BILL NUMBER: AB 505 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Robert Pacheco
FEBRUARY 21, 2001
An act to amend Section 1428 of the Health and Safety Code,
relating to health facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 505, as introduced, Robert Pacheco. Long-term health care
facilities: citations and penalties.
Existing law specifies the procedures for a licensee of a
long-term health care facility to contest a citation or the proposed
assessment of a civil penalty, which includes the option to
adjudicate the validity of the citation in the municipal or superior
court in the county in which the facility is located.
This bill would authorize a licensee, in lieu of seeking to
adjudicate the validity of a class "AA" or "A" citation in the
municipal or superior court, to elect to submit the matter to binding
arbitration as provided under the bill.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1428 of the Health and Safety Code is amended
to read:
1428. (a) If the licensee desires to contest a citation or the
proposed assessment of a civil penalty therefor, the licensee shall
use the processes described in subdivisions (b) and (c) for classes
"AA," "A," or "B" citations. As a result of a citation review
conference, a citation or the proposed assessment of a civil penalty
may be affirmed, modified, or dismissed by the director or the
director's designee. If the director's designee affirms, modifies,
or dismisses the citation or proposed assessment of a civil penalty,
he or she shall state with particularity in writing his or her
reasons for that action, and shall immediately transmit a copy
thereof to each party to the original complaint. If the licensee
desires to contest a decision made after the citation review
conference, the licensee shall inform the director in writing within
15 business days after he or she receives the decision by the
director's designee.
(b) (1) If a licensee notifies the director that he or
she intends to contest a class "AA" or a class "A" citation, the
licensee may first, within 15 business days after service of the
citation, notify the director in writing of his or her request for a
citation review conference. The
(2) The licensee shall inform the director in writing,
within 15 business days of the service of the citation or the receipt
of the decision of the director's designee after the citation review
conference, of the licensee's intent to adjudicate the validity of
the citation in the municipal or superior court in the county in
which the long-term health care facility is located or to submit
the matter to binding arbitration . In
(3) (A) In lieu of seeking to adjudicate the citation in the
municipal or superior court, the licensee may elect to submit the
matter to binding arbitration in accordance with the procedures
established in subdivision (d). In reviewing the level of the
citation and penalty, the arbitrator shall strictly apply Sections
1423, 1424, and 1424.5 to the facts of the case and issue a written
decision on the merits with findings of fact and conclusions of law
that consider, at a minimum, all of the following:
(i) Whether the alleged violation occurred.
(ii) Whether the alleged violation met the criteria for the
specified class.
(iii) Whether the assessed penalty was appropriate.
(B) Based upon specific findings and conclusions, the arbitrator
may affirm, modify, or dismiss the citation, the level of the
citation, or the proposed assessment of the penalty.
(4) (A) In order to perfect a judicial appeal of a contested
citation, a licensee shall file a civil action in the municipal or
superior court in the county in which the long-term health care
facility is located. The action shall be filed no later than 90
calendar days after a licensee notifies the director that he or she
intends to contest the citation, or no later than 90 days after the
receipt of the decision by the director's designee after the citation
review conference, and served not later than 90 days after filing.
Notwithstanding
(B) Notwithstanding any other provision of law, a licensee
prosecuting a judicial appeal shall file and serve an at-issue
memorandum pursuant to Rule 209 of the California Rules of Court
within six months after the state department files its answer in the
appeal. Notwithstanding subdivision (d), the court shall dismiss the
appeal upon motion of the state department if the at-issue
memorandum is not filed by the facility within the period specified.
The
(C) The court , hearing a judicial appeal, may
affirm, modify, or dismiss the citation, the level of the citation,
or the amount of the proposed assessment of the civil penalty.
(c) If a licensee desires to contest a class "B" citation, the
licensee may request, within 15 business days after service of the
citation, a citation review conference, by writing the director or
the director's designee of the licensee's intent to appeal the
citation through the citation review conference. If the licensee
wishes to appeal the citation which has been upheld in a citation
review conference, the licensee shall, within 15 working days from
the date the citation review conference decision was rendered, notify
the director or the director's designee that he or she wishes to
appeal the decision seek judicial review of
the decision, as provided in Section 1094.5 of the Code of Civil
Procedure, through the procedures set forth in Section 100171
or elects to submit the matter to binding arbitration in accordance
with subdivision (d). The administrative law judge may affirm,
modify, or dismiss the citation or the proposed assessment of a civil
penalty. The licensee may choose to have his or her appeal heard by
the administrative law judge or submit the matter to binding
arbitration without having first appealed the decision to a citation
review conference by notifying the director in writing within 15
business days of the service of the citation.
(d) If a A licensee is
dissatisfied with the decision of the administrative law judge, the
licensee may, in lieu of seeking judicial review of the decision as
provided in Section 1094.5 of the Code of Civil Procedure, elect
who elects to submit the matter to binding
arbitration by filing under this section
shall file , within 60 days of its the
receipt of the citation or decision rendered
pursuant to a citation review conference , a request for
arbitration with the American Arbitration Association. The parties
shall agree upon an arbitrator designated from the American
Arbitration Association in accordance with the association's
established rules and procedures. The arbitration hearing shall be
set within 45 days of the election to arbitrate, but in no event less
than 28 days from the date of selection of an arbitrator. The
arbitration hearing may be continued up to 15 additional days if
necessary at the arbitrator's discretion. Except as otherwise
specifically provided in this subdivision, the arbitration hearing
shall be conducted in accordance with the American Arbitration
Association's established rules and procedures. The arbitrator shall
determine whether the licensee violated the regulation or regulations
cited by the department, and whether the citation meets the criteria
established in Sections 1423 and 1424. If the arbitrator determines
that the licensee has violated the regulation or regulations cited
by the department, and that the class of the citation should be
upheld, the proposed assessment of a civil penalty shall be affirmed,
subject to the limitations established in Section 1424. The
licensee and the department shall each bear its respective portion of
the cost of arbitration. A resident, or his or her designated
representative, or both, entitled to participate in the citation
review conference pursuant to subdivision (f), may make an oral or
written statement regarding the citation, at any arbitration hearing
to which the matter has been submitted after the citation review
conference.
