directive, consistent with applicable laws and regulations.

(2)  Provide education to staff on issues concerning advance directives.

(3)  Provide written information, upon admission, about the right to make decisions concerning medical care, including the right to accept or refuse medical or surgical treatment and the right, under state law, to formulate advance directives.

(4)  Provide written information about policies of the facility regarding the implementation of the rights described in paragraph (3).

(b)  For purposes of this section, "advance directive" means an "advance health care directive," as defined in Section 4605 of the Probate Code, or some other form of instruction recognized under state law specifically addressing the provision of health care."

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(23)  To be encouraged to develop and maintain their fullest potential for independent living through participation in activities designed and implemented for this purpose, according to Section 87219.

(24)  To organize and participate in a resident council established according to Health and Safety Code section 1569.157.

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Health and Safety Code section 1569.157 provides:

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"(a)  Every licensed residential care facility for the elderly, at the request of two or more residents, shall assist the residents in establishing and maintaining a single resident council at the facility.  The resident council shall be composed of residents of the facility.  Family members, resident representatives, advocates, long-term care ombudsman program representatives, facility staff, or others may participate in resident council meetings and activities at the invitation of the resident council.

(b)  A resident council may, among other things, make recommendations to facility administrators to improve the quality of daily living and care in the facility and to promote and protect residents’ rights.

(c)  If a resident council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to those concerns or recommendations within 14 calendar days.

(d)  Facility policies on resident councils shall not limit the right of residents to meet independently with outside persons or facility personnel.

(e)  Each resident council member shall be informed by the facility of his or her right to be interviewed as part of the regulatory inspection process.

(f)  Facilities shall promote resident councils as follows:

(1)  If a facility has a resident council, the facility shall inform new residents of the existence of the resident council.  The facility shall also provide information on the time, place, and dates of resident council meetings and the resident representative to contact regarding involvement in the resident council.

(2)  If a facility has a resident council and a licensed capacity of 16 or more, the facility shall appoint a designated staff liaison to assist the resident council, make a room available for resident council meetings, and post meeting information in a central location readily accessible to residents, relatives, and resident representatives.

(3)  If a facility does not have a resident council, upon admission, the facility shall provide written information on the resident’s right to form a resident council to the resident and the resident representative, as indicated in the admissions agreement.

(4)  Upon request, and with the permission of the resident council, the facility shall share the name and contact information of the designated representative of the resident council with the long-term care ombudsman program.

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(g)  A facility shall not willfully interfere with the formation, maintenance, or promotion of a resident council, or its participation in the regulatory inspection process.  For the purposes of this subdivision, willful interference shall include, but not be limited to, discrimination or retaliation in any way against an individual as a result of his or her participation in a resident council, refusal to publicize resident council meetings or provide appropriate space for either meetings or a bulletin board, or failure to respond to written requests by the resident council in a timely manner.

(h)  The text of this section with the heading "Rights of Resident Councils" shall be posted in a prominent place at the facility accessible to residents, family members, and resident representatives.

(i)  A violation of this section shall not be subject to the provisions of Section 1569.40.  A violation of this section shall constitute a violation of resident rights.  A facility that violates this section shall be subject to a daily civil penalty of two hundred fifty dollars ($250) until the violation is corrected.  A violation shall be deemed to have been corrected on the date the facility submits documentation of the correction to the department if the correction is verified by the department."

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(25)  To protection of their property from theft or loss according to Health and Safety Code sections 1569.152, 1569.153, and 1569.154.

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Health and Safety Code section 1569.152 provides:

"(a)  A residential care facility for the elderly, as defined in Section 1569.2, which fails to make reasonable efforts to safeguard resident property shall reimburse a resident for or replace stolen or lost resident property at its then current value.  The facility shall be presumed to have made reasonable efforts to safeguard resident property if the facility has shown clear and convincing evidence of its efforts to meet each of the requirements specified in Section 1569.153. The presumption shall be a rebuttable presumption, and the resident or the resident’s representative may pursue this matter in any court of competent jurisdiction.

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(b)  A civil penalty shall be levied if the residential care facility for the elderly has no program in place or if the facility has not shown clear and convincing evidence of its efforts to meet all of the requirements set forth in Section 1569.153. The State Department of Social Services shall issue a deficiency in the event that the manner in which the policies have been implemented is inadequate or the individual facility situation warrants additional theft and loss protections.

