BILL NUMBER: AB 773	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Lieu

                        FEBRUARY 26, 2009

   An act to amend Sections 1424 and 1424.5 of the Health and Safety
Code, relating to health facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 773, as introduced, Lieu. Health facilities: fines.
   Under existing law, the Long-Term, Health, Safety, and Security
Act of 1973; the State Department of Public Health administers
various requirements pertaining to long-term health care facilities.
Violation of these provisions is punishable by various classes of
administrative citations with corresponding administrative penalties.
A class "B" citation is subject to a civil penalty in an amount not
less than $100 and not exceeding $1,000 for each and every citation.
A class "AA" citation at a skilled nursing facility is subject to a
civil penalty in an amount not less than $25,000 and not exceeding
$100,000 for each and every citation, and a class "A" citation in a
skilled nursing facility is subject to a civil penalty in an amount
not less than $2,000 and not exceeding $20,000 for each and every
citation.
   This bill would increase the fine for a class "B" citation at a
long-term health care facility to an amount not less than $1,000 and
not more than $5,000 for each citation. The bill would also increase
the fine for a class "AA" citation at a skilled nursing facility to
an amount not less than $50,000 and not more than $125,000 for each
citation, and the fine for a class "A" citation at a skilled nursing
facility to an amount not less than $5,000 and not more than $50,000
for each citation.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Senior citizens represent a large portion of California's
population; they include our aging mothers, fathers, grandparents,
siblings, friends, and other loved ones. It is our responsibility as
a state to ensure the highest quality of life and care for our
seniors during their golden years.
   (b) On September 29, 2008, the United States Department of Health
and Human Services Office of Inspector General released a report
entitled "Trends in Nursing Home Deficiencies and Complaints." In the
report, the Inspector General found that 99.1 percent of California
nursing homes were cited over the past three years with deficiencies,
a rate that is higher than the national average. The report makes it
clear that improved quality of care for nursing home residents must
be a priority.
   (c) While adequate advocacy and representation is important to all
California seniors, it is especially important for those who reside
in a care facility. Many seniors in care facilities are particularly
vulnerable because they have no friends or family who visit or
advocate for them. The mission of the State Ombudsman Program is to
investigate elder abuse and other complaints on behalf of the 250,000
California residents living in skilled nursing facilities. In 2008,
state funding was reduced from this vital program, leaving many
residents without resources to report abuse, fraud, or neglect.
   (d) It is imperative that we continuously strive to improve
nursing home care in California. As our population of aging residents
increases, delinquency rates in nursing facilities become more
frequent, and budget constraints limit advocacy programs, it is
necessary to ensure the highest quality care and service to our state'
s most vulnerable population.
  SEC. 2.  Section 1424 of the Health and Safety Code is amended to
read:
   1424.  Citations issued pursuant to this chapter shall be
classified according to the nature of the violation and shall
indicate the classification on the face thereof.
   (a) In determining the amount of the civil penalty, all relevant
facts shall be considered, including, but not limited to, the
following:
   (1) The probability and severity of the risk that 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 or disorder.
   (4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
   (5) The licensee's history of compliance with regulations.
   (b) Relevant facts considered by the department in determining the
amount of the civil penalty shall be documented by the department on
an attachment to the citation and available in the public record.
This requirement shall not preclude the department or a facility from
introducing facts not listed on the citation to support or challenge
the amount of the civil penalty in any proceeding set forth in
Section 1428.
   (c) Class "AA" violations are violations that meet the criteria
for a class "A" violation and that the state department determines to
have been a direct proximate cause of death of a patient or resident
of a long-term health care facility. Except as provided in Section
1424.5, a class "AA" citation is subject to a civil penalty in the
amount of not less than five thousand dollars ($5,000) and not
exceeding twenty-five thousand dollars ($25,000) for each citation.
In any action to enforce a citation issued under this subdivision,
the  state  department shall prove all of the
following:
   (1) The violation was a direct proximate cause of death of a
patient or resident.
   (2) The death resulted from an occurrence of a nature that the
regulation was designed to prevent.
   (3) The patient or resident suffering the death was among the
class of persons for whose protection the regulation was adopted.
   If the  state  department meets this burden of
proof, the licensee shall have the burden of proving that the
licensee did what might reasonably be expected of a long-term health
care facility licensee, acting under similar circumstances, to comply
with the regulation. If the licensee sustains this burden, then the
citation shall be dismissed.