(e) If an appeal is prosecuted under this section, including an
appeal taken in accordance with Section 100171, the state department
shall have the burden of establishing by a preponderance of the
evidence that (1) the alleged violation did occur, (2) the alleged
violation met the criteria for the class of citation alleged, and (3)
the assessed penalty was appropriate. The state department shall
also have the burden of establishing by a preponderance of the
evidence that the assessment of a civil penalty should be upheld. If
a licensee fails to notify the director in writing that he or she
intends to contest the citation, or the proposed assessment of a
civil penalty therefor, or the decision made by the director's
designee, after a citation review conference, within the time
specified in this section, the decision by the director's designee
after a citation review conference shall be deemed a final order of
the state department and shall not be subject to further
administrative review, except that the licensee may seek judicial
relief from the time limits specified in this section. If a licensee
appeals a contested citation or the assessment of a civil penalty,
no civil penalty shall be due and payable unless and until the appeal
is terminated in favor of the state department.
(f) The director or the director's designee shall establish an
independent unit of trained citation review conference hearing
officers within the state department to conduct citation review
conferences. Citation review conference hearing officers shall be
directly responsible to the deputy director for licensing and
certification, and shall not be concurrently employed as supervisors,
district administrators, or regional administrators with the
licensing and certification division. Specific training shall be
provided to members of this unit on conducting an informal
conference, with emphasis on the regulatory and legal aspects of
long-term health care.
Where the state department issues a citation as a result of a
complaint or regular inspection visit, and a resident or residents
are specifically identified in a citation by name as being
specifically affected by the violation, then the following persons
may attend the citation review conference:
(1) The complainant and his or her designated representative.
(2) A personal health care provider, designated by the resident.
(3) A personal attorney.
(4) Any person representing the Office of the State Long-Term Care
Ombudsman, as referred to in subdivision (d) of Section 9701 of the
Welfare and Institutions Code.
Where the state department determines that residents in the
facility were threatened by the cited violation but does not name
specific residents, any person representing the Office of the State
Long-Term Care Ombudsman, as referred to in subdivision (d) of
Section 9701 of the Welfare and Institutions Code, and a
representative of the residents or family council at the facility may
participate to represent all residents. In this case, these
representatives shall be the sole participants for the residents in
the conference. The residents or family council shall designate
which representative will participate.
The complainant, affected resident, and their designated
representatives shall be notified by the state department of the
conference and their right to participate. The director's designee
shall notify the complainant or his or her designated representative
and the affected resident or his or her designated representative, of
his or her determination based on the citation review conference.
(g) In assessing the civil penalty for a violation, all relevant
facts shall be considered, including, but not limited to, all of the
following:
(1) The probability and severity of the risk which the violation
presents to the patient's or resident's mental and physical
condition.
(2) The patient's or resident's medical condition.
(3) The patient's or resident's mental condition and his or her
history of mental disability.
(4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
(5) The licensee's history of compliance with regulations.
(h) Except as otherwise provided in this subdivision, an
assessment of civil penalties for a class "A" or class "B" violation
shall be trebled and collected for a second and subsequent violation
for which a citation of the same class was issued within any 12-month
period. Trebling shall occur only if the first citation issued
within the 12-month period was issued in the same class, a civil
penalty was assessed, and a plan of correction was submitted for the
previous same-class violation occurring within the period, without
regard to whether the action to enforce the previous citation has
become final. However, the increment to the civil penalty required
by this subdivision shall not be due and payable unless and until the
previous action has terminated in favor of the state department.
If the class "B" citation is issued for a patient's rights
violation, as defined in subdivision (c) of Section 1424, it shall
not be trebled unless the state department determines the violation
has a direct or immediate relationship to the health, safety,
security, or welfare of long-term health care facility residents.
(i) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to safety or health.
(j) Actions brought under this chapter shall be set for trial at
the earliest possible date and shall take precedence on the court
calendar over all other cases except matters to which equal or
superior precedence is specifically granted by law. Times for
responsive pleading and for hearing the proceeding shall be set by
the judge of the court with the object of securing a decision as to
subject matters at the earliest possible time.
(k) If the citation is dismissed, the state department shall take
action immediately to ensure that the public records reflect in a
prominent manner that the citation was dismissed.
(l) Penalties paid on violations under this chapter shall be
applied against the state department's accounts to offset any costs
incurred by the state pursuant to this chapter. Any costs or
penalties assessed pursuant to this chapter shall be paid within 30
days of the date the decision becomes final. If a facility does not
comply with this requirement, the state department shall withhold any
payment under the Medi-Cal program until the debt is satisfied. No
payment shall be withheld if the state department determines that it
would cause undue hardship to the facility or to patients or
residents of the facility.
(m) The amendments made to subdivisions (a) and (c) of this
section by Chapter 84 of the Statutes of 1988, to extend the number
of days allowed for the provision of notification to the director, do
not affect the right, that is also contained in those amendments, to
request judicial relief from these time limits.