Existing law, including the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act, requires the licensure and regulation of certain residential health and care facilities and establishes specified rights for the residents of these licensees. Existing law makes a violation of certain of these provisions or a willful or repeated violation of any rule or regulation promulgated under these provisions a crime.

This bill would enact the Resident Access Protection Act. The act would provide a resident of a long-term care facility with the right to in-person, onsite access to a visitor or a health care and social services provider during a public health emergency in which visitation rights of residents are curtailed by a state or local order, as specified. The act would prescribe how a resident may leave their long-term care facility on outings during a public health emergency. The act would require a long-term care facility, among other things, to provide safety protocols required of care staff, visitors, and health and social services providers during a public health emergency to the residents, resident representatives, and visitors in writing. A violation of the act would be a crime and subject to civil penalties. By creating a new crime, this bill would impose a state-mandated local program.

The bill would require certain facilities licensed pursuant to the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act to comply with these requirements. By expanding the duties of these health care facilities, this bill would expand an existing crime, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, including the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act, requires the licensure and regulation of certain residential health and care facilities and establishes specified rights for the residents of these licensees. Existing law makes a violation of certain of these provisions or a willful or repeated violation of any rule or regulation promulgated under these provisions a crime.

This bill would enact the Resident Access Protection Act. The act would provide a resident of a long-term care facility with the right to in-person, onsite access to a visitor or a health care and social services provider during a public health emergency in which visitation rights of residents are curtailed by a state or local order, as specified. The act would prescribe how a resident may leave their long-term care facility on outings during a public health emergency. The act would require a long-term care facility, among other things, to provide safety protocols required of care staff, visitors, and health and social services providers during a public health emergency to the residents, resident representatives, and visitors in writing. A violation of the act would be a crime and subject to civil penalties. By creating a new crime, this bill would impose a state-mandated local program.

The act would authorize a state or local government order to supersede its provisions during a declared state of emergency, local emergency, health emergency, or local health emergency to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except as specified. The bill would authorize a state or local government order to specify the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required by staff. The act would provide that its provisions may not otherwise be suspended, superseded, or modified.

The bill would require certain facilities licensed pursuant to the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act to comply with these requirements. By expanding the duties of these health care facilities, this bill would expand an existing crime, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, including the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act, requires the licensure and regulation of certain residential health and care facilities and establishes specified rights for the residents of these licensees. Existing law makes a violation of certain of these provisions or a willful or repeated violation of any rule or regulation promulgated under these provisions a crime.

This bill would enact the Resident-Designated Support Persons Resident Access Protection Act. The act would provide a resident of a long-term care facility with the right to in-person, onsite access to a designated support person visitor or a health care and social services provider during a public health emergency in which visitation rights of residents are curtailed by a state or local order, as specified. The act would provide prescribe how a resident may leave their long-term care facility on outings during a public health emergency. The act would require a long-term care facility, among other things, to provide safety protocols required of care staff, designated support persons, and other visitors to the residents, resident representatives, and residents designated support persons orally and visitors, and health and social services providers during a public health emergency to the residents, resident representatives, and visitors in writing. A violation of the act would be a crime and subject to civil penalties. By creating a new crime, this bill would impose a state-mandated local program.

The act would authorize a state or local government order to supersede its provisions during a declared state of emergency, local emergency, health emergency, or local health emergency to limit the number of designated support persons visitors or health care and social services providers who may simultaneously visit a resident, except as specified. The bill would authorize a state or local government order to specify the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required by staff. The act would provide that its provisions may not otherwise be suspended, superseded, or modified.

The bill would require certain facilities licensed pursuant to the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act to comply with these requirements. By expanding the duties of these health care facilities, this bill would expand an existing crime, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, including the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act, requires the licensure and regulation of certain residential health and care facilities and establishes specified rights for the residents of these licensees. Existing law makes a violation of certain of these provisions or a willful or repeated violation of any rule or regulation promulgated under these provisions a crime.

This bill would enact the Resident-Designated Support Persons Act. The act would provide a resident of a long-term care facility with the right to in-person, onsite access to a designated support person or a health care and social services provider during a public health emergency in which visitation rights of residents are curtailed by a state or local order, as specified. The act would provide how a resident may leave their long-term care facility on outings during a public health emergency. The act would require a long-term care facility, among other things, to provide safety protocols required of care staff, designated support persons, and other visitors to the residents, resident representatives, and residents designated support persons orally and in writing. A violation of the act would be a crime and subject to civil penalties. By creating a new crime, this bill would impose a state-mandated local program.

The act would authorize a state or local government order to supersede its provisions during a declared state of emergency, local emergency, health emergency, or local health emergency to limit the number of designated support persons or health care and social services providers who may simultaneously visit a resident, except as specified. The act would provide that its provisions may not otherwise be suspended, superseded, or modified.

The bill would require certain facilities licensed pursuant to the California Residential Care Facilities for the Elderly Act and the California Community Care Facilities Act to comply with these requirements. By expanding the duties of these health care facilities, this bill would expand an existing crime, thereby imposing a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2075 (Alvarez) - Resident Access Protection Act

Bill Summary:

AB 2075 would require each resident of a long-term care facility, as defined, to have the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency in which visitation rights of residents are curtailed by a state or local order.

Fiscal Impact:

• The California Department of Public Health (CDPH) estimates ongoing, annual costs of $333,000 per year during the next public health emergency to investigate complaints about facility visitation safety protocols (Licensing and Certification Fund).
• The California Department of Social Services (CDSS) estimates General Fund costs of $854,000 in 2024-25 and $1,489,000 in 2025-26 and ongoing thereafter for state administration.

Background:

The CDPH licenses and regulates long-term care (LTC) health facilities, which include skilled nursing facilities, intermediate care facilities, and congregate living health facilities. The CDSS licenses nonmedical Adult Residential Facilities and Residential Care Facilities for the Elderly.

In 2023, the California Department of Aging convened an LTC Facility Access Policy Workgroup to develop recommendations for policies regarding access to LTC facilities during states of emergency, with consideration for the impact that restricted access has on the mental health of residents, families, and friends and on the physical health and safety of residents. In the workgroup’s October 5, 2023 report to the Legislature, there were recommendations across six different subject matters, including the following: (1) LTC Facility Access and Visitation for Resident-Designated Support Persons; (2) LTC Facility Access and Visitation for Health Care and Social Services Providers; (3) LTC Facility Access and Visitation for Resident Advocates, Surveyors, and Others; (4) Access to Personal Protective Equipment and Other Emergency Supplies for Visitation; (5) Process for Grievances and Appeals Related to Visitation Access; and, (6) Ongoing Collaboration Between Stakeholders.

Proposed Law:

Specific provisions of the bill would:

• Require each resident of an LTC facility, as defined, to have the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency in which visitation rights of residents are curtailed by a state or local order.
• Authorize an LTC facility to require visitors and health care and social services providers to adhere to safety protocols not greater than required of facility staff during a public health emergency for the duration of their visit.
• Provide that a state or local government order may deny resident access to visitors and health care and social services providers during a public health emergency for up to seven days; and that the denial may be extended up to an additional seven days if the board of supervisors or city council, whichever is applicable to the jurisdiction, or state department approves the denial of access for that additional period.
• Authorize a state or local government order to supersede these provisions during a declared state of emergency, local emergency, health emergency, or local health emergency, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or require visitors or health care and social services providers to follow the same safety protocols required of facility staff.
• Provide that violations of these provisions are subject to civil penalties, as specified.

Related Legislation:

AB 2549 (Gallagher) would revise existing procedures for visitations for patients residing in health facilities. The bill is currently on the suspense file in this committee.

-- END --

SENATE COMMITTEE ON HUMAN SERVICES

Senator Alvarado-Gil, Chair

2023 - 2024 Regular

Subject: Resident Access Protection Act

SUMMARY

This bill would provide a resident of a long-term care facility, either medical or non-medical, with the right to in-person, onsite access to a visitor or health care and social services provider during a public health emergency in which visitation rights of residents are curtailed by a state or local order. This bill makes a violation of this Act a crime subject to civil penalties. This bill would authorize a state or local government order to deny resident access to visitor and health care and social services providers for up to seven days during a public health emergency, and authorizes a seven-day extension, as specified. This bill would provide that the provisions of the Act may not otherwise be suspended, superseded, or modified, except by the Governor, as specified.

ABSTRACT

Existing Law:

1. Licenses and regulates long-term care facilities by the California Department of Public Health (CDPH). Long-term care facilities include skilled nursing facilities, intermediate care facilities, intermediate care facilities/developmentally disabled, intermediate care facilities/developmentally disabled habilitative, intermediate care facilities/ developmentally disabled nursing, and congregate living health facilities. (Health and Safety Code [HSC] 1250, et seq.; HSC 1418)
2. Establishes a civil penalty structure for long-term care facilities, categorized into “AA,” “A,” and “B” violations. “A” violations are where CDPH determines that the violation presents either imminent danger of death or serious harm, or a substantial probability that death or serious harm to residents would result; “AA” violations (the most severe) are those that meet the criteria for a class “A” violation that CDPH determines was a direct proximate cause of the death of a resident of an long-term care facility; and, “B” violations are those that CDPH determines have a direct or immediate relationship to the health, safety, or security of long-term care facility residents. (HSC 1424)
3. Provides for the licensure of community care facilities by the California Department of Social Services (CDSS), which includes residential facilities and adult day programs, among other categories. “Residential facility” is defined as any family home, group care facility, or similar facility determined by CDSS, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual. Defines, in regulations, “adult residential facility” to mean any facility of any capacity that provides 24-hour-a-day nonmedical care and supervision to persons 18 years of age through 59 years of age. (HSC 1500 et seq., HSC 1502; 22 CCR 80001(a)(5))
4. Licenses and regulates residential care facilities for the elderly (RCFEs) as a separate category within the licensing structure of CDSS, as a housing arrangement chosen voluntarily by persons 60 years of age or older, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided for persons. (HSC 1569 et seq.)
5. Establishes the Office of the Long-Term Care Ombudsman Program within the California Department of Aging, pursuant to a grant from the federal government under the Older Americans Act, as specified, to hear, investigate, and resolve complaints made by or on behalf of patients or residents of long-term care facilities relating to matters that may affect the health, safety, welfare, and rights of these patients or residents. (WIC 9700 et seq.)
6. Permits representatives of the Office of the State Long-Term Care Ombudsman to have the right to enter long-term care facilities and have unescorted, unhindered movement within them for the purposes of identifying, hearing, investigating, and resolving complaints, observing and monitoring conditions of residents and facilities, speaking confidentially with residents, and providing services to assist residents in protecting their health, safety, welfare, and rights. Requires entry to be provided at any time deemed necessary and reasonable by the Long-Term Care Ombudsman. (WIC 9722)
7. Establishes the California Emergency Services Act, which provides the Governor with the authority to proclaim a state of emergency, and provides the Governor, during a state of emergency, with complete authority over all agencies of the state government and the right to exercise within the area all police power vested in the state by the Constitution and laws of California, and in exercising these powers, gives the Governor the authority to promulgate, issue, and enforce such orders and regulations as he deems necessary. Permits the Governor to suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, where the Governor determines that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency. (Government Code [GOV] 8625; GOV 8627; GOV 8571)
8. Defines three conditions of emergency for purposes of the Emergency Services Act, including a “state of war emergency,” a “local emergency” that is within the territorial limits of a city or county, and a “state of emergency,” which could be caused by air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, or an earthquake or other conditions, which are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county or city and require the combined forces of a mutual aid region or regions to combat. (GOV 8558)
9. Gives the State Public Health Officer, as the director of CDPH, broad authority to detect, monitor, and prevent the spread of communicable disease in the state, including to adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any of the contagious, infectious, or communicable diseases, if in the opinion of CDPH, the action is necessary for the protection of the public health. (HSC 120130, et seq.)
10. Permits the Public Health Officer or a local health officer, appointed by a county, to declare a health emergency or a local health emergency, respectively, whenever there is a hazardous waste spill or whenever there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, noncommunicable biologic agent, toxin, or radioactive agent. Permits the Public Health Officer or the local health officer to take specified actions during a health emergency or a local health emergency. (HSC 101080)
11. Requires local health officers knowing or having reason to believe that any case of reportable diseases or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, to take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases. (HSC 120175)

This Bill:

