Can Seniors Choosing to Live in Continuing Care Residential Communities Lose Their Autonomy?

A reading of the Herriot case (8/26/2008) makes
clear they can. AB 2171 (Wieckowski) will make sure that will not happen.

By Lillian L. Hyatt, MSW, resident of a CCRC and AARP Policy Specialist on CCRCs

There was a fierce struggle going on in the California legislature over AB 2171 (Wieckowski). This struggle is between organizations whose mission it is to protect seniors from the corporations that run continuing care facilities for the elderly (RCFEs). It also concerns the real threat that seniors living in such a facility can lose their autonomy. They may lose control over such basic issues as where they live. Since there are different levels of care, economics rather than the best outcome for the mental health of residents often has determined what becomes of a resident’s right to control their lives. The cosponsors for this legislation are the California Advocates for Nursing Home Reform (CANHR) and the Consumer Attorneys of California (CAOC). The CAOC is a professional organization made up of nearly 3,000 attorneys who represent plaintiffs seeking accountability from those who do wrong.

I was very disappointed by the many good provisions that were taken out of the bill in order to obtain the willingness of Leading Age, which is a lobbyist and represents the CCRC industry, to withdraw their opposition from the bill.

As proof of this threat, my readers should be aware of the Herriot case. Sally Herriot and her son came to visit me in my apartment shortly before the horrible conclusion of Sally’s case on August 26, 2008. They came because I had written a column on this case, which both Sally and her son had read. Had I been informed by the CCRC marketing staff about the Herriot case before I gave my life savings and trust to the CCRC administration where I have lived for 14 years, I seriously doubt I would have done so if I knew that no reasonable accommodations would be given to me as I felt I needed them. In my opinion, CCRC administrators make their decisions based on financial gain for the corporations that own CCRCs. The attitude of administrators in the CCRC industry is why I have chosen to work on passing protective legislation for CCRC residents for the past ten years.

In 2012 I wrote about resident rights. The title was “Resident Rights Myth or Reality?” In this column I review my insights and use this column to inform my readers about how close AB 2171 came near to extinction in a committee hearing in the Assembly. Because so many of our legislators take campaign contributions from the owners of residential care facilities for the elderly, they tend to represent the interests of the industry rather than the interests of the elderly, who are their constituents. I personally called each member of this committee who had voted against this bill and persuaded them to change their votes. I reminded them that elderly folks vote and that they would remember in November. I also said I would inform my readers which of their representatives in the legislature had failed to represent their compelling need for the protections this law would give seniors living in RCFEs.  I repeated the same process with the senate committee. The bill was passed on the Senate floor and is now on its way to the Gov. Brown’s office for his signature.

In my opinion, seniors living in RCFEs are in danger of losing their autonomy. A careful reading of the contracts that seniors sign and the thick book of rules they are told they must follow reveals some dangerous clauses.

As an example of how far the CCRC industry was willing to go to kill this bill, it published a letter from an MD employed by the industry about the bill entitled “Elder Care Bill Needed, but AB2171 is Not It.” This doctor stated in her letter to the Examiner that a portion of the bill prohibited doctors from using drugs to manage difficult patients. This provision was stripped out of the bill long before the article was published. I wrote to the Examiner pointing out this fact. My letter was never published and I could not get any human response after repeated calls to the Examiner editors.

Anthony Chicotel, an attorney who has been working on the bill for CANHR, stated the following:

“The bill has been stripped of the private of action. What’s left is a statutory bill of rights that RCFE residents need and deserve. The old bill of rights is in regulation, which means it is subject to being changed any time by DSS (Department of Social Services) so putting it into law strengthens it—only the legislature could change the rights now. The new list is also expansive—some old rights are clarified while others are brand new. This is a good bill but it’s probably not going to be a meaningful vehicle for improving the lives of most RCFE residents.”

Fielding Greaves, a senior consultant for the Office of Assembly member Bob Wieckowski, who authored AB 2171, said:

“I want to assure that AB 2171 is still a great step forward for residents of assisted living facilities. AB 2171 creates for the first time a statutory Bill of Rights that codifies 30 rights that cover a wide range of topics dealing with every aspect of life. The Department of Social Services has increased funding this year, creating over 70 new enforcement positions and enhanced penalty schedules. This bill goes a long way to protect residents of assisted living facilities or RCFEs.”

Jack Cumming, a CCRC resident also commented and said:

“This is an example of the lobbying power of the providers (funded from resident fees) to strip all effective resident options from legislation, even in a state like California that is controlled by one party with a history of supporting consumer rights. AB 2171 is a proposal for a Residents Bill of Rights with an option for residents to be able to seek private enforcement if regulatory enforcement falls short. That right to seek enforcement has now been gutted from the bill. In unity we have strength. Without it we are weak.”

Most attorneys are not educated as to the provisions in the CCRC contracts harmful to their clients, although California Advocates for Nursing Home Reform (CANHR) has excellent courses to inform them. Therefore, all seniors should only employ attorneys specializing in elder law. I did not and have many regrets that I was not wise enough and too trusting that my interests would be protected by the CCRC management.

Professor Hyatt, our legally blind columnist, has done it again! She can be seen on YouTube on the USC School of Social Work website at https://www.youtube.com/watch?v=CMrC6o6Rm04. She can also be found on Facebook and Twitter.