Spring 2014 Elder Law Alert
| Citation | Vol. 20 No. 1 |
| Publication year | 2014 |
| Author | By Robyn B. Christo, Esq., Ellen Drews, Esq. and Ingrid Tung, Esq. |
By Robyn B. Christo, Esq., Ellen Drews, Esq. and Ingrid Tung, Esq.
This article provides a summary of selected 2013 elder law legislation and case law, as well as new bills currently pending before the state Legislature, that will be of particular interest to Quarterly readers.
1. Training Requirements
Assem. Bill No. 663, approved by Governor, October 9, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 675, effective January 1, 2014
Assembly Bill No. 663 amends Health and Safety Code sections 1562.3 and 1569.616 and Welfare and Institutions Code section 9719 to expand required training for administrators of adult residential care facilities and residential care facilities for the elderly, and long-term care ombudsmen. The expanded training is to include cultural competency and sensitivity in issues relating to the aging lesbian, gay, bisexual, and transgender community so as to address unique challenges and circumstances that can serve as barriers to such seniors in accessing needed services.
2. Prohibition Against Retaliatory Eviction
Assem. Bill No. 581, approved by Governor, September 9, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 295, effective January 1, 2014
Assembly Bill No. 581 amends Health and Safety Code sections 1539, 1568.07 and 1569.37 to prohibit residential care facilities for the elderly from retaliating against residents who file complaints with their local ombudsman. Retaliation includes "eviction or threat of eviction." This law is meant to encourage residents to report substandard conditions without fear of eviction.
3. Limit on Post-Death Fees/Assessments
Assem. Bill No. 261, approved by Governor, September 9, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 290, effective January 1, 2014
Assembly Bill No. 261 amends section 1569.884 and adds section 1569.652 to the Health and Safety Code to provide that residential care facilities for the elderly may not require advance notice to terminate an admission agreement upon death of a resident; may not impede removal of a deceased resident's personal belongings; must promptly refund advanced fees after the removal; and must provide written notice of contract termination and post-death refunds if post-death fees are assessed.
B. Other Elder and Dependent Adult Abuse Prevention and Recovery1. Confidentiality of Addresses
Assem. Bill No. 849, approved by Governor, October 9, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 676, effective January 1, 2014
Assembly Bill No. 849 amends Government Code sections 6206 and 6208.5 to increase accessibility of victims of elder or dependent adult abuse to an existing "Safe at Home" program under the Office of the Secretary of State to prevent further abuse. The "Safe at Home" program enables state and local agencies to accept and respond to requests for the public records of victims of domestic violence, sexual assault, or stalking without disclosing the name or address of a victim. Under the new law, victims of elder or dependent adult abuse may apply for a substitute mailing address at an expanded range of community-based assistance programs, including agencies that serve victims of elder or dependent adult abuse.
2. Victims of Crime Act: Elderly Adults.
Sen. Bill No. 60, approved by Governor, August 26, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch.14, effective January 1, 2014
Senate Bill No. 60 amends the California Victims of Crime Act (Gov. Code, sections 13955 and 13957) to include elderly and dependent adult victims of financial crimes among those who are eligible for compensation by the Restitution Fund of California Victim Compensation and Government Claims Board.
3. Statutory Fee-Shifting
Assem. Bill No. 38, approved by Governor, August 13, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 99, effective January 1, 2014
Assembly Bill No. 38 amends Probate Code section 859, which governs remedies for, inter alia, the wrongful taking of an elder or dependent adult's property (including by undue influence or by elder financial abuse). Under the new provisions, in addition to "all available legal remedies" and double damages, courts now have discretion to award petitioner's reasonable attorney's fees and costs. The bill also adds a similar fee-shifting provision to Probate Code section 4231.5, to remedy takings committed by someone acting under a power of attorney.
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4. Notifying Next-Of-Kin of Hospital Transfers
Assem. Bill No. 974, approved by Governor, October 10, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 711.