1. Makes the following legislative findings and declarations:
   1. The COVID-19 pandemic had a devastating impact on residents of long-term care facilities. In addition to sickness and death due to COVID-19 infections, residents suffered incalculable loss due to prolonged visitation restrictions that separated residents from their families, friends, and essential support persons.
   2. Support persons with access to in-person contact provide, among other things, companionship, psychosocial support, cognitive stimulation, communication assistance, assistance with daily living tasks, such as eating, dressing, and hygiene support, meaningful connection, relational continuity, decision making assistance, transportation, and physical activities, and fulfill other personal needs for long-term care facility residents.
   3. It is imperative, at all times, for individuals residing in long-term care facilities to have access to family members, chosen family, and friends. The Legislature affirms that a resident having physical access to family members or friends who provide support is necessary to mitigating a decline in the resident’s physical, mental, and emotional well-being. Therefore, when a public health emergency precipitates government-ordered visitation restrictions, the Legislature deems it necessary to allow residents to have immediate and unscheduled physical access to visitors without restriction on time, frequency, physical contact, or proximity, with certain exceptions.
   4. While visitors provide essential support to long-term care residents, their access should not be seen as a substitute for consistent, ongoing care from facility staff.
2. Establishes the Resident Access Protection Act.
3. Defines the following terms:
   1. “Compassionate care visit” means an in-person, onsite social interaction for a resident whose health has sharply declined, is experiencing a significant change in condition, or is otherwise suffering. This includes, but is not limited to, end of life or hospice care, a cessation of eating or drinking or significant weight loss, transition to a new care setting, grief, an emergency, as defined in HSC 1418.8(a)(1), or a significant or rapid decline in mental or emotional health.
   2. “Health care and social services provider” means an individual who is not a staff or visitor but provides health care or social support to a resident. This includes, but is not limited to, a health care worker, hospice provider, paid caregiver, personal care assistant, care manager, dentist, social worker, case manager, financial planner, conservator, and spiritual care provider.
   3. “Long-term care facility” means any of the facilities listed in HSC 1418 or HSC 1502(a)(1) and WIC 9701(b), unless excluded by any of those provisions. Specifies that “long-term care facility” does not include facilities operated by the Department of Corrections and Rehabilitation.
   4. “Public health emergency” means a public health-related condition that results in the declaration of a state of emergency or local emergency, as defined in GOV 8558, or the declaration of a health emergency or local health emergency, as described in HSC 101080, and that triggers a state or local government order to restrict the visitation rights of residents in a long-term care facility. Provides that a public health-related condition may include, but is not limited to, a natural disaster, an outbreak of an infectious disease, or a bioterrorist attack, if within the scope of HSC 101080 or GOV 8558.
   5. “Resident” means a resident or patient of a long-term care facility, except a person who is either incarcerated within an institution under the jurisdiction of the Department of Corrections and Rehabilitation or who the Department of Corrections and Rehabilitation has placed in a long-term care facility.
   6. “Resident representative” means an individual who has authority to act on behalf of the resident, including, but not limited to, a conservator, guardian, person authorized as agent in the resident’s advance health care directive, the resident’s spouse, registered domestic partner, or family member, a person designated by the resident to act as a representative, or other surrogate decision maker designated in accordance with statutory and case law.
   7. “Staff” means an individual employed by, or contracted directly with, the long-term care facility and who provides care to residents.
   8. “Visitor” means an individual who visits with a resident with the consent of the resident or resident representative.
4. Requires each resident of a long-term care facility to have the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency in which visitation rights of residents are curtailed by a state or local order.
5. Provides that, at the discretion of the resident or their representative, a visitor and health care and social services providers shall have the right to enter the resident’s dwelling and provide private support or care. Allows the long-term care facility to limit the access of a visitor or health care and social services provider within the long-term care facility to the resident and to the areas in which the resident resides or receives care, consistent with the state or local order.
6. Requires a long-term care facility to allow a resident to have their visitor and health care and social services provider be physically present, consistent with the same hours of visitation required when there is no public health emergency.
7. During a public health emergency, provides that a resident of a long-term care facility shall have the right to leave the facility on outings subject to a state or local government order prescribing the safety protocols governing their outing and return. Requires these safety protocols to not exceed what is required of staff.
8. Allows a long-term care facility to require visitors and health care and social services providers to adhere to safety protocols not greater than required of facility staff during a public health emergency for the duration of their visit. Requires the long-term care facility to provide personal protective equipment and testing resources to each visitor, to the extent that those resources have been made readily available to the long-term care facility by state or local entities for this purpose. Provides that the provision of personal protective equipment and testing resources to visitors is not intended to inhibit access to emergency supplies for staff. Provides that visitors may use their own supplies so long as they meet or exceed the minimum standards set forth by state or local order.
9. Requires a long-term care facility to provide safety protocols required of care staff, visitors, and health and social services providers during a public health emergency to the residents, resident representatives, and visitors in writing.
   1. Requires the facility to provide the required safety protocols in the individual’s primary or preferred language, if made available to the facility by state or local entities.
   2. Requires changes in safety protocols to be communicated, as soon as practically possible, to the residents, resident representatives, and visitors in writing in the individual’s primary or preferred language, if made available to the facility by state or local entities.
   3. If the individual is hearing impaired or vision impaired, requires the long-term care facility to provide the required protocols in an accessible format, if made available to the facility by state or local entities.
   4. Provides that a long-term care facility shall not require visitors and health care and social services providers to adhere to safety protocols that have not been communicated as set forth by these provisions. Specifies that this does not preclude a long-term care facility from informing a visitor upon their arrival of updated protocols or recent changes in protocols that impact their role as a visitor.
10. Provides that a state or local government order may deny resident access to visitors and health care and social services providers during a public health emergency for up to seven days. Allows the denial to be extended up to an additional seven days if the board of supervisors or city council, whichever is applicable to the jurisdiction, or state department approves the denial of access for that additional period.
11. Provides that a state or local government order may supersede this chapter during a declared state of emergency, local emergency, health emergency, or local health emergency, as described in HSC 1439.70, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or require visitors or health care and social services providers to follow the same safety protocols required of facility staff. Provides that a state or local government order may state the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required of staff.
    1. Provides that this chapter may not otherwise be suspended, superseded, or modified.
    2. Specifies that this chapter does not prohibit the Governor from exercising the powers granted to the Governor under the California Emergency Services Act (Chapter 7 of Division 1 of Title 2 of GOV). Requires the Governor, before issuing an order that restricts in-person visitation to a greater extent than otherwise permitted under this chapter, to make a finding that the specific restrictions are necessary to protect the public health and stating why the public health cannot be protected through less restrictive means. For purposes of this chapter, prohibits this authority from being delegated, including to department directors or agency secretaries.
12. States a violation of this chapter shall be treated as a violation under Chapter 2 (commencing with HSC 1250), Chapter 2.4 (commencing with HSC 1417), or Chapter 3.2 (commencing with HSC 1569). For purposes of civil penalties, specifies that a violation shall constitute a class “B” violation, as defined in HSC 1424(e) for long-term health care facilities, or shall be subject to a civil penalty, as described in HSC 1569.49(a) for RCFEs.
    1. Provides that this chapter does not supersede or otherwise limit the statutory, regulatory, or other legal authority of government surveyors and inspectors, the long-term care ombudsman, patient advocates, law enforcement officials, and other officials to access long-term care facilities or residents in accordance with state or federal law, including WIC 9718.5.
13. Requires every residential facility to abide by the provisions of this Act.
14. Requires every RCFE to abide by the provisions of this Act.
15. States that no reimbursement is required by this Act pursuant to Section 6 of Article XIII B of the California Constitution.

FISCAL IMPACT

According to the Assembly Appropriations Committee analysis,

1. “Ongoing costs of an unknown amount, potentially in the hundreds of thousands of dollars annually, to the CDPH to ensure long-term care facilities comply with the provisions of this bill (Licensing and Certification Fund).
2. “CDSS estimates costs of $1.7 million for nine new staff positions in the first year and $2.8 million to add another seven staff positions in the second year, and $2.7 million ongoing, to ensure residential care facilities and RCFEs comply with the provisions of this bill (General Fund). CDSS did not explain the new staff responsibilities, nor whether it would incur the costs regardless of the occurrence of a public health emergency.

“According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.”

BACKGROUND AND DISCUSSION

Purpose of the Bill:

According to the author, “COVID-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of Long-Term Care Facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the legislature commissioned a work study group composed of state agencies and stakeholders representing public health officials, long-term care facility operators, and residents to create recommendations for balancing public safety and ensuring visitation is maintained in Long-Term Care Facilities. Taking all perspectives into account, the work group concluded that this separation had a huge impact on resident’s well-being and gave a set of policy recommendations that struck this balance. AB 2075 recognizes the importance loved ones play in the mental and physical health of Long-Term Care residents by codifying these recommendations.”

Long-Term Care Facilities

Sometimes referred to as assisted living facilities, RCFEs are responsible for providing housing, housekeeping, supervision, 24-hour staffing, and personal care assistance with activities of daily living, such as hygiene, dressing, eating, and walking, to individuals ages 60 and older. California’s network of RCFEs ranges from small homes serving a handful of residents to larger RCFEs that can house over 100 residents in communities across the state. This level of care and supervision is for people who are unable to live by themselves but who do not need 24-hour nursing care. RCFEs are considered non-medical facilities and are not required to have nurses, certified nursing assistances, or doctors on staff. RCFEs are licensed and overseen by CDSS. As of March 31, 2024, there were over 7,600 licensed RCFEs with a capacity to serve about 204,000 residents.^[1]

Long-term care facilities that provide health care include Skilled Nursing Facilities and Intermediate Care Facilities. Skilled Nursing Facilities are health facilities that provide skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. Intermediate Care Facilities are health facilities that provide inpatient care to ambulatory or non-ambulatory patients who have recurring needs for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. Skilled Nursing Facilities and Intermediate Care Facilities are licensed and overseen by the Department of Public Health. Skilled Nursing Facilities and Intermediate Care Facilities are under the purview of the Senate Health Committee.

Visitation Limitations During the Pandemic

At the beginning of the COVID-19 pandemic, after an outbreak at a nursing home in Washington followed by nursing homes elsewhere, the Centers for Medicare and Medicaid Services (CMS) issued guidance in March 2020 that restricted all visitors to nursing homes, without an exception for long-term care ombudsmen. Over the course of this pandemic, the guidance from CMS, as well as guidance from CDPH and CDSS, evolved in response to changing conditions. Vaccination clinics began for long-term care residents in December 2020, followed by a sharp decline in COVID-19 cases and deaths. CMS lifted restrictions on visitors to nursing homes on March 10, 2021, allowing for responsible indoor visitation at all times and for all residents, with certain exceptions for facilities in counties with high positivity rates and low vaccination rates.

In September 2020, CMS convened the Coronavirus Commission on Safety and Quality in Nursing Homes (Commission), which released a report addressing safety and quality in nursing homes in relation to the public health emergency. The Commission found that while restrictions on visitation protected the physical health of residents, these restrictions created substantial harm, including loneliness, anxiety, and depression among residents, and distress for families who were unable to assess the well-being and safety of loved ones. The Commission concluded that visitation is a vital resident right and recommended updated in-person guidance to enable safe visitation, including visitation by long-term care ombudsman representatives.

Human Rights Watch raised concerns over neglect, isolation, and deteriorating quality of care affecting nursing home residents in the U.S. during the pandemic. Their report^[2] in May 2021 documented problems such as extreme weight loss, dehydration, untreated bedsores, inadequate hygiene, mental and physical decline, and inappropriate use of psychotropic mediations. The report also cites an analysis by the Associated Press that approximately 40,000 excess deaths (not from COVID-19) occurred in U.S. nursing homes between March and November 2020. Understaffing in facilities, combined with restrictions on visitations from family members who usually assisted with resident care, contributed to heightened concerns about neglect and inadequate care. Human Rights Watch also noted that CMS prohibiting long-term care ombudsmen from entering facilities contributed to reduced transparency into nursing home operations.

While infection protocols were ever-changing from the earliest days and continued over the following two years, isolation of facility residents remained untreated as a health determinate. During the COVID-19 pandemic, CDPH issued a large number of All Facility Letters, with the majority impacting care in skilled nursing facilities. CDSS also put out a large number of Provider Information Notices. Care facilities were dealing with COVID-19 outbreaks, increased infection protocols, staffing shortages and more. As these long-term care facilities were attempting to follow guidelines set forth by CDPH and CDSS, the value of in-person visitation was deprioritized. The morbidity associated with COVID-19 isolation is still data that remains elusive.

The State Long-Term Care Ombudsman, which is tasked with identifying, investigating, and resolving complaints made by or on behalf of long-term care residents, received over 29,000 complaints in 2020, and over 40,000 complaints in 2021, an increase of 37 percent. The most common complaints in 2020 related to violations of residents’ rights, including abuse, gross neglect, and exploitation.

Long-Term Care Facility Access Policy Workgroup

In 2022, the Legislature commissioned the Long-Term Care Facility Access Policy Workgroup (Workgroup) to develop recommendations for policies regarding access to long-term care facilities during states of emergency, including, but not limited to, visitation policies. As defined by the Legislature, the Workgroup was comprised of the California Department of Aging, the Office of the State Long-Term Care Ombudsman, CDPH, CDSS, and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates. A report with the findings of the working group was submitted to the Legislature in the fall of 2023. The main findings included the following:

1. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that Resident-Designated Support Persons be able to conduct in-person visits with long-term care facility residents subject to the same safety protocols as long-term care facility staff.
2. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that health care and social services providers not employed by the long-term care facility be able to access a long-term care facility and, when relevant, conduct in-person visits with long-term care facility residents, subject to the same safety protocols as long-term care facility staff.
3. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that individuals who have access to enter long-term care facilities through legal, statutory, regulatory, or similar authority be able to access a long-term care facility and, when relevant, conduct in-person visits with long-term care facility residents, subject to the same safety protocols as long-term care facility staff.
4. In a state of emergency in which the emergency supplies are limited across the board and in which state, county, and local authorities are involved in supply distribution, the workgroup recommends that state, county, and local authorities consider Resident-Designated Support Persons to be among the top priority populations for any emergency supplies required in order to adhere to long-term care facility safety protocols.
5. The workgroup recommends that state long-term care facility licensing agencies provide clear communication on long-term care facility visitation standards and an accessible process for submitting grievances and appeals in situations where visitation is not made available as defined in this workgroup’s recommendations.
6. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that a representative group of stakeholders be convened at regular intervals to discuss issues related to long-term care facility visitation and provide a collaborative forum for those impacted by the policies to provide feedback to licensing agencies and other key decision makers.

This bill seeks to address the recommendations in numbers 1, 2, 3, and 5. A previous version of this bill’s language used the term “Designated Support Persons,” as recommended in the Workgroup recommendations. However, according to the bill sponsor, there was concern from facilities that they would need to maintain and enforce a list of Designated Support Persons in order to limit entry into a facility, which could become an administrative burden. As a result of this concern, “Designated Support Persons” was changed to “visitor.” This change away from a designated contact has the potential to allow a much broader group of people to enter facilities and visit residents.

Although it does not explicitly address recommendation 3 to allow access to individuals who have access to enter long-term care facilities through legal, statutory, or regulatory authority, the current language using the term “visitor” effectively allows these individuals, such as the State Long-Term Care Ombudsman or their representatives, to enter facilities and visit residents.

This bill does not address recommendation 4. The bill requires a long-term care facility to provide personal protective equipment and testing resources to each visitor to the extent that these resources have been made readily available to the facility by state or local entities. The bill does not specify what would happen should these supplies be unavailable or in short supply at the facility or local or state level.

This bill also does not address recommendation 6. The bill allows a state or local government to deny resident access to visitors and health care and social services providers during a public health emergency for up to seven days, and allows an extension of an additional seven days if approved by the board of supervisors or city council, whichever is applicable, or the state department.

Related/Prior Legislation:

AB 2549 (Gallagher, 2024) would require a health facility to develop alternate visitation protocols, if circumstances require the health facility to restrict public access to the facility due to health or safety concerns, that allow visitation to the greatest extent possible while maintaining client health and safety. AB 2549 would prohibit a health facility from prohibiting in-person visitation in end-of-life situations. AB 2549 would authorize a health facility to require visitors to adhere to personal protective equipment and testing protocols not greater than those required of facility staff for the duration of their visit, and require the facility to provide personal protective equipment and testing resources to each visitor for a patient in an end-of-live situation, as specified. AB 2549 is pending in the Senate Appropriations Committee.

AB 1855 (Nazarian, Chapter 583, Statutes of 2022) prohibited a skilled nursing facility or residential care facility from denying entry to a representative of the State Long-Term Care Ombudsman acting in their official capacity.

AB 178 (Ting, Chapter 45, Statutes of 2022) included defining language for the Long-Term Care Facility Access Policy Workgroup to “develop recommendations regarding best policies and practices for long-term care facilities during public health emergencies.”

AB 2546 (Nazarian, 2022) would have enacted the Resident-Designated Support Persons Act. The Act would have, among other things, allowed each long-term care resident the right to in-person, onsite access to a minimum of two designated support persons during any public health emergency; granted the designated support person certain rights to access the facility to visit the resident; and authorized a facility to require a designated support person to adhere to infection protocols not greater than required of care staff during a public health emergency. The bill language was amended in Assembly Health Committee that included language for the working group established by AB 178. AB 2546 was later gutted and amended to a bill outside of this committee’s jurisdiction.

AB 2171 (Wieckowski, Chapter 702, Statutes of 2014) established a bill of rights for residents of RCFEs.

COMMENTS

This bill seeks to protect the right to have visitors for residents in both medical and non-medical long-term care facilities. Strict limitations on visitation during the COVID-19 pandemic contributed to feelings of isolation and poor mental health on top of the extreme uncertainty during an unprecedented global health emergency.

