Title 22, §87101(r)(5) defines a "Residential Care Facility for the Elderly" (RCFE), as ". . . a housing arrangement chosen voluntarily by the resident, the resident's guardian, conservator or other responsible person; where 75% of the residents are sixty years of age or older and where varying levels of care and supervision are provided, as agreed to at time of admission or as determined necessary at subsequent times of reappraisal. Any younger residents must have needs compatible with other residents.
Frequently Asked Questions
Title 22 (§ 87507) only mandates refunds in two (2) situations:
1) The Department orders the relocation of a resident. In this case, the resident is relieved of any advance notice requirements contained in the admissions agreement.
2) Upon the death of a resident, the agreement between the facility and the resident is terminated and relatives are not liable for any payment beyond that due at the date of death, unless agreed to in writing or ordered by a court.
Title 22 includes no other provisions for refunds or advanced notice requirements for residents or families. Refund policies (outside of the above) are at the discretion of the facility and will be stated in the admissions agreement. Therefore, it is imperative you familiarize yourself with a facility's policy regarding events that may prompt a resident's departure from the facility:
- Personal decision to move
- Sickness/Injury/Higher level of care
- Depleted Resources
If the terms set forth in the admissions agreement are not agreeable to you, search for a facility that has more reasonable policies or see if there is room for negotiation (and get all agreements in writing, no verbal assurances). For example, is the required notification for moving 30 days or 60 days? Is there the option for a reduced payment or per diem rate should the resident need to relocate temporarily? How soon must you remove the resident's personal effects after death to avoid being charged?
While consumers always have the right to ask for a refund and to file a complaint against a facility they believe is taking advantage, the policy that is contained in the signed admissions agreement is binding.
Notes in italics represent the views and/or experience of CARR regarding this topic and/or regulation.
Title 22, §87101(r)(6) defines "responsible person" as the ". . . individual or individuals, including a relative, health care surrogate decision maker or placement agency, who assist the resident in placement, or assume varying degrees of responsibility for the resident's well-being."
Definition: Merriam-Webster’s online dictionary defines “restraints” to mean the “action of keeping someone or something under control,” or “a measure or condition that keeps someone or something under control or within limits.
Personal Rights: Restraint of a resident violates a resident’s Personal Rights, Title 22, Section 87572:
a) a resident is to be free from corporal or unusual punishment, humiliation, intimidation, mental abuse, or other actions of a punitive nature. . .” ,
b) a resident is to be able to leave or depart the facility at any time and not to be locked into any room, building, or on facility premises by day or night. This does not prohibit the establishment of house rules, such as the locking of doors at night, for the protection or residents; not does it prohibit, with permission of the licensing agency, the barring of windows against intruders.
Many things in an assisted living facility can be used to restrict the movement, motion and activity of residents: postural supports (braces, soft ties intended to keep a resident upright, casts), bed-rails, geri-chairs, sliding trays, locks on doors, wooden bars in sliding doors, and drugs.
Postural Supports allowed by Title 22 ( Section 87608(a)(1) include “ . . . appliances or devices such as braces, spring release trays, or soft ties . . .used to achieve proper body position and balance, to improve a resident’s mobility and independent functioning, or to position, rather than restrict” a resident’s movement.
Postural supports require a) “quick release” by the resident and b) a written order from a doctor prior to use.
Postural supports may not be used to tie, limit or deprive a resident of the use of her hands or feet.
Bed-Rails are allowed by Title 22, a postural support under Section 87608(5)(a); they may be used for mobility aids only. Bed-rails that extend from the “. . .head half the length of the bed, and used only for assistance with mobility shall be allowed.” Full bed-rails are prohibited except for residents receiving hospice care, with a care plan that specifies the need for full bed-rails. Bed-rails are not to be used as a restraint to keep a resident in bed during the night, or to facilitate an understaffed facility.
