BILL NUMBER: AB 1387 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 31, 2015
AMENDED IN SENATE JULY 16, 2015
AMENDED IN SENATE JUNE 25, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
INTRODUCED BY Assembly Member Chu
FEBRUARY 27, 2015
An act to amend Sections 1548, 1568.0822, 1569.35, 1569.49,
1596.842, 1596.99, and 1597.58 of the Health and Safety Code,
relating to care facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 1387, as amended, Chu. Care facilities: civil penalties,
deficiencies, and appeal procedures.
(1) Existing law establishes the State Department of Social
Services and sets forth its powers and duties, including, but not
limited to, the licensing and administration of community care
facilities, residential care facilities for persons with chronic
life-threatening illnesses, residential care facilities for the
elderly, child day care centers, and family day care homes. Existing
law authorizes any person to request an inspection of a residential
care facility for the elderly by transmitting to the department
notice of an alleged violation of applicable requirements prescribed
by statutes or regulations, including, but not limited to, a denial
of access of any person statutorily authorized to enter the facility.
Under existing law, upon receipt of a complaint alleging denial of a
statutory right of access to a residential facility for the elderly,
the department is required to review the complaint and promptly
notify the complainant of the department's proposed course of action.
This bill would instead authorize any person to request an
investigation of a residential care facility for the elderly by
making a complaint to the department alleging a violation of the
applicable statutes or regulations. The bill would delete the
department's above-described obligations relating to the denial of a
statutory right of access and instead impose specified requirements
on the department, including a pre-investigation interview, if a
local long-term care ombudsman or the State Long-Term Care Ombudsman
files a complaint alleging denial of a statutory right of access to a
residential care facility for the elderly. The bill would
impose other requirements on require the
department relating to investigations conducted pursuant to
these provisions, including, among others, that
department, within 10 days of completing the investigation of a
complaint, the department complaint
conducted pursuant to these provisions, to notify the
complainant in writing of the department's determination as a result
of the investigation and of the complainant's right to
appeal the findings. The bill would establish a process for a
complainant to appeal the department's investigation, findings, or
enforcement actions resulting from the investigation.
(2) Existing law authorizes the department to impose various
civil penalties for a licensing violation under the above-described
provisions, as specified. Existing law generally authorizes the
department to impose a larger civil penalty for a violation that the
department determines resulted in the death of a resident of or a
person receiving care at one of those facilities, and for a violation
that the department determines constitutes physical abuse of, or
results in serious bodily injury to, a resident of or a person
receiving care at one of those facilities. Prior to the issuance of a
citation imposing one of those death, physical abuse, or serious
bodily injury civil penalties, existing law requires the approval of
the Director of Social Services.
This bill would instead require the approval of the program
administrator of the Community Care Licensing Division of the
department prior to the issuance of a citation imposing one of the
death, physical abuse, or serious bodily injury civil penalties
described above.
(3) Existing law, beginning July 1, 2015, provides a licensee
under the provisions described above the right to submit to the
department a written request for a formal review of an assessment of
the death, physical abuse, and serious bodily injury civil penalties
described above by a regional manager of the Community Care Licensing
Division of the department. Existing law establishes a process to
appeal that review to the program administrator of the Community Care
Licensing Division of the department, to further appeal to the
deputy director of the Community Care Licensing Division of the
department, and, upon exhausting the deputy director review, to an
administrative law judge.
This bill would revise the review process of an assessment of the
death, physical abuse, and serious bodily injury civil penalties
described above by, among other things, deleting the provisions
relating to a regional manager of the Community Care Licensing
Division of the department and the program administrator of the
Community Care Licensing Division of the department. The bill would
also establish a process to appeal any other civil penalty assessed
pursuant to these provisions. The bill would authorize the
department to implement and administer these provisions through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act, and would
make conforming changes.
(4) Existing law requires the department to notify the facilities
described above in writing of all deficiencies in their compliance
with specified provisions of law, and requires those facilities,
unless otherwise specified, to remedy the deficiencies within certain
time periods. Existing law requires the department to adopt
regulations setting forth the appeal procedures for deficiencies.
This bill would establish a process for a licensee to submit to
the department a written request for a formal review of a finding of
a deficiency, and to further appeal that review to the program
administrator of the Community Care Licensing Division. The bill
would also require a notification of a deficiency written by a
representative of the department to include a factual description of
the nature of the deficiency fully stating the manner in which the
licensee failed to comply with the specified statute or regulation,
and, if applicable, the particular place or area of the facility in
which the deficiency occurred.
(5) Existing law requires moneys collected from the imposition of
the penalties described above relating to child day care centers and
family day care homes to be deposited in the Child Health and Safety
Fund and expended for certain purposes, including technical
assistance, orientation, training, and education of licensed
daycare day care centers.
This bill would delete the requirement that moneys collected from
the imposition of certain penalties and deposited in the Child Health
and Safety Fund be used for assisting families with the
identification, transportation, and enrollment of children in another
day care center or family day care home upon the revocation or
suspension of the license of a day care center or family day care
home.
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. It is the intent of the Legislature to enact
legislation that would clarify the complaint process for residential
care facilities for the elderly and revise the appeal procedures for
a deficiency issued against a care facility licensed by the State
Department of Social Services.
SEC. 2. Section 1548 of the Health and Safety Code, as added by
Section 2 of Chapter 813 of the Statutes of 2014, is amended to read:
1548. (a) In addition to the suspension, temporary suspension, or
revocation of a license issued under this chapter, the department
may levy a civil penalty.
(b) The amount of the civil penalty shall not be less than
twenty-five dollars ($25) or more than fifty dollars ($50) per day
for each violation of this chapter 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 the department. Except as otherwise
provided in this chapter, a civil penalty assessment shall not exceed
one hundred fifty dollars ($150) per day per violation.
(c) Notwithstanding Section 1534, the department shall assess an
immediate civil penalty of one hundred fifty dollars ($150) per day
per violation for any of the following serious violations:
(1) (A) Fire clearance violations, including, but not limited to,
overcapacity, ambulatory status, inoperable smoke alarms, and
inoperable fire alarm systems. The civil penalty shall not be
assessed if the licensee has done either of the following:
(i) Requested the appropriate fire clearance based on ambulatory,
nonambulatory, or bedridden status, and the decision is pending.
(ii) Initiated eviction proceedings.
(B) A licensee denied a clearance for bedridden residents may
appeal to the fire authority, and, if that appeal is denied, may
subsequently appeal to the Office of the State Fire Marshal, and
shall not be assessed an immediate civil penalty until the final
appeal is decided, or after 60 days has passed from the date of the
citation, whichever is earlier.
(2) Absence of supervision, as required by statute or regulation.
(3) Accessible bodies of water when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Section 1533, 1534, or 1538.
(6) The presence of an excluded person on the premises.
(d) (1) For a violation that the department determines resulted in
the death of a resident at an adult residential facility, social
rehabilitation facility, enhanced behavioral supports home, or
community crisis home, the civil penalty shall be fifteen thousand
dollars ($15,000).
(2) For a violation that the department determines resulted in the
death of a person receiving care at an adult day program, the civil
penalty shall be assessed as follows:
(A) Seven thousand five hundred dollars ($7,500) for a licensee
licensed, among all of the licensee's facilities, to care for 50 or
less persons.
(B) Ten thousand dollars ($10,000) for a licensee licensed, among
all of the licensee's facilities, to care for more than 50 persons.
(3) For a violation that the department determines resulted in the
death of a person receiving care at a therapeutic day services
facility, foster family agency, community treatment facility,
full-service adoption agency, noncustodial adoption agency,
transitional shelter care facility, transitional housing placement
provider, or group home, the civil penalty shall be assessed as
follows:
(A) Seven thousand five hundred dollars ($7,500) for a licensee
licensed, among all of the licensee's facilities, to care for 40 or
less children.
(B) Ten thousand dollars ($10,000) for a licensee licensed, among
all of the licensee's facilities, to care for 41 to 100, inclusive,
children.
(C) Fifteen thousand dollars ($15,000) for a licensee licensed,
among all of the licensee's facilities, to care for more than 100
children.
(4) For a violation that the department determines resulted in the
death of a resident at a runaway and homeless youth shelter, the
civil penalty shall be five thousand dollars ($5,000).
(e) (1) (A) For a violation that the department determines
constitutes physical abuse, as defined in Section 15610.63 of the
Welfare and Institutions Code, or resulted in serious bodily injury,
as defined in Section 243 of the Penal Code, to a resident at an
adult residential facility, social rehabilitation facility, enhanced
behavioral supports home, or community crisis home, the civil penalty
shall be ten thousand dollars ($10,000).
(B) For a violation that the department determines constitutes
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, or resulted in serious bodily injury, as defined
in Section 243 of the Penal Code, to a person receiving care at an
adult day program, the civil penalty shall be assessed as follows:
(i) Two thousand five hundred dollars ($2,500) for a licensee
licensed, among all of the licensee's facilities, to care for 50 or
less persons.
(ii) Five thousand dollars ($5,000) for a licensee licensed, among
all of the licensee's facilities, to care for more than 50 persons.
(C) For a violation that the department determines constitutes
physical abuse, as defined in paragraph (2), or resulted in serious
bodily injury, as defined in Section 243 of the Penal Code, to a
person receiving care at a therapeutic day services facility, foster
family agency, community treatment facility, full-service adoption
agency, noncustodial adoption agency, transitional shelter care
facility, transitional housing placement provider, or group home, the
civil penalty shall be assessed as follows:
(i) Two thousand five hundred dollars ($2,500) for a licensee
licensed, among all of the licensee's facilities, to care for 40 or
less children.
(ii) Five thousand dollars ($5,000) for a licensee licensed, among
all of the licensee's facilities, to care for 41 to 100, inclusive,
children.
(iii) Ten thousand dollars ($10,000) for a licensee licensed,
among all of the licensee's facilities, to care for more than 100
children.
(D) For a violation that the department determines constitutes
physical abuse, as defined in paragraph (2), or resulted in serious
bodily injury, as defined in Section 243 of the Penal Code, to a
resident at a runaway and homeless youth shelter, the civil penalty
shall be one thousand dollars ($1,000).
(2) For purposes of subparagraphs (C) and (D), "physical abuse"
includes physical injury inflicted upon a child by another person by
other than accidental means, sexual abuse as defined in Section
11165.1 of the Penal Code, neglect as defined in Section 11165.2 of
the Penal Code, or unlawful corporal punishment or injury as defined
in Section 11165.4 of the Penal Code when the person responsible for
the child's welfare is a licensee, administrator, or employee of any
facility licensed to care for children.
(f) Prior to the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the program administrator of the Community Care Licensing Division.
(g) Notwithstanding Section 1534, any facility that is cited for
repeating the same violation of this chapter within 12 months of the
first violation is subject to an immediate civil penalty of one
hundred fifty dollars ($150) and fifty dollars ($50) for each day the
violation continues until the deficiency is corrected.
(h) Any facility that is assessed a civil penalty pursuant to
subdivision (g) that repeats the same violation of this chapter
within 12 months of the violation subject to subdivision (g) is
subject to an immediate civil penalty of one hundred fifty dollars
($150) for each day the violation continues until the deficiency is
corrected.
(i) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A notification of a deficiency written by a representative of
the department shall include a factual description of the nature of
the deficiency fully stating the manner in which the licensee failed
to comply with the specified statute or regulation, and, if
applicable, the particular place or area of the facility in which the
deficiency occurred.
(j) (1) A licensee shall have the right to submit to the
department a written request for a formal review of a civil penalty
assessed pursuant to subdivisions (d) and (e) within 10
15 business days of receipt of the notice of a
civil penalty assessment and shall provide all available
supporting documentation at that time. The review shall be conducted
by the deputy director of the Community Care Licensing Division.
The licensee may submit additional supporting documentation that was
unavailable at the time of submitting the request for review within
the first 30 business days after submitting the request for review.
If the department requires additional information from the
licensee, that information shall be requested within the first 30
business days after receiving the request for review. The
licensee shall provide this additional information within 30 business
days of receiving the request from the department. If the
deputy director determines that the civil penalty was not assessed,
or the finding of the deficiency that resulted in the assessment of
the civil penalty was not made, in accordance with applicable
statutes or regulations of the department, he or she may amend or
dismiss the civil penalty or finding of deficiency. The licensee
shall be notified in writing of the deputy director's decision within
60 business days of the request to review the assessment of
the civil penalty. date when all necessary
information has been provided to the department by the licensee.
(2) Upon exhausting the review described in paragraph (1), a
licensee may further appeal that decision to an administrative law
judge. Proceedings shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the department shall have all the powers
granted by those provisions. In all proceedings conducted in
accordance with this section, the standard of proof shall be by a
preponderance of the evidence.
(3) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(k) (1) A licensee shall have the right to submit to the
department a written request for a formal review of any other civil
penalty or deficiency not described in subdivision (j) within
10 15 business days of receipt of the
notice of a civil penalty assessment or a finding of a deficiency,
and shall provide all available supporting documentation
at that time. The review shall be conducted by a regional manager of
the Community Care Licensing Division. The licensee may submit
additional supporting documentation that was unavailable at the time
of submitting the request for review within the first 30 business
days after submitting the request for review. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for review. The licensee shall provide this
additional information within 30 business days of receiving the
request from the department. If the regional manager determines
that the civil penalty was not assessed, or the finding of the
deficiency was not made, in accordance with applicable statutes or
regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the regional manager's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee.
(2) Upon exhausting the review described in paragraph (1), the
licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within
10 15 business days of receipt of
notice of the regional manager's decision. The licensee may
submit additional supporting documentation that was unavailable at
the time of appeal to the program administrator within the first 30
business days after requesting that appeal. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for the appeal. The licensee shall provide this
additional information within 30 business days of receiving the
request from the department. If the program administrator
determines that the civil penalty was not assessed, or the finding of
the deficiency was not made, in accordance with applicable statutes
or regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the program administrator's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee. The
program administrator's decision is considered final and concludes
the licensee's administrative appeal rights regarding the appeal
conducted pursuant to this paragraph.
(l) The department shall adopt regulations implementing this
section.
(m) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by Section 2
of Chapter 813 of the Statutes of 2014.
(n) As provided in Section 11466.31 of the Welfare and
Institutions Code, the department may offset civil penalties owed by
a group home against moneys to be paid by a county for the care of
minors after the group home has exhausted its appeal of the civil
penalty assessment. The department shall provide the group home a
reasonable opportunity to pay the civil penalty before instituting
the offset provision.
(o) Notwithstanding the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the department may implement and administer
the changes made by the act that added this subdivision through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act.
(o)
(p) This section shall become operative on July 1,
2015.
SEC. 3. Section 1568.0822 of the Health and Safety Code, as added
by Section 4 of Chapter 813 of the Statutes of 2014, is amended to
read:
1568.0822. (a) In addition to the suspension, temporary
suspension, or revocation of a license issued under this chapter, the
department may levy a civil penalty.
(b) The amount of the civil penalty shall not be less than
twenty-five dollars ($25) or more than fifty dollars ($50) per day
for each violation of this chapter, 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 the department. Except as otherwise
provided in this chapter, a civil penalty assessment shall not exceed
one hundred fifty dollars ($150) per day per violation.
(c) Notwithstanding Section 1568.07, the department shall assess
an immediate civil penalty of one hundred fifty dollars ($150) per
day per violation for any of the following serious violations:
(1) (A) Fire clearance violations, including, but not limited to,
overcapacity, ambulatory status, inoperable smoke alarms, and
inoperable fire alarm systems. The civil penalty shall not be
assessed if the licensee has done either of the following:
(i) Requested the appropriate fire clearance based on ambulatory,
nonambulatory, or bedridden status, and the decision is pending.
(ii) Initiated eviction proceedings.
(B) A licensee denied a clearance for bedridden residents may
appeal to the fire authority, and, if that appeal is denied, may
subsequently appeal to the Office of the State Fire Marshal, and
shall not be assessed an immediate civil penalty until the final
appeal is decided, or after 60 days has passed from the date of the
citation, whichever is earlier.
(2) Absence of supervision, as required by statute and regulation.
(3) Accessible bodies of water, when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Section 1568.07 or 1568.071.
(6) The presence of an excluded person on the premises.
(d) For a violation that the department determines resulted in the
death of a resident, the civil penalty shall be fifteen thousand
dollars ($15,000).
(e) For a violation that the department determines constitutes
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, or resulted in serious bodily injury, as defined
in Section 243 of the Penal Code, to a resident, the civil penalty
shall be ten thousand dollars ($10,000).
(f) Prior to the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the program administrator of the Community Care Licensing Division.
(g) Notwithstanding Section 1568.07, any residential care facility
that is cited for repeating the same violation of this chapter
within 12 months of the first violation is subject to an immediate
civil penalty of one hundred fifty dollars ($150) and fifty dollars
($50) for each day the violation continues until the deficiency is
corrected.
(h) Any residential care facility that is assessed a civil penalty
pursuant to subdivision (g) that repeats the same violation of this
chapter within 12 months of the violation subject to subdivision (g)
shall be assessed an immediate civil penalty of one thousand dollars
($1,000) and one hundred dollars ($100) for each day the violation
continues until the deficiency is corrected, provided that the
violation is a serious violation.
(i) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A notification of a deficiency written by a representative of
the department shall include a factual description of the nature of
the deficiency fully stating the manner in which the licensee failed
to comply with the specified statute or regulation, and, if
applicable, the particular place or area of the facility in which the
deficiency occurred.
(j) (1) A licensee shall have the right to submit to the
department a written request for a formal review of a civil penalty
assessed pursuant to subdivisions (d) and (e) within 10
15 business days of receipt of the notice of a
civil penalty assessment and shall provide all available
supporting documentation at that time. The review shall be conducted
by the deputy director of the Community Care Licensing Division.
The licensee may submit additional supporting documentation that was
unavailable at the time of submitting the request for review within
the first 30 business days after submitting the request for review.
If the department requires additional information from the
licensee, that information shall be requested within the first 30
business days after receiving the request for review. The
licensee shall provide this additional information within 30 business
days of receiving the request from the department. If the
deputy director determines that the civil penalty was not assessed,
or the finding of deficiency that resulted in the assessment of the
civil penalty was not made, in accordance with applicable statutes or
regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the deputy director's decision within 60
business days of the request to review the assessment of the
civil penalty. date when all necessary
information has been provided to the department by the licensee.
(2) Upon exhausting the review described in paragraph (1), a
licensee may further appeal that decision to an administrative law
judge. Proceedings shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the department shall have all the powers
granted by those provisions. In all proceedings conducted in
accordance with this section, the standard of proof shall be by a
preponderance of the evidence.
(3) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(k) (1) A licensee shall have the right to submit to the
department a written request for a formal review of any other civil
penalty or deficiency not described in subdivision (j) within
10 15 business days of receipt of the
notice of a civil penalty assessment or a finding of a deficiency,
and shall provide all available supporting documentation
at that time. The review shall be conducted by a regional manager of
the Community Care Licensing Division. The licensee may submit
additional supporting documentation that was unavailable at the time
of submitting the request for review within the first 30 business
days after submitting the request for review. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for review. The licensee shall provide this
additional information within 30 business days of receiving the
request from the department. If the regional manager determines
that the civil penalty was not assessed, or the finding of the
deficiency was not made, in accordance with applicable statutes or
regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the regional manager's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee.
(2) Upon exhausting the review described in paragraph (1), the
licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within
10 15 business days of receipt of
notice of the regional manager's decision. The licensee may
submit additional supporting documentation that was unavailable at
the time of appeal to the program administrator within the first 30
business days after requesting that appeal. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for the appeal. The licensee shall provide this
additional information within 30 business days of receiving the
request from the department. If the program administrator
determines that the civil penalty was not assessed, or the finding of
the deficiency was not made, in accordance with applicable statutes
or regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the program administrator's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee. The
program administrator's decision is considered final and concludes
the licensee's administrative appeal rights regarding the appeal
conducted pursuant to this paragraph.
(l) The department shall adopt regulations implementing this
section.
(m) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by Section 4
of Chapter 813 of the Statutes of 2014.
(n) Notwithstanding the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the department may implement and administer
the changes made by the act that added this subdivision through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act.
(n)
(o) This section shall become operative on July 1,
2015.
SEC. 4. Section 1569.35 of the Health and Safety Code is amended
to read:
1569.35. (a) Any person may request an investigation of a
residential care facility for the elderly in accordance with this
chapter by making a complaint to the department alleging a violation
of applicable requirements prescribed by statutes or regulations of
this state, including, but not limited to, a denial of access of any
person authorized to enter the facility pursuant to Section 9722 of
the Welfare and Institutions Code. A complaint may be made either
orally or in writing.
(b) The substance of the complaint shall be provided to the
licensee no earlier than at the time of the inspection. Unless the
complainant specifically requests otherwise, neither the substance of
the complaint provided the licensee nor any copy of the complaint or
any record published, released, or otherwise made available to the
licensee shall disclose the name of any person mentioned in the
complaint except the name of any duly authorized officer, employee,
or agent of the
department conducting the investigation or inspection pursuant to
this chapter.
(c) (1) Upon receipt of a complaint, other than a complaint
alleging denial of a statutory right of access to a residential care
facility for the elderly, the department shall make a preliminary
review and, unless the department determines that the complaint is
willfully intended to harass a licensee or is without any reasonable
basis, it shall make an onsite inspection within 10 days after
receiving the complaint except where the visit would adversely affect
the licensing investigation or the investigation of other agencies,
including, but not limited to, law enforcement agencies. In either
event, the complainant shall be promptly informed of the department's
proposed course of action.
(2) If a local long-term care ombudsman or the State Long-Term
Care Ombudsman files a complaint alleging denial of a statutory right
of access to a residential care facility for the elderly under
Section 9722 of the Welfare and Institutions Code, the department
shall give priority to the complaint pursuant to Section 9721 of the
Welfare and Institutions Code and notify the Office of the State
Long-Term Care Ombudsman that an investigation has been initiated
pursuant to this section.
(3) Prior to conducting an onsite investigation pursuant to this
section, the department shall make a good faith effort, documented in
writing, to contact and interview the complainant and inform the
complainant of the department's proposed course of action and the
relevant deadline for the department to complete its investigation.
To the extent practicable, the officer, employee, or agent of the
department who will conduct the investigation shall be the
representative who interviews and makes contact with the complainant.
(d) When conducting an investigation pursuant to this section, the
department shall consult with and, to the extent practicable,
coordinate its investigation of a residential care facility for the
elderly with the investigation of the facility by other agencies,
including, but not limited to, the Office of the State Long-Term Care
Ombudsman and law enforcement agencies.
(e)
(d) Within 10 business days of completing the
investigation of a complaint under this section, the department shall
notify the complainant in writing of the department's determination
as a result of the investigation and of the complainant's
right to appeal the findings. The written notice shall describe the
appeal process provided for under subdivisions (f) and (g) and
include a copy of any reports and documents describing violations and
enforcement actions resulting from the investigation.
(f) A complainant who is dissatisfied with the department's
investigation, findings, or enforcement actions resulting from the
investigation may file an appeal by notifying the program manager of
the officer, employee, or agent of the department conducting the
investigation in writing within 15 business days after receiving the
notice described in subdivision (e). The program manager shall
schedule a meeting or teleconference with the complainant within 30
business days of receiving an appeal. The program manager shall
carefully review the concerns, information, and evidence presented by
the complainant to determine whether the department's findings or
actions should be modified or whether further investigation is
necessary. Within 10 business days after conducting the meeting or
teleconference with the complainant, the program manager shall notify
the complainant in writing of the department's determinations and
actions concerning the appeal and of the appeal rights provided in
subdivision (g).
(g) If a complainant is dissatisfied with the program manager's
determination on an appeal pursuant to subdivision (f), the
complainant may, within 15 business days after receipt of this
determination, file an appeal in writing with the Quality Assurance
Unit of the Community Care Licensing Division. Within 30 business
days of receiving an appeal, a representative of the Quality
Assurance Unit shall interview the complainant, consider any
information presented or submitted by the complainant, and review the
complaint record to determine whether the department's findings or
actions should be modified or whether further investigation is
necessary. No later than 10 business days after completing this
review, the deputy director of the Community Care Licensing Division
shall notify the complainant in writing of the department's
determinations and actions concerning the appeal.
(h) A complainant may be assisted or represented by any person of
his or her choice in the appeal processes described in this section.
SEC. 5. Section 1569.49 of the Health and Safety Code, as added by
Section 6 of Chapter 813 of the Statutes of 2014, is amended to
read:
1569.49. (a) In addition to the suspension, temporary suspension,
or revocation of a license issued under this chapter, the department
may levy a civil penalty.
(b) The amount of the civil penalty shall not be less than
twenty-five dollars ($25) or more than fifty dollars ($50) per day
for each violation of this chapter 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 the department. Except as otherwise
provided in this chapter, a civil penalty assessment shall not exceed
one hundred fifty dollars ($150) per day per violation.
(c) Notwithstanding Section 1569.33, the department shall assess
an immediate civil penalty of one hundred fifty dollars ($150) per
day per violation for any of the following serious violations:
(1) (A) Fire clearance violations, including, but not limited to,
overcapacity, ambulatory status, inoperable smoke alarms, and
inoperable fire alarm systems. The civil penalty shall not be
assessed if the licensee has done either of the following:
(i) Requested the appropriate fire clearance based on ambulatory,
nonambulatory, or bedridden status, and the decision is pending.
(ii) Initiated eviction proceedings.
(B) A licensee denied a clearance for bedridden residents may
appeal to the fire authority, and, if that appeal is denied, may
subsequently appeal to the Office of the State Fire Marshal, and
shall not be assessed an immediate civil penalty until the final
appeal is decided, or after 60 days has passed from the date of the
citation, whichever is earlier.
(2) Absence of supervision as required by statute or regulation.
(3) Accessible bodies of water, when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Section 1569.32, 1569.33, or 1569.35.
(6) The presence of an excluded person on the premises.
(d) For a violation that the department determines resulted in the
death of a resident, the civil penalty shall be fifteen thousand
dollars ($15,000).
(e) For a violation that the department determines constitutes
physical abuse, as defined in Section 15610.63 of the Welfare and
Institutions Code, or resulted in serious bodily injury, as defined
in Section 15610.67 of the Welfare and Institutions Code, to a
resident, the civil penalty shall be ten thousand dollars ($10,000).
(f) Prior to the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the program administrator of the Community Care Licensing Division.
(g) Notwithstanding Section 1569.33, any residential care facility
for the elderly that is cited for repeating the same violation of
this chapter within 12 months of the first violation is subject to an
immediate civil penalty of one hundred fifty dollars ($150) and
fifty dollars ($50) for each day the violation continues until the
deficiency is corrected.
(h) Any residential care facility for the elderly that is assessed
a civil penalty pursuant to subdivision (g) that repeats the same
violation of this chapter within 12 months of the violation subject
to subdivision (g) shall be assessed an immediate civil penalty of
one thousand dollars ($1,000) and one hundred dollars ($100) for each
day the violation continues until the deficiency is corrected.
(i) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A notification of a deficiency written by a representative of
the department shall include a factual description of the nature of
the deficiency fully stating the manner in which the licensee failed
to comply with the specified statute or regulation, and, if
applicable, the particular place or area of the facility in which the
deficiency occurred.
(j) (1) A licensee shall have the right to submit to the
department a written request for a formal review of a civil penalty
assessed pursuant to subdivisions (d) and (e) within 10
15 business days of receipt of the notice of a
civil penalty assessment and shall provide all available
supporting documentation at that time. The review shall be conducted
by the deputy director of the Community Care Licensing Division.
The licensee may submit additional supporting documentation that was
unavailable at the time of submitting the request for review within
the first 30 business days after submitting the request
for review. If the department requires additional information
from the licensee, that information shall be requested within the
first 30 business days after receiving the request for review.
The licensee shall provide this additional information within 30
business days of receiving the request from the department. If
the deputy director determines that the civil penalty was not
assessed, or the finding of the deficiency that resulted in the
assessment of the civil penalty was not made, in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty or finding of deficiency. The
licensee shall be notified in writing of the deputy director's
decision within 60 business days of the request to review the
assessment of the civil penalty. date when all
necessary information has been provided to the department by the
licensee.
(2) Upon exhausting the review described in paragraph (1), a
licensee may further appeal that decision to an administrative law
judge. Proceedings shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the department shall have all the powers
granted by those provisions. In all proceedings conducted in
accordance with this section, the standard of proof shall be by a
preponderance of the evidence.
(3) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(k) (1) A licensee shall have the right to submit to the
department a written request for a formal review of any other civil
penalty or deficiency not described in subdivision (j) within
10 15 business days of receipt of the
notice of a civil penalty assessment or a finding of a deficiency,
and shall provide all available supporting documentation
at that time. The review shall be conducted by a regional manager of
the Community Care Licensing Division. The licensee may submit
additional supporting documentation that was unavailable at the time
of submitting the request for review within the first 30 business
days after submitting the request for review. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for review. The licensee shall provide this
additional information within 30 business days of receiving the
request from the department. If the regional manager determines
that the civil penalty was not assessed, or the finding of the
deficiency was not made, in accordance with applicable statutes or
regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the regional manager's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee.
(2) Upon exhausting the review described in paragraph (1), the
licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within
10 15 business days of receipt of
notice of the regional manager's decision. The licensee may
submit additional supporting documentation that was unavailable at
the time of appeal to the program administrator within the first 30
business days after requesting that appeal. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after receiving
the request for the appeal. The licensee shall provide this
additional information within 30 business days of
receiving the request from the department. If the program
administrator determines that the civil penalty was not assessed, or
the finding of the deficiency was not made, in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty or finding of deficiency. The
licensee shall be notified in writing of the program administrator's
decision within 60 business days of the request to review
the civil penalty or finding of deficiency. date when
all necessary information has been provided to the department by the
licensee. The program administrator's decision is considered final
and concludes the licensee's administrative appeal rights regarding
the appeal conducted pursuant to this paragraph.
(l) The department shall adopt regulations implementing this
section.
(m) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by Section 6
of Chapter 813 of the Statutes of 2014.
(n) Notwithstanding the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the department may implement and administer
the changes made by the act that added this subdivision through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act.
(n)
(o) This section shall become operative on July 1,
2015.
