BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1387| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1387 Author: Chu (D) Amended: 8/31/15 in Senate Vote: 21 SENATE HUMAN SERVICES COMMITTEE: 3-0, 7/14/15 AYES: McGuire, Hancock, Liu NO VOTE RECORDED: Berryhill, Nguyen SENATE APPROPRIATIONS COMMITTEE: 6-1, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza NOES: Nielsen ASSEMBLY FLOOR: 74-0, 5/22/15 - See last page for vote SUBJECT: Care facilities: civil penalties, deficiencies, and appeal procedures SOURCE: Author DIGEST: This bill amends the civil penalty review and appeals process for violations resulting in death and serious bodily injury of a resident or child in community care facilities, Residential Care Facilities for the Elderly (RCFEs) and child day care facilities. The bill establishes a civil penalty review and appeals process for all other violations, as specified. ANALYSIS: 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 AB 1387 Page 2 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 et seq.) 3)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.) 4)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. Permits CDSS to establish an appeal process for civil penalties via regulation. (HSC 1548, 1568.0822, 1569.49, 1596.99, 1597.58) 5)Establishes, as of July 1, 2015, specified increased civil penalties for community care facilities, RCFEs, and child day care facilities for a violation determined to result in the death of a resident or which constitutes physical abuse or serious bodily injury, as defined, to a resident. (HSC 1548, 1568.0822, 1569.49, 1596.99, 1597.58) 6)Establishes, as of July 1, 2015, 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 licensee may request three levels of formal appeal and review within CDSS Community Care Licensing Division (CCLD), 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) This bill: 1)Requires civil penalties assessed by CCLD resulting in death AB 1387 Page 3 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 the deficiency by CCLD 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)Establishes, subsequent to approval by the program administrator of a civil penalty resulting in death or serious bodily injury, two levels of formal appeal and review (instead of four) that a licensee may request within 15 days of receiving notice of a penalty. Provides that the first review will be conducted by the deputy director of CCLD and second by an administrative law judge. 4)Permits a licensee to request a two-tier review of any other civil penalty or deficiency not provided for in #3 above, within 15 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 CCLD, 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 CCLD within 15 days of receipt of the regional manager's decision, and requires the licensee be notified of the final decision within 60 days. 5)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. 6)Requires CDSS, prior to conducting an onsite complaint investigation, 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 AB 1387 Page 4 specified. Within 10 days of a decision, CDSS must notify the complainant in writing of the department's determination. 7)Deletes the requirement that revenues from civil penalties levied by CDSS against licensed day care centers and family day care homes be used to assist families with the identification, transportation and enrollment of children to another center when a center's license is revoked or temporarily suspended. 8)Authorizes DSS to implement and administer the changes through all-county letters or similar written instructions until regulations are adopted. Background 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 ranging from $1,000 for violations resulting in serious bodily injury in a small child care homes up to $15,000 for violations resulting in death in any sized RCFE (see detailed chart in prior committee analysis). 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 Page 5 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. 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. In response to significant public outcry over a lack of transparency, CCLD 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 CCLD to request more specific information regarding the nature of citations and complaints. Additionally, the 2014 and 2015 Budget Acts include funding for a comprehensive plan to reform the CCLD program. The 2014 Budget Act included an increase of $7.5 million ($5.8 million General Fund) and 71.5 positions to improve the timeliness of investigations, ensure the CCLD inspects all facilities at least once every five years, increase staff training, and establish clear fiscal, program, and corporate accountability. The 2014 AB 1387 Page 6 Budget also increased licensing and application fees by 10 percent. The recently enacted 2015 Budget Act additionally includes $3 million General Fund and 28.5 positions to address a backlog of complaint cases and expand training and technical assistance. Beginning in January 2017, the DSS will begin increasing inspection frequency to every three years for all facilities, every two years by 2018 for all facility types except child care, and annually by 2019 for adult day care and RCFEs. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriation Committee, this bill would have potential future cost savings due to simplification of the civil penalty review and appeals process from a four-tiered to two-tiered level of review. Additionally, the analysis states there are potentially significant ongoing costs in excess of $150,000 (General Fund) annually due to the establishment of an internal appeals process for other violations. SUPPORT: (Verified 8/28/15) None received OPPOSITION: (Verified8/28/15) None received ASSEMBLY FLOOR: 74-0, 5/22/15 AYES: Achadjian, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, AB 1387 Page 7 Nazarian, Obernolte, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Wilk, Williams, Wood, Atkins NO VOTE RECORDED: Alejo, Jones, O'Donnell, Olsen, Waldron, Weber Prepared by:Sara Rogers / HUMAN S. / (916) 651-1524 8/30/15 19:18:18 **** END ****