BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    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.
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           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  

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                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           |           |                  |      |
             |                        |           |                  |      |
             |------------------------+-----------+------------------+------|

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             |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

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             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  

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             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  

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          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)


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          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

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