This bill has been amended to address implementation concerns and make the language compliant with the California Emergency Services Act. Recent amendments to allow a state or local government order to deny visitation for up to seven days with the option to extend for an additional seven days is controversial. Some resident and family advocacy groups formerly in strong support of the bill have withdrawn their support, as they feel that this “7+7” amendment is too restrictive, especially as this section of the bill does not provide exceptions for “compassionate care” for residents who are near death. Meanwhile, groups in opposition, including local governments and local health officers and departments, feel the 7+7 amendment is not restrictive enough, and point to the uncertainty at the beginning of the COVID-19 pandemic, such as how federal and state health guidance changed frequently. Additionally, the opposition feels this bill goes beyond the recommendations of the Long-Term Care Facility Access Policy Workgroup. The opposition has requested amendments for onsite visitation to be allowed in a manner consistent with state and local public health orders and/or guidance.

As this bill progresses, the committee encourages the author to continue working with stakeholders on solutions that balance resident access to visitation and the realities of facility and local government administration during a public health emergency.

SUPPORT/OPPOSITION

Arguments in Support:

According to the Office of the State Long-Term Care Ombudsman, “One of the important lessons learned during the recent COVID pandemic and subsequent facility lockdowns was the damaging effect of prolonged social isolation on the physical, cognitive, and mental health and well-being of residents of long-term care facilities. The inability of families, and other support persons to provide companionship, cognitive stimulation, communication assistance and assistance with daily living tasks such as dressing, hygiene and eating had a profound impact on countless long-term care residents. One devastating indicator of this was the rate of malnutrition in nursing homes, which rose from 5% to nearly 25% between 2020 and 2022. Further, recent studies have found social isolation to be associated with about a 50% increased risk of dementia. In response, in 2022 the California State Legislature commissioned the Long-Term Care Facility Access Policy Workgroup to ‘develop recommendations regarding best policies and practices for long-term care facilities during public health emergencies, including, but not limited to visitation policies’ (AB 178). One of the key recommendations included in the final report supported the designation of ‘Resident-Designated Support Persons’ who would be able to provide in-person, on-site support to long-term care residents during a public health emergency that may lead to a state or local order impacting long-term care facility visitation. AB 2075 would codify this recommendation in law, ensuring every resident of a nursing home or assisted living facility has the right to access support from the people they love and trust most during public health emergencies. It would do this while honoring parity in safety protocols, ensuring that Designated Support Persons adhere to the same safety protocols required of facility staff. The most recent amendment to the bill, allowing for a 7 to 14-day lock-out during the most extreme health emergencies, strikes an acceptable balance between Public Health officials’ concern for security and the health and rights of residents.”

Arguments in Opposition:

According to the Health Officers Association of California and the County Health Executives Association of California, “Local health officials recognize the importance of visitors to the health and well-being of long-term care facility residents. In addition to protecting communities from infectious diseases, public health also strives to create an environment in which everyone has access to health and wellbeing, including mental and physical wellness. Health officer orders at both the state and local level are not issued lightly and aim to use the least restrictive means of preventing disease. The COVID-19 pandemic was unprecedented and public health officials worked tirelessly to protect communities from the spread of disease, often while facing harsh criticism and even harassment. Supplies were limited, health care resources were strained, and the number of cases and deaths were increasing at rapid rates. Any actions taken to limit visitation in long-term care facilities were not intended to be punitive, but instead were issued out of care and concern for the health and well-being of our most vulnerable residents. In the first months of the pandemic, more than 40% of all COVID-19 deaths occurred in long term care facility residents and staff. Visitation restrictions were modified as vaccination rates and clinical care therapeutics improved, and cases/deaths declined. Prior to the COVID-19 pandemic, public health officers had not imposed long-term restrictions or limitations on visitation and our deepest hope is that there will not be another public health threat that will require these actions again. But we do not know what the next infectious disease threat will look like, its transmission process, its severity, or what protective measures would need to be taken to safeguard residents, visitors, facility staff, and the broader community. Unfortunately, AB 2075 poses an unintentional threat to the health of long-term care residents and the community. It does so by preemptively limiting the capacity of local government to fulfill its statutory duty to ‘take measures as may be necessary to preserve and protect public health’ (HSC 101025).”

PRIOR VOTES

POSITIONS

Support:

California Advocates for Nursing Home Reform (Co-Sponsor)

California Office of The State Long-term Care Ombudsman (Co-Sponsor)

AARP
Association of Regional Center Agencies
California Assisted Living Association
California Coalition on Family Caregiving
California Retired Teachers Association
Essential Caregivers Coalition
Gray Panthers of San Francisco
Leadingage California
Office of The State Long-term Care Ombudsman

Oppose:

City and County of San Francisco

City of Long Beach
Contra Costa County
County Health Executives Association of California (CHEAC)
Emergency Medical Services Administrators' Association of California (EMSAAC)
Health Officers Association of California
Riverside County Department of Public Health
Sacramento; County of
San Mateo; County of

-- END --

1. “Residential Care Facilities for the Elderly,” https://www.ccld.dss.ca.gov/carefacilitysearch/DownloadData ↑

2. https://www.hrw.org/sites/default/files/media_2022/02/drd_nursinghome0521_brochure_PRINT_0.pdf ↑

SENATE COMMITTEE ON HEALTH

Senator Richard Roth, Chair

BILL NO: AB 2075

SUBJECT: Resident Access Protection Act

SUMMARY:

1. Enacts the Resident Access Protection Act to require each resident of a long-term care facility to have the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency in which visitation rights of residents are curtailed by a state or local order.

Existing law:

1. Licenses and regulates long-term care (LTC) facilities by the California Department of Public Health (CDPH). LTC facilities include skilled nursing facilities (SNFs), intermediate care facilities (ICFs), ICF/developmentally disabled (ICF/DD), ICF/DD-habilitative, ICF/DD-nursing, and congregate living health facilities. [HSC §1250, et seq., and §1418]
2. Establishes a civil penalty structure for LTC facilities, categorized into “AA,” “A,” and “B” violations: “A” violations are where CDPH determines that the violation presents either imminent danger of death or serious harm, or a substantial probability that death or serious harm to residents would result; “AA” violations (the most severe) are those that meet the criteria for a class “A” violation that CDPH determines was a direct proximate cause of the death of a resident of an LTC facility; and, “B” violations are those that CDPH determines have a direct or immediate relationship to the health, safety, or security of LTC facility residents. [HSC §1424]
3. Establishes citation penalty amounts, which have a lower range for ICF/DDs and congregate living health facilities, and a higher range for SNFs and ICFs. The higher penalty range for SNFs and ICFs is as follows:
   1. “B” violation penalties range from $150 to $3,000;
   2. “A” violation penalties range from $3,500 to $25,000, or, if an “A” citation involves the death of a resident, from $15,000 to $60,000; and,
   3. “AA” violation penalties range from $30,000 to $120,000. [HSC §1424.5]
4. Provides for the licensure of community care facilities by the Department of Social Services (DSS), which includes residential facilities and adult day programs, among other categories. “Residential facility” is defined as any family home, group care facility, or similar facility determined by DSS, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual. Defines, in regulations, “adult residential facility” to mean any facility of any capacity that provides 24-hour-a-day nonmedical care and supervision to persons 18 years of age through 59 years of age. [HSC §1500 et seq., HSC §1502 and 22 CCR §80001(a)(5)]
5. Licenses and regulates residential care facilities for the elderly (RCFEs) as a separate category within the licensing structure of DSS, as a housing arrangement chosen voluntarily by persons 60 years of age or over, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided for persons. [HSC §1569 et seq.]
6. Establishes the Office of the Long-Term Care Ombudsman Program (Office of the State LTC Ombudsman) within the California Department of Aging (CDA), pursuant to a grant from the federal government under the Older Americans Act, as specified, to hear, investigate, and resolve complaints made by or on behalf of patients or residents of long-term care facilities relating to matters that may affect the health, safety, welfare, and rights of these patients or residents. [WIC §9700, et seq.]
7. Permits representatives of the Office of the State LTC Ombudsman (LTC ombudsmen) to have the right to enter LTC facilities and have unescorted, unhindered movement within them for the purposes of identifying, hearing, investigating, and resolving complaints, observing and monitoring conditions of residents and facilities, speaking confidentially with residents, and providing services to assist residents in protecting their health, safety, welfare, and rights. Requires entry to be provided at any time deemed necessary and reasonable by the LTC ombudsman. [WIC §9722]
8. Establishes the California Emergency Services Act, which provides the Governor with the authority to proclaim a state of emergency, and provides the Governor, during a state of emergency, with complete authority over all agencies of the state government and the right to exercise within the area all police power vested in the state by the Constitution and laws of California, and in exercising these powers, gives the Governor the authority to promulgate, issue, and enforce such orders and regulations as he deems necessary. Permits the Governor to suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, where the Governor determines that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency. [GOV §8625, §8627, and §8571]
9. Defines three conditions of emergency for purposes of the Emergency Services Act, including a “state of war emergency,” a “local emergency” that is within the territorial limits of a city or county, and a “state of emergency,” which could be caused by air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, or an earthquake or other conditions, which are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county or city and require the combined forces of a mutual aid region or regions to combat. [GOV §8558]
10. Gives the State Public Health Officer (PHO), as the director of CDPH, broad authority to detect, monitor, and prevent the spread of communicable disease in the state, including to adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any of the contagious, infectious, or communicable diseases, if in the opinion of DPH, the action is necessary for the protection of the public health. [HSC §120130, et seq.]
11. Permits the PHO or a local health officer (LHO), appointed by a county, to declare a health emergency or a local health emergency, respectively, whenever there is a hazardous waste spill or whenever there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, noncommunicable biologic agent, toxin, or radioactive agent. Permits the PHO or the LHO to take specified actions during a health emergency or a local health emergency. [HSC §101080]
12. Requires LHOs knowing or having reason to believe that any case of reportable diseases or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, to take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases. [HSC §120175]

This bill:

1. Enacts the Resident Access Protection Act to require each resident of a LTC facility to have the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency in which visitation rights of residents are curtailed by a state or local order.
2. Defines the following terms for purposes of this bill:
   1. “LTC facility” means a skilled nursing facility, all types of intermediate care facilities, as specified, a congregate living health facility, and a pediatric day health and respite care facility. Additionally, includes a “residential facility,” as that is defined in the Community Care Licensing provisions under the DSS, which is any family home, group care facility, or similar facility determined by DSS, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual.

• 1. “Public health emergency” means a public health-related condition that results in the declaration of a state of emergency or local emergency, as defined, or the declaration of a health emergency or local health emergency, as defined, and that triggers a state or local government order to restrict the visitation rights of residents in an LTC facility. Permits a public health-related condition to include, but not be limited to, a natural disaster, an outbreak of infectious disease, or a bioterrorist attack, if within the scope of the laws governing the declaration of emergencies.
  2. “Compassionate care visit” means an in-person, onsite social interaction for a resident whose health has sharply declined, is experiencing a significant change in condition, or is otherwise suffering. Specifies that this includes, but is not limited to, end of life or hospice care, a cessation of eating or drinking or significant weight loss, transition to a new care setting, grief, an emergency situation where medical treatment is immediately necessary, or a significant or rapid decline in mental or emotional health.
  3. “Health care and social services provider” means an individual who is not a staff or visitor but provides health care or social support to a resident, including, but not limited to, a health care worker, hospice provider, paid caregiver, personal care assistant, care manager, dentist, social worker, case manager, financial planner, conservator, and spiritual care provider.
  4. “Resident representative” means an individual who has authority to act on behalf of the resident, including a conservator, guardian, person authorized as an agent in the resident’s advance health care directive, the resident’s spouse, registered domestic partner, or family member, a person designated by the resident to act as a representative, or other surrogate decision maker designated in accordance with law.
  5. “Staff” means an individual employed by, or contracted directly with, the long-term care facility and who provides care to residents.
  6. “Visitor” means an individual who visits with a resident with the consent of the resident or resident representative.

1. Requires, at the discretion of the resident or their representative, a visitor and health care and social services providers to have the right to enter the resident’s dwelling and provide private support or care. Permits the LTC facility to limit the access of a visitor or health care and social services provider within the LTC facility to the resident and to the areas in which the resident resides or receives care, consistent with the state or local order.
2. Requires an LTC facility to allow a resident to have their visitor and health care and social services provider be physically present, consistent with the same hours of visitation required when there is no public health emergency.
3. Requires a resident of an LTC facility, during a public health emergency, to have the right to leave the facility on outings subject to a state or local government order prescribing the safety protocols governing their outing and return. Prohibits these protocols from exceeding what is required of staff.
4. Permits an LTC facility to require visitors and health care and social services providers to adhere to safety protocols not greater than required of facility staff during a public health emergency for the duration of their visit. Requires the LTC facility to provide personal protective equipment and testing resources to each visitor, to the extent that those resources have been made readily available to the LTC facility by state or local entities for this purpose. Specifies that the provision of personal protective equipment and testing resources to visitors is not intended to inhibit access to emergency supplies for staff. Permits visitors to use their own supplies as long as they meet or exceed the minimum standards set forth by the state or local order.
5. Requires an LTC facility to provide safety protocols required of care staff, visitors, and health and social services providers during a public health emergency to residents, resident representatives, and visitors in writing, including in the individual’s primary or preferred language, if made available to the facility by state or local entities. Requires changes in the safety protocols to be communicated, as soon as practically possible and in writing, to the residents, resident representatives, and visitors. Requires the LTC facility, if the individual is hearing or vision impaired, to provide the required protocols in an accessible format, if made available by state or local entities.
6. Prohibits an LTC facility from requiring visitors and health care and social services providers to adhere to safety protocols that have not been communicated as required by this bill, but specifies that this does not preclude a facility from informing a visitor upon their arrival of updated protocols or recent changes in protocols that impact their role as a visitor.
7. Permits a state or local government order to supersede the provisions of this bill during a declared state of emergency, as defined, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or to require visitors or health care and social services providers to follow the same safety protocols required of facility staff.
8. Permits a state or local government order to state the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required of staff.
9. Other than the ability provided to state or local governments in 9) and 10) above, prohibits the provisions of this bill from being suspended, superseded, or modified.
10. Requires a violation of this bill to be treated as a violation under provisions of law governing the licensing and regulation of health care facilities. Additionally, for purposes of civil penalties, requires a violation of this chapter to constitute a class “B” violation for long-term health care facilities, or subject to a civil penalty as defined for RCFEs.
11. Prohibits the provisions of this bill from superseding or otherwise limiting the statutory, regulatory, or other legal authority of government surveyors and inspectors, the LTC ombudsman, patient advocates, law enforcement officials, and other officials to access LTC facilities or residents in accordance with state or federal law.
12. Requires every residential facility, and every RCFE to abide by the provisions of this bill.
13. Makes various legislative findings and declarations, including that when a public health emergency precipitates government-ordered visitation restrictions, the Legislature deems it necessary to allow residents to have immediate and unscheduled physical access to visitors without restriction on time, frequency, physical contact, or proximity, with certain exceptions.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, ongoing costs of an unknown amount, potentially in the hundreds of thousands of dollars annually, to CDPH to ensure LTC facilities comply with the provisions of this bill (Licensing and Certification Fund).

In addition, DSS estimates costs of $1.7 million for nine new staff positions in the first year and $2.8 million to add another seven staff positions in the second year, and $2.7 million ongoing, to ensure residential care facilities and residential care facilities for the elderly comply with the provisions of this bill (General Fund). DSS did not explain the new staff responsibilities, nor whether it would incur the costs regardless of the occurrence of a public health emergency.

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, COVID-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of LTC facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the Legislature commissioned a work-study group composed of state agencies and stakeholders representing public health officials, LTC facility operators, and residents to create recommendations for balancing public safety and ensuring visitation is maintained in LTC facilities. Taking all perspectives into account, the work group concluded that this separation had a huge impact on resident’s well-being and gave a set of policy recommendations that struck this balance. This bill recognizes the importance loved ones play in the mental and physical health of LTC residents by codifying these recommendations.
2. LTC Facility Access Policy Workgroup. In 2023, CDA, acting pursuant to an appropriation for this purpose included in the 2022 Budget Act, convened an LTC Facility Access Policy Workgroup (Workgroup) to develop recommendations for policies regarding access to LTC facilities during states of emergency, with consideration for the impact that restricted access has on the mental health of residents, families, and friends and on the physical health and safety of residents. CDA identified approximately 40 organizations to participate in the Workgroup, including the Office of the State LTC Ombudsman, CDPH, DSS, and stakeholders representing public health officials, LTC facility operators and residents, and consumer advocates. The Workgroup met four times over the course of five months. In the Workgroup’s October 5, 2023 report to the Legislature, there were recommendations across six different subject matters, including the following: (1) LTC Facility Access and Visitation for Resident-Designated Support Persons; (2) LTC Facility Access and Visitation for Health Care and Social Services Providers; (3) LTC Facility Access and Visitation for Resident Advocates, Surveyors, and Others; (4) Access to Personal Protective Equipment and Other Emergency Supplies for Visitation; (5) Process for Grievances and Appeals Related to Visitation Access; and, (6) Ongoing Collaboration Between Stakeholders. This bill contains provisions based on a number of the recommendations across the different subject matters. With regard to the first subject (access for resident-designated support persons), the Workgroup sought to balance the concept of not establishing strict limits on the number or range of individuals a resident could see over the course of a state of emergency, with the concern from facilities and public health officials who noted that unrestricted simultaneous access may not be possible in certain emergencies. Therefore, the Workgroup agreed on a recommendation that would allow residents to identify the individuals of their choice as “resident-designated support persons,” but acknowledged that public health orders may allow or require facilities to limit the number of these designated support persons visiting residents to one at a time. Public health officials sought to revise the recommendation to allow a public health order to limit the total number of visitors in some emergencies, but the Workgroup opted against including this limitation. The Workgroup also agreed on a recommendation in which designated support person visitors had parity in access to facilities and in safety protocols with LTC staff, and that LTC facilities should expand the number of simultaneous visitors in moments when a resident requires compassionate care. Recommendations were similar for health care and social services providers, in that they should be able to conduct in-person visits with residents subject to the same safety protocols as LTC facility staff.
3. State and local LTC Ombudsman Programs. The LTC Ombudsman Program is a federally authorized program, partially funded by the federal government, to advocate for the rights of residents in LTC facilities. In California, there is the Office of the State LTC Ombudsman, which is housed with CDA, and develops policy and provides oversight to the 35 local Ombudsman Program Coordinators. The LTC ombudsman’s advocacy role takes two forms: a) to receive and resolve individual complaints and issues by, or on behalf of, LTC facility residents; and, b) to pursue resident advocacy in the LTC system, its laws, policies, regulations, and administration through public education and consensus building. Residents or their family members can file a complaint directly with the local LTC Ombudsman, and all LTC facilities are required to post, in a conspicuous location, the phone number for the local LTC ombudsman office and the statewide CRISIS line, which is available 24 hours a day, seven days a week to take calls and refer complaints. State law gives LTC ombudsmen the right to enter and move with LTC and residential care facilities to identify, hear, investigate, and resolve complaints; to observe and monitor conditions of residents and facilities; to speak confidentially with residents; and to provide services to assist residents in protecting their health, safety, welfare, and rights.
4. Limitation on visitation and LTC ombudsmen access during pandemic. At the beginning of the COVID-19 pandemic, after an outbreak at a nursing home in Washington followed by nursing homes elsewhere, the Centers for Medicare and Medicaid Services (CMS) issued guidance in March of 2020 that restricted all visitors to nursing homes, without an exception for LTC ombudsmen. Over the course of this pandemic, the guidance from CMS, as well as guidance from CDPH and DSS, evolved in response to changing conditions. By June, CDPH sent out an All Facilities Letter (AFL) permitting facilities not experiencing an outbreak to permit LTC ombudsman in the facility. On August 25, CDPH sent out an AFL updating the guidance to require facilities to permit LTC ombudsmen to enter regardless of whether or not there is a COVID-19 outbreak, after being screening for fever and COVID-19 symptoms and wearing appropriate personal protective equipment. Vaccination clinics began for LTC residents in December 2020, followed by a sharp decline in COVID-19 cases and deaths. CMS lifted restrictions on visitors to nursing homes on March 10, 2021, allowing for responsible indoor visitation at all times and for all residents, with certain exceptions for facilities in counties with high positivity rates and low vaccination rates.

1. Concerns over restrictions on visitations. In September 2020, CMS convened the Coronavirus Commission on Safety and Quality in Nursing Homes (Commission), which released a report addressing safety and quality in nursing homes in relation to the public health emergency. The Commission found that while restrictions on visitation protected the physical health of residents, these restrictions created substantial harm, including loneliness, anxiety, and depression among residents, and distress for families who were unable to assess the well-being and safety of loved ones. The Commission concluded that visitation is a vital resident right and recommended updated in-person guidance to enable safe visitation, including visitation by LTC ombudsman representatives.
   
   Human Rights Watch raised concerns over neglect, isolation, and deteriorating quality of care affecting nursing home residents in the U.S. during the pandemic. Their reporting in May 2021 documented problems such as extreme weight loss, dehydration, untreated bedsores, inadequate hygiene, mental and physical decline, and inappropriate use of psychotropic mediations. The report also cites an analysis by the Associated Press that approximately 40,000 excess deaths (not from COVID-19) occurred in U.S. nursing homes between March and November 2020. Understaffing in facilities, combined with restrictions on visitations from family members who usually assisted with resident care, contributed to heightened concerns about neglect and inadequate care. Human Rights Watch also noted that CMS prohibiting LTC ombudsmen from entering facilities contributed to reduced transparency into nursing home operations.
2. Double referral. This bill is double referred. Should it pass out of this Committee, it will be referred to the Senate Committee on Human Services.
3. Related legislation. AB 2549 (Gallagher) requires a health facility to allow a patient’s family, including the spouses of family members, and grandparents and grandchildren, to visit the patient, subject to reasonable restrictions such as visiting hours and with the ability to restrict visitor access due to health or safety concerns. However, prohibits a hospital from prohibiting in-person visiting in end-of-life even when visitor access is restricted due to health or safety concerns. AB 2549 is set for hearing on June 19, 2024 in this Committee.
4. Prior legislation. AB 1855 (Nazarian, Chapter 583, Statutes of 2022) prohibits a SNF or RCFE, under any circumstances and notwithstanding any other law, from denying entry to a long term care ombudsman, unless the Governor has declared a state of emergency related to an infectious disease and the ombudsman is positive for, or showing symptoms of, the disease that is the reason for the state of emergency.
   
   AB 2546 (Nazarian of 2022) would have enacted the Resident-Designated Support Persons Act, granting residents of LTC facilities the right to in-person, onsite access to a minimum of two designated support person during any public health emergency, as defined, in which the residents’ visitation rights are curtailed by a state or local order. AB 2546 was amended to deal with another subject.
5. Support. This bill is co-sponsored by California Advocates for Nursing Home Reform (CANHR) and the Office of the State Long-Term Care Ombudsman (State Ombudsman). The State Ombudsman states that one of the important lessons learned during the COVID-19 pandemic and subsequent facility lockdowns was the damaging effect of prolonged social isolation on the physical, cognitive, and mental health and well-being of residents of LTC facilities. One devastating indictor of this was the rate of malnutrition in nursing homes, which rose from 5% to nearly 25% between 2020 and 2022. According to CANHR, this bill would sustain critical relationships for LTC facility residents when they are needed most by ensuring residents have access to support persons and other visitors during a public health emergency when access might otherwise be curtailed. CANHR states that the Workgroup, funded by the legislature to develop recommendations regarding best practices for public health emergencies, including visitation, specifically recommend that “resident-designated support persons be able to conduct in-person visits with residents during any public health emergency, subject to the same safety protocols as facility staff.” CANHR states that this bill proposes to turn these recommendations into state law. CANHR states that the visitation lockouts not only failed to prevent COVID outbreaks while depriving residents of vital direct care, they also cut visitation at a time when it was more important than ever. CANHR cites one report from the Associated Press that estimated that there were at least 40,000 excess nursing home deaths not attributable to COVID-19 in just the first eight months of the lockout, with resident death certificates listing the cause of death as social isolation or failure to thrive related to COVID-19 restrictions. Finally, CANHR points out that despite local health officers expressing concerns about reducing their authority to respond to public health emergencies, under this bill, public health authorities can still impose any infection control measures it deems necessary in long-term care facilities, it just requires parity by treating support persons as equal to facility staff.
6. Oppose unless amended. The City and County of San Francisco states that it is opposed to this bill unless it is amended to remove language limiting LHO authority to protect Californians in times of serious threat. San Francisco states that it was a national and global model in its response to the COVID-19 pandemic, and followed the science, data, and facts every step of the way. San Francisco states that the health orders limiting visitors were a powerful tool to protect the health of all residents and staff in LTC facilities, especially pre-vaccine.
7. Opposition. The Health Officers Association of California (HOAC) and the County Health Executives Association of California (CHEAC) submitted a joint letter of opposition, stating that they remain fundamentally opposed to the inclusion of language limiting LHO authority to protect Californians in times of serious threat. HOAC and CHEAC state that this bill still requires facilities to allow visitation even under potential extreme threats such as a highly contagious Ebola outbreak or a bioweapon attack. HOAC and CHEAC states that any actions taken to limit visitation in LTC facilities were not intended to be punitive, but were issued out of care and concern for the health and well-being of our most vulnerable residents, and points out that in the first months of the pandemic, more than 40% of all COVID-19 deaths occurred in LTC facility residents and staff. Prior to the COVID-19 pandemic, LHOs had not imposed long-term restrictions or limitations on visitation and their deepest hope is that there will not be another public health threat that will require these actions again, but we do not know what the next infectious disease threat will look like, its transmission process, its severity, or what protective measures would need to be taken to safeguard residents, visitors, facility staff, and the broader community. Contra Costa County, Napa County, and the Emergency Medical Services Administrators Association of California make similar arguments in opposition.
8. Amendments. To address some concerns, the author is proposing amendments to permit a state or local government order to deny resident access to visitors during a public health emergency for up to seven days, and to permit this denial to be extended up to an additional seven days if the board of supervisors or city council, whichever is applicable to the jurisdiction, or state department approves the denial of access for such additional period. Additionally, the amendments would exempt facilities operated by California Department of Corrections and Rehabilitation.
9. Policy comment. This bill significantly curtails the ability of local health officers or the state from limiting in-person visitation of LTC facilities. Under the current bill, the state or a local government order can limit the number of simultaneous visits, meaning they could limit it to just one visitor at a time, but excludes “compassionate care visits” from this ability. Compassionate care visits include when the resident’s “health has sharply declined, is experiencing a significant change in condition, or is otherwise suffering.” Under those conditions, the state or local government would not be able to even limit the number of visitors who could simultaneously visit. The bill does permit a state or local government order to “state the terms by which visitors…can demonstrate their proficiency to follow the same protocols required of staff.” Under the proposed amendments being offered by the author (described in 12) above), a local government would be able to deny visitation for one week, with the ability of the state or a city council or county board of supervisors to extend this by one additional week. Otherwise, this bill prohibits the statute from being “suspended, superseded, or modified.” It is unclear whether there is precedent for limiting the power of even the Governor during a state of emergency to make orders to protect the public. The Committee may wish to consider whether curtailing the ability of the Governor from limiting visitation in a state of emergency is appropriate.

SUPPORT AND OPPOSITION:

Support: California Advocates for Nursing Home Reform (co-sponsor)

Office of the State Long-Term Care Ombudsman Program (co-sponsor)

AARP

Alzheimer’s Association State Policy Office

Association of Regional Center Agencies

California Assisted Living Association

California Association of Health Facilities

California Association of Long Term Care Medicine

California Coalition on Family Caregiving

California Continuing Care Residents Association
California Essential Caregivers Coalition

California Long Term Care Ombudsman Association

California Retired Teachers Association

Consumer Attorneys of California

Gray Panthers of San Francisco

Inland Coalition on Aging

Jewish Family Service of the Desert

Justice in Aging

LeadingAge California

Retired Public Employees Association

Wise and Healthy Aging

Six individuals

Oppose: City and County San Francisco (unless amended)

County Health Executives Association of California

County of Contra Costa

County of Napa
Emergency Medical Services Administrators Association of California
Health Officers Association of California

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2075

Author:(Alvarez)

As Amended Ver:April 25, 2024

Majority vote

SUMMARY

Enacts the Resident Access Protection Act (Act) to provide a resident of a long-term care (LTC) facility with the right to in-person, onsite access to a visitor or a health care and social services provider during a public health emergency (PHE) and prescribes how a resident may leave their LTC facility on outings during a PHE.

Major Provisions

1. Allows a LTC facility to require visitors, health care and social service providers to adhere to safety protocols not greater than required by facility staff during a PHE.
2. Provides personal protective equipment (PPE) and testing resources to visitors, to the extent they have been made available to the LTC facility by state or local entities for this purpose.
3. Requires a LTC facility, among other things, to provide safety protocols required of care staff, visitors and health and social service providers during a PHE to the residents, the resident's representatives and visitors in writing, in an accessible format, and in the resident's preferred language.
4. Allows a state or local government order to supersede this chapter during a declared state of emergency, local emergency, health emergency, or local health emergency, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or requires visitors or health care and social services providers to follow the same safety protocols required of facility staff.
5. States the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required of staff.
6. Disallows this chapter to otherwise be suspended, superseded, or modified.
7. Includes various definitions for purposes of the Act:

COMMENTS

Long-Term Care Facility Visitation during the COVID-19 Pandemic

As the onset of COVID-19 in the United States, one of the first preventative measures public health authorities made at the federal, state, and local levels was to shut down all LTC facility visitation. Given the lethality of COVID-19 for older adults and the crowded conditions in facilities, creating protective policies made some sense as an emergency measure.

