BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2236| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2236 Author: Maienschein (R) and Stone (D), et al. Amended: 8/22/14 in Senate 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 SENATE HUMAN SERVICES COMMITTEE : 3-0, 8/27/14 (Pursuant to Senate Rule 29.10) AYES: Beall, Berryhill, DeSaulnier NO VOTE RECORDED: Liu, Wyland 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, beginning July 1, 2015, establishes a new framework for civil penalties applicable to violations determined by the Department of Social Services (DSS) to have resulted in death or serious bodily injury, or determined by DSS to constitute physical abuse for all facilities licensed by DSS. CONTINUED AB 2236 Page 2 Senate Floor Amendments of 8/22/14 amend civil penalties applicable to death, serious bodily injury and physical abuse for all facility types licensed by DSS, as specified. ANALYSIS : Existing law: 1. Establishes the Residential Care Facilities for the Elderly Act to license and regulate the Residential Care Facility for the Elderly (RCFE) 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. B. Requires that in no event, shall a civil penalty CONTINUED AB 2236 Page 3 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. Establishes, beginning July 1, 2015, a new framework for civil penalties applicable to violations determined by the DSS to have resulted in death or serious bodily injury, or determined by DSS to constitute physical abuse for all facilities licensed by DSS as follows: -------------------------------------------------------------- |Facility type |Size | Serious Bodily |Death | | | |Injury/ Physical | | | | | Abuse | | | | | | | |------------------------+-----------+------------------+------| |RCFE/ARF/CCH/SRF/EBSH |All sizes |$10,000 |$15,00| | | | |0 | | | | | | |------------------------+-----------+------------------+------| |Emergency Homeless |d25 beds |$1,000 |$5,000| |Youth Shelter | | | | | | | | | |------------------------+-----------+------------------+------| CONTINUED AB 2236 Page 4 |Small Child Care Home |d8 |$1,000 |$5,000| | |children | | | | | | | | |------------------------+-----------+------------------+------| |Large Child Care Home |9-14 |$2,000 |$7,500| | |children | | | | | | | | |------------------------+-----------+------------------+------| |Child Care Facility |1 30 |$2,500 |$7,500| | |children | | | | | | | | |------------------------+-----------+------------------+------| |Child Care Facility |31 100 |$5,000 |$10,00| | |children | |0 | | | | | | |------------------------+-----------+------------------+------| |Child Care Facility |100+ |$10,000 |$15,00| | |children | |0 | | | | | | |------------------------+-----------+------------------+------| |Adult Day |d50 adults |$2,500 |$7,500| | | | | | | | | | | |------------------------+-----------+------------------+------| |Adult Day |50+ adults |$5,000 |$10,00| | | | |0 | |------------------------+-----------+------------------+------| |FFA/GH/TSCF/THPP/CTF |d40 youth |$2,500 |$7,500| | | | | | | | | | | |------------------------+-----------+------------------+------| |FFA/GH/TSCF/THPP/CTF |41 100 |$5,000 |$10,00| | |youth | |0 | | | | | | |------------------------+-----------+------------------+------| |FFA/GH/TSCF/THPP/CTF |100+ youth |$10,000 |$15,00| | | | |0 | | | | | | | | | | | -------------------------------------------------------------- ARF Adult Residential Facility CCH Community Crisis Home CTF Community Treatment Facility CONTINUED AB 2236 Page 5 EBSH Enhanced Behavioral Supports Home FFA Foster Family Agency GH Group Home RCFE Residential Care Facility for the Elderly SRF Social Rehabilitation Facility THPP Transitional Housing Placement Provider TSCF Transitional Shelter Care Facility 2. Defines physical abuse, serious injury, and death pursuant to existing definitions in the Welfare and Institutions Code and Penal Code, as specified. 3. Requires the Director of DSS approve the civil penalty assessment. 4. Provides a licensee shall have the right to submit a written request for a formal review of a civil penalty within 10 days of receipt of the notice of a civil penalty assessment and requires the licensee provide all supporting documentation at that time. 5. Requires the review be conducted by a regional manager of the Community Care Licensing Division, who may amend or dismiss the penalty if they determine that the civil penalty was not assessed in accordance with applicable statutes or regulations of DSS, and requires the licensee be notified in writing of the regional manager's decision within 60 days of the request to review the assessment of the civil penalty. 6. Provides the licensee may further appeal to the program administrator of the Community Care Licensing Division within 10 days of receipt of the notice of the regional manager's decision and shall provide all supporting documentation at that time. If the program administrator determines that the civil penalty was not assessed in accordance with applicable statutes or regulations, they may amend or dismiss the civil penalty. Requires the licensee be notified in writing of the program administrator's decision within 60 days of the request to review the regional manager's decision. 7. Provides the licensee may further appeal to the deputy director of the Community Care Licensing Division within 10 days of receipt of the notice of the program director's decision and shall provide all supporting documentation at CONTINUED AB 2236 Page 6 that time. If the deputy director determines that the civil penalty was not assessed in accordance with applicable statutes or regulations, they may amend or dismiss the civil penalty. Requires the licensee be notified in writing of the deputy director's decision within 60 days of the request to review the program administrator's decision. 8. Provides upon exhausting the deputy director review, a licensee may appeal a civil penalty assessed to an administrative law judge, as specified. 9. Provides that in all proceedings conducted in accordance with this bill, the standard of proof shall be by a preponderance of the evidence. 10.Provides if, in addition to an assessment of civil penalties, DSS elects to file an administrative action to suspend or revoke the facility license that includes violations relating to the assessment of the civil penalties, DSS review of the pending appeal shall cease and the assessment of the civil penalties shall be heard as part of the administrative action process. 11.Requires DSS adopt regulations implementing this bill, and requires DSS, by January 1, 2016, amend its regulations to reflect the changes by this bill. 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 CONTINUED AB 2236 Page 7 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 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's office 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 SUPPORT : (Verified 8/25/14) CONTINUED AB 2236 Page 8 California Assisted Living Association California Long-Term Care Ombudsman Association California State Retirees Congress of California Seniors Consumer Attorneys of California 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 8/27/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED