BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 1387
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|Author: |Chu |
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|Version: |June 25, 2015 |Hearing |July 14, 2015 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sara Rogers |
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Subject: Care facilities: civil penalties, deficiencies, and
appeal procedures
SUMMARY
This bill amends the civil penalty review and appeals process
for violations resulting in death and serious bodily injury of a
resident of child in community care facilities, Residential Care
Facilities for the Elderly (RCFE) and child day care facilities.
The bill stablishes a civil penalty review and appeals process
for all other violations. It permits a complainant of a RCFE who
is dissatisfied with a complaint decision to appeal the
decision, as specified.
ABSTRACT
Existing law:
1)Establishes the Community Care Facilities Act, providing for
the licensure and regulation of nonmedical residential care,
day treatment, adult day care, or foster family agency
services for children or adults. (HSC 1500 et seq.)
2)Establishes the Residential Care Facilities for the Elderly
Act to license and regulate RCFEs as a separate category
within the existing residential care licensing structure of
the California Department of Social Services (CDSS). (HSC 1569
AB 1387 (Chu) Page 2
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et seq.)
3)Provides for the licensure and regulation of Residential Care
Facilities for Persons with Chronic, Life-Threatening Illness
under a separate category. (HSC 168.01 et seq.)
4)Establishes the Child Day Care Act, providing for the
licensure and regulation of child day care facilities, and
large and small family day care homes. (HSC 1596.70 et seq.)
5)Permits CDSS to levy civil penalties for licensure violations,
and provides that in no event shall a civil penalty assessment
exceed $150 per day, per violation. (HSC 1548, 1568.0822,
1569.49, 1596.99, 1597.58)
6)Permits CDSS to establish an appeal process for civil
penalties via regulation. (HSC 1548, 1568.0822, 1569.49,
1596.99, 1597.58)
7)As of July 1, 2015, establishes specified increased civil
penalties for community care facilities, RCFEs, and child day
care facilitiess (see below chart) for the following:
a. Any violation that CDSS determines resulted in the
death of a resident.
b. Any violation which constitutes physical abuse or
serious bodily injury, as defined, to a resident. (HSC
1548, 1568.0822, 1569.49, 1596.99, 1597.58)
8)As of July 1, 2015 establishes the following review and appeal
structure for either of the above civil penalties:
a. Prior to issuance of either of the above civil
penalties, the decision shall be approved by the director
of CDSS.
b. Subsequent to the approval by the director, a
AB 1387 (Chu) Page 3
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licensee may request three levels of formal appeal and
review within CDSS Community Care Licensing Division
(CCL), including review by a regional manager, program
administrator, and deputy director, and ultimately a
review by an administrative law judge. (HSC 1548,
1568.0822, 1569.49, 1596.99, 1597.58)
9)Permits any person to request an inspection of any RCFE via
oral or written complaint to the department, as specified.
Requires CDSS to make a preliminary review, unless the
complaint is without a reasonable basis, and to make an onsite
inspection within 10 days of receiving the complaint, unless
the visit would adversely affect the investigation, or an
investigation of other agencies including law enforcement.
(HSC 1569.35)
This bill:
1)Requires civil penalties assessed by CCL due to death or
serious bodily injury to be approved by the program
administrator prior to issuance, instead of by the director of
CDSS.
2)Requires notification of a deficiency by CCL 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 in the facility in which the
deficiency occurred.
3)Subsequent to approval of the civil penalty by the program
administrator, establishes two levels of formal appeal and
review (instead of four) that a licensee may request, first by
the deputy director of CCL and second by an administrative law
judge.
4)Provides that if the deputy director requires additional
information from the licensee, that information shall be
requested within 30 days after receiving the request for
AB 1387 (Chu) Page 4
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review, and additionally requires the licensee to be notified
of the decision within 60 calendar days after the review
request.
5)Permits a licensee to request a two-tier review of any other
civil penalty or deficiency not provided for in #3 above,
within 10 days of receiving notice of a civil penalty, as
specified. Provides that review of these civil penalties shall
be conducted by a regional manager of CCL, as specified, and
requires that the licensee shall be notified of the decision
within 60 days. Subsequent to the decision, permits a licensee
to request a second review to be conducted by a program
administrator of CCL within 10 days of receipt of the regional
manager's decision, and the licensee be notified of the final
decision within 60 days.
6)Provides that a complaint filed by a local long-term care
ombudsman or the state Long-Term Care Ombudsman alleging
denial of a statutory right of access to an RCFE shall be
given priority by CDSS which shall notify the officer of the
State Long-Term Care Ombudsman that an investigation has been
initiated.
7)Prior to conducting an onsite complaint investigation,
requires CDSS to document in writing a good-faith effort to
contact and interview the complainant and to inform the
complainant of the department's proposed course of action, as
specified. Within 10 days of a decision, CDSS must notify the
complainant in writing of the department's determination.
8)Provides a complainant who is dissatisfied with the
department's decision to file an appeal by notifying a program
manager in writing within 15 business days of receiving
notice.
9)Requires the program manager to schedule a meeting or
teleconference with the complainant within 30 business days of
receiving an appeal, as specified, and to notify the
complainant of the decision within 10 business days of a
AB 1387 (Chu) Page 5
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decision.
10)Permits the complainant to further appeal the decision to the
Quality Assurance Unit of CCL, which must interview the
complainant, consider any information presented, review the
complaint record, and no later than 10 days after completing
the review to notify the complainant in writing of the
decision.
FISCAL IMPACT
The current version of this bill has not been analyzed by a
fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
Last year, AB 2236 (Maienschein, Chapter 813, Statutes of 2014)
established fines for violations that led to death or serious
bodily injury of a resident a community care facility, an RCFE
or in a child day care. The specific dollar amounts were set
according to facility type and size of the facility pursuant to
the chart below.
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| Facility type | Size |Serious Bodily | Death |
| | | Injury | |
|-------------------------------+-----------+---------------+---------|
| RCFE/ARF/CCH/SRF/EBSH |All sizes | $10,000 | $15,000 |
|-------------------------------+-----------+---------------+---------|
| Emergency Homeless Youth |d25 beds | $1,000 | $5,000 |
| Shelter | | | |
|-------------------------------+-----------+---------------+---------|
| Small Child Care Home |d8 | $1,000 | $5,000 |
| |children | | |
|-------------------------------+-----------+---------------+---------|
| Large Child Care Home |9-14 | $2,000 | $7,500 |
AB 1387 (Chu) Page 6
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| |children | | |
|-------------------------------+-----------+---------------+---------|
| Child Care Facility |1 30 | $2,500 | $7,500 |
| |children | | |
|-------------------------------+-----------+---------------+---------|
| Child Care Facility |31 100 | $5,000 | $10,000 |
| |children | | |
|-------------------------------+-----------+---------------+---------|
| Child Care Facility |100+ | $10,000 | $15,000 |
| |children | | |
|-------------------------------+-----------+---------------+---------|
| Adult Day |d50 adults | $2,500 | $7,500 |
|-------------------------------+-----------+---------------+---------|
| Adult Day |50+ adults | $5,000 | $10,000 |
|-------------------------------+-----------+---------------+---------|
| FFA/GH/TSCF/THPP/CTF |d40 youth | $2,500 | $7,500 |
|-------------------------------+-----------+---------------+---------|
| FFA/GH/TSCF/THPP/CTF |41 100 | $5,000 | $10,000 |
| |youth | | |
|-------------------------------+-----------+---------------+---------|
| FFA/GH/TSCF/THPP/CTF |100+ youth | $10,000 |$15,000 |
| | | | |
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Prior to passage of AB 2236, the highest assessed penalty was
$150 a day/ per violation and an appeal process was not formally
established in statute. Instead, CDSS was granted authority to
establish an appeals process through regulation. In addition to
establishing a complex new civil penalty structure that
substantially increased the size of civil penalties for the most
serious violations, AB 2236 codified a new appeals process for
the higher civil penalties that was modeled partly on an
internal assessment review process used by CDSS. The new appeal
process established four layers of review, all occurring after
the director of CDSS had already approved the initial civil
penalty assessment. This bill simplifies the appeals process for
both penalties, providing for the program administrator to
initially approve the assessment of the penalty, and if
appealed, the deputy director of CCL to review the appeal,
before being heard by an Administrative Law Judge, who makes a
AB 1387 (Chu) Page 7
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final determination.