However, as the initial crisis turned to a long-term pandemic, visitation lockouts and the isolation caused were having negative impacts to residents and families. COVID-19 was brought in to facilities by staff and the impact to the state's most vulnerable residents was lethal.

The visitation lockouts demonstrated a lack of understanding of the importance of support and its links to health.

Recent studies have found that social isolation significantly increased a person's risk of premature death from all causes, a risk that may rival those of smoking, obesity and physical inactivity. Further, social isolation was associated with about a 50 percent increased risk of dementia.^[1]

These reports and analyses show that the pandemic had substantial impacts on nursing home residents beyond what can be quantified by cases and deaths. The well-being of residents was adversely affected both in their physical and emotional well-being.

While infection protocols were ever-changing from the earliest days and continued over the following two years, isolation of facility residents remained untreated as a health determinate.

During the pandemic, there were a staggering number of All Facility Letters (AFL) put out by DPH, the majority impacting care in skilled nursing facilities.^[2] DSS put out Provider Information Notices (PIN) in exponentially greater numbers as well.^[3] Care facilities were dealing with COVID-19 outbreaks, increased infection protocols, staffing shortages and more. As nursing homes and assisted living facilities were attempting to follow guidelines set forth by DPH and DSS, the importance of in-person visitation was forgotten. The morbidity associated with COVID 19 isolation is still data that remains elusive.

The State Long-Term Care Ombudsman (LTCO), which is tasked with identifying, investigating, and resolving complaints made by or on behalf of long-term care residents, received over 29,000 complaints in 2020, and over 40,000 complaints in 2021, an increase of 37 percent. The most common complaints in 2020 related to violations of residents' rights, including abuse, gross neglect, and exploitation.

Long-Term Care Facility Access Policy Workgroup

In 2022, the Legislature commissioned the Long-Term Care Facility Access Policy Workgroup (LTCFA Policy Workgroup) to develop recommendations for policies regarding access to long-term care facilities during states of emergency, including, but not limited to, visitation policies.^[4] As defined by the Legislature, the LTCFA Policy Workgroup was comprised of CDA, the Office of the State LTCO, CDPH, CDSS and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates. A report with the findings of the working group was submitted to the Legislature in the fall of 2023.^[5]

A summary of the main findings:

1. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that Resident-Designated Support Persons (RDSPs) be able to conduct in-person visits with LTC facility residents subject to the same safety protocols as LTC facility staff.
2. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that health care and social services providers not employed by the LTC facility be able to access an LTC facility and, when relevant, conduct in-person visits with LTC facility residents, subject to the same safety protocols as LTC facility staff.
3. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that individuals who have access to enter LTC facilities through legal, statutory, regulatory, or similar authority be able to access an LTC facility and, when relevant, conduct in-person visits with LTC facility residents, subject to the same safety protocols as LTC facility staff.
4. In a state of emergency in which the emergency supplies are limited across the board and in which state, county, and local authorities are involved in supply distribution, the workgroup recommends that state, county, and local authorities consider RDSPs to be among the top priority populations for any emergency supplies required in order to adhere to LTC facility safety protocols.
5. The workgroup recommends that state LTC facility licensing agencies provide clear communication on LTC facility visitation standards and an accessible process for submitting grievances and appeals in situations where visitation is not made available as defined in this workgroup's recommendations.
6. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that a representative group of stakeholders be convened at regular intervals to discuss issues related to LTC facility visitation and provide a collaborative forum for those impacted by the policies to provide feedback to licensing agencies and other key decision makers.

California's Aging Population

California's aging population is growing faster than any other age group. By 2030, over 25 percent of the population in California will be 60 and older.^[6] The population in the state is becoming more racially and ethnically diverse, and yet the COVID-19 pandemic impacted Californians disparately.

California is projected to be one of the fastest growing States in the nation in total population. In 2016, California comprised 12 percent of the nation's population^[7] and is expected to grow 30 percent by the year 2060 (an increase of 11.7 million people.^[8] In California, the population aged 60 years and over is expected to grow more than three times as fast as the total population and this growth will vary by region.

The population over age 60 will have an overall increase of 166 percent during the period from 2010 to 2060. More than half the counties will have over a 100 percent increase in this age group. Nearly half of these counties will have growth rates of over 150 percent. These counties are located throughout the central and southern areas of the State. The influence of the 60 and over age group on California is expected to emerge most strongly between 2010 to 2030.3

The population over age 85 will increase at an even a faster rate than those over 60 years of age, having an overall increase of 489 percent during the period from 2010 to 2060. Counties can expect to experience even higher growth rates after 2020. In particular, the influence of the 85 and over age group on California will emerge most strongly between 2030 to 2040 as the first of the baby boomers reach 85 years of age.3

Life expectancy continues to rise,^[9] however during 2019-2021 overall life expectancy for Californians fell from 81.4 years to 78.4 years. For Hispanics, life expectancy declined by nearly 6 years, a difference three times greater than their white counterparts. And the difference between those in California's highest and lowest income brackets increased by three-and-a-half years to greater than 15 years (11.5 years before the pandemic to more than 15 years in 2021).^[10]

The World Health Organization defines health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."^[11]

According to the Author

"Covid-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of Long-Term Care Facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the legislature commissioned a work study group composed of state agencies and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates to create recommendations for the legislature that threads the needle of allowing visitation in Long-Term Care Facilities while maintaining public health. The work group concluded that this separation had a huge impact on resident's well-being, and they gave a set of recommendations that balanced public health concerns and the need to ensure visitation rights for residents. AB 2075 recognizes the importance loved ones play in the mental and physical health of Long-Term Care residents by codifying these recommendations."

Arguments in Support

California Advocates for Nursing Home Reform (CANHR) are the sponsors of this bill and state that it is nearly impossible to understate the importance of visitation in LTC facilities. These facilities are home to over 250,000 Californians, who enjoy the company of family, friends, and other visitors just as anyone else does. The ability to host visitors and share personal moments with loved ones is a key to making long term care facilities more homelike. Aside from the obvious psychological benefits that visitation and in-person companionship provide, visitation is often vital to the well-being of residents. CANHR also notes that visitors provide direct care that is not only supplemental to that provided by the facility staff, but essential to residents' health and safety. Visitors provide food and feeding assistance; help with grooming, toileting, and exercise; turning and repositioning for skin integrity; and myriad other care services. In addition, visitors' observations, supervision, and advocacy ensure residents are getting their basic care delivered as needed. CANHR concludes that when these caregivers were barred from facilities, the subsequent loss was devastating, making 2020-2022 the worst years in the history of long term care.

Arguments in Opposition

The Health Officers Association of California, and the County Health Executives Association of California are oppose unless amended to this bill and request the removal of provocative declarative language, the section prohibiting quarantine, and language limiting health officer authority to protect Californians in times of serious threat. They also request the addition of language to ensure onsite access to a visitor is done in a manner consistent with state and local public health guidance. LHOs recognize the importance of designated support persons to the health and well-being of long-term care facility residents. In addition to protecting communities from infectious diseases, public health also strives to create an environment in which everyone has access to health and wellbeing, including mental and physical wellness. Health officer orders at both the state and local level are not issued lightly and aim to use the least restrictive means of preventing disease. The COVID-19 pandemic was unprecedented and public health officials worked tirelessly to protect communities from the spread of disease, often while facing harsh criticism and even harassment. Supplies were limited, health care resources were strained, and the number of cases and deaths were increasing at rapid rates. Any actions taken to limit visitation in long-term care facilities were not intended to be punitive, but instead issued out of care and concern for the health and well-being of vulnerable residents.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, ongoing costs of an unknown amount, potentially in the hundreds of thousands of dollars annually, to the DPH to ensure LTC facilities comply with the provisions of this bill (Licensing and Certification Fund).

In addition, DSS estimates costs of $1.7 million for nine new staff positions in the first year and $2.8 million to add another seven staff positions in the second year, and $2.7 million ongoing, to ensure RCFs and RCFEs comply with the provisions of this bill (General Fund). DSS did not explain the new staff responsibilities, nor whether it would incur the costs regardless of the occurrence of a PHE.

According to the Legislative Analyst's Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

VOTES

ASM AGING AND LONG-TERM CARE: 5-0-2

YES: Bains, Cervantes, Friedman, Joe Patterson, Rodriguez

ABS, ABST OR NV: Mathis, Blanca Rubio

ASM HEALTH: 15-0-1

YES: Bonta, Waldron, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Schiavo

ABS, ABST OR NV: Weber

ASM APPROPRIATIONS: 15-0-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

UPDATED

VERSION: April 25, 2024

CONSULTANT: Elizabeth Fuller / AGING & L.T.C. / (916) 319-3990 FN: 0003001

1. National Academies of Sciences, Engineering, and Medicine; Division of Behavioral and Social Sciences and Education; Health and Medicine Division; Board on Behavioral, Cognitive, and Sensory Sciences; Board on Health Sciences Policy; Committee on the Health and Medical Dimensions of Social Isolation and Loneliness in Older Adults. Social Isolation and Loneliness in Older Adults: Opportunities for the Health Care System. Washington (DC): National Academies Press (US); 2020 Feb 27. Available from: https://www.ncbi.nlm.nih.gov/books/NBK557974/ doi: 10.17226/25663 ↑

2. https://www.cdph.ca.gov/Programs/CHCQ/LCP/Pages/LNCAFL.aspx ↑

3. https://www.cdss.ca.gov/inforesources/community-care-licensing/policy/provider-information-notices/adult-senior-care ↑

4. https://www.aging.ca.gov/Long-Term_Care_Facility_Access_Policy_Workgroup/ ↑

5. https://www.aging.ca.gov/download.ashx?lE0rcNUV0zZdWSyVFWyTTA%3d%3d ↑

6. Projections | Department of Finance (ca.gov) ↑

7. https://factfinder.census.gov ↑

8. http://www.dof.ca.gov/Forecasting/Demographics/Projections ↑

9. https://longevity.stanford.edu/the-new-map-of-life-initiative/ ↑

10. https://newsroom.ucla.edu/releases/covid-life-expectancy-drops-by-race-and-income ↑

11. https://www.who.int/about/governance/constitution ↑

Date of Hearing: May 15, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2075

Author:(Alvarez) – As Amended Ver:April 25, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill establishes the Resident Access Protection Act. The bill grants a resident of a long-term care (LTC) facility, a residential care facility (RCF), or a residential care facility for the elderly (RCFE) the right to in-person, onsite access to visitors and health care and social services providers during any public health emergency (PHE) in which visitation rights of residents are curtailed by a state or local order.

Specifically, this bill:

1. Grants a resident of a LTC facility, RCF, or RCFE (collectively, facility) the right to in-person, onsite access to visitors and health care and social services providers during any PHE in which visitation rights of residents are curtailed by a state or local order.
2. Defines a “compassionate care visit” as an in-person, onsite social interaction for a resident whose health has sharply declined, is experiencing a significant change in condition, or is otherwise suffering. Qualifying situations may include end of life or hospice care, a cessation of eating or drinking or significant weight loss, transition to a new care setting, grief, an emergency, as defined, or a significant or rapid decline in mental or emotional health.
3. Provides that at the discretion of the resident or their representative, visitors and health care and social services providers have the right to enter the resident’s dwelling and provide private support or care. Authorizes the facility to limit the access of a visitor or health care and social services provider within the facility to the resident and to the areas in which the resident resides or receives care, consistent with the state or local order.
4. Requires a facility to allow a resident to have their visitor and health care and social services providers be physically present, consistent with the facility’s usual visitation hours.
5. Requires, during a PHE, a resident of a facility to have the right to leave the facility on outings subject to a state or local government order prescribing the relevant safety protocols, and prohibits those safety protocols to exceed safety protocols required of staff during a PHE.
6. Authorizes a facility to require visitors and health care and social services providers to adhere to safety protocols not greater than required of facility staff during a PHE during their visit. Requires the facility to provide the personal protective equipment and testing to each visitor, to the extent those resources have been made available by state or local entities for this purpose. Authorizes visitors to use their own supplies if they meet the minimum standards set forth in the state or local order.
7. Requires a facility to provide the required safety protocols required of care staff during a PHE to visitors, health and social services providers, residents, their representatives, and residents’ representatives in writing, in the individual’s primary or preferred language and in an accessible format, as needed, if made available to the facility by state or local entities.
8. Prohibits a facility from requiring visitors and health care and social services providers to adhere to safety protocols that have not been communicated as outlined above.
9. Provides that a state or local government order may:
   1. Supersede the provisions of this bill in a declared state of emergency, local emergency, health emergency, or local health emergency, to limit the number of visitors and health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or require visitors and health care and social services providers to follow the same safety protocols required of facility staff.
      
   2. State the terms by which visitors or health care and social services providers may demonstrate their proficiency to follow the same safety protocols required by staff.
      
10. Prohibits the provisions of this bill from being otherwise suspended, superseded, or modified.
11. Clarifies that this section does not allow visitors to enter a facility during an evacuation or in the event first responders are onsite and refusing entry to the facility.

FISCAL EFFECT:

1. Ongoing costs of an unknown amount, potentially in the hundreds of thousands of dollars annually, to the California Department of Public Health to ensure LTC facilities comply with the provisions of this bill (Licensing and Certification Fund).
2. The Department of Social Services (DSS) estimates costs of $1.7 million for nine new staff positions in the first year and $2.8 million to add another seven staff positions in the second year, and $2.7 million ongoing, to ensure RCFs and RCFEs comply with the provisions of this bill (General Fund). DSS did not explain the new staff responsibilities, nor whether it would incur the costs regardless of the occurrence of a PHE.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years. 

COMMENTS:

1. Purpose. This bill is sponsored by California Advocates for Nursing Home Reform and the State Long-Term Care Ombudsman. According to the author:

Covid-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of Long-Term Care Facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the legislature commissioned a work study group composed of state agencies and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates to create recommendations for the legislature to incorporate that threads the needle allowing visitation in Long-Term Care Facilities while maintaining public health. The work group concluded that this separation had a huge impact on resident’s well-being, and they gave a set of recommendations that balanced public health safety concerns and the need to ensure visitation rights for residents. AB 2075 recognizes the importance loved ones play in the mental and physical health of Long-Term Care residents by codifying these recommendations.

1. Background. After a March 2020 COVID-19 outbreak at a nursing home in Washington that was followed by outbreaks in nursing homes elsewhere, the Centers for Medicare and Medicaid Services (CMS) issued guidance that restricted all visitors to nursing homes, without an exception for LTC ombudsmen. Guidance from CMS, CDPH, and DSS evolved in response to changing conditions. In March 2021, CMS lifted restrictions on visitors to nursing homes to allow responsible indoor visitation at all times and for all residents, with certain exceptions for facilities in counties with high COVID-19 and low vaccination rates.
   
   In September 2020, CMS convened the Coronavirus Commission on Safety and Quality in Nursing Homes (Commission), which released a report addressing safety and quality in nursing homes in relation to the PHE. The Commission found that while restrictions on visitation protected the physical health of residents, they also created substantial harm, including loneliness, anxiety, and depression among residents, and distress for families who were unable to assess the well-being and safety of loved ones. The Commission concluded that visitation is a vital resident right and recommended updated in-person guidance to enable safe visitation.
   