SEC. 6. Section 1596.842 of the Health
and Safety Code is amended to read:
1596.842. Following approval by the department of a list of
provider rights, the Community Care Licensing Division shall print
and distribute in person, to individuals or to groups, and by other
appropriate methods of distribution, a list of provider rights which
shall include, but not be limited to, the following:
(a) Site visit rights:
(1) The right to require licensing field staff to identify
themselves.
(2) The right to be advised of the type of the visit, whether
complaint, plan of correction, prelicensing, or some other type. When
a site visit is made to investigate a complaint, the site visit
rights described in paragraphs (4) and (9) shall be applicable at the
completion of the investigation.
(3) The right to be treated as a professional and with dignity
and respect.
(4) The right to receive an accurate report of the evaluator's
findings listing each observed deficiency. Each deficiency shall be
separately numbered, so as to clearly indicate the number of
deficiencies, shall be accompanied by a number that corresponds to a
section of law or licensing regulation, and shall include a
description of the evaluator's observation that led to the finding of
a deficiency. The description of the evaluator's observation shall
include a clear explanation of why the existing condition constitutes
a deficiency, unless the description of the observation provides the
explanation.
(5) The right to review licensing laws, regulations, and policy.
(6) The right to an impartial investigation of all complaints.
(7) The right, at the time of the visit, to determine and develop
a plan of correction for deficiencies cited.
(8) The right to use the licensing report (LIC 809) as a means to
agree or disagree with cited deficiencies.
(9) The right to an exit interview upon completion of the visit
and to receive a signed copy of the LIC 809.
(10) The right to be informed on the LIC 809 of the evaluator's
supervisor and his or her telephone number.
(11) The right of access to the public file on any facility and
the right to purchase a copy at a reasonable cost.
(b) Initial appeal rights:
(1) The right, without prejudice, to appeal any decision, any
failure to act according to law or regulation, or any failure to act
within any specified timeline, through the licensing agency
up to the deputy director. as specified in Sections
1596.99 and 1597.58.
(2) The right to request a meeting with district office
administrators to discuss any licensing issue and with notice to
bring any person to the meeting.
(3) The right to due process and the option of bringing a
representative to any administrative action.
(c) The right to file a formal complaint, and receive a written
response to that complaint within 30 days, for any licensing issue
not covered by subdivision (b), including, but not limited to,
inappropriate behavior of department employees.
(d) The department shall, by June 30, 1992, mail to all licensees
a copy of this section and a full and complete copy of the appeals
procedure developed to implement subdivision (b).
(e) The department shall, on all forms it requires or recommends
that providers use, all notices of regulations or departmental
policy, and all notices to implement this section, clearly label the
department as the source of the material, including the name of the
department, the name of the division responsible for implementing
this chapter, and the address of that division.
SEC. 6. SEC. 7. Section 1596.99 of
the Health and Safety Code, as added by Section 8 of Chapter 813 of
the Statutes of 2014, is amended to read:
1596.99. (a) In addition to the suspension, temporary suspension,
or revocation of a license issued under this chapter or Chapter 3.4
(commencing with Section 1596.70), the department may levy a civil
penalty.
(b) The amount of the civil penalty shall not be less than
twenty-five dollars ($25) nor more than fifty dollars ($50) per day
for each violation of this chapter 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 the department. Except as otherwise
provided in this chapter, a civil penalty assessment shall not exceed
one hundred fifty dollars ($150) per day per violation.
(c) Notwithstanding Sections 1596.893a, 1596.893b, and 1596.98,
the department shall assess an immediate civil penalty of one hundred
fifty dollars ($150) per day per violation for any of the following
serious violations:
(1) Fire clearance violations, including, but not limited to,
overcapacity, inoperable smoke alarms, and inoperable fire alarm
systems.
(2) Absence of supervision, including, but not limited to, a child
left unattended, supervision of a child by a person under 18 years
of age, and lack of supervision resulting in a child wandering away.
(3) Accessible bodies of water.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Section 1596.852, 1596.853, or 1597.09.
(6) The presence of an excluded person on the premises.
(d) For a violation that the department determines resulted in the
death of a child, the civil penalty shall be assessed as follows:
(1) Seven thousand five hundred dollars ($7,500) for a licensee
licensed, among all of the licensee's facilities, to care for 30 or
less children.
(2) Ten thousand dollars ($10,000) for a licensee licensed, among
all of the licensee's facilities, to care for 31 to 100, inclusive,
children.
(3) Fifteen thousand dollars ($15,000) for a licensee licensed,
among all of the licensee's facilities, to care for more than 100
children.
(e) (1) For a violation that the department determines constitutes
physical abuse or resulted in serious injury, as defined in Section
1596.8865, to a child, the civil penalty shall be assessed as
follows:
(A) Two thousand five hundred dollars ($2,500) for a licensee
licensed, among all of the licensee's facilities, to care for 30 or
less children.
(B) Five thousand dollars ($5,000) for a licensee licensed, among
all of the licensee's facilities, to care for 31 to 100, inclusive,
children.
(C) Ten thousand dollars ($10,000) for a licensee licensed, among
all of the licensee's facilities, to care for more than 100 children.
(2) For purposes of this subdivision, "physical abuse" includes
physical injury inflicted upon a child by another person by other
than accidental means, sexual abuse as defined in Section 11165.1 of
the Penal Code, neglect as defined in Section 11165.2 of the Penal
Code, or unlawful corporal punishment or injury as defined in Section
11165.4 of the Penal Code when the person responsible for the child'
s welfare is a licensee, administrator, or employee of any facility
licensed to care for children, or an administrator or employee of a
public or private school or other institution or agency.
(f) Before the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the program administrator of the Community Care Licensing Division.
(g) Notwithstanding Sections 1596.893a, 1596.893b, and 1596.98,
any day care center that is cited for repeating the same violation of
this chapter or Chapter 3.4 (commencing with Section 1596.70) within
12 months of the first violation is subject to an immediate civil
penalty of one hundred fifty dollars ($150) for each day the
violation continues until the deficiency is corrected.
(h) Any day care center that is assessed a civil penalty under
subdivision (g) and that repeats the same violation of this chapter
within 12 months of the violation subject to subdivision (g) shall be
assessed an immediate civil penalty of one hundred fifty dollars
($150) for each day the violation continues until the deficiency is
corrected.