This bill also establishes a streamlined appeal process for all
other civil penalties by designating a regional manager to
review the initial appeal, and a program administrator to make a
final determination, if the first review is appealed. Finally
this bill establishes a new two-tier appeals process for
complainants against an RCFE who are dissatisfied with the
department's decision regarding a complaint investigation to
appeal to the program manager, who is required to meet or
teleconference with the complainant
CCL Oversight
On February 11, 2014, the Senate and Assembly Human Services
Committees jointly held an informational hearing investigating
efforts to increase accountability and oversight of Assisted
Living Facilities. Testimony during the hearing highlighted
significant technological barriers to the tracking of complaints
and deficiencies, limited follow-up practices by the department
to ensure that deficiencies are corrected, frequent failure to
collect assessed fines and penalties, a lengthy appeals process
that hinders immediate action when necessary, and use of a
shortened inspection tool that has not been validated for use in
RCFEs.
The hearing included testimony from consumer advocates
characterizing the current complaint investigation process as
being plagued by problems of inadequate investigation, poor
communication with complainants, lack of transparency, weak
enforcement, and appeal procedures that protect operators and
imperil residents. Current law does not require CCL to send
written findings to complainants except upon request, and does
not give complainants an opportunity to appeal CCL's findings.
However, in response to significant public outcry over a lack of
transparency, CCL began posting on its website information
regarding the number and date of licensing inspections
performed, the number of citations (categorized by severity),
the number and disposition of complaints, and a telephone number
enabling consumers to call CCL to request more specific
information regarding the nature of citations and complaints.
AB 1387 (Chu) Page 8
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Related legislation:
AB 1554 (Skinner, 2014) was substantially similar to this bill.
It was held in the Senate Appropriations Committee.
AB 2236 (Maienschein, Chapter 813, Statutes of 2014) established
civil penalty assessments for violations that led to death or
serious bodily injury of a resident in a community care
facility, an RCFE or a child day care facility. It also
established the four-tier appeals process.
COMMENTS
Staff recommends the following technical amendments:
SEC. 2.
1548.
(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. In
no event, shall Except as otherwise provided for pursuant to
this Chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
1548.
(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
business days of receipt of the notice of a civil penalty
assessment and shall provide all supporting documentation at
that time. The review shall be conducted by the deputy director
of the Community Care Licensing Division. If the department
requires additional information from the licensee, that
information shall be requested within the first 30 calendar
business days after receiving the request for review. 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
AB 1387 (Chu) Page 9
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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 calendar business days of the
request to review the assessment of the civil penalty.
(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 business days of receipt of the notice of a civil
penalty assessment or a finding of a deficiency, and shall
provide all supporting documentation at that time. The review
shall be conducted by a regional manager of the Community Care
Licensing Division. If the department requires additional
information from the licensee, that information shall be
requested within the first 30 calendar business days after
receiving the request for review. 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 calendar business days of the
request to review the civil penalty or finding of deficiency.
(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
business days of receipt of notice of the regional manager's
decision. 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
calendar business days of the request to review the civil
penalty or finding of deficiency.
SEC. 3.
1568.0822.
(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
AB 1387 (Chu) Page 10
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violation warrants a higher penalty or an immediate civil
penalty assessment, or both, as determined by the department. In
no event, shall Except as otherwise provided for pursuant to
this Chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
1568.0822.
(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
business days of receipt of the notice of a civil penalty
assessment and shall provide all supporting documentation at
that time. The review shall be conducted by the deputy director
of the Community Care Licensing Division. If the department
requires additional information from the licensee, that
information shall be requested within the first 30 calendar
business days after receiving the request for review. 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 calendar business days of the
request to review the assessment of the civil penalty.
(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 business days of receipt of the notice of a civil
penalty assessment or a finding of a deficiency, and shall
provide all supporting documentation at that time. The review
shall be conducted by a regional manager of the Community Care
Licensing Division. If the department requires additional
information from the licensee, that information shall be
requested within the first 30 calendar business days after
receiving the request for review. 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 calendar business days of the
request to review the civil penalty or finding of deficiency.
