Care Facility Destroyed Records: 2026 Rule

Claims for elder abuse and neglect in a care facility can depend heavily on the facility's own paperwork: the chart, the care plan, medication records and staffing schedules. When those records go missing or are changed, the family's proof suffers. A law passed in 2025 as Assembly Bill 251 took effect on January 1, 2026 and gives California courts a new response when a facility is found to have destroyed, altered or hidden that evidence.

This guide explains what the new section says, which facilities it covers, how a court reaches it, and what families can do now so that records are kept. Our nursing home abuse and neglect page describes the wider claims against a facility.

How does the 2026 rule work, step by step?

A claim is brought under the Elder Abuse Act's enhanced remedies. The claim alleges physical abuse, neglect or abandonment, plus recklessness, oppression, fraud or malice, against a covered facility (Welfare and Institutions Code 15657).
The family asks for the records. In the lawsuit or arbitration, the facility is asked to produce the chart, care plans, incident reports and other documents.
Spoliation is shown in one of two ways. Either the plaintiff wins a discovery motion for an issue sanction under Code of Civil Procedure 2023.030(b) because the facility destroyed evidence, or a judge or arbitrator finds, at any point in the case, that the facility committed spoliation (Welfare and Institutions Code 15657.02(a)(1)).
The judge looks at how the evidence was lost. The statute directs the judge to consider whether records were intentionally destroyed before the legal holding period ran out, against the facility's own written retention policy, or after the facility received a written request to preserve them (15657.02(c)(2)).
The court decides the standard and puts it in writing. The court may then decide the Elder Abuse Act claim under the preponderance of the evidence standard, and must issue its findings in writing (15657.02(a)).
The rest of the claim is proven as before. The family still has to prove the abuse or neglect and the recklessness, oppression, fraud or malice, now by the lower standard. If those are proven, the court must award reasonable attorney's fees and costs, and the usual limits on damages after a death do not apply (15657(a) and (b)).

What does the new section cover, and what does it leave out?

Question	What section 15657.02 says	Subdivision
Which facilities	Residential care facilities for the elderly (assisted living), adult community care facilities, and skilled nursing facilities	(b)(1)
Which facilities are excluded	Facilities owned or operated by a general acute care hospital, an acute psychiatric hospital or a special hospital, and facilities holding a hospital-related license under Health and Safety Code 1254(b) or (c)	(b)(2)
Which claims	Claims for the enhanced remedies of section 15657 (physical abuse, neglect, abandonment). It does not change the standard for elder abuse protective orders under section 15657.03	(a)(1), (e)
What counts as spoliation	Intentional improper alteration, or intentional concealment or destruction, of evidence by a party, done to keep it from being produced, that materially prejudiced the other side	(c)(1)
Which evidence	Records material to the claim that the facility was specifically required to keep or preserve	(d)
Who decides	A judge or an arbitrator can find spoliation; the court issues written findings	(a)(1), (a)(2)
Effect	The court may use the preponderance standard; the remedy adds to any other remedy the law allows	(a)(1), (f)

What counts as spoliation under the new law?

The definition is narrow on purpose. Spoliation means an intentional and improper alteration of evidence, or the intentional concealment or destruction of records, documents or other evidence, by a party to the case. It must be done with the intent of keeping the evidence from being produced, and it must have materially prejudiced the other party (Welfare and Institutions Code 15657.02(c)(1)). A misplaced page, an honest filing error or a gap that hurts no one does not meet that definition.

The records involved also matter. They must be material to the elder abuse claim and specifically required to be maintained or preserved by the facility (15657.02(d)). That is why the three situations the judge must consider are tied to duties the facility already had: a legal holding period, its own written retention policy, and a written directive to preserve.

A separate rule protects ordinary computer housekeeping in discovery. Absent exceptional circumstances, a court may not impose discovery sanctions for electronically stored information lost or overwritten through the routine, good faith operation of an electronic system, although the duty to preserve discoverable information remains (Code of Civil Procedure 2023.030(f)).