Geri-chairs with sliding trays: Geri-chairs are standard in many facilities; they allow the resident to be positioned in an upright position with the tray pushed close to the body thereby facilitating independent feeding and ease of swallowing. However, CARR has seen these chairs be misused by laying the person back in the chair to a quasi-supine position incapacitating an individual from getting out of the chair – they are essentially ‘pinned’ into the chair.
Locked Doors: At no time may a resident be locked in or locked out of his room. If a door has a lock on the inside, the lock must be a single-action so the resident can quickly get out.
Blocked Sliding Doors: Another form of restraint or restriction of a resident’s movements occurs when the Licensee has blocked the exit door to the outside. Rooms are approved for non-ambulatory when the room has an exit to the outside, for example: a French door, a sliding door on a track, or a regular door. CARR has seen documentation where furniture, storage boxes has blocked the exit, or where a stick has been placed in a sliding door track preventing the door from being used as an exit. Blocked exits are considered a form of restraint. Blocked exits are also a violation of Title 22, Section 87307(d)(6).
Psychoactive Drugs: California Advocates for Nursing Home Reform (CANHR) is a leading advocate of minimizing or eliminating the use of psychoactive drugs on residents of skilled nursing facilities and in residential care facilities for the elderly. According to CANHR there are four types of psychoactive drugs: antipsychotics (Zypreza, Haldol); anti-anxiety drugs (Ativan, Valium); anti-depressants (Prozac and Zoloft); sedatives and hypnotics (Halcion/Restoril). The subject of misuse and overuse of these drugs is huge; suffice it to say here that if your resident is taking these drugs, your resident is susceptible to the drugs being used as a chemical restraint.
Risks of Restraints: The risks of a resident being restrained include physical and emotional distress. Physical manifestation can include decubitus ulcers (bedsores), bruising, incontinence, constipation; emotional manifestations include emotional distress, intimidation, anger, isolation, and loss of personal dignity. The long-term effects of being on psychoactive drugs are myriad, and in many cases, exacerbate existing medical conditions, hastening death.
Why would a facility use restraints on a resident? Facilities are frequently understaffed; Title 22, Section 87411 requires that ‘facility personnel shall at all times be sufficient in numbers, . . . and competent to provide services necessary to meet resident needs.” That said, facilities generally staff lean, therefore it may be to the benefit of the facility to periodically restrain residents, particularly those tending to be wanderers, those who may be disruptive, or those who may be aggressive.
Consumers are asked to be ever watchful and vigilant and be on guard for a resident in, or under restraint. Be watchful not only for your resident, but for others in the facility as well.
Resource: The Ombudsman Services of Northern California publishes a helpful on-line guide “RCFE Regulation Reference Guide” http://rcfe.lsnc.net/restraints/ that provides general guidance what is allowed and what isn’t allowed regarding restraint of residents.
Notes in italics represent the views and/or experience of CARR regarding this topic and/or regulation.
Title 22 (§87612)(a)
"The Licensee may provide care for residents who have any of the below-listed restricted health conditions, or who require any of the below-listed health services." [Each below-listed condition has additional requirements associated with it, in order for facilities to be able to provide that specific type of care.]
1) Administration of Oxygen (§87618)
2) Catheter Care (§87623)
3) Colostomy/ileostomy Care (§87621)
4) Contractures (§87626)
5) Diabetes (§87628)
6) Enemas, suppositories, and /or fecal impaction removal (§87622)
7) Incontinence of bowel and/or bladder (§87625)
8) Injections (§87629)
9) Intermittent Positive Pressure Breathing Machine (§87619)
10) Stage 1 & 2 pressure sores (dermal ulcers) (§87631(a)(3))
11) Wound care (§87631)
Title 22, §87217(a) et.al.