   LTC Working Group. AB 178 (Ting), Chapter 45, Statutes of 2022, commissioned a workgroup to develop recommendations regarding best policies and practices for LTC facilities during PHEs, including visitation policies. During their discussions, workgroup members weighed the following concepts:
   1. Balancing public health protection and the physical and mental health, and advocacy needs of residents, including their individual rights and autonomy.
   2. Parity in visitation requirements for visitors, outside professional staff, and facility staff.
   3. Differences among regions.
   4. Equity in visitation access, with consideration for ageism, ableism, and barriers for historically marginalized communities.
      

Many of the recommendations of the LTC workgroup are included in this bill.

1. Local Health Officer (LHO) Concerns. The Health Officers Association of California and the County Health Executives Association of California oppose this bill unless amended to remove language limiting health officer authority to protect Californians in times of serious threat and to add language to ensure visitor onsite access is done in a manner consistent with state and local public health orders and guidance. LHOs state they recognize the importance of designated support persons to the health and well-being of long-term care facility residents, and public health also strives to create an environment in which everyone has access to health and wellbeing, including mental and physical wellness. LHOs argue orders at both the state and local level are not issued lightly and aim to use the least restrictive means of preventing disease. LHOs note public health officials worked tirelessly to protect communities from the spread of disease during the PHE, often while facing harsh criticism and even harassment.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HEALTH

Mia Bonta, Chair

ABPCA Bill Id:AB 2075

Author:((Alvarez) – As Amended Ver:April 10, 2024

SUBJECT: Resident Access Protection Act.

SUMMARY: Grants a resident of a long-term care (LTC) facility the right to in-person, onsite access to a visitor and health care and social services providers during any public health emergency (PHE) in which visitation rights of residents are curtailed by a state or local order. Specifically, this bill:

1. Requires, at the discretion of the resident or their representative, a visitor and health care and social services providers to have the right to enter the resident’s dwelling and provide private support or care. Authorizes the LTC facility to limit the access of a visitor or health care and social services provider within the LTC facility to the resident and to the areas in which the resident resides or receives care, consistent with the state or local order.
   
2. Requires a LTC facility to allow a resident to have their visitor and health care and social services provider be physically present, consistent with the same hours of visitation required when there is no PHE.
   
3. Requires, during a PHE, a resident of a LTC facility to have the right to leave the facility on outings subject to a state or local government order prescribing the safety protocols governing their outing and return. Prohibits these safety protocols from exceeding what is required of staff.
   
4. Authorizes a LTC facility to require visitors and health care and social services providers to adhere to safety protocols not greater than required of facility staff during a PHE for the duration of their visit. Requires the LTC facility to provide personal protective equipment (PPE) and testing resources to each visitor, to the extent that those resources have been made readily available to the LTC facility by state or local entities for their use. States that the provision of PPE and testing resources to visitors is not intended to inhibit access to emergency supplies for staff. Allows visitors to use their own supplies so long as they meet or exceed the minimum standards set forth by state or local order.
   
5. Requires a LTC facility to provide safety protocols required of care staff, visitors, and health and social services providers during a PHE to the residents, resident representatives, and visitors in writing.
   
6. Requires the facility to provide the required safety protocols in the individual’s primary or preferred language, if made available to the facility by state or local entities. Requires changes in safety protocols to be communicated, as soon as practically possible, to the residents, resident representatives, and visitors in writing in the individual’s primary or preferred language, if made available to the facility by state or local entities.
   
7. Requires, if the individual is hearing impaired or vision impaired, the LTC facility to provide the required protocols in an accessible format, if made available to the facility by state or local entities.
   
8. Prohibits a LTC facility from requiring visitors and health care and social services providers to adhere to safety protocols that have not been communicated as set forth in 5), 6) and 7), above. Specifies that this requirement does not preclude a LTC facility from informing a visitor upon their arrival of updated protocols or recent changes in protocols that impact their role as a visitor.
   
9. Authorizes a state or local government order to supersede the provisions of this bill during a declared state of emergency, local emergency, health emergency, or local health emergency, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or require visitors or health care and social services providers to follow the same safety protocols required of facility staff. Authorizes a state or local government order to state the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required of staff. Prohibits this from otherwise being suspended, superseded, or modified.
   
10. Specifies, that for purposes of civil penalties, a violation of this bill constitutes a class “B” violation for long-term health care facilities, or is subject to a civil penalty for residential care facilities for the elderly (RCFE).
    
11. Provides that this bill does not supersede or otherwise limit the statutory, regulatory, or other legal authority of government surveyors and inspectors, the LTC ombudsman, patient advocates, law enforcement officials, and other officials to access LTC facilities or residents in accordance with state or federal law.
    
12. Requires every residential facility to abide by the provisions of the Resident Access Protection Act.
    
13. Requires every RCFE to abide by the provisions of the Resident Access Protection Act.

EXISTING LAW:

1. Provides for the licensure of health facilities, including LTC facilities, skilled nursing facilities (SNFs), intermediate care facilities (ICF), and congregate living health facilities, by the Department of Public Health (DPH). [Health and Safety Code (HSC) §1250, et seq.]
2. Defines a “SNF” as a health facility that provides skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. [HSC §1250(c)]
   
3. Establishes a civil penalty structure for LTC facilities, including SNFs and ICFs, categorized into “AA,” “A,” and “B” violations:
   1. “A” violations are those which DPH determines the violation presents either imminent danger of death or serious harm, or a substantial probability that death or serious harm to residents would result;
   2. “AA” violations (the most severe) are those that meet the criteria for a class “A” violation that DPH determines was a substantial factor (as defined) in the death of a resident of an LTC facility; and;
   3. “B” violations are those that DPH determines have a direct or immediate relationship to the health, safety, or security of LTC facility residents. [HSC §1424]
4. Provides for the licensure of community care facilities by the Department of Social Services (DSS), which includes residential facilities and adult day programs, among other categories. “Residential facility” is defined as any family home, group care facility, or similar facility determined by DSS, for 24-hour nonmedical care of persons in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual. Defines, in regulations, “adult residential facility” to mean any facility of any capacity that provides 24-hour-a-day nonmedical care and supervision to persons 18 years of age through 59 years of age. [HSC §1500 et seq., §1502, 22 California Code of Regulations §80001(a)(5)]
5. Licenses and regulates RCFEs as a separate category within the licensing structure of DSS, as a housing arrangement chosen voluntarily by persons 60 years of age or over, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided for persons. [HSC §1569 et seq.]
6. Establishes the Office of the Long-Term Care Ombudsman Program (LTC Ombudsman) within the California Department of Aging, pursuant to a grant from the federal government under the Older Americans Act, as specified, to hear, investigate, and resolve complaints made by or on behalf of patients or residents of long-term care facilities relating to matters that may affect the health, safety, welfare, and rights of these patients or residents. [Welfare and Institutions Code (WIC) §9700, et seq.]
7. Permits representatives of the LTC Ombudsman to have the right to enter LTC facilities and have unescorted, unhindered movement within them for the purposes of identifying, hearing, investigating, and resolving complaints, observing and monitoring conditions of residents and facilities, speaking confidentially with residents, and providing services to assist residents in protecting their health, safety, welfare, and rights. Requires entry to be provided at any time deemed necessary and reasonable by the LTC ombudsman. [WIC §9722]
8. Establishes the California Emergency Services Act, which provides the Governor with the authority to proclaim a state of emergency, and provides the Governor, during a state of emergency, with complete authority over all agencies of the state government and the right to exercise within the area all police power vested in the state by the Constitution and laws of California, and in exercising these powers, gives the Governor the authority to promulgate, issue, and enforce such orders and regulations as he deems necessary. Permits the Governor to suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, where the Governor determines that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency. [Government Code (GOV) §8625, §8627, and §8571]
9. Defines three conditions of emergency for purposes of the Emergency Services Act, including a “state of war emergency,” “local emergency” that is within the territorial limits of a city or county, and a “state of emergency” which could be caused by air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, or an earthquake or other conditions, which are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county or city and require the combined forces of a mutual aid region or regions to combat. [GOV §8558]
10. Gives the State Public Health Officer (PHO), as the director of DPH, broad authority to detect, monitor, and prevent the spread of communicable disease in the state, including to adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any of the contagious, infectious, or communicable diseases, if in the opinion of DPH, the action is necessary for the protection of the public health. [HSC §120130, et seq.]
11. Permits the PHO or a local health officer (LHO), appointed by a county, to declare a health emergency or a local health emergency, respectively, whenever there is a hazardous waste spill or whenever there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, non-communicable biologic agent, toxin, or radioactive agent. Permits the PHO or the LHO to take specified actions during a health emergency or a local health emergency. [HSC §101080]
12. Requires LHOs knowing or having reason to believe that any case of reportable diseases, or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, to take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases. [HSC §120175
    

FISCAL EFFECT: Unknown. This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, COVID-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of LTC Facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the Legislature commissioned a work study group composed of state agencies and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates to create recommendations for the legislature to incorporate that threads the needle allowing visitation in Long-Term Care Facilities while maintaining public health. The work group concluded that this separation had a huge impact on resident’s well-being, and they gave a set of recommendations that balanced public health safety concerns and the need to ensure visitation rights for residents. The author concludes that this bill recognizes the importance loved ones play in the mental and physical health of Long-Term Care residents by codifying these recommendations
2. BACKGROUND.
   
   1. Limitation on visitation. At the beginning of the COVID-19 pandemic, after an outbreak at a nursing home in Washington that was followed by outbreaks in nursing homes elsewhere, the Centers for Medicare and Medicaid Services (CMS) issued guidance in March of 2020 that restricted all visitors to nursing homes, without an exception for LTC ombudsmen. Over the course of this pandemic, the guidance from CMS, as well as guidance from DPH and DSS, evolved in response to changing conditions. By June, DPH sent out an All Facilities Letter (AFL) permitting facilities not experiencing an outbreak to permit LTC ombudsman in the facility. On August 25, DPH sent out an AFL updating the guidance to require facilities to permit LTC ombudsmen to enter regardless of whether or not there is a COVID-19 outbreak, after being screening for fever and COVID-19 symptoms and wearing appropriate PPE. Vaccination clinics began for LTC residents in December 2020, followed by a sharp decline in COVID-19 cases and deaths. CMS lifted restrictions on visitors to nursing homes on March 10, 2021, allowing for responsible indoor visitation at all times and for all residents, with certain exceptions for facilities in counties with high positivity rates and low vaccination rates. Under current DPH guidance, visitors to SNFs are required to show proof of vaccination or a negative test for indoor visitation, but notes that LTC ombudsmen are not visitors and are not subject to vaccination or testing requirements when they are on site conducting state business. DSS also requires proof of vaccination or negative test result for indoor visitation to RCFEs, and similarly exempts LTC ombudsman representatives from those requirements.
      
   2. Concerns over restrictions on visitations. In September 2020, CMS convened the Coronavirus Commission on Safety and Quality in Nursing Homes (Commission), which released a report addressing safety and quality in nursing homes in relation to the PHE. The Commission found that while restrictions on visitation protected the physical health of residents, these restrictions created substantial harm, including loneliness, anxiety, and depression among residents, and distress for families who were unable to assess the well-being and safety of loved ones. The Commission concluded that visitation is a vital resident right and recommended updated in-person guidance to enable safe visitation.
      
   3. LTC Working Group. AB 178 (Ting), Chapter 45, Statutes of 2022, was a Budget bill that, among other provisions, commissioned a workgroup to “develop recommendations regarding best policies and practices for LTC facilities during public health emergencies, including, but not limited to, visitation policies. During their discussions, workgroup members weighed the following concepts:
      1. Balance, referring to the relationship between the need for public health protection and the physical health, mental health, and advocacy needs of residents, their families, their friends, and others during emergencies, including their individual rights and autonomy;
      2. Parity, referring to similarities or differences in visitation requirements that a facility requires for visitors, outside professional staff, and facility staff;
      3. Regionalism, referring to differences among regions of California; and,
      4. Equity, referring to the imperative to ensure equity in visitation access, with consideration for ageism, ableism, and barriers for historically marginalized communities.
         

The working group made several recommendations, including that in a state of emergency in which a local or state order curtails visitation due to a legitimate public health or safety risk, that a “Resident-Designated Support Person” (RDSP) be able to conduct in-person visits with LTC-facility residents subject to the same safety protocols as LTC facility staff. Many of the recommendations of the LTC Workgroup are included in this bill.

1. SUPPORT. California Advocates for Nursing Home Reform (CANHR) are the sponsors of this bill and state that it is nearly impossible to understate the importance of visitation in LTC facilities. These facilities are home to over 250,000 Californians, who enjoy the company of family, friends, and other visitors just as anyone else does. The ability to host visitors and share personal moments with loved ones is a key to making long term care facilities more homelike. Aside from the obvious psychological benefits that visitation and in-person companionship provide, visitation is often vital to the well-being of residents. CANHR also notes that visitors provide direct care that is not only supplemental to that provided by the facility staff, but essential to residents’ health and safety. Visitors provide food and feeding assistance; help with grooming, toileting, and exercise; turning and repositioning for skin integrity; and myriad other care services. In addition, visitors’ observations, supervision, and advocacy ensure residents are getting their basic care delivered as needed. CANHR concludes that when these caregivers were barred from facilities, the subsequent loss was devastating, making 2020-2022 the worst years in the history of long term care.
   
2. OPPOSE UNLESS AMENDED. The Health Officers Association of California, and the County Health Executives Association of California are oppose unless amended to this bill and request the removal of provocative declarative language, the section prohibiting quarantine, and language limiting health officer authority to protect Californians in times of serious threat. They also request the addition of language to ensure onsite access to a visitor is done in a manner consistent with state and local public health guidance. LHOs recognize the importance of designated support persons to the health and well-being of long-term care facility residents. In addition to protecting communities from infectious diseases, public health also strives to create an environment in which everyone has access to health and wellbeing, including mental and physical wellness. Health officer orders at both the state and local level are not issued lightly and aim to use the least restrictive means of preventing disease. The COVID-19 pandemic was unprecedented and public health officials worked tirelessly to protect communities from the spread of disease, often while facing harsh criticism and even harassment. Supplies were limited, health care resources were strained, and the number of cases and deaths were increasing at rapid rates. Any actions taken to limit visitation in long-term care facilities were not intended to be punitive, but instead issued out of care and concern for the health and well-being of vulnerable residents.
   
3. RELATED LEGISLATION. AB 2549 (Gallagher) Establishes the Patients’ Visitation Rights Act, which requires DPH, not later than January 1, 2026, to provide specific clinical guidance related to safe visitation during a pandemic event for hospitals, as defined. AB 2549 is pending in the Assembly Appropriations Committee.
   