Which records must a nursing home keep?

Federal rules set the baseline for skilled nursing facilities in Medicare and nursing facilities in Medicaid (42 CFR 483.1). The facility must keep a medical record on each resident that is complete, accurately documented, readily accessible and systematically organized, and must safeguard it against loss, destruction or unauthorized use (42 CFR 483.70(h)). The record must include the resident's assessments, the comprehensive plan of care and services provided, and the progress notes of physicians, nurses and other licensed professionals, along with lab and diagnostic reports.

Records must be kept for the period state law requires or, where state law sets none, five years from discharge (42 CFR 483.70(h)(4)). The facility must also report direct care staffing information to the federal Centers for Medicare and Medicaid Services, based on payroll data, at least quarterly (42 CFR 483.70(p)).

A resident or representative can also see the records while the case is still a concern rather than a lawsuit. Federal rules require a nursing home to give access within 24 hours, excluding weekends and holidays, and copies on two working days' notice (42 CFR 483.10(g)(2)). California law gives a patient's personal representative the right to inspect records within five working days of a request and to receive copies within 15 days (Health and Safety Code 123110). Getting copies early is the plainest protection against later changes. Our guide on what to do in the first week of suspected nursing home neglect lists the parts of the chart to ask for.

Why does the standard of proof matter so much?

Without this rule, the Elder Abuse Act's extra remedies require proof by clear and convincing evidence. California's jury instructions describe that standard as persuading the jury that a fact is highly probable (CACI 201), compared with the ordinary standard of more likely true than not (CACI 200). The 2026 edition of CACI 3104 tells jurors that a plaintiff seeking these remedies must prove neglect and the recklessness, oppression, fraud or malice by clear and convincing evidence; it does not mention section 15657.02.

The extra element is demanding. A decision the Judicial Council cites under CACI 3104 describes recklessness as a deliberate disregard of the high probability that an injury will occur, which is more than inadvertence or a failure to take precautions. Proving what staff and managers knew can turn on records: turning sheets, call light logs, notes that do or do not match staffing. The Legislature declared that covered facilities already have a duty not to commit spoliation in these cases (15657.02(g)), and the lower standard is the consequence when a court finds they did. For what the Act adds once the standard is met, see what the Elder Abuse Act adds to a claim.

Can a jury still hear about missing records?

Yes. A long-standing rule lets the jury consider a party's willful suppression of evidence when deciding what inferences to draw (Evidence Code 413). The jury instruction based on it tells jurors that if a party intentionally concealed or destroyed evidence, they may decide the evidence would have been unfavorable to that party (CACI 204). The directions for that instruction note that it may need adjusting when evidence was altered rather than destroyed.

Discovery sanctions are also available for misuse of the discovery process, including money sanctions, orders that certain facts are established, orders barring evidence, and in serious cases orders striking pleadings or entering judgment (Code of Civil Procedure 2023.030). Section 15657.02 says its remedy is cumulative with any other remedy the law allows (15657.02(f)).

What changes the answer?

The type of facility. The rule reaches skilled nursing facilities, assisted living facilities and adult community care facilities, but not facilities owned or operated by hospitals (Welfare and Institutions Code 15657.02(b)). Which agency licenses the facility is explained in nursing home or assisted living: who regulates it.

Whether the loss was intentional. The definition requires intent to keep evidence from being produced and material prejudice (15657.02(c)(1)). Routine, good faith loss of electronic data is treated differently in discovery (Code of Civil Procedure 2023.030(f)).

Whether the facility had to keep the record. Only records material to the claim and specifically required to be kept or preserved count (15657.02(d)). A written preservation request is one of the three situations the judge must consider (15657.02(c)(2)(C)).

Whether the case is in arbitration. An arbitrator can make the spoliation finding (15657.02(a)(1)(B)). Admission paperwork may include an arbitration form; see whether an arbitration agreement signed at admission stops a lawsuit.

