BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
AB 2236 (Maienschein) - Residential care facilities for the
elderly: civil penalties.
Amended: April 21, 2014 Policy Vote: Human Services 4-0
Urgency: No Mandate: Yes
Hearing Date: August 4, 2014
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2236 would revise the oversight and enforcement
processes of residential care facilities for the elderly
(RCFEs), as follows:
Increases minimum and maximum civil penalties issued by
the Department of Social Services (DSS) against a facility
for both minor and serious violations of law and
regulations.
Provides that the deficiencies appeals process must
include notifications and an option for review by an
administrative law judge (ALJ).
Requires citations for death or serious injury to be
reviewed by DSS legal counsel and approved by the deputy
director prior to issuance.
Establishes the Emergency Resident Relocation (ERR) Fund,
deletes the emergency resident contingency account within
the Technical Assistance Fund (TAF), and requires DSS to
deposit 50 percent of each penalty assessed into the ERR
Fund for use, upon appropriation by the Legislature, for
emergency relocation and care of residents upon license
revocation or temporarily suspension.
Requires DSS to revise its regulations by January 1, 2016,
to reflect the changes in this measure.
Fiscal Impact:
Ongoing costs to DSS in the range of $150,000 to $300,000
(General Fund) for legal review of potential citations prior
to issuance, dependent on the volume of citations to be
handled.
Potentially significant ongoing costs in the hundreds of
thousands of dollars (General Fund) to DSS for the expanded
appeal and review process.
AB 2236 (Maienschein)
Page 1
One-time costs to DSS potentially in excess of $150,000
(General Fund) to revise regulations and make penalty system
adjustments.
Potential reduction in civil penalty revenues to the
Technical Assistance Fund, more than offset by increases to
the newly created ERR Fund.
Background: This measure is one of a broader set of bills aimed
at reforming the oversight, standards, and operations of RCFEs.
The Community Care Licensing Division (CCLD) of the DSS
administers the licensure and oversight of over 7,500 assisted
living, board and care, and continuing care retirement homes
that are licensed as RCFEs in California. These residences are
designed to provide home-like environment housing options to
elderly residents who need assistance with activities of daily
living but otherwise do not require continuous, 24-hour
assistance or nursing care. The RCFE licensure category includes
facilities with as few as six beds to facilities with hundreds
of residents whose needs may vary widely.
Prior to 2003, the required frequency of CCLD facility visits
was annually for most facility types. Subsequently, in response
to the state's fiscal situation, legislation was enacted to
lengthen the interval between visits in an effort to reduce
program costs. As a result, the CCLD is now required to conduct
unannounced visits annually only in circumstances in which a
facility has a history of compliance issues. For those
residential facilities not subject to annual inspections, the
CCLD is currently required to conduct comprehensive compliance
inspections on a 30 percent random sample basis each year, with
no facility being visited less than once every five years.
In response to recent health and safety issues discovered at
facilities licensed by the CCLD, the 2014 Budget Act includes
$7.5 million ($5.8 million General Fund) and 71.5 positions to
enhance the quality of the CCL program through the improved
timeliness of investigations to ensure the CCLD inspects all
facilities at least once every five years, increased staff
training, and the establishment of clear fiscal, program, and
corporate accountability. The Budget provides DSS with new
authority to take over a facility and assign a temporary manager
under licensee non-compliance situations, and increases
licensing and application fees by 10 percent.
AB 2236 (Maienschein)
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SB 855 (Committee on Budget and Fiscal Review) Chapter 29/2014,
the Human Services budget trailer bill, added Section 1548.1 to
the Health and Safety Code (HSC) that states:
The Legislature finds and declares that the
current civil penalty structure for facilities
licensed by the State Department of Social
Services is insufficient to ensure the health and
safety of those in care. It is the intent of the
Legislature to comprehensively increase these
penalties for all facilities in subsequent
legislation, with particular emphasis on
penalties for violations that result in serious
injury or death.
This bill addresses the civil penalty structure for RCFEs.
