BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 2236
Author: Maienschein (R) and Stone (D), et al.
Amended: 4/21/14 in Assembly
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 4-0, 6/24/14
AYES: Beall, DeSaulnier, Liu, Wyland
NO VOTE RECORDED: Berryhill
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De León, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
ASSEMBLY FLOOR : 78-0, 5/28/14 - See last page for vote
SUBJECT : Residential care facilities for the elderly: civil
penalties
SOURCE : Author
DIGEST : This bill increases the minimum and maximum civil
penalties issued by the Department of Social Services (DSS)
against a Residential Care Facility for the Elderly (RCFE) for
serious violations, for violations that are determined to be the
direct proximate cause of death or serious injury for a
resident, and for other lesser violations; provides that the
deficiencies appeals process must include an option for review
by an administrative law judge; requires DSS to prove that a
death or serious injury was the result of a violation that was
the proximate cause of the injury or death, as specified, and
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after DSS has met that burden, provides a licensee with an
additional opportunity to prove it did what might reasonably be
expected of an RCFE, acting under similar circumstances, to
comply with the statute or regulation. Additionally requires
citations for death or serious injury be reviewed by DSS' legal
division and approved by the deputy director.
ANALYSIS :
Existing law:
1.Establishes the Residential Care Facilities for the Elderly
Act to license and regulate RCFEs as a separate category
within the existing residential care licensing structure of
DSS.
2.Provides that RCFEs shall be subject to unannounced visits by
DSS and that DSS shall visit facilities as often as necessary
to ensure the quality of care provided, as specified.
3.Permits establishment of an emergency resident relocation fund
to not which more than 50% of each civil penalty is
transmitted to DSS to be used for the relocation and care of
residents when a facility's license is revoked or temporarily
suspended, as specified.
4.Requires that any person who operates an unlicensed facility,
as defined, shall be assessed by DSS an immediate civil
penalty in the amount of $100 per resident for each day of the
violation, unless other remedies available to DSS, including
criminal prosecution, are deemed more effective by DSS, as
specified.
5.Permits DSS to levy civil penalties for citations, in addition
to the suspension, temporary suspension or revocation of a
license and specifies penalties to be issued for specific
categories of violations, as follows:
A. Not less than $25 or more than $50 per day for each
violation except where the nature or seriousness of the
violation or the frequency of the violation warrants a
higher penalty or an immediate civil penalty assessment, or
both, as determined by DSS.
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B. Requires that in no event, shall a civil penalty
assessment exceed $150 per day per violation, as specified.
C. An immediate civil penalty of $150 per day per violation
for any of serious violations, as specified.
D. Additionally, any RCFE that is cited for repeating the
same violation within 12 months of the first violation is
subject to an immediate civil penalty of $150 and $50 for
each day the violation continues until the deficiency is
corrected.
E. Any RCFE that is assessed a civil penalty which repeats
the same violation within 12 months of the violation shall
be assessed an immediate civil penalty of $1,000 and $100
for each day the violation continues until the deficiency
is corrected, as specified.
1.Requires DSS to adopt regulations setting forth the appeal
procedures for deficiencies.
This bill:
1.Names the emergency relocation fund, "The Emergency Resident
Relocation Fund," and establishes it in the State Treasury.
Additionally, requires, instead of permitting, DSS to deposit
50 % of each civil penalty assessed into the Fund.
2.Adds to the current deficiency appeals process notice to the
complainant, affected residents, and, if possible, their legal
representatives, and the opportunity to participate in the
appeal. Additionally, requires the appeal procedure to
include an option for review by an administrative law judge.
3.Increases the minimum civil penalty from $25 to $100 per day
per violation, and the maximum from $100 to $250 per day per
violation for general violations of law or regulation.
4.Strikes the requirement that in no event, shall a civil
penalty assessment exceed $150 per day per violation for
serious offenses.
5.Specifies that civil penalties assessed on a per-day basis
shall end once the licensee submits documentation of the
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correction, if the correction is verified by DSS.
6.Changes the civil penalty for specified serious violations
from $150 per violation per day to $1,000 per violation per
day. These include violations of fire clearance, absence of
supervision, accessible firearms and others.
7.Adds a minimum civil penalty of $5,000 and maximum of $15,000
for a violation that DSS determines was the direct proximate
cause of death to a resident.
8.Adds a minimum civil penalty of $1,000 and maximum of $10,000
for a violation that DSS determines was the direct proximate
cause of "serious bodily injury," as defined.