Licensees are not ". . .required to handle residents' cash resources. [However, if it is deemed and documented through an appraisal, that] a resident is incapable of handling his own cash resources, his cash resource must be safeguarded in accordance with the regulations. . .". If the Licensee elects to safeguard a resident's cash resources, the Licensee does so pursuant to the stipulations of Title 22, §87217, paraphrased and summarized below:
- Accurate records shall be kept and adequate safeguards maintained (§87217(c)
- Receipts for articles or cash must be given. (§87217(b)
- There is to be no commingling with facility funds. [This does not prohibit the Licensee from providing advances or loans to residents from facility money.] (§87217(e)
- No facility shall make expenditures from these resources for basic services. [There is an exception with regard to Social Security monies if Licensee is representative payee]. (§87217(f)
- "No Licensee or employee shall (a) accept appointment as a guardian or conservator of the person and/or estate of any resident, (b) accept any general or special power of attorney for any resident, (c) become substitute payee for any payments made to any resident [unless involving Social Security monies & licensee is representative payee], or (d) become the joint tenant on any account with a resident.*" (§87217(d).
- Cash resources entrusted to the Licensee and kept on the facility premises shall be locked and secured. (§87217(h)
- Cash resources not kept at the facility must be immediately upon admission be deposited into a bank account separate from the personal and business accounts of the licensee provided that the account title clearly notes that it is residents' money and the resident has access to the money upon demand to the licensee. (§87217(h)
- All monetary gifts and any gift exceeding an estimated value of $100, which are given to the licensee by or on behalf of a resident shall be recorded (this does not include friends or relatives of deceased residents). (§87217(k)
- Any Licensee who is entrusted to safeguard resident cash resources shall file or have on file with the licensing agency a copy of a surety bond issued by a company to the State of California as principal. (§87216(a)
If a resident needs assistance from a facility with her finances, verify that the RCFE under consideration is bonded and that the amount is sufficient to adequately safeguard the money of the resident. CCLD verifies that the bond held is sufficient , however there is no substitute for performing your own due diligence.
*Except as provided in approved agreements with continuing care facilities.
According to Title 22 a skilled professional (aka a licensed professional (Title 22 §87101(l)(2), or medical professional (Title 22, §87101(m)(1)) refers to a person licensed in California to provide medical care or therapy or to perform necessary medical procedures. This includes:
- Physicians/surgeons/physician's assistants;
- RNs/LVNs/Nurse practitioners;
- Physical/occupational/respiratory therapists;
- Psychiatric technicians, etc.
Each must operate within his/her scope of practice.
This term does not include an uncertified caregiver, medication technician, administrator and/or Licensee, unless that individual also maintains a valid skilled professional license mentioned above.
Supplemental Security Income, also known as SSI, is a benefit paid to qualifying blind, disabled, or 65+ year old individuals having fewer than $2,000 in assets. SSI monies (about $650 provided by the federal government; the remainder comes from state funds) can be used to pay for 24/7 care and supervision in an RCFE, however by law, the RCFE cannot charge more than the rate set by California for assisted living services. As of 2011, the monthly rate for RCFEs from SSI funds is $982/month. Since the maximum SSI a qualifying elder can receive is $1,100, the individual is left with #128 for personal items and discretionary spending.
Families note: the RCFE cannot require that family members supplement the resident's monthly SSI payment to, nor can the Admissions Agreement be modified to include additional assistance by family members; RCFE owners can not receive a family supplement over and above the stipulated SSI amount for the resident's room, board and care.
The fact is that few facilities accept residents who only receive SSI benefits because the rate is well below the normal monthly rate of $2,500 to $3,000 charged by RCFEs. To find out whether the assisted living facility takes SSI, the consumer has to call the candidate RCFE, asking whether they accept SSI clients. There is no single place where a consumer can refer to that would advise which RCFEs accept SSI clients.
One source a consumer can look is the LIC 401, Monthly Operating Statement, completed by the RCFE application and submitted to the state as part of the license application package. CARR regularly scans and posts the LIC 401 for individual facilities - so if it is available in the public record, it will likely be posted on this site. The first part of the LIC 401 requires the licensee to account for his monthly revenue. The first line in this section provides for SSI residents. CARR has seen some licensees indicate that of a 6-bed intended occupancy, the licensee will calculate his total revenues based on having 1 or 2 SSI residents. CARR is the first to acknowledge this source as unreliable, but if the licensee indicated a revenue stream coming from SSI clients, it may indicate the potential for the licensee to accept an SSI client.