AB 1387 (Chu) Page 11
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(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
business days of receipt of notice of the regional manager's
decision. 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
calendar business days of the request to review the civil
penalty or finding of deficiency.
SEC. 5.
1569.49.
(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. In
no event, shall Except as otherwise provided for pursuant to
this Chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
1569.49.
(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
business days of receipt of the notice of a civil penalty
assessment and shall provide all supporting documentation at
that time. The review shall be conducted by a regional manager
the deputy director of the Community Care Licensing Division. If
the department requires additional information from the
licensee, that information shall be requested within the first
30 calendar business days after receiving the request for
review. 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 calendar business
AB 1387 (Chu) Page 12
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days of the request to review the assessment of the civil
penalty.
(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 business days of receipt of the notice of a civil
penalty assessment or a finding of a deficiency, and shall
provide all supporting documentation at that time. The review
shall be conducted by a regional manager of the Community Care
Licensing Division. If the department requires additional
information from the licensee, that information shall be
requested within the first 30 calendar business days after
receiving the request for review. 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 calendar business days of the
request to review the civil penalty or finding of deficiency.
(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
business days of receipt of notice of the regional manager's
decision. 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
calendar business days of the request to review the civil
penalty or finding of deficiency.
SEC. 6.
1596.99.
(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. In
no event, shall Except as otherwise provided for pursuant to
AB 1387 (Chu) Page 13
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this Chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
1596.99.
(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
business days of receipt of the notice of a civil penalty
assessment and shall provide all supporting documentation at
that time. The review shall be conducted by the deputy director
of the Community Care Licensing Division. If the department
requires additional information from the licensee, that
information shall be requested within the first 30 calendar
business r days after receiving the request for review. 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 calendar business days of the
request to review the assessment of the civil penalty.
(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 business days of receipt of the notice of a civil
penalty assessment or a finding of a deficiency, and shall
provide all supporting documentation at that time. The review
shall be conducted by a regional manager of the Community Care
Licensing Division. If the department requires additional
information from the licensee, that information shall be
requested within the first 30 calendar business days after
receiving the request for review. 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 calendar business days of the
request to review the civil penalty or finding of deficiency.
(2) Upon exhausting the review described in paragraph (1), the
AB 1387 (Chu) Page 14
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licensee may further appeal that decision to the program
administrator of the Community Care Licensing Division within 10
business days of receipt of notice of the regional manager's
decision. 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
calendar business days of the request to review the civil
penalty or finding of deficiency.
SEC. 7.
1597.58.
(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. In
no event, shall Except as otherwise provided for pursuant to
this Chapter, a civil penalty assessment shall not exceed one
hundred fifty dollars ($150) per day per violation.
1597.58.
(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
business days of receipt of the notice of a civil penalty
assessment and shall provide all supporting documentation at
that time. The review shall be conducted by the deputy director
of the Community Care Licensing Division. If the department
requires additional information from the licensee, that
information shall be requested within the first 30 calendar
business days after receiving the request for review. 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 calendar business days of the
request to review the assessment of the civil penalty.
AB 1387 (Chu) Page 15
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(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 business days of receipt of the notice of a civil
penalty assessment or a finding of a deficiency, and shall
provide all supporting documentation at that time. The review
shall be conducted by a regional manager of the Community Care
Licensing Division. If the department requires additional
information from the licensee, that information shall be
requested within the first 30 calendar business days after
receiving the request for review. 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 calendar business days of the
request to review the civil penalty or finding of deficiency.
(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
business days of receipt of notice of the regional manager's
decision. 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
calendar business days of the request to review the civil
penalty or finding of deficiency.
PRIOR VOTES
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|Assembly Floor: |74 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Appropriations Committee: |17 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Human Services Committee: |7 - |
| |0 |
AB 1387 (Chu) Page 16
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| | |
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POSITIONS
Support:
California Assisted Living Association
California Advocates for Nursing Home Reform
Office of the State Long Term Care Ombudsman
Oppose:
None received.
-- END -