Bill to hike care-home fines faces key test

This article originally appeared in the U-T San Diego

A bill that would significantly raise fines on assisted living facilities that violate state law faces a showdown vote in Sacramento Thursday as key players seek a compromise to keep it alive.

The measure would mandate civil penalties of up to $15,000 if a violation caused the death of a resident, and would impose $1,000 fines for a host of lesser violations. At present, the maximum fine the state can impose for any violation at such homes is $150.

The bill was considered a shoo-in just weeks ago following a wave of media reports of problems in assisted living homes. Now, however, it must get through the Senate Appropriations Committee, where funding questions and lobbying can often sidetrack bills late in the legislative session. 

That deadline has sparked last-minute talks starting last week among representatives for Gov. Jerry Brown, the bill’s authors and advocacy groups for and against the bill.

Three sticking points could derail the bill and leave the $150 cap in place:

  • A group of operators of small assisted living homes contends that new fines could threaten their financial survival and therefore limit options for seniors. The group, 6Beds Inc., does not oppose higher fines for deaths or serious injuries, but is fighting the proposed $1,000 fines for offenses such as housing more seniors than allowed by law, and non-working smoke detectors and fire alarm systems.
  • The bill would cost the state at least $150,000 to launch the new fines, with ongoing costs of $150,000 to $300,000, according to a staff report. The state agency that would impose those fines has not calculated how much revenue the higher fees would generate.
  • Brown has not taken a public position. His administration last winter proposed a much broader plan for increasing fines, not just for assisted living homes, but for all state-licensed community care homes. The Legislature did not adopt that plan.

The legislation, introduced by Assembly Members Brian Maienschein (R-San Diego) and Mark Stone (D-Scotts Valley) is backed by the California Assisted Living Association, the state’s largest industry group, and California Advocates for Nursing Home Reform, the state’s best-known advocacy group for long-term care residents.

In a sign of the sensitive nature of the talks among advocacy groups and Brown’s staff, the offices of both Maienschein and Stone declined to comment this week on the status of the bill.

It is one of 16 bills introduced this year to tighten regulation of the state’s 7,570 licensed assisted living homes, including 638 such homes in San Diego County. The bills were introduced after news reports revealed incidents of abuse statewide. “Deadly Neglect,” a 2013 investigation by U-T San Diego and the CHCF Center for Health Reporting, documented the deaths of 27 seniors over five years due to neglect and poor care in San Diego County assisted living homes. 

Of the residents who died, 11 lived at homes with six or fewer licensed beds, three in homes with seven to 50 beds, five in homes with 51 to 200 beds, and eight in homes with 201 or more beds.

The existing law, written in 1985, prohibits regulators from imposing fines of more than $150 on a home, even when investigators have concluded that abuse or neglect at that home led directly to a resident’s death.

The state Department of Social Services, or DSS, typically does not announce such penalties to the public.

By contrast, the state Department of Public Health can issue penalties of up to $100,000 if a similar death occurs in a nursing home. In such cases, the department often sends press releases to media statewide.

The proposed bill would increase the fine for a death to range from $5,000 to $15,000 but does not require that DSS issue a press release in such cases.

Of the 27 deaths reported in the “Deadly Neglect” series, DSS issued fines in 12 deaths.

In some of the cases, state investigators looked into the deaths of residents, found problems with their care but chose not to issue fines.

In other cases, fines were imposed but not collected. From 2007 to 2013, the state collected only half of the $2.9 million in penalties it levied again assisted living homes across California, the U-T found.

The Maienschein/Stone bill to increase fines is considered key to reform package, since it determines the monetary clout at regulators’ disposal when they seek to punish problem homes.

In addition to population limits and fire safety measures, homes would be subject to $1,000 fines for such violations as lack of required supervision and the presence of an “excluded person” whom DSS has ruled cannot be on the premises of an assisted living home, due to former violations or criminal background.

“We’re asking that the $1,000 fine for smaller violations be scaled down for smaller facilities,” said Beth Miller, spokeswoman for 6Beds Inc. Such a high fine for fire violations, for instance, could add up quickly and even put a small facility at risk of closing, she said.

Two larger advocacy groups disagree.

Sally Michael, president of the California Assisted Living Association, said her group “believes $1,000 is an appropriate fine for fire sprinkler violations and all other violations categorized as ‘serious’ in the bill.”

The California Advocates for Nursing Home Reform also supports keeping the fine at $1,000 for serious items. “The only way to make sure that residents are safe from fire is to have a significant penalty attached to the rules,” said Tony Chicotel, a staff attorney at the group. “If you follow the rules, you won’t have to worry about this.”

Chicotel said that the $1,000 fines are even more critical since small homes are not required to have modern sprinkler systems.

This year, both groups had supported a bill that would have required assisted living homes with six or fewer licensed beds to have automatic fire sprinkler systems installed and working by 2019.

Since 1990, 20 people have died due to fires at assisted living facilities in California, according to a staff report presented to legislators.

That bill, authored by Assembly Member Steve Fox, (D-Palmdale), was supported by the state firefighters’ association and several fire agencies.

It was opposed by an assisted living industry group, the Community Residential Care Association of California, which represents about 800 residential care homes statewide. Its consultant, Denise Johnson, said last month that the group’s members are concerned about the cost of raising fines.

Fox’s spokeswoman, Sandra Kramer, said “we had a lot of opposition from the community care homes. They felt that installing fire sprinklers would have been cost-prohibitive for them.”

The bill died in an Assembly committee in April on a 7-4 vote.

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