BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1387|
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THIRD READING
Bill No: AB 1387
Author: Chu (D)
Amended: 9/4/15 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 of 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.
Senate Floor Amendments of 9/4/15 address chaptering conflicts
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with AB 403 (Stone).
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
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:
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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
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)Subsequent to approval by the program administrator of a civil
penalty resulting in death or serious bodily injury,
establishes 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
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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)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.
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
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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
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
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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
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
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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: (Verified9/4/15)
California Assisted Living Association
California Advocates for Nursing Home Reform
Office of the State Long Term Care Ombudsman
OPPOSITION: (Verified9/4/15)
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,
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
9/8/15 16:23:19
**** END ****
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