9.Adds a minimum civil penalty of $500 and maximum of $2,500 for
a violation that DSS determines constitutes "physical abuse,"
as defined, but does not result in "serious bodily injury," as
defined, and it is determined by DSS that the abuse was
committed by the licensee or an employee of the licensee.
10.Requires DSS to prove in cases of death or serious injury
both of the following:
A. The violation was a direct proximate cause of the death
or serious bodily injury of a resident.
B. The death or serious bodily injury resulted from an
occurrence of a nature that the statute or regulation was
designed to prevent.
1.Requires dismissal of a citation if the licensee proves that
he or she did what might reasonably be expected of an RCFE
licensee, acting under similar circumstances, to comply with
the statute or regulation.
2.Requires that prior to the issuance of a citation imposing a
civil penalty for death or serious bodily injury, the decision
shall be reviewed by DSS' legal division and approved by the
deputy director.
3.Changes the civil penalty for a repeated violation within 12
months from an immediate civil penalty of $150, plus $50 per
day for each day the violation is repeated, to an immediate
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penalty of $1,000 and $200 per day that the violation is
repeated, until the licensee submits documentation of the
correction, if the correction is verified by DSS.
4.Requires DSS in assessing a civil penalty for a violation to
consider all relevant information, including, but not limited
to, both of the following:
A. The probability and severity of the risk of harm that
the violation presents to the resident's mental and
physical condition.
B. The good faith efforts of the facility to prevent the
violation from occurring.
1.Requires that in any enforcement actions taken by DSS, the
licensee shall be liable for the acts and omissions of its
officers and employees.
2.Requires DSS by January 1, 2016, to amend its regulations to
reflect changes in this bill and stipulates that existing
regulations shall remain in effect until those amendments are
made to regulation.
Background
Recent events . A series of recent events has drawn attention to
questions about the adequacy of oversight with the Community
Care Licensing Division of DSS and the state's ability to
protect people who receive services within DSS-licensed
facilities.
In July 2013, ProPublica and Frontline reporters wrote and
produced a series of stories on Emeritus, the nation's largest
RCFE provider. Featured in the article was a woman who died
after receiving poor care at in a facility in Auburn,
California. The series documented chronic understaffing, a lack
of required assessments and substandard care.
In late October 2013, 19 frail seniors were abandoned at Valley
Springs Manor in Castro Valley by the licensee and all but two
staff after the state began license revocation proceedings for
the facility. DSS inspectors, noting the facility had been
abandoned, left the two unpaid service staff to care for the
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abandoned residents with insufficient food and medication,
handing them a $3,800 citation before leaving for the weekend.
The next day sheriff's deputies and paramedics sent the patients
to local hospitals.
Comments
According to the author's office, the current civil penalty
structure for RCFEs does not distinguish between violations of
differing severities and has remained essentially unchanged
since its establishment in 1985. The author's office states
that today, the civil penalty for a violation that led to a
death of a resident of an RCFE is $150 and that such a low fine
is not meaningful.
This bill increases civil penalties for RCFEs from the current
maximum of $150 per day to as much as $15,000 for incidents that
result in death and up to $10,000 for those resulting in serious
injury. In instances of physical abuse without serious bodily
injury the bill authorizes a civil penalty of up to $2,500.
According to the author's office, this bill creates a broader
range of fine options for DSS to consider, and requires that
specified serious violations, including a lack of fire
clearance, the presence of an excluded individual, refusing to
allow entry to a state inspector would be subject to a penalty
of $1,000 per day, per violation.
The author's office states that lower level citations, which
currently carry penalties of $25 to $100, will be increased to
$100 to $250 per incident per day. Further, the author states
that this bill also establishes an appeals process similar to
that used for nursing homes for the most serious violations. It
requires that citations of death or serious injury be reviewed
by DSS' legal staff and signed off by DSS' deputy director prior
to issuance.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
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
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handled.
Potentially significant ongoing costs in the hundreds of
thousands of dollars (General Fund) to DSS for the expanded
appeal and review process.
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 Emergency Resident Relocation Fund.
SUPPORT : (Unable to verify at time of writing)
California Assisted Living Association
California Long-Term Care Ombudsman Association
Congress of California Seniors
Law Offices of Sanford I. Horowitz
Leading Age California
Stanislaus County Commission on Aging
The ARC and United Cerebral Palsy California Collaboration
ASSEMBLY FLOOR : 78-0, 5/28/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.
Pérez, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Donnelly, Vacancy
JL:e 8/17/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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