Information contained in this FAQ is based in part on research done by BA, CARR's spring SDSU intern. Thanks BA.
Title 22, Section 87101(d)(7) defines "direct care staff" to mean ". . . the Licensee, or those individuals employed by the Licensee, who provide direct care to the residents, including but not limited to, assistance with activities of daily living."
Caregivers are direct care staff.
Title 22, §87411
According to Title 22, facility personnel at all times must be sufficient in number and competency to provide services necessary to meet residents needs. Additional staff should be employed as necessary to perform office work, cooking, housekeeping and facility maintenance. For additional information, see FAQ Staffing in an RCFE.
All personnel who supervise and/or provide care to residents must be at least 18 years old, in good health as verified by a physician, must possess a current First Aid certificate, and must obtain a criminal record clearance from the Department of Justice.
All staff who provide direct care to residents are required to receive at least 10 hours of initial training within the first 4 weeks of employment and must receive at least 4 hours of additional training annually. The most popular training tools used in RCFEs are video instruction tapes/CDs and, at times, on-site trainings from persons knowledgeable on the specific subject(s).
While proof of receiving the appropriate training is available on all employees in their personnel file, how much knowledge employees actually retain from videos/training is unknown. Therefore, consumers may want to look for the following characteristics to assess the competency of the care staff: (The following are mentioned in Title 22 as evidence of safe and effective job performance.)
(1) Familiarity with the aging process;
(2) The importance and techniques of personal care services and supervision;
(3) Respectful of Residents Rights;
(4) Knowledge of the psychosocial needs of the elderly (i.e. recreation, companionship);
(5) Knowledge necessary in order to recognize early signs of illness and the need for professional help (includes dementia);
(6) Knowledge of community resources;
(7) Ability to communicate with residents;
(8) Principles of good nutrition and sanitation;
(9) Knowledge of safely assisting with prescribed medications which are self-administered (Medication Management)
If you are concerned with the staffing level, or competency of staff in a particular RCFE, documenting your concerns and sharing the documentation with the LPA assigned to your facility may be helpful.
CCLD "may require a facility to provide additional staff whenever it determines through documentation that additional staff is required to provide adequate services" (Title 22, § 87411).
Title 22, §87411
Title 22 does not mandate staffing requirements for residential care facilities; Title 22 states that "facility personnel shall at all times be sufficient in numbers, and competent to provide the services necessary to meet resident needs.
The 'sufficient number' required is determined by the Licensee. Aside from the Personnel Record (LIC 501) submitted during the application process, the public files at CCLD offer little information about a facility's staffing levels.
As residents' status changes, the balance of staffing levels may be impacted. If you believe a resident's needs are being unfulfilled due to inappropriate staffing levels, contact the LPA assigned to your facility, or file a complaint with CCLD.
According to Title 22 (§ 87412) personnel records, in all cases, shall demonstrate adequate staff coverage necessary for facility operation by documenting the hours actually worked. If sharing this documentation with you is against the facility's policy or if they are reluctant to provide that information to you, be aware that all personnel records must be made available to LPAs during normal business hours (§87412). Contacting the LPA assigned to the facility for assistance in this matter is appropriate.
Facilities are required to obtain a Hospice Care Waiver from the Department if they wish to retain clients receiving hospice care services (§ 87632). Once granted, the waiver slot(s) can be applied to any future resident or residents needing hospice services without additional approval from the Department.
Residents receiving hospice care services may eventually require “total care”. Total care is defined as a condition where residents depend on others to perform all of their activities of daily living. Under Title 22, total care is considered a prohibited health condition in assisted living facilities (LINK).