Assembly Bill No. 974 amends Health and Safety Code section 1317.2. Existing law prohibits the transfer of a person needing emergency services from one hospital to another for any nonmedical reason, unless prescribed conditions are met and makes a knowing and intentional violation of those provisions a crime. Assembly Bill No. 974 expands this law to require the hospital, before transferring a patient for a nonmedical reason, to ask the patient if there is a preferred contact person to be notified, make a reasonable attempt to contact, and alert that person of the proposed transfer. If the patient is unable to respond, the hospital must try to identify and alert the preferred contact person or next of kin. The hospital must document its efforts in the patient's medical record.
5. Residential Tenancies
Sen. Bill No. 612, approved by Governor, August 19, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch.130, effective January 1, 2014
This Act amends, repeals, and adds section 1946.7 of the Civil Code and amends section 1161.3 of the Code of Civil Procedure relating to residential tenancy. A tenant is authorized to notify the landlord in writing that he or she or a household member was a victim of an act of domestic violence, sexual assault, stalking, or abuse of an elder or dependent adult and that the tenant intends to terminate the tenancy. Among other things, this act adds "documentation from a qualified third party based on information received while acting in his or her professional capacity," to the list of documents with which a tenant may substantiate the need for early termination of a lease or rental agreement based upon domestic violence, sexual assault, stalking, elder or dependent adult abuse, or human trafficking. A qualified third party is defined as a medical professional, health care provider, licensed mental health services provider, social worker, or domestic violence counselor. This act prohibits landlords from disclosing information received under these provisions without written consent.
6. Home Care Services Consumer Protection Act of 2013
Assem. Bill No. 1217, approved by Governor, October 13, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 790, effective January 1, 2015
Assembly Bill No. 1217 enacts the Home Care Services Consumer Protection Act of 2013 (the "Act"). The Act provides for the licensure and regulation of home care organizations, as defined by the State Department of Social Services, and registered home care aides. It sets forth requirements for home care aides, including training, background clearances, submission to the Department of Justice of a signed declaration under penalty of perjury regarding any prior criminal convictions and demonstration that the home care aide is free of tuberculosis. The law requires the State Department of Social Services to establish and continuously update an online registry, which includes specified information relating to home care aide applicants and registered home care aides. The Act prescribes enforcement procedures, fines, and penalties for violations of the act by a home care organization or a home care aide. It makes it a misdemeanor for one to falsely represent or present oneself as a home care aide applicant or registered home care aide, and makes anyone who violates these provisions or willfully or repeatedly violates a rule or regulation promulgated under these provisions guilty of a misdemeanor. Assembly Bill No. 1217 was spurred in part by an April 2011 study by the California Senate Office of Oversight and Outcomes, which documented abuse and neglect of older adults by caregivers who had not been screened.
7. Office of the State Long-Term Care Ombudsman
Sen. Bill No. 609, approved by Governor, October 3, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch.521, effective January 1, 2014
Senate Bill No. 609 amends Welfare and Institutions Code sections 9714, 9714.5, and 9732 to create the Long-Term Care Ombudsman Program Improvement Act Account ("Act"). The Act requires the Office of the State Long-Term Care Ombudsman to deposit funds it receives as gifts and contributions into the account and to use those funds to support the operations and programs of the office. The Act also creates the Access to Facilities Account, and requires penalties the office receives to be deposited into this account to fund training and reimburse the travel expenses of local ombudsman programs. The bill increases the maximum civil penalty amount from $1,000 to $2,500 for each incident of willfully interfering with a lawful action of the office, including visits to facilities, and requires the director to initiate an action if the penalty is not paid within 30 days of the assessment.
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8. Uniform Standard for Common Law Undue Influence
Assem. Bill No. 140 approved by Governor, October 9, 2013 (2013-2014 Reg. Sess.) Stats. 2013, ch. 660, effective January 1, 2014
This bill attempts to "supplement the common law meaning of undue influence" by defining the term as "excessive persuasion that causes another person to act or refrain from acting by overcoming that person's...
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