   Except as provided in Section 1424.5, for each class "AA" citation
within a 12-month period that has become final, the  state
 department shall consider the suspension or revocation of
the facility's license in accordance with Section 1294. For a third
or subsequent class "AA" citation in a facility within that 12-month
period that has been sustained following a citation review
conference, the  state  department shall commence
action to suspend or revoke the facility's license in accordance with
Section 1294.
   (d) Class "A" violations are violations which the  state
 department determines present either (1) imminent danger
that death or serious harm to the patients or residents of the
long-term health care facility would result therefrom, or (2)
substantial probability that death or serious physical harm to
patients or residents of the long-term health care facility would
result therefrom. A physical condition or one or more practices,
means, methods, or operations in use in a long-term health care
facility may constitute a class "A" violation. The condition or
practice constituting a class "A" violation shall be abated or
eliminated immediately, unless a fixed period of time, as determined
by the  state  department, is required for
correction. Except as provided in Section 1424.5, a class "A"
citation is subject to a civil penalty in an amount not less than one
thousand dollars ($1,000) and not exceeding ten thousand dollars
($10,000) for each and every citation.
   If the  state  department establishes that a
violation occurred, the licensee shall have the burden of proving
that the licensee did what might reasonably be expected of a
long-term health care facility licensee, acting under similar
circumstances, to comply with the regulation. If the licensee
sustains this burden, then the citation shall be dismissed.
   (e) Class "B" violations are violations that the  state
 department determines have a direct or immediate
relationship to the health, safety, or security of long-term health
care facility patients or residents, other than class "AA" or "A"
violations. Unless otherwise determined by the  state
 department to be a class "A" violation pursuant to this
chapter and rules and regulations adopted pursuant thereto, any
violation of a patient's rights as set forth in Sections 72527 and
73523 of Title 22 of the California Code of Regulations, that is
determined by the  state  department to cause or
under circumstances likely to cause significant humiliation,
indignity, anxiety, or other emotional trauma to a patient is a class
"B" violation. A class "B" citation is subject to a civil penalty in
an amount not less than  one hundred dollars ($100)
  one thousand dollars ($1,000)  and not exceeding
 one thousand dollars ($1,000)   five thousand
dollars ($5,000)  for each and every citation. A class "B"
citation shall specify the time within which the violation is
required to be corrected. If the  state  department
establishes that a violation occurred, the licensee shall have the
burden of proving that the licensee did what might reasonably be
expected of a long-term health care facility licensee, acting under
similar circumstances, to comply with the regulation. If the licensee
sustains this burden, then the citation shall be dismissed.
   In the event of any citation under this paragraph, if the 
state  department establishes that a violation occurred,
the licensee shall have the burden of proving that the licensee did
what might reasonably be expected of a long-term health care facility
licensee, acting under similar circumstances, to comply with the
regulation. If the licensee sustains this burden, then the citation
shall be dismissed.
   (f) (1) Any willful material falsification or willful material
omission in the health record of a patient of a long-term health care
facility is a violation.
   (2) "Willful material falsification," as used in this section,
means any entry in the patient health care record pertaining to the
administration of medication, or treatments ordered for the patient,
or pertaining to services for the prevention or treatment of
decubitus ulcers or contractures, or pertaining to tests and
measurements of vital signs, or notations of input and output of
fluids, that was made with the knowledge that the records falsely
reflect the condition of the resident or the care or services
provided.
   (3) "Willful material omission," as used in this section, means
the willful failure to record any untoward event that has affected
the health, safety, or security of the specific patient, and that was
omitted with the knowledge that the records falsely reflect the
condition of the resident or the care or services provided.
   (g) Except as provided in subdivision (a) of Section 1425.5, a
violation of subdivision (f) may result in a civil penalty not to
exceed ten thousand dollars ($10,000), as specified in paragraphs (1)
to (3), inclusive.
   (1) The willful material falsification or willful material
omission is subject to a civil penalty of not less than two thousand
five hundred dollars ($2,500) or more than ten thousand dollars
($10,000) in instances where the health care record is relied upon by
a health care professional to the detriment of a patient by
affecting the administration of medications or treatments, the
issuance of orders, or the development of plans of care. In all other
cases, violations of this subdivision are subject to a civil penalty
not exceeding two thousand five hundred dollars ($2,500).
