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:  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

           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).


          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  

          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  

          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.


          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  

          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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          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  

          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,  

          Prepared by:Sara Rogers / HUMAN S. / (916) 651-1524
          9/8/15 16:23:19

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