4. PREVIOUS LEGISLATION.
   1. AB 1855 (Nazarian), Chapter 583, Statutes of 2022, prohibits a SNF or RCFE, under any circumstances and notwithstanding any other law, from denying entry to a long term care ombudsman, unless the Governor has declared a state of emergency related to an infectious disease and the ombudsman is positive for, or showing symptoms of, the disease that is the reason for the state of emergency.
      
   2. AB 2546 (Nazarian) would have enacted the Resident-Designated Support Persons Act, granting residents of LTC facilities the right to in-person, onsite access to a minimum of two designated support person during any PHE, as defined, in which the residents’ visitation rights are curtailed by a state or local order. AB 2546 was subsequently amended to address a different subject matter.
5. DOUBLE REFERRAL. This bill is double-referred, it passed the Assembly Committee on Aging and Long-Term Care with a vote of 5 to 0 on April 16, 2024.
6. SUGGESTED AMENDMENTS: As currently drafted, this bill supersedes a state or local government order during a declared state of emergency, local emergency, health emergency, or local health emergency to limit the number of visitors or health care and social services providers who may simultaneously visit a resident. This could be interpreted to allow visitors to enter a LTC facility that is being evacuated. The Committee may wish to amend this bill to clarify that this bill shall not be interpreted to allow visitors to enter a long-term health facility during an evacuation, or in the event there are first responders on-site who refuse entry to the facility.
   

REGISTERED SUPPORT / OPPOSITION:

Support

AARP
Alzheimer's Association State Policy Office
Association of Regional Center Agencies
CA Virtual Resident Council
California Advocates for Nursing Home Reform
California Assisted Living Association
California Association of Long Term Care Medicine
California Coalition on Family Caregiving
California Continuing Care Residents Association (CALCRA)
California Long Term Care Ombudsman Association (CLTCOA)
California Office of The State Long-Term Care Ombudsman
California Retired Teachers Association
Consumer Attorneys of California
Essential Caregivers Coalition
Gray Panthers
Gray Panthers of San Francisco
Inland Coalition on Aging
Inland Empire/Riverside County CNAS
Justice in Aging
Office of The State Long-Term Care Ombudsman
Retired Public Employees Association
Wise and Healthy Aging

Opposition

None on file

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

Date of Hearing: April 16, 2024

ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE

Jasmeet Bains, Chair

ABPCA Bill Id:AB 2075 (

Author:Alvarez) – As Amended Ver:April 10, 2024

SUBJECT: Resident Access Protection Act

SUMMARY: Enacts the Resident Access Protection Act (Act). Specifically, this bill:

1. Makes findings and declarations relating to the COVID-19 impact on residents in long-term care (LTC) facilities and in person visitation.
2. Provides a resident of a LTC facility with the right to in-person, onsite access to a visitor or a health care and social services provider during a public health emergency (PHE).
3. Prescribes how a resident may leave their LTC facility on outings during a PHE.
4. Allows a LTC facility to require visitors, health care and social service providers to adhere to safety protocols not greater than required by facility staff during a PHE.
5. Provides personal protective equipment (PPE) and testing resources to visitors, to the extent they have been made available to the LTC facility by state or local entities for this purpose.
6. Requires a LTC facility, among other things, to provide safety protocols required of care staff, visitors and health and social service providers during a PHE to the residents, the resident’s representatives and visitors in writing, in an accessible format, and in the resident’s preferred language.
7. Allows a state or local government order to supersede this chapter during a declared state of emergency, local emergency, health emergency, or local health emergency, to limit the number of visitors or health care and social services providers who may simultaneously visit a resident, except for compassionate care visits, or requires visitors or health care and social services providers to follow the same safety protocols required of facility staff.
8. States the terms by which visitors or health care and social services providers can demonstrate their proficiency to follow the same safety protocols required of staff.
9. Disallows this chapter to otherwise be suspended, superseded, or modified.
10. Includes the following definitions for purposes of the Act:
    1. “Compassionate care visit” means an in-person, onsite social interaction for a resident whose health has sharply declined, is experiencing a significant change in condition, or is otherwise suffering. This includes, but is not limited to, end of life or hospice care, a cessation of eating or drinking or significant weight loss, transition to a new care setting, grief, an emergency, or a significant or rapid decline in mental or emotional health.
    2. “Health care and social services provider” means an individual who is not a staff or visitor but provides health care or social support to a resident. This includes, but is not limited to, a health care worker, hospice provider, paid caregiver, personal care assistant, care manager, dentist, social worker, case manager, financial planner, conservator, and spiritual care provider.
    3. “Long-term care facility” means any of the facilities listed in Sections 1418 or paragraph (1) of subdivision (a) of Section 1502 of this code and subdivision (b) of Section 9701 of the Welfare and Institutions Code, unless excluded by any of those provisions.
    4. “Public health emergency” means a public health-related condition that results in the declaration of a state of emergency or local emergency, as defined in Section 8558 of the Government Code, or the declaration of a health emergency or local health emergency, as described in Section 101080, and that triggers a state or local government order to restrict the visitation rights of residents in a long-term care facility. A public health-related condition may include, but is not limited to, a natural disaster, an outbreak of an infectious disease, or a bioterrorist attack, if within the scope of Section 101080 of this code or Section 8558 of the Government Code.
    5. “Resident representative” means an individual who has authority to act on behalf of the resident, including, but not limited to, a conservator, guardian, person authorized as agent in the resident’s advance health care directive, the resident’s spouse, registered domestic partner, or family member, a person designated by the resident to act as a representative, or other surrogate decisionmaker designated in accordance with statutory and case law.
    6. “Staff” means an individual employed by, or contracted directly with, the long-term care facility and who provides care to residents.
    7. “Visitor” means an individual who visits with a resident with the consent of the resident or resident representative.

EXISTING LAW:

1. Establishes, in federal law, the Older Americans Act (OAA), which promotes the well-being of Americans 60 years old and above through services and programs designed to meet their needs. (42 United States Code (USC.) § 3001, et seq.)
2. Establishes, within the OAA, the Office of the Long-Term Care Ombudsman (LTCO) Program and requires states to establish and operate a LTCO for the purpose of identifying, investigating, and resolving complaints that may adversely affect the health, safety, welfare, or rights of residents of long-term care facilities. (42 USC § 3058(g))
3. Establishes the Office of the State LTCO under the California Department of Aging (CDA), for the purpose of protecting and advocating for the rights and health and safety of long-term care facility residents, and in providing leadership, direction, and support to local LTCO programs. (WIC § 9700 et seq.)
4. Clarifies a skilled nursing facility or residential care facility shall not, under any circumstances, deny entry to a representative of the LTCO acting in their official capacity so long as the representative of the LTCO entering the facility adhere to infection control protocols for the duration of their visit that are no more stringent than those required for facility staff. (WIC § 9718.5)
5. Defines “long-term health care facility” to mean a skilled nursing facility (SNF); intermediate care facility (ICF), including an ICF for individuals with developmental disabilities, as specified, a congregate living health facility; a nursing facility, and a pediatric day health and respite care facility. Specifies that a “long-term health care facility” does not include a general acute care hospital or acute psychiatric hospital, as specified. (HSC § 1418)
6. Defines “long-term care facility,” for purposes of establishing the role of the State LTCO, to mean a nursing facility or SNF, including distinct parts of facilities that are required to comply with licensure requirements for SNFs, or a residential care facility for the elderly (RCFE.) (WIC § 9701).
7. Establishes the “California Residential Care Facilities for the Elderly (RCFE) Act” to provide for the licensure and regulation of RCFEs as a separate category within the existing licensing structure of CDSS. (HSC § 1569 et seq.)
8. Defines “residential care facility for the elderly” to mean a housing arrangement chosen voluntarily by individuals ages 60 and older, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility. (HSC § 1569.2(p)(1))
9. Establishes the RCFE Resident’s Bill of Rights, as provided, which includes the right to consent to have relatives and other individuals of the resident’s choosing visit during reasonable hours, privately and without prior notice, among other rights. (HSC § 1569.269)
10. Establishes the California Emergency Services Act, which provides the Governor with the authority to proclaim a state of emergency, and provides the Governor, during a state of emergency, with complete authority over all agencies of the state government and the right to exercise within the area all police power vested in the state by the Constitution and laws of California, and in exercising these powers, gives the Governor the authority to promulgate, issue, and enforce such orders and regulations as he deems necessary. Permits the Governor to suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency, where the Governor determines that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency. (GOV) § 8625, § 8627, and § 8571)
    
11. Defines three conditions of emergency for purposes of the Emergency Services Act, including a “state of war emergency,” a “local emergency” that is within the territorial limits of a city or county, and a “state of emergency,” which could be caused by air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, or an earthquake or other conditions, which are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county or city and require the combined forces of a mutual aid region or regions to combat. (GOV § 8558)
    
12. Gives the State Public Health Officer (PHO), as the Director of DPH, broad authority to detect, monitor, and prevent the spread of communicable disease in the state, including to adopt and enforce regulations requiring strict or modified isolation, or quarantine, for any of the contagious, infectious, or communicable diseases, if in the opinion of DPH, the action is necessary for the protection of the public health. (HSC § 120130, et seq.)
    
13. Permits the PHO or a local health officer (LHO), appointed by a county, to declare a health emergency or a local health emergency, respectively, whenever there is a hazardous waste spill or whenever there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease, chemical agent, non-communicable biologic agent, toxin, or radioactive agent. Permits the PHO or the LHO to take specified actions during a health emergency or a local health emergency. (HSC § 1010800)
14. Requires LHOs knowing or having reason to believe that any case of reportable diseases, or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under his or her jurisdiction, to take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases. (HSC § 120175)
15. Requires the Secretary of HHS, in coordination with the Director of CDA, to lead the development and implementation of the MPA established pursuant to Executive Order N-14-19. (WIC § 9850)

FISCAL EFFECT: This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

Author’s Statement: “Covid-19 cost the lives of millions of Americans and irrevocably disrupted the lives of millions more. One subset of Californians impacted were residents of Long-Term Care Facilities whose loved ones were prohibited by state and local authorities from visiting them. To understand the full extent of the impact, the legislature commissioned a work study group composed of state agencies and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates to create recommendations for the legislature that threads the needle of allowing visitation in Long-Term Care Facilities while maintaining public health. The work group concluded that this separation had a huge impact on resident’s well-being, and they gave a set of recommendations that balanced public health concerns and the need to ensure visitation rights for residents. AB 2075 recognizes the importance loved ones play in the mental and physical health of Long-Term Care residents by codifying these recommendations.”

BACKGROUND

Long-Term Care Facilities

Sometimes referred to as assisted living facilities, RCFEs are responsible for providing housing, housekeeping, supervision, and personal care assistance with activities of daily living, like hygiene, dressing, eating, and walking, to individuals ages 60 and older. California’s network of RCFEs consists of small homes serving a handful of residents to larger RCFEs that can house over 100 residents in communities across the state. Facilities provide a special combination of housing, personalized supportive services, and 24-hour staff designed to respond to the individual needs of those who require help with activities of daily living. This level of care and supervision is for people who are unable to live by themselves but who do not need 24 hour nursing care. They are considered non-medical facilities and are not required to have nurses, certified nursing assistants or doctors on staff. RCFEs are licensed and overseen by CDSS.

SNFs are health facilities that provide skilled nursing care and supportive care to patients whose primary need is for skilled nursing care on an extended basis. ICFs are health facilities that provide inpatient care to ambulatory or nonambulatory patients who have recurring needs for skilled nursing supervision and need supportive care, but who do not require availability of continuous skilled nursing care. As health care facilities, SNFs and ICFs are licensed and overseen by CDPH. ICFs for Individuals with Intellectual Disabilities (ICF/IID) are also health facilities licensed by CDPH to provide 24-hour residential habilitative or nursing services. ICF/IIDs are approved by the Department of Developmental Services (DDS) prior to CDPH licensure. SNFs and ICFs are under the purview of the Assembly Committee on Health.

Office of the State Long-Term Care Ombudsman (LTCO)

Under the federal OAA, each state is required to operate an Office of the State LTCO, which is charged with identifying, investigating, and resolving complaints that are made by, or on behalf of, residents of long-term care facilities. In California, the Office of the LTCO is housed under CDA. The State LTCO and their local representatives assist residents in long-term care facilities with issues related to day-to-day care, health, safety, and personal preferences, including investigating abuse and violations of residents’ rights or dignity, and other issues regarding quality of care.

The State LTCO oversees 35 local Ombudsman programs, 255 paid staff, and 360 certified volunteers (down 50 percent decline from 2019) who advocate on behalf of the residents of long-term care facilities. As of March 2023, these facilities include 1,194 skilled nursing and intermediate care facilities and 7,549 RCFEs, with a combined count of approximately 319,310 beds.^[1]

Effect of COVID-19 Pandemic on Long-Term Care Residents

On February 29, 2020, the first documented outbreak of COVID-19 occurred at a SNF in Washington. The Centers for Medicare & Medicaid Services (CMS) restricted all visitors, including LTCOs, to nursing homes on March 13, 2020, shortly before Governor Newsom issued a statewide stay-at-home order to slow the spread of COVID-19.

Due to the communal nature of long-term care facilities and the population served, residents face increased risk of infection and severe illness from COVID-19.^[2] In California, these facilities include SNFs and ICFs, which are overseen by CDPH, and RCFEs, which are overseen by CDSS. According to CDPH’s SNF Data Dashboard, the fatality ratio (the percentage of COVID-19 cases resulting in death) in SNFs reached 23.2 percent in June 2020. By December 2020, nearly 30 percent of SNFs in California were experiencing a COVID-19 outbreak, with 56.6 new cases per 1,000 SNF residents weekly. The mortality rate in SNFs reached 7.1 deaths per 1,000 residents the week of January 10, 2021.^[3] As of May 25, 2022, 9,924 SNF residents had died from COVID-19 in California, representing two percent of the state’s total cases but 13 percent of its deaths.^[4] CDPH’s SNF Data Dashboard (Dashboard) longer reports COVID-19 Resident and Healthcare Worker Cases but remains active for historical purposes. The Dashboard did not include data on RCFEs, which are overseen by CDSS. According to CDSS, 4,091 RCFE residents had died from COVID-19, out of a total of 66,963 cases as of May 24, 2022.^[5]

According to the Centers for Disease Control, as of April 6, 2024, there have been 1,188,278 total deaths due to COVID-19 in the United States.^[6]

In September 2020, CMS convened the Coronavirus Commission on Safety and Quality in Nursing Homes (Commission), which released a report addressing safety and quality in nursing homes in relation to the public health emergency. The Commission found that while restrictions on visitation protected the physical health of residents, these restrictions created substantial harm, including loneliness, anxiety, and depression among residents, and distress for families who were unable to assess the well-being and safety of loved ones.^[7] The Commission concluded that visitation is a vital resident right and recommended updated in-person guidance to enable safe visitation, including visitation by LTCO.

Findings in a report on the adverse impact in nursing homes during COVID^[8] found that nursing home resident outcomes worsened on a broad array of measures. The prevalence of depressive symptoms increased by 6 percentage points relative to before the pandemic in the beginning of March-representing a 15% increase. The share of residents with unplanned substantial weight loss also increased by 6 percentage points relative to the beginning of March-representing a 150% increase. We also found significant increases in episodes of incontinence (4 percentage points) and significant reductions in cognitive functioning. Our findings suggest that loneliness and isolation play an important role.