(c)  The department shall not determine that a facility’s program is inadequate based solely on the occasional occurrence of theft or loss in a facility."

Health and Safety Code section 1569.153 provides:

"A theft and loss program shall be implemented by the residential care facilities for the elderly within 90 days after January 1, 1989.  The program shall include all of the following:

(a)  Establishment and posting of the facility’s policy regarding theft and investigative procedures.

(b)  Orientation to the policies and procedures for all employees within 90 days of employment.

(c)  Documentation of lost and stolen resident property with a value of twenty-five dollars ($25) or more within 72 hours of the discovery of the loss or theft and, upon request, the documented theft and loss record for the past 12 months shall be made available to the State Department of Social Services, law enforcement agencies and to the office of the State Long-Term Care Ombudsman in response to a specific complaint.  The documentation shall include, but not be limited to, the following:

(1)  A description of the article.

(2)  Its estimated value.

(3)  The date and time the theft or loss was discovered.

(4)  If determinable, the date and time the loss or theft occurred.

(5)  The action taken.

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(d)  A written resident personal property inventory is established upon admission and retained during the resident’s stay in the residential care facility for the elderly.  Inventories shall be written in ink, witnessed by the facility and the resident or resident’s representative, and dated.  A copy of the written inventory shall be provided to the resident or the person acting on the resident’s behalf.  All additions to an inventory shall be made in ink, and shall be witnessed by the facility and the resident or resident’s representative, and dated.  Subsequent items brought into or removed from the facility shall be added to or deleted from the personal property inventory by the facility at the written request of the resident, the resident’s family, a responsible party, or a person acting on behalf of a resident.  The facility shall not be liable for items which have not been requested to be included in the inventory or for items which have been deleted from the inventory.  A copy of a current inventory shall be made available upon request to the resident, responsible party, or other authorized representative.  The resident, resident’s family, or a responsible party may list those items which are not subject to addition or deletion from the inventory, such as personal clothing or laundry, which are subject to frequent removal from the facility.

(e)  Inventory and surrender of the resident’s personal effects and valuables upon discharge to the resident or authorized representative in exchange for a signed receipt.

(f)  Inventory and surrender of personal effects and valuables following the death of a resident to the authorized representative in exchange for a signed receipt.  Immediate written notice to the public administrator of the county upon the death of a resident whose heirs are unable or unwilling to claim the property as specified in Chapter 20 (commencing with Section 1140) of Division 3 of the Probate Code.

(g)  Documentation, at least semiannually, of the facility’s efforts to control theft and loss, including the review of theft and loss documentation and investigative procedures and results of the investigation by the administrator and, when feasible, the resident council.

(h)  Establishment of a method of marking, to the extent feasible, personal property items for identification purposes upon admission and, as added to the property inventory list, including engraving of dentures and tagging of other prosthetic devices.

(i)  Reports to the local law enforcement agency within 36 hours when the administrator of the facility has reason to believe resident property with a then current value of one hundred dollars ($100) or more has been stolen.  Copies of those reports for the preceding 12 months shall be made available to the State Department of Social Services and law enforcement agencies.

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(j)  Maintenance of a secured area for residents’ property which is available for safekeeping of resident property upon the request of the resident or the resident’s responsible party.  Provide a lock for the resident’s bedside drawer or cabinet upon request of and at the expense of the resident, the resident’s family, or authorized representative.  The facility administrator shall have access to the locked areas upon request.

(k)  A copy of this section and Sections 1569.152 and 1569.154 is provided by a facility to all of the residents and their responsible parties, and, available upon request, to all of the facility’s prospective residents and their responsible parties.

(l)  Notification to all current residents and all new residents, upon admission, of the facility’s policies and procedures relating to the facility’s theft and loss prevention program.

(m)  Only those residential units in which there are no unrelated residents and where the unit can be secured by the resident or residents are exempt from the requirements of this section."

Health and Safety Code section 1569.154 provides:

"No provision of a contract of admission, which includes all documents which 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 or imply a lesser standard of responsibility for the personal property of residents than is required by law."