   (2) Where the penalty assessed is one thousand dollars ($1,000) or
less, the violation shall be issued and enforced, except as provided
in this subdivision, in the same manner as a class "B" violation,
and shall include the right of appeal as specified in Section 1428.
Where the assessed penalty is in excess of one thousand dollars
($1,000), or for skilled nursing facilities or intermediate care
facilities as specified in paragraphs (1) and (2) of subdivision (a)
of Section 1418, in excess of two thousand dollars ($2,000), the
violation shall be issued and enforced, except as provided in this
subdivision, in the same manner as a class "A" violation, and shall
include the right of appeal as specified in Section 1428.
   Nothing in this section shall be construed as a change in previous
law enacted by Chapter 11 of the Statutes of 1985 relative to this
paragraph, but merely as a clarification of existing law.
   (3) Nothing in this subdivision shall preclude the  state
 department from issuing a class "A" or class "B" citation
for any violation that meets the requirements for that citation,
regardless of whether the violation also constitutes a violation of
this subdivision. However, no single act, omission, or occurrence may
be cited both as a class "A" or class "B" violation and as a
violation of this subdivision.
   (h) Where the licensee has failed to post the notices as required
by Section 9718 of the Welfare and Institutions Code in the manner
required under Section 1422.6, the  state 
department shall assess the licensee a civil penalty in the amount of
one hundred dollars ($100) for each day the failure to post the
notices continues. Where the total penalty assessed is less than two
thousand dollars ($2,000), the violation shall be issued and enforced
in the same manner as a class "B" violation, and shall include the
right of appeal as specified in Section 1428. Where the assessed
penalty is equal to or in excess of two thousand dollars ($2,000),
the violation shall be issued and enforced in the same manner as a
class "A" violation and shall include the right of appeal as
specified in Section 1428. Any fines collected pursuant to this
subdivision shall be used to fund the costs incurred by the
California Department of Aging in producing and posting the posters.
   (i) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to patient safety or health.
   (j) The department shall provide a copy of all citations issued
under this section to the affected residents whose treatment was the
basis for the issuance of the citation, to the affected residents'
designated family member or representative of each of the residents,
and to the complainant if the citation was issued as a result of a
complaint.
   (k) Nothing in this section is intended to change existing
statutory or regulatory requirements governing the ability of a
licensee to contest a citation pursuant to Section 1428. 
   ( ) 
    (l)  The department shall ensure that district office
activities performed under Sections 1419 to 1424, inclusive, are
consistent with the requirements of these sections and all applicable
laws and regulations. To ensure the integrity of these activities,
the department shall establish a statewide process for the collection
of postsurvey evaluations from affected facilities.
  SEC. 3.  Section 1424.5 of the Health and Safety Code is amended to
read:
   1424.5.  (a) In lieu of the fines specified in subdivisions (c),
(d), and (e) of Section 1424, fines imposed on skilled nursing
facilities or intermediate care facilities, as specified in
paragraphs (1) and (2) of subdivision (a) of Section 1418, shall be
as follows:
   (1) A class "AA" citation is subject to a civil penalty in an
amount not less than  twenty-five thousand dollars ($25,000)
  fifty thousand dollars ($50,000)  and not
exceeding  one hundred thousand dollars ($100,000) 
 one hundred twenty-five thousand dollars ($125,000)  for
each and every citation. For a second or subsequent class "AA"
citation in a skilled nursing facility or intermediate care facility
within a 24-month period that has been sustained following a citation
review conference, or where the licensee has chosen not to exercise
its right to a citation review conference, the state department shall
commence action to suspend or revoke the facility's license in
accordance with Section 1294.
   (2) A class "A" citation is subject to a civil penalty in an
amount not less than  two thousand dollars ($2,000) 
 five thousand dollars ($5,000)  and not exceeding 
twenty thousand dollars ($20,000)   fifty thousand
dollars ($50,000)  for each and every citation.
   (3) Any "willful material falsification" or "willful material
omission," as those terms are defined in subdivision (f) of Section
1424, in the health record of a resident is subject to a civil
penalty in an amount not less than two thousand dollars ($2,000) and
not exceeding twenty thousand dollars ($20,000) for each and every
citation.
   (b) A licensee may, in lieu of contesting a class "AA" or class "A"
citation pursuant to Section 1428, transmit to the state department,
the minimum amount specified by law, or 65 percent of the amount
specified in the citation, whichever is greater, for each violation,
within 30 business days after the issuance of the citation.