Proposed Law: This bill would revise the oversight and
enforcement processes of RCFEs, as follows:
Increases minimum and maximum civil penalties issued by
the Department of Social Services (DSS) against a facility
for both minor and serious violations.
o Increases civil penalties from a minimum of
$25 to $100 per day, and increases the maximum from
$50 to $250 per day per violation of state law or
regulation.
o Increases the civil penalty for serious
violations, as specified, from $150 to $1,000 per day
per violation.
o For violations determined by DSS to be the
direct proximate cause of death to a resident,
establishes a civil of penalty of between $5,000 and
$15,000.
o For violations determined by DSS to be the
direct proximate cause of serious bodily injury, as
defined, establishes a civil penalty of between $1,000
and $10,000.
o For violations determined by DSS to constitute
"physical abuse," establishes a civil penalty of
between $500 and $2,500.
Provides that the deficiencies appeals process must
include notifications and an option for review by an
administrative law judge (ALJ).
AB 2236 (Maienschein)
Page 3
Requires citations for death or serious injury to be
reviewed by DSS legal counsel and approved by the deputy
director prior to issuance.
Establishes the Emergency Resident Relocation (ERR) Fund
(and deletes the emergency resident contingency account
within the TAF) and requires DSS to deposit 50 percent of
each penalty assessed into the ERR Fund for use, upon
appropriation by the Legislature, for emergency relocation
and care of residents upon license revocation or temporarily
suspension.
Requires DSS to revise its regulations by January 1, 2016,
to reflect the changes in this measure.
Related Legislation: In response to a growing number of highly
publicized incidents at licensed community care facilities
throughout the state, the following bills regarding licensing
and inspections at community care facilities, and RCFEs
specifically, have been introduced this session:
SB 894 (Corbett) RCFEs: revocation of license.
SB 895 (Corbett) RCFEs: annual inspections.
SB 911 (Block) RCFEs: licensing and training requirements.
SB 1153 (Leno) RCFEs: suspension of new admissions.
SB 1382 (Block) RCFEs: licensure fees.
AB 1436 (Waldron) RCFEs: internet posting of inspection reports.
AB 1454 (Calderon) care facilities: annual visits.
AB 1523 (Atkins) RCFEs: liability insurance.
AB 1554 (Skinner) RCFEs: complaint procedures.
AB 1570 (Chesbro) RCFEs: training requirements.
AB 1571 (Eggman) RCFEs: disclosure requirements.
AB 1572 (Eggman) RCFEs: single resident council.
AB 1899 (Brown) RCFEs: prohibitions on licensure reinstatement.
AB 2044 (Rodriguez) RCFEs: 24-hour presence of
administrator/staff.
AB 2171 (Wieckowski) RCFEs: residents' rights.
Staff Comments: The DSS would incur significant one-time and
ongoing costs resulting from the revised oversight and
enforcement processes of RCFEs specified in this measure.
The DSS would incur one-time costs potentially in excess of
$150,000 (General Fund) to revise regulations and make penalty
system adjustments. Ongoing costs in the range of $150,000 to
$300,000 (General Fund) would be required for legal review of
AB 2236 (Maienschein)
Page 4
potential citations prior to issuance, dependent on the volume
of citations to be handled. In addition, the DSS would incur
potentially significant ongoing costs in the hundreds of
thousands of dollars (General Fund) for the expanded appeal and
review process mandated by the provisions of this bill.
The creation of the Emergency Resident Relocation (ERR) Fund and
deletion of the emergency resident contingency account within
the Technical Assistance Fund (TAF) will result in reductions in
civil penalty revenues to the TAF, which will be more than
offset by increases to the newly created ERR Fund due to the
increased minimum and maximum penalty provisions of the bill.
Recommended Amendments: Staff notes that Section 1 of this bill
chapters out changes made by SB 855, the Human Services budget
trailer bill. SB 855 added HSC §§ 1569.481 and 1569.482, which
authorize the DSS to take actions to protect the health and
safety of RCFE residents and to minimize the effects of transfer
trauma that accompany the abrupt transfer of residents, and
authorizes funds to be used from the emergency resident
contingency account for these activities. Staff recommends
amendments to update cross references in these new sections to
the ERR Fund, which is newly established in HSC § 1569.48, and
delete references to the emergency resident contingency account
in the TAF.
SB 855 also amended HSC § 1569.525 to provide for a higher civil
penalty of $500 per violation per day for a licensee who fails
to comply with the requirements of that section dealing with
minimizing trauma to residents during a temporary suspension or
revocation of a license. The author may wish to consider an
amendment to HSC § 1569.48 to allow deposit of 50 percent of
these penalties into the ERR Fund, consistent with other
penalties.