The kind of claim. The section applies to remedies under section 15657, which covers physical abuse, neglect and abandonment. Financial abuse remedies are in a different section (Welfare and Institutions Code 15657.5), and the employer standard of Civil Code 3294(b) still has to be met before fees or damages are imposed on an employer (15657(c)).

A later funding decision. The section becomes inoperative if a final ruling requires the state to reimburse facilities for its costs under Medi-Cal and the Legislature does not fund them (15657.02(h)).

What could this look like? An example

For example, imagine a man whose 86-year-old father lives in a skilled nursing facility in Santa Rosa. The father develops a deep pressure sore, and the son sends the administrator a letter asking for the full chart and asking the facility to preserve the repositioning logs, nursing notes and staffing schedules for the past three months. The chart he receives two weeks later has no repositioning logs for the month the wound appeared.

In the lawsuit that follows in Sonoma County Superior Court, a former aide testifies that a supervisor told staff to discard those logs after the letter arrived. The judge finds that the facility intentionally destroyed records it had to keep, after a written directive to preserve them, and that the loss materially prejudiced the family. In a written ruling, the court decides that the Elder Abuse Act claim will be judged by the preponderance standard. The family still has to prove neglect and recklessness, but now as more likely true than not. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do families make with records?

Waiting to ask for the chart until a lawsuit is filed, instead of requesting copies right away.
Asking for records by phone only, with no written request or written preservation request on file.
Requesting only the paper chart, and not medication records, incident reports and staffing schedules.
Assuming any missing page proves spoliation, when the law requires intent and material prejudice.
Assuming the rule covers a hospital's skilled nursing unit, which it excludes.
Discarding their own notes, photos and texts, which can help show what the records should have said.

What should we do this week?

Send the facility a written request for copies of the full chart and keep proof of the date it was received.
In the same letter, or a separate one, ask the facility in writing to preserve named records: nursing notes, care plans, medication administration records, repositioning and intake logs, incident reports, staffing schedules and electronic records.
Find out how the facility is licensed: skilled nursing, assisted living or a hospital unit.
Keep your own dated log, photos and messages in one place.
Write down the date the harm was discovered and read how long a family has to bring an elder abuse claim.
If medications were changed without explanation, see whether a nursing home can sedate a resident without consent.

The county offices that take complaints about care facilities are listed on our Sonoma County injury page.

Frequently asked questions

Does the lower standard mean the family wins?

No. It changes how much proof is needed, not what must be proven. The family still has to show the abuse or neglect and the recklessness, oppression, fraud or malice, now as more likely true than not (Welfare and Institutions Code 15657 and 15657.02).

Does the rule apply to assisted living?

Yes. Residential care facilities for the elderly licensed under the Health and Safety Code are listed in section 15657.02(b), along with adult community care facilities and skilled nursing facilities.

Does it apply to home care agencies or individual caregivers?

The section lists only the three facility types above. Claims against an in-home caregiver follow the Act's usual standard; see abuse by an in-home caregiver.

Is the lower standard automatic once records are missing?

No. The court "may" apply it after a spoliation finding or a discovery ruling, and must explain its findings in writing (15657.02(a)).

What if the facility says the records were lost in a computer change?

The judge decides whether the loss was intentional and done to keep the evidence from being produced (15657.02(c)(1)). Routine, good faith loss of electronic data is generally not sanctioned in discovery (Code of Civil Procedure 2023.030(f)).

Does this help if my parent has died?

It can. The same section 15657 claim may be brought by the estate, and if it is proven, the usual limits on pre-death damages do not apply (15657(b)). See elder abuse claims after a parent's death.

Can a residents' rights claim be brought too?

For a skilled nursing resident, yes: the residents' rights lawsuit under Health and Safety Code 1430(b) is in addition to other remedies. See what a residents' rights claim is.

If a care facility's records about your loved one are missing, changed or incomplete, contact Young Law Group today at (707) 343-0556 or through our contact page for a free consultation.

What changed in 2026 when a care facility destroys or alters records?