(i) Notwithstanding any other law, revenues received by the state
from the payment of civil penalties imposed on licensed child care
centers pursuant to this chapter or Chapter 3.4 (commencing with
Section 1596.70), shall be deposited in the Child Health and Safety
Fund, created pursuant to Chapter 4.6 (commencing with Section 18285)
of Part 6 of Division 9 of the Welfare and Institutions Code, and
shall be expended, upon appropriation by the Legislature, pursuant to
subdivision (f) of Section 18285 of the Welfare and Institutions
Code exclusively for the technical assistance, orientation, training,
and education of licensed day care center providers.
(j) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A notification of a deficiency written by a representative of
the department shall include a factual description of the nature of
the deficiency fully stating the manner in which the licensee failed
to comply with the specified statute or regulation, and, if
applicable, the particular place or area of the facility in which the
deficiency occurred.
(k) (1) A licensee shall have the right to submit to the
department a written request for a formal review of a civil penalty
assessed pursuant to subdivisions (d) and (e) within 10
15 business days of receipt of the notice of a
civil penalty assessment and shall provide all available
supporting documentation at that time. The review shall be conducted
by the deputy director of the Community Care Licensing Division.
The licensee may submit additional supporting documentation that was
unavailable at the time of submitting the request for review within
the first 30 business days after submitting the request for review.
If the department requires additional information from the
licensee, that information shall be requested within the first 30
business days after receiving the request for review. The
licensee shall provide this additional information within 30
business days of receiving the request from the department. If
the deputy director determines that the civil penalty was not
assessed, or the finding of the deficiency that resulted in the
assessment of the civil penalty was not made, in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty or finding of deficiency. The
licensee shall be notified in writing of the deputy director's
decision within 60 business days of the request to review
the assessment of the civil penalty. date when all
necessary information has been provided to the department by the
licensee.
(2) Upon exhausting the review described in paragraph (1), a
licensee may further appeal that decision to an administrative law
judge. Proceedings shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the department shall have all the powers
granted by those provisions. In all proceedings
conducted in accordance with this section, the
standard of proof shall be by a preponderance of the evidence.
(3) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(l) (1) A licensee shall have the right to submit to the
department a written request for a formal review of any other civil
penalty or deficiency not described in subdivision (k) within
10 15 business days of receipt of the
notice of a civil penalty assessment or a finding of a deficiency,
and shall provide all available supporting documentation
at that time. The review shall be conducted by a regional manager of
the Community Care Licensing Division. The licensee
may submit additional supporting documentation that was unavailable
at the time of submitting the request for review within the first 30
business days after submitting the request for review. If the
department requires additional information from the licensee, that
information shall be requested within the first 30 business days
after receiving the request for review. The licensee
shall provide this additional information within 30 business days of
receiving the request from the department. If the regional
manager determines that the civil penalty was not assessed, or the
finding of the deficiency was not made, in accordance with applicable
statutes or regulations of the department, he or she may amend or
dismiss the civil penalty or finding of deficiency. The licensee
shall be notified in writing of the regional manager's decision
within 60 business days of the request to review the civil
penalty or finding of deficiency. date when all
necessary information has been provided to the department
by the licensee.
(2) Upon exhausting the review described in paragraph (1), the
licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within
10 15 business days of receipt of
notice of the regional manager's decision. The licensee may
submit additional supporting documentation that was unavailable at
the time of appeal to the program administrator within the first 30
business days after requesting that appeal. If the department
requires additional information from the licensee, that information
shall be requested within the first 30 business days after
receiving the request for the appeal. The licensee shall provide
this additional information within 30 business days of receiving the
request from the department. If the program administrator
determines that the civil penalty was not assessed, or the finding of
the deficiency was not made, in accordance with applicable statutes
or regulations of the department, he or she may amend or dismiss the
civil penalty or finding of deficiency. The licensee shall be
notified in writing of the program administrator's decision within 60
business days of the request to review the civil penalty or
finding of deficiency. date when all necessary
information has been provided to the department by the licensee. The
program administrator's decision is considered final and
concludes the licensee's administrative appeal rights regarding the
appeal conducted pursuant to this paragraph.
(m) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by Section 8
of Chapter 813 of the Statutes of 2014.
(n) Notwithstanding the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the department may implement and administer
the changes made by the act that added this subdivision through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act.
(n)
(o) This section shall become operative on July 1,
2015.
SEC. 7. SEC. 8. Section 1597.58 of
the Health and Safety Code, as added by Section 10 of Chapter 813 of
the Statutes of 2014, is amended to read:
1597.58. (a) In addition to the suspension, temporary suspension,
or revocation of a license issued under this chapter, the department
may levy a civil penalty.
(b) The amount of the civil penalty shall not be less than
twenty-five dollars ($25) nor more than fifty dollars ($50) per day
for each violation of this chapter 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 the department. Except as otherwise provided
in this chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
(c) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and
1597.62 1597.62, the department shall
assess an immediate civil penalty of one hundred fifty dollars ($150)
per day per violation for any of the following serious violations:
(1) Any violation that results in the injury, illness, or death of
a child.
(2) Absence of supervision, including, but not limited to, a child
left unattended, a child left alone with a person under 18 years of
age, and lack of supervision resulting in a child wandering away.
(3) Accessible bodies of water.
(4) Accessible firearms, ammunition, or both.
(5) Refused entry to a facility or any part of a facility in
violation of Sections 1596.852, 1596.853, 1597.55a, and 1597.55b.
(6) The presence of an excluded person on the premises.
(d) For a violation that the department determines resulted in the
death of a child, the civil penalty shall be assessed as follows:
(1) Five thousand dollars ($5,000) for a small family day care
home, as described in Section 1597.44.
(2) Seven thousand five hundred dollars ($7,500) for a large
family day care home, as described in Section 1597.465.
(e) (1) For a violation that the department determines constitutes
physical abuse or resulted in serious injury, as defined in Section
1596.8865, to a child, the civil penalty shall be assessed as
follows:
(A) One thousand dollars ($1,000) for a small family day care
home, as described in Section 1597.44.
(B) Two thousand dollars ($2,000) for a large family day care
home, as described in Section 1597.465.
