Keep in touch with what’s happening in California about assisted living and RCFE legislation and related items.
Frequently Asked Questions
Title 22, Division 6, Chapter 8, Section 87468 lists some of the rights residents retain when moving into an assisted living facility. They are also enumerated in LIC 613C.
Specifically Title 22 enumerates 18 resident rights including the right to have visitors, including the right to visit privately during reasonable hours, and without prior notice, provided that rights of other residents are not infringed upon. A facility may not unilaterally restrict a resident’s telephone calls or visitors.
Having friends, family, business associates and all others requested by the resident to visit is an important aspect of socialization and allowing the resident to remain connected, involved, and feel loved and cared for. Failures in allowing a resident to have visitors is a violation of the resident’s personal rights, and worse – contributes to an elder’s isolation, depression, and loneliness.
Despite the clarity of Title 22 regarding the resident’s unequivocal right to receive visits by family, friends, ombudsman, advocacy representatives and all others the resident is willing to entertain, issues may arise through actions of a Public Guardian or Conservator. Generally a Public Guardian or Conservator can restrict visitors to the conserved resident; the legal powers of the Public Guardian or conservator take precedence over Title 22 Section 87468.
Assert your Rights: As always, if you feel your resident’s right to have visitors and phone calls is being restricted, document the circumstances, document the facts, and make a prompt complaint to CCL via telephone call to the duty work, or in writing using the LIC802 form, or a letter documenting your allegations and supporting information.
Notes in italics represent the views and/or experience of CARR regarding this topic and/or regulation.
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.
Whether to carry liability insurance is no longer left to the discretion of the licensee. Effective 7/1/2015 there is a law requiring every RCFE in the state to carry liability insurance compliant with the statute, Health and Safety Code 1569.605.
Because this is a new requirement, CARR recommends that consumers ask the licensee to produce proof of insurance to be assured the facility has the coverage required under the new law: $1,000,000 per occurrence, and $3,000,000 in aggregate.
This law was sponsored and drafted by CARR, introduced and carried by Speaker of the Assembly (Emeritus) Toni Atkins.
Anyone can submit an application to CCLD to open an RCFE.
Title 22 stipulates that CCLD needs "evidence satisfactory to the department that the applicant is of reputable and responsible character" (§87155) and that the applicant must meet and comply with all application requirements (i.e. completed application, attendance at Orientation and other Component reviews, payment of Licensing fees, etc).
Title 22, §87217(d)(1)-(4)
"No Licensee or employee shall*:
(1) accept appointment as a guardian or conservator of the person and/or estate of any resident,
(2) accept any general or special power of attorney for any resident,
(3) become substitute payee for any payments made to any resident [unless involving Social Security monies & licensee is representative payee], or
(4) become the joint tenant on any account specified in §87217(h) with a resident.
*except as provided in approved continuing care agreements.
Title 22 (§ 87156)
Application and annual renewal fees are based on the initial capacity of the facility.
- For 4-6 bed RCFE facility the application fee is $750; the annual renewal fee $350.
- For 16-30 bed facility the application fee is $1,500; the annual renewal fee $750.
- For 101-150 bed facility, the application fee is $3,004; the annual renewal fee $1,502.
Relative to other licensed facilities in California, maintaining a RCFE license could be considered inexpensive.
An Adult Day Health Care Facility annual licensing fee is $3,985.57 per facility.*
A Skilled Nursing Facility License fee is is $288.75 per bed.*
Other fees are assessed when Licensees wish to change the capacity of their facility ($25), change the physical address of their facility (50% of the established application fee), etc.
Revenues (per Title 22) collected from licensing fees shall be utilized for the purpose of ensuring the health and safety of all individuals provided care or supervision by Licensees and to support the activities of the licensing program, including but not limited to, monitoring facilities for compliance with licensing laws and regulations and other administrative activities in support of the licensing program. Failure of an applicant for licensure or a Licensee to pay all applicable and accrued fees (and civil penalties) shall constitute grounds for denial or forfeiture of a license.
It is CARR's observation based on months in the public file, and review of thousands of documents, that CCLD renews licenses even when the Licensee owes months-overdue Civil Penalties.
"CCLD" and "CCL" are acronyms for Community Care Licensing Division, the state agency within the Department of Social Services, responsible for licensing and regulating Residential Care Facilities for the Elderly (RCFEs). This website uses the terms interchangeably, except when the terms are used as part of a quoted Title 22 regulation.
Title 22 Section 87209 - Program Flexibility
Under this section of Title 22, a Licensee can submit a request for a written exception to retain a resident who has a prohibited or restricted health condition, and would otherwise have to move to a higher level of care.