Previously, to care for residents requiring total care, a facility would request a total care exception to allow a particular resident to be retained in the facility. However, in response to facilities requests, the Department has streamlined the process and expanded its application by creating a Total Care Waiver. Now, facilities may request a Total Care Waiver within their request for a Hospice Waiver. And like the Hospice Waiver, once granted, the Total Care Waiver slot(s) can be applied to any future resident or residents needing total care without additional approval from the Department. [Consumers should note that while exceptions apply to specific individuals, waivers are applied facility-wide.]
The requirements for requesting a total care waiver are as follows (§ 87616):
1. A facility must submit a plan for ensuring that the total care residents’ needs can be met.
2. The plan must also address how the facility will minimize this impact on the other residents.
3. The facility must provide documentation of the resident’s current health condition, including medical reports, etc. or retain the hospice care plan at the facility for Department review
To view the actual policy: (LINK http://www.ccld.ca.gov/res/pdf/10rcfe04.pdf).
Consumers should note all of the following:
Once granted, Total Care Waivers expand the scope of care provided by an assisted living facility. Without a waiver, total care residents would be required to move into a skilled nursing facility (aka nursing home) to be under the supervision of a medical team. And while hospice nurses are to be involved in the care provided to total care residents, facilities remain the primary provider of care and supervision.
CARR reminds consumers that assisted living facilities are licensed as non-medical facilities. Facilities are not mandated to maintain any patient-to-staff ratios nor are they required to employee nursing staff (even if granted a Total Care Waiver). Additionally, the State inspects facilities only once every five years. Should a resident require total care, safety and quality of care can only be achieved through ongoing communications between all parties involved (facility staff, hospice, family members and resident) and extreme vigilance.
Should you believe that a facility is failing to provide the care promised or is in need of additional staff, CARR recommends consumers document all events that will support such claims and to file a complaint with the Department. CARR remains concerned about this expansion of resident care, as we have noted facilities with intolerable compliance histories who are not stripped of their hospice waivers.
CARR questions the policy and procedures surrounding Total Care Waivers and has sought comment from the Department as of May 22, 2012.
Notes in italics represent the views and/or experiences of CARR regarding the topic and/or regulation.
All personnel who assist residents with the self-administration of medications must receive the following training pursuant to Health & Safety Code 1569.69, and Title 22:(§87411):
(1) For facilities with 16 or more residents: 8 hours of hands-on shadowing training and 8 hours of other training; or
(2) For facilities with 15 or fewer residents: 2 hours of hands-on shadowing training and 4 hours of other training.
(3) In all facilities, personnel continuing to assist residents with the self-administration of their medication must complete four hours of training every 12 months.
After receiving the appropriate training, staff who assist residents with their medication should be competent in all of the following areas and must pass an examination demonstrating their comprehension of the subject matter, and competency:
a) The role, responsibilities and limitations of staff who assist residents with the self-administration of medication,
b) Terminology specific to medication assistance,
c) Different types of medication orders: prescription, over-the-counter, controlled,
d) Assistance procedures (in and out of the facility),
e) Medication documentation system used within the facility,
f) Proper storage, security, and disposal,
g) Process used for ordering medication, refills, and handling receipt of medications from the pharmacy,
h) Medication side effects, adverse reactions and errors,
Passing a test on medication management is an ambiguous accomplishment, as the test is not standardized within the industry, nor is it administered by a third party (i.e. CCLD or another regulatory/licensing board). Upon completion of the test, no state or national accreditation is issued; a record of completion, however, should be maintained by the facility in their personnel records.
Facilities with 16 or more residents are required to have a pharmacist or nurse review their facility's medication management program and procedures at least twice a year. Documentation of the review is mandated. Facilities with 15 or fewer residents are not required to seek such guidance.
Title 22, §87101(t)(2), defines "transfer trauma" ". . . means the consequences of the stress and emotional shock caused by an abrupt, involuntary relocation of a resident from one facility to another."