Human Rights Watch raised concerns over neglect, isolation, and deteriorating quality of care affecting nursing home residents in the United States during the pandemic.^[9] Their reporting in May 2021 documented problems such as extreme weight loss, dehydration, untreated bedsores, inadequate hygiene, mental and physical decline, and inappropriate use of psychotropic mediations. The report also cites an analysis by the Associated Press that approximately 40,000 excess deaths (not from COVID-19) occurred in U.S. nursing homes between March and November 2020. Understaffing in facilities, combined with restrictions on visitations from family members who usually assisted with resident care, contributed to heightened concerns about neglect and inadequate care.

Aging Californians and the frailest living in congregate care remain a tragic highlight of the COVID-19 pandemic. Nursing home residents accounted for a minor percentage of California’s coronavirus cases, but a far greater percentage of its deaths.

While infection protocols were ever-changing from the earliest days and continued over the following two years, isolation of facility residents remained untreated as a health determinate.

During the pandemic, there were a staggering number of All Facility Letters (AFL) put out by DPH, the majority impacting care in skilled nursing facilities.^[10] DSS put out Provider Information Notices (PIN) in exponentially greater numbers as well.^[11] Care facilities were dealing with COVID-19 outbreaks, increased infection protocols, staffing shortages and more. As nursing homes and assisted living facilities were attempting to follow guidelines set forth by DPH and DSS, the importance of in-person visitation was forgotten. The morbidity associated with COVID 19 isolation is still data that remains elusive.

The State LTCO, which is tasked with identifying, investigating, and resolving complaints made by or on behalf of long-term care residents, received over 29,000 complaints in 2020, and over 40,000 complaints in 2021, an increase of 37 percent. The most common complaints in 2020 related to violations of residents’ rights, including abuse, gross neglect, and exploitation.

Long-Term Care Facility Visitation during the COVID-19 Pandemic

As the onset of COVID-19 in the United States, one of the first preventative measures public health authorities made at the federal, state, and local levels was to shut down all LTC facility visitation. Given the lethality of COVID-19 for older adults and the crowded conditions in facilities, creating protective policies made some sense as an emergency measure.

However, as the initial crisis turned to a long-term pandemic, visitation lockouts and the isolation caused were having negative impacts to residents and families. COVID-19 was brought in to facilities by staff and the impact to the state’s most vulnerable residents was lethal.

The visitation lockouts demonstrated a lack of understanding of the importance of support and its links to health.

Recent studies have found that social isolation significantly increased a person’s risk of premature death from all causes, a risk that may rival those of smoking, obesity and physical inactivity. Further, social isolation was associated with about a 50 percent increased risk of dementia.^[12]

These reports and analyses show that the pandemic had substantial impacts on nursing home residents beyond what can be quantified by cases and deaths. The well-being of residents was adversely affected both in their physical and emotional well-being.

Long-Term Care Facility Access Policy Workgroup

In 2022, the Legislature commissioned the Long-Term Care Facility Access Policy Workgroup (LTCFA Policy Workgroup) to develop recommendations for policies regarding access to long-term care facilities during states of emergency, including, but not limited to, visitation policies.^[13] As defined by the Legislature, the LTCFA Policy Workgroup was comprised of CDA, the Office of the State LTCO, CDPH, CDSS and stakeholders representing public health officials, long-term care facility operators and residents, and consumer advocates. A report with the findings of the working group was submitted to the Legislature in the fall of 2023.^[14]

A summary of the main findings:

1. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that Resident-Designated Support Persons (RDSPs) be able to conduct in-person visits with LTC facility residents subject to the same safety protocols as LTC facility staff.
2. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that health care and social services providers not employed by the LTC facility be able to access an LTC facility and, when relevant, conduct in-person visits with LTC facility residents, subject to the same safety protocols as LTC facility staff.
3. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that individuals who have access to enter LTC facilities through legal, statutory, regulatory, or similar authority be able to access an LTC facility and, when relevant, conduct in-person visits with LTC facility residents, subject to the same safety protocols as LTC facility staff.
4. In a state of emergency in which the emergency supplies are limited across the board and in which state, county, and local authorities are involved in supply distribution, the workgroup recommends that state, county, and local authorities consider RDSPs to be among the top priority populations for any emergency supplies required in order to adhere to LTC facility safety protocols.
5. The workgroup recommends that state LTC facility licensing agencies provide clear communication on LTC facility visitation standards and an accessible process for submitting grievances and appeals in situations where visitation is not made available as defined in this workgroup’s recommendations.
6. In a state of emergency in which a local or state order may curtail visitation due to a legitimate public health or safety risk, the workgroup recommends that a representative group of stakeholders be convened at regular intervals to discuss issues related to LTC facility visitation and provide a collaborative forum for those impacted by the policies to provide feedback to licensing agencies and other key decision makers.

California’s Aging Population

California’s aging population is growing faster than any other age group. By 2030, over 25 percent of the population in California will be 60 and older.^[15] The population in the state is becoming more racially and ethnically diverse, and yet the COVID-19 pandemic impacted Californians disparately.

California is projected to be one of the fastest growing States in the nation in total population. In 2016, California comprised 12 percent of the nation's population^[16] and is expected to grow 30 percent by the year 2060 (an increase of 11.7 million people.^[17] In California, the population aged 60 years and over is expected to grow more than three times as fast as the total population and this growth will vary by region.

The population over age 60 will have an overall increase of 166 percent during the period from 2010 to 2060. More than half the counties will have over a 100 percent increase in this age group. Nearly half of these counties will have growth rates of over 150 percent. These counties are located throughout the central and southern areas of the State. The influence of the 60 and over age group on California is expected to emerge most strongly between 2010 to 2030.3

The population over age 85 will increase at an even a faster rate than those over 60 years of age, having an overall increase of 489 percent during the period from 2010 to 2060. Counties can expect to experience even higher growth rates after 2020. In particular, the influence of the 85 and over age group on California will emerge most strongly between 2030 to 2040 as the first of the baby boomers reach 85 years of age.3

Life expectancy continues to rise,^[18] however during 2019-2021 overall life expectancy for Californians fell from 81.4 years to 78.4 years. For Hispanics, life expectancy declined by nearly 6 years, a difference three times greater than their white counterparts. And the difference between those in California’s highest and lowest income brackets increased by three-and-a-half years to greater than 15 years (11.5 years before the pandemic to more than 15 years in 2021).^[19]

The World Health Organization defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”^[20]

Master Plan for Aging: In January of 2021, the Governor released his Master Plan for Aging (MPA). The MPA prioritizes the health and well-being of older Californians and the need for policies that promote healthy aging. The MPA serves as a blueprint for state government, local government, the private sector, and philanthropy to prepare the state for the coming demographic changes and continue California’s leadership in aging, disability, and equity.

After work began on the MPA, the COVID-19 pandemic reached California. The virus disproportionately harmed older and other at-risk adults, and it strained aging and disability services that were perpetually underfunded. Worldwide, older adults experienced unprecedented death rates. California’s diverse population saw disproportionate numbers, particularly among Latino, Black and Asian Pacific Islander communities and those living in nursing homes. The pandemic intensified social isolation.

The work plan laid out in the MPA three years after its release continues to highlight the urgent needs facing California’s older adults, people with disabilities, their families, caregivers, advocates and the workforce supporting these populations..

In 2024-25, the MPA outlines five bold goals and currently seeks to advance 95 initiatives to build a California for All Ages by 2030. Each initiative features a designated area of focus; to deliver, to analyze and to communicate. It also includes a Data Dashboard on Aging to measure progress. AB 2207 can be linked closely to Goals Two, Three and Four of the five bold goals:

• Goal One: Housing for All Ages and Stages
• Goal Two: Health Reimagined
• Goal Three: Inclusion and Equity, Not Isolation
• Goal Four: Caregiving That Works
• Goal Five: Affording Aging

Dual-referral: AB 2546 is dual-referred and will be heard in the Assembly Health Committee on April 23, 2024 if passed out of this committee.

Proposed amendments: No additional amendments are proposed at the time of this hearing.

Legislative History: AB 2546 (Nazarian) of 2022, enacted the Resident-Designated Support Persons (DSP) Act. Allowing, among other things, each long-term care (LTC) resident the right to in-person, onsite access to a minimum of two designated support persons during any public health emergency (PHE); granting the DSP certain rights to access the facility to visit the resident; and, authorizing a facility to require DSP to adhere to infection protocols not greater than required of care staff during a PHE. The bill language was amended in Assembly Health Committee that included language for a working group. Language in AB 2546 was ultimately removed and made germane to another policy area.

The Budget Act of 2022 (AB 178, Ting), Chapter 45, Statutes of 2022), included defining language for the working group to “develop recommendations regarding best policies and practices for long-term care facilities during public health emergencies.”

AB 1855 (Nazarian), Chapter 583, Statutes of 2022, prohibited a SNF or residential care facility from denying entry to a representative of the State LTCO acting in their official capacity.

AB 2549 (Gallagher) 2023-24 Session, this bill would require a health facility to develop alternate visitation protocols, if circumstances require the health facility to restrict public access to the facility due to health or safety concerns, that allow visitation to the greatest extent possible while maintaining client health and safety. The measure was dual referred. It passed out of Assembly Health Committee on April 10, 2024 and is now waiting a hearing with the Assembly Human Services Committee.

Argument in Support: California Advocates for Nursing Home Reform, a sponsor of AB 2075 writes, “When the COVID-19 pandemic started in the United States, public health authorities at the federal, state, and local levels shut down long term care facility visitation. Given the lethality of COVID for older adults and the crowded conditions in facilities, creating protective bubbles made sense as a short-term, emergency measure. But as weeks turned to months and months turned to years, the visitation lockouts became increasingly ineffectual and isolating, and ultimately harmed residents. COVID ran amok in long term care facilities anyway, brought in by staff people, and killed thousands of residents who were also suffering from severe depression brought on by their inescapable seclusion.

The visitation lockouts demonstrated a lack of understanding of the importance of support persons to the well-being of long term care facility residents. Frankly, few people had any idea how much critical in-person care is collectively provided by support persons, as a supplement to or in place of the care provided by the facility staff. While policymakers set their focus on infection rates, that focus came at an enormous cost to residents’ quality of life.

The visitation lockouts not only failed to prevent COVID outbreaks while depriving residents of vital direct care, they also cut visitation at a time when it was more important than ever. During the pandemic, facilities were rife with understaffing as care workers were forced to stay home with children out of school, were sick themselves, or simply quit their jobs. Sometimes, new staff were hired who lacked the skill of their predecessors due to emergency exemptions to caregiver training requirements. Other times, there was no one to hire and there was simply no staff at all. Additionally, government regulators and long term care Ombudsman programs were sidelined for months, meaning the typical oversight to safeguard the delivery of basic care was absent.

The pandemic visitation lockouts deprived long term care facility residents of seeing the people who know them best, who love them most, provide critical care, and often serve as their eyes, ears, and voices.”

Arguments of Concern: County Health Executives Association of California and the Health Officers Association of California have taken an “oppose unless amended” position to an earlier version of the bill in a joint letter. The recent amendments do not address the concerns raised. Their letter states, “Our organizations request the removal of provocative declarative language, the section prohibiting quarantine, and language limiting health officer authority to protect Californians in times of serious threat. We also request the addition of language to ensure onsite access to a designated support person is done in a manner consistent with state and local public health guidance.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Advocates for Nursing Home Reform (Sponsor)

AARP

Alzheimer’s Association

Association of Regional Center Agencies

California Assisted Living Association

California Association of Long Term Care Medicine

California Coalition on Family Caregiving

California Continuing Care Residents Association

California Long Term Care Ombudsman Association

California Office of the State Long-Term Care Ombudsman

California Retired Teachers Association

Consumer Attorneys of California

Essential Caregivers Coalition

Inland Coalition on Aging

Justice in Aging

LeadingAge California

PSA2 Long-Term Care Ombudsman Program

Retired Public Employees Association

San Francisco Gray Panthers

Wise and Healthy Aging

Several individual letters

Opposition

None on file.

Analysis Prepared by: Elizabeth Fuller / AGING & L.T.C. / (916) 319-3990

1. CDA: Long-Term Care Ombudsman Program Statistical Fact Sheet, March 2023. ↑

2. CDC: People Who Live in a Nursing Home or Long-Term Care Facility, September 2020. ↑

3. CDPH: SNF Data Dashboard. ↑

4. LA Times: Tracking the coronavirus in California nursing homes, May 17, 2022. ↑

5. CDSS: RCFE and ARF COVID-19 Cases, May 24, 2022. ↑

6. https://covid.cdc.gov/covid-data-tracker/#datatracker-home ↑

7. Coronavirus Commission on Safety and Quality in Nursing Homes, MITRE Corporation, September 2020. ↑

8. Levere M, Rowan P, Wysocki A. The Adverse Effects of the COVID-19 Pandemic on Nursing Home Resident Well-Being. J Am Med Dir Assoc. 2021 May;22(5):948-954.e2. doi: 10.1016/j.jamda.2021.03.010. Epub 2021 Mar 20. PMID: 33861980; PMCID: PMC7980137. ↑

9. Human Rights Watch: US: Concerns of Neglect in Nursing Homes, May 2021. This report focuses on concerns affecting nursing homes nationally, and does not create a distinction between nursing homes and other types of long-term care facilities, such as RCFEs, which are specific to California’s licensing structure. ↑

10. https://www.cdph.ca.gov/Programs/CHCQ/LCP/Pages/LNCAFL.aspx ↑

11. https://www.cdss.ca.gov/inforesources/community-care-licensing/policy/provider-information-notices/adult-senior-care ↑

12. National Academies of Sciences, Engineering, and Medicine; Division of Behavioral and Social Sciences and Education; Health and Medicine Division; Board on Behavioral, Cognitive, and Sensory Sciences; Board on Health Sciences Policy; Committee on the Health and Medical Dimensions of Social Isolation and Loneliness in Older Adults. Social Isolation and Loneliness in Older Adults: Opportunities for the Health Care System. Washington (DC): National Academies Press (US); 2020 Feb 27. Available from: https://www.ncbi.nlm.nih.gov/books/NBK557974/ doi: 10.17226/25663 ↑

13. https://www.aging.ca.gov/Long-Term_Care_Facility_Access_Policy_Workgroup/ ↑

14. https://www.aging.ca.gov/download.ashx?lE0rcNUV0zZdWSyVFWyTTA%3d%3d ↑

15. Projections | Department of Finance (ca.gov) ↑

16. https://factfinder.census.gov ↑

17. http://www.dof.ca.gov/Forecasting/Demographics/Projections ↑

18. https://longevity.stanford.edu/the-new-map-of-life-initiative/ ↑

19. https://newsroom.ucla.edu/releases/covid-life-expectancy-drops-by-race-and-income ↑

20. https://www.who.int/about/governance/constitution ↑