NO!!
...So where did this come from? Well, I’ll give
you multiple choices for that answer:
r Title
22
r
Health
and Safety Code
r
Information
Release
r
Evaluator’s
Manual
If
revising the admission agreement with the new provisions of the state
law were required it would first be enacted as law in Health and
Safety Code, but this 2010 law, a result of SB781, does not require
it. If the new law had been “promulgated” into Title 22, then there
would be a revision to Title 22s admission agreement section, 87507
and/or the eviction section, 87224, but it is not there either. So
that leaves two unenforceable possibilities—and the winner is the
Evaluator’s Manual under “transmittal number 10APX-04.
So who
cares? It is not required, but evaluators are attempting to
fraudulently force facilities to obey this manual.
If a facility has executed an
admission contract, after the law
passed, and this
allegedly required information is not in there, a facility
cannot force a client to sign a new contract containing such erroneous
information. That’s an “arbitrary and unilateral” change, which U.S.
and California contract law forbids. If DSS attempts to have
facilities change admission agreements it can be an intentional
interference with a contractual relationship, a tort or civil breach.
DSS can then be sued for that interference. That makes this a very
important provision that DSS needs to be very diligent and careful
regarding the matter. DSS cannot coerce licensees into changing an
existing contract to include what is absolutely not required.
Let’s
read the law, H&S Code 1569.683, in its entirety:
“In addition to
complying with other applicable regulations, [not law] a
licensee of a residential care facility for the elderly who
sends a notice of eviction to a resident shall set forth
in the notice to quit the reasons relied upon for the
eviction, with specific facts to permit determination of the date,
place, witnesses, and circumstances concerning those reasons. In
addition, the notice to quit shall include all of the
following: (1) The effective date of the eviction. (2) Resources
available to assist in identifying alternative housing and care
options, including public and private referral services and case
management organizations. (3) Information about the resident's right
to file a complaint with the department regarding the eviction, with
the name, address, and telephone number of the nearest office of
community care licensing and the State Ombudsman. (4) The following
statement: ‘In order to evict a resident who remains in the facility
after the effective date of the eviction, the residential care
facility for the elderly must file an unlawful detainer action in
superior court and receive a written judgment signed by a judge. If
the facility pursues the unlawful detainer action, you must be served
with a summons and complaint. You have the right to contest the
eviction in writing and through a hearing.’ (b) The licensee, in
addition to either serving a 30-day notice, or seeking approval from
the department and serving three days notice, on the resident, shall
notify, or mail a copy of the notice to quit to, the resident's
responsible person” (emphasis added).
The
law does not mention anything about the admission agreement, but
instead makes great emphasis upon what the “notice to quit” is to
contain. Now, for some unknown reason, the chief of CCLDs policy
development bureau decided that the admission agreement should contain
the four items contained in the law, when there is absolutely no
mention of the agreement including these items.
The
Manual update in February 2010 including the following language:
“Senate Bill (SB)
781…adds section 1569.683 to the Health and Safety Code. This law
requires [RCFE] licensees…to include specified information in the
notice to quit (eviction notice) that is given to residents prior to
their eviction. The purpose of this law is to provide consumer
awareness and to ensure that eviction notices do not violate
residents’ rights.”
If
this paragraph were truly the only thing stated, then the statement is
absolutely true. “Notice to quit” is the 1989 language used in Title
22 section 87224 to mean “eviction notice.” The author of the law
actually copied many things out of the 1989 edition of the Title 22
eviction section, and uses the term “notice to quit” several times.
But the
Manual mistakenly continues:
“The LPA must review
all new facility applications as of January 1, 2010 to ensure that
eviction notices meet the requirements of 1569.683. [Eviction notices
are not part of the initial application.] The LPA must also
ensure that the admission agreement contains the required information.
During a desk review [done prior to a facility visit], upon receipt of
a facility’s eviction notice [neither the law nor regulations require
a facility to send the actual eviction notice to DSS], or prior to a
facility visit: The LPA must review the facility file to see if the
licensee has submitted an updated admission agreement
[such a submission is not required in law or Title 22]. The admission
agreement, which is part of the plan of operation, must…list the
justifications for eviction permissible under state law or regulation,
exactly as they are worded in the applicable law or regulation. The
admission agreement shall include an
explanation of the resident’s right to notice prior to an eviction,
the process by which the resident may appeal the decision (including
the unlawful detainer action process) and the relocation assistance
offered by the facility. Most of the information required by SB 781
to be included in the eviction notice has already been
required by existing statute and regulations” (emphasis added and this
author’s comments contained in [brackets]).
As you
see, the Evaluator’s Manual, and the author’s text to this February
2010 update to the manual, is completely false. The law does not
require, let alone even mention, the admission agreement. Under basic
contract law, an illegality can negate a contract as it constitutes a
“lack of consideration.” DSS is truly walking a tightrope in
attempting to have its agents violate basic contract law and possibly
be sued by both a facility and a resident.
Revising the admission agreement, sending an admission agreement to
DSS for review, sending the actual eviction notice to DSS is not
required. It is fraud for DSS to want this.