Pursuant to Title 22, §87101(f)(1), a "facility hospice care waiver" means ". . . a waiver from the limitation on retention of residents who require more care and supervision than other residents and residents who are bedridden other than for temporary illness." This ". . . waiver granted by [CCLD] will permit the retention in a facility of a designated maximum number of terminally ill residents who are receiving hospice services from a hospice agency." The ". . . waiver will apply only to those residents who are receiving hospice care in compliance with a hospice care plan meeting the requirements. . ." of Title 22, §87633.
Hospice waivers are frequently posted near the facility license. A facility's license should also accurately reflect the number of state-approved hospice waivers.
Title 22 §87756
Reasons for Evaluations
- All RCFEs subject to unannounced visits by CCLD.
- Inspections are required every three years, as of 2017.
- Special circumstances (i.e. probationary license, etc) may require more frequent visits.
- CCLD is required to visit facilities as often as necessary to ensure quality care is provided.
- CCLD shall conduct annual unannounced visits to no less than 20% of facilities.
- Visits for complaint investigations are different than visits for facility evaluations.
Reasons for Deficiencies
A deficiency is defined by Title 22 as "any failure to comply with any provision of the act governing RCFEs and any other applicable regulations".
If a deficiency is found during an evaluation, LPAs are required to issue a notice of deficiency. However, if the deficiency is deemed minor and is corrected during the visit a notice of deficiency need not be issued according to Title 22.
If a deficiency is noted, the LPA must meet with the person in charge of the facility and discuss the noted deficiencies and together they must develop a plan for correcting each deficiency. The plan of correction must then be included on the notice of deficiency. The notice is then signed by both parties and should then be posted in a conspicuous location in the facility.
Copies of all notices of deficiencies are kept at the facility (as well as at CCLD in the facility's individual file).
Every RCFE must:
- place in a conspicuous place, copies of all licensing reports (LIC 809/Evaluations and LIC 9099/Complaints) that are substantiated and have been issued within the preceding 12 months.
- inform consumers in writing during the admissions process that these reports are available at the facility and at CCLD.
- provide consumers with the contact information for CCLD.
Title 22, §87157 CCLD issues a license to an applicant once the following conditions have been met:
1) A review by an LPA is conducted which includes an on-site survey of the proposed premises and a determination of the qualifications of the applicant.
2) A passing fire clearance has been secured from the State Fire Marshal.
3) A determination that the applicant and facility comply with all provisions in the Health and Safety Code and regulations in Title 22.
To retain a terminally ill resident, and permit her to receive care from a hospice agency, an RCFE must obtain a hospice waiver from Community Care Licensing (CCLD).
A hospice waiver, according to Title 22 (§87632), allows for variance with regard to a specific regulation based on a facility-wide need or circumstance which is not typically tied to a specific resident and which would otherwise not be allowed in an RCFE setting.
When a facility requests a hospice waiver it is requesting permission to accept any resident at any time in the future who may require hospice services. And since many services provided under hospice care go beyond the scope of practice for unlicensed professionals, the facility will require the assistance of a state and Medicare-certified hospice agency to provide this higher level of care.
Requests for hospice waivers are made to CCLD, in advance, by the facility. The facility must submit a written request that includes, but is not limited to, the following:
(1) Specification of the maximum number of terminally ill residents the facility wants to have at any one time.
(2) A statement by the Licensee that he has read the section in Title 22 pertaining to hospice care.
(3) A statement by the facility that the terms and conditions of all hospice care plans which are designated as the responsibility of the facility, or under the control of the facility, shall be adhered to by the facility. This is basically a promise by the facility to follow all the rules. For a narrative on "all the rules" : Providing Hospice Care.
Per Title 22, CCLD can deny a waiver request if the facility is not in substantial compliance. Waiver requests will not be approved unless the facility demonstrates the ability to meet the care and supervision needs of terminally ill residents and states a willingness to provide additional staff if required by the hospice plan.
CCLD is required to respond to a hospice waiver request within 30 days of receipt, either to notify the facility the request has been received, that the request is deficient, and/or that the request has been approved or denied.
When hospice services are required by a resident, Consumers should be aware that:
(1) A Licensee is only required to read the Title 22, § 87633, pertaining to hospice care. They are not required to have any other mastery of the requirements. When granting a hospice waiver, CCLD does take into consideration the facility's history of compliance. It is imperative that consumers review a facility's evaluations and complaints (LIC 809s & LIC 9099s) to evaluate for themselves the ability of a facility to continue to provide quality care when a resident is receiving hospice care.
(2) Title 22 (for RCFEs) contains no staffing requirements or resident-to-staff ratios for RCFEs. The regulations require only "sufficient staff" as determined by the facility and, at times, CCLD.
(3) When interviewing potential facilities, inquire about the facility's ability to care for hospice residents (experience, staffing levels, etc). While the resident may not require such services upon admission, he may need them in the future: moving at a later date, to a better-equipped facility, may not be a viable option.