(2) For purposes of this subdivision, "physical abuse" includes
physical injury inflicted upon a child by another person by other
than accidental means, sexual abuse as defined in Section 11165.1 of
the Penal Code, neglect as defined in Section 11165.2 of the Penal
Code, or unlawful corporal punishment or injury as defined in Section
11165.4 of the Penal Code when the person responsible for the child'
s welfare is a licensee, administrator, or employee of any facility
licensed to care for children, or an administrator or employee of a
public or private school or other institution or agency.
(f) Before the issuance of a citation imposing a civil penalty
pursuant to subdivision (d) or (e), the decision shall be approved by
the program administrator of the Community Care Licensing Division.
(g) Notwithstanding Sections 1596.893a, 1596.893b, 1597.56, and
1597.62, any family day care home that is cited for repeating the
same violation of this chapter or Chapter 3.4 (commencing with
Section 1596.70), within 12 months of the first violation
violation, is subject to an immediate civil
penalty assessment of up to one hundred fifty dollars ($150) and may
be assessed up to fifty dollars ($50) for each day the violation
continues until the deficiency is corrected.
(h) Any family day care home that is assessed a civil penalty
under subdivision (g) that repeats the same violation of this chapter
within 12 months of the violation subject to subdivision (g) shall
be assessed an immediate assessment of up to one hundred fifty
dollars ($150) and may be assessed up to one hundred fifty dollars
($150) for each day the violation continues until the deficiency is
corrected.
(i) Notwithstanding any other law, revenues received by the state
from the payment of civil penalties imposed on licensed family day
care homes pursuant to this chapter or Chapter 3.4 (commencing with
Section 1596.70), shall be deposited in the Child Health and Safety
Fund, created pursuant to Chapter 4.6 (commencing with Section 18285)
of Part 6 of Division 9 of the Welfare and Institutions Code, and
shall be expended, upon appropriation by the Legislature, pursuant to
subdivision (f) of Section 18285 of the Welfare and Institutions
Code exclusively for the technical assistance, orientation, training,
and education of licensed family day care home providers.
(j) (1) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(2) A notification of a deficiency written by a representative of
the department shall include a factual description of the nature of
the deficiency fully stating the manner in which the licensee failed
to comply with the specified statute or regulation, and, if
applicable, the particular place or area of the facility in which the
deficiency occurred.
(k) (1) A licensee shall have the right to submit to the
department a written request for a formal review of a civil penalty
assessed pursuant to subdivisions (d) and (e) within 10
15 business days of receipt of the notice of a
civil penalty assessment and shall provide all available
supporting documentation at that time. The review shall be conducted
by the deputy director of the Community Care Licensing Division.
The licensee may submit additional supporting documentation that was
unavailable at the time of submitting the request for review within
the first 30 business days after submitting the request for review.
If the department requires additional information from the
licensee, that information shall be requested within the first 30
business days after receiving the request for review. The
licensee shall provide this additional information within
30 business days of receiving the request from the department.
If the deputy director determines that the civil penalty was not
assessed, or the finding of the deficiency that resulted in the
assessment of the civil penalty was not made, in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty or finding of deficiency. The
licensee shall be notified in writing of the deputy director's
decision within 60 business days of the request to review
the assessment of the civil penalty. date when all
necessary information has been provided to the department by the
licensee.
(2) Upon exhausting the review described in paragraph (1), a
licensee may further appeal that decision to an administrative law
judge. Proceedings shall be conducted in accordance with Chapter 5
(commencing with Section 11500) of Part 1 of Division 3 of Title 2 of
the Government Code, and the department shall have all the powers
granted by those provisions. In all proceedings conducted in
accordance with this section, the standard of proof shall be by a
preponderance of the evidence.
(3) If, in addition to an assessment of civil penalties, the
department elects to file an administrative action to suspend or
revoke the facility license that includes violations relating to the
assessment of the civil penalties, the department review of the
pending appeal shall cease and the assessment of the civil penalties
shall be heard as part of the administrative action process.
(l) (1) A licensee shall have the right to submit to the
department a written request for a formal review of any other civil
penalty or deficiency not described in subdivision (k) within
10 15 business days of receipt of the
notice of a civil penalty assessment or a finding of a deficiency,
and shall provide all available supporting documentation
at that time. The review shall be conducted by a regional manager of
the Community Care Licensing Division. The licensee may submit
additional supporting documentation that was unavailable at the time
of submitting the request for review within the first 30 business
days after submitting the request for review. If the
department requires additional information from the licensee, that
information shall be requested within the first 30 business days
after receiving the request for review. The licensee shall
provide this additional information within 30 business days of
receiving the request from the department. If the regional
manager determines that the civil penalty was not assessed, or the
finding of the deficiency was not made, in accordance with applicable
statutes or regulations of the department, he or she may amend or
dismiss the civil penalty or finding of deficiency. The licensee
shall be notified in writing of the regional manager's decision
within 60 business days of the request to review the civil
penalty or finding of deficiency. date when all
necessary information has been provided to the department by the
licensee.
(2) Upon exhausting the review described in paragraph (1), the
licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within
10 15 business days of receipt of
notice of the regional manager's decision. The licensee may
submit additional supporting documentation that was unavailable at
the time of appeal to the program administrator within the first 30
business days after requesting that appeal. If the department
requires additional information from the licensee, that
information shall be requested within the first 30 business days
after receiving the request for the appeal. The licensee shall
provide this additional information within 30 business days of
receiving the request from the department. If the program
administrator determines that the civil penalty was not assessed, or
the finding of the deficiency was not made, in accordance with
applicable statutes or regulations of the department, he or she may
amend or dismiss the civil penalty or finding of deficiency. The
licensee shall be notified in writing of the program administrator's
decision within 60 business days of the request to review
the civil penalty or finding of deficiency. date when
all necessary information has been provided to the
department by the licensee. The program administrator's decision is
considered final and concludes the licensee's administrative appeal
rights regarding the appeal conducted pursuant to this paragraph.
(m) The department shall, by January 1, 2016, amend its
regulations to reflect the changes to this section made by Section 10
of Chapter 813 of the Statutes of 2014.
(n) Notwithstanding the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code), the department may implement and administer
the changes made by the act that added this subdivision through
all-county letters or similar written instructions until regulations
are adopted pursuant to the Administrative Procedure Act.
(n)
(o) This section shall become operative on July 1,
2015.