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(26)  To manage their financial affairs.  A licensee shall not require residents to deposit their personal funds with the licensee.  Except as provided for in approved continuing care agreements, a licensee, or a spouse, domestic partner, relative, or employee of a licensee, shall not do any of the following:

(A)  Accept appointment as a guardian or conservator of the person or estate of a resident.

(B)  Become or act as a representative payee for any payments made to a resident, without the written and documented consent of the resident or the resident’s representative.

(C)  Serve as an agent for a resident under any general or special power of attorney.

(D)  Become or act as a joint tenant on any account with a resident.

(E)  Enter into a loan or promissory agreement or otherwise borrow money from a resident without a notarized written agreement outlining the terms of the repayment being given to the resident.

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(27)  To keep, have access to, and use their own personal possessions, including toilet articles, and to keep and be allowed to spend their own money, unless limited by statute or regulation.

(28)  To request, refuse, or discontinue a service.

(b)  A licensed residential care facility for the elderly shall not discriminate against a person seeking admission or a resident based on the person's or resident's sex, race, color, 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 their representative is required to sign as part of the contract for, 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 they are entitled as specified in these regulations or as 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 according to Health and Safety Code section 1569.158.

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Health and Safety Code section 1569.158 provides:

"(a)  A residential care facility for the elderly shall not prohibit the formation of a family council.  When requested by a member of the resident’s family or the resident representative, a family council shall be allowed to meet in a common meeting room of the facility during mutually agreed upon hours.

(b)  Facility policies on family councils shall in no way limit the right of residents and participants in a family council to meet independently with outside persons, including members of nonprofit or government organizations or with facility personnel during nonworking hours.

(c)  "Family council" for the purpose of this section means a meeting of family members, friends, representatives, or agents as defined in Section 14110.8 of the Welfare and Institutions Code of two or more residents to confer in private without facility staff.

(d)  Family councils shall be provided adequate space on a prominent bulletin board or other posting area for the display of meeting notices, minutes, information, and newsletters.

(e)  Facility personnel or visitors may attend a family council meeting only at the family council’s invitation.

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(f)  If a family council submits written concerns or recommendations, the facility shall respond in writing regarding any action or inaction taken in response to the concerns or recommendations within 14 calendar days.

(g)  (1)  If a facility has a family council, the facility shall include notice of the family council and its meetings to family members and resident representatives in routine mailings and shall inform family members and resident representatives of new and current residents who are identified on the admissions agreement during the admissions process or in the resident’s records, of the existence of the family council, the time and place of meetings of the family council, and the name of the family council representative.

(2)  If a facility does not have a family council, the facility shall provide, upon admission of a new resident, written information to the resident’s family or resident representative of their right to form a family council.

(3)  Upon request, and with the permission of the family council, the facility shall share the name and contact information of the designated representative of the family council with the long-term care ombudsman program.

(h)  If a facility has a family council and a licensed capacity of 16 or more, the facility shall appoint a designated staff liaison who shall be responsible for providing assistance to the family council and responding to written requests that result from family council meetings.

(i)  A facility shall not willfully interfere with the formation, maintenance, or promotion of a family council, or its participation in the regulatory inspection process.  For the purposes of this subdivision, willful interference shall include, but shall not be limited to, discrimination or retaliation in any way against an individual as a result of his or her participation in a family council, refusal to publicize family council meetings or provide appropriate space for meetings or postings as required under this section, or failure to respond to written requests by a family council in a timely manner.

(j)  A violation of this section shall not be subject to the provisions of Section 1569.40.  A violation of this section shall constitute a violation of resident rights.  A facility that violates this section shall be subject to a daily civil penalty of two hundred fifty dollars ($250) until the violation is corrected.  A violation shall be deemed to have been corrected on the date the facility submits documentation of the correction to the department if the correction is verified by the department."

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(e)  The rights specified in this section shall be in addition to any other rights provided by law.

(f)  The Department does not have the authority to waive the personal rights specified in subsection (a).

NOTE:  Authority cited:  Section 1569.30, Health and Safety Code.  Reference:  Sections 1569.1, 1569.152, 1569.153, 1569.154, 1569.156, 1569.157,1569.261, 1569.265, 1569.267, 1569.269, 1569.31, 1569.312, 1569.655, 1569.80,1569.884 and 1569.885, Health and Safety Code; and Section 9718, Welfare and Institutions Code.