Arbitration agreements used by long-term care facilities, civil and criminal actions against health care providers and long-term care providers, use in civil and criminal actions and confidentiality of incident and occurrence reports, use as evidence of records given to a regulatory agency, use in criminal actions of records of reviews and evaluations of health care providers, limits on noneconomic damages, limits on punitive damages, and providing a penalty. (FE)

This bill prohibits an adult family home, a residential care apartment complex, a community-based residential facility, a nursing home, a home health agency, or hospice (long-term care facility) from requiring a resident or client to sign an arbitration agreement as a condition of admission, retaliating against a resident or client for not signing an arbitration agreement, or charging more money to a resident or client for not signing an arbitration agreement. The bill includes specific penalties for retaliating against a resident or client for not signing an arbitration agreement.

A long-term care facility that requests residents or clients to sign an arbitration agreement must provide the arbitration agreement as a separate document in another color and larger type size from any other admission agreement. The bill also requires a long-term care facility to allow a resident or client to cancel an arbitration agreement within 30 days after signing that provision and to include language about the right to cancel in the arbitration agreement.

limits on noneconomic damages Under current law, a person, or certain people related to the person, who is injured by the negligence of a long-term care provider, such as a nursing home, hospice, or assisted living facility, may sue for economic damages and for noneconomic damages. Noneconomic damages are intended to compensate for pain and suffering, loss of companionship, mental distress, and loss of enjoyment of life.

Current law limits noneconomic damages to $750,000 per occurrence of negligence. Current law also limits damages for loss of society and companionship to certain relatives recoverable in a wrongful death action against a long-term care provider to $500,000 in the case of a deceased minor and $350,000 in the case of a deceased adult.

Under current law, a person, or certain people related to the person, who is injured by the long-term care provider may bring a civil action no later than three years from the date on which the injury occurred, or within one year that the injury was discovered or should have been discovered, except that, if a long-term care provider conceals an act or omission that results in an injury, within one year from the date on which the concealment was discovered or should have been discovered.

If the injury or concealment is discovered after the three-year limit has expired, the person may still bring suit for up to five years after the long-term care provider's act or omission.

The bill eliminates the limit on noneconomic damages and applies the general three-year statute of limitations for torts to actions for negligence against a long-term care provider.

Incident reports and health care provider reviews Under current law, information acquired in connection with the review or evaluation of a health care provider and incident or occurrence reports (incident reports) must be kept confidential by a person who participates in the review or evaluation. An incident report is a written or oral statement that is made to notify a person, organization, or an evaluator who reviews or evaluates the services of health care providers or charges for such services of an incident, practice, or other situation that becomes the subject of such a review or evaluation. The persons, organizations, or evaluators who review or evaluate the services of health care providers for certain reasons must keep a record of their investigations, inquiries, proceedings, and conclusions. Current law prohibits these records of a review or evaluation from being used in any civil or criminal action against the health care provider.

This bill allows the disclosure of incident or occurrence reports by a person who participates in the review or evaluation of the health care provider and removes the prohibition against using incident reports in a civil or criminal action. The bill also allows records of a review or evaluation to be used in criminal actions. A person who participates in the review or evaluation of the services or charges of a health care provider is required, under the bill, to disclose an incident report to a court with regard to a criminal matter, under certain conditions. The bill also requires information acquired in connection with the review or evaluation to be disclosed to a court in a criminal matter, under certain conditions.

health care provider regulatory records Current law prohibits records given or disclosed to a regulatory agency and statements of, or records of interviews with, employees of a health care provider obtained by a regulatory agency (regulatory records) from being used as evidence in a civil or criminal action brought against a health care provider. A regulatory agency, in this instance, is either the Department of Safety and Professional Services or the division within the Department of Health Services that conducts quality assurance activities related to health care providers. The bill eliminates the prohibition against using regulatory records as evidence in a civil or criminal action.

punitive damages Under current law, punitive damages may be assessed with civil case if the defendant acted maliciously toward the plaintiff or with intentional disregard of the rights of the plaintiff. Current law limits punitive damages to the greater of twice the amount of compensatory damages recovered by the plaintiff or $200,000 unless the defendant's actions included the operation of a vehicle while under the influence of an intoxicant to a degree that rendered the defendant incapable of the safe operation of that vehicle. The bill creates a new exception to the limitation on punitive damages sought from a nursing home, adult family home, residential care apartment complex, or community-based residential care facility when the defendant is an administrator, agent, director, employee, officer, or operator of a nursing home, adult family home, residential care apartment complex, or community-based residential care facility and the actions of the defendant take place in that facility.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.