BILL NUMBER: AB 2231 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Calderon
FEBRUARY 18, 2016
An act to amend Sections 1548, 1568.0822, 1569.49, 1596.8595,
1596.99, and 1597.58 of the Health and Safety Code, relating to care
facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 2231, as introduced, Calderon. Care facilities: civil
penalties.
Existing law establishes the State Department of Social Services
and sets forth its powers and duties, including, but not limited to,
the licensure and regulation of community care facilities,
residential care facilities for persons with chronic life-threatening
illnesses, residential care facilities for the elderly, day care
centers, and family day care homes. Existing law authorizes the
department to impose various civil penalties for a licensing
violation under those provisions, as specified, and requires moneys
collected from the imposition of those penalties to be expended for
certain purposes. Existing law establishes a process for the appeal
of a citation under these provisions.
This bill would increase the amount of civil penalties to be
imposed for a licensing violation under those provisions, and would
impose civil penalties for a repeat violation of those provisions, as
specified. The bill would delete the provisions that authorize the
department to impose those civil penalties, and instead require the
imposition of those civil penalties under those provisions. The bill
would also delete a requirement that moneys collected from the
imposition of certain penalties be used for assisting families with
the identification, transportation, and enrollment of children in
another day care or family day care home upon the revocation or
suspension of the license of a day care or family day care home. The
bill would also delete obsolete provisions.
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. Section 1548 of the Health and Safety Code 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 shall levy a
civil penalty. penalties as follows:
(b) (1) The amount of the civil penalty
shall not be less than twenty-five dollars ($25) or more
than fifty dollars ($50) be one hundred dollars ($100)
per day for each violation of this chapter except
where if an agency or facility fails to correct a
deficiency after being provided a specified length of time to correct
that deficiency. If 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. provided in this
chapter, a correction of the deficiency shall not impact the
imposition of a civil penalty.
(2) Any agency or facility that repeats a violation specified in
paragraph (1) within 12 months of a prior violation having a similar
factual description of the deficiency as stated in the notification
of deficiency, is subject to an immediate civil penalty of two
hundred fifty dollars ($250) per violation and one hundred dollars
($100) for each day the violation continues after citation.
(c) Notwithstanding Section 1534, the The
department shall assess an immediate civil penalty
of one five hundred fifty
dollars ($150) ($500) per
day per violation and one hundred dollars
($100) for each day the violation continues after citation
for any of the following serious violations:
(1) Any violation that the department determines resulted in the
injury or illness of a person in care.
(1)
(2) (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)
(3) Absence of supervision, as required by statute or
regulation.
(3)
(4) Accessible bodies of water when prohibited in this
chapter or regulations adopted pursuant to this chapter.
(4)
(5) Accessible firearms, ammunition, or both.
(5)
(6) Refused entry to a facility or any part of a
facility in violation of Section 1533, 1534, or 1538.
(6)
(7) The presence of an excluded
a person subject to a department Order of Exclusion
on the premises.
(d) Any agency or facility that repeats a violation specified in
subdivision (c) within 12 months of a prior violation having a
similar factual description of the deficiency as stated in the
notification of deficiency, shall be subject to an immediate civil
penalty of one thousand dollars ($1,000) per violation and one
hundred dollars ($100) for each day the violation continues after
citation.
(d)
(e) (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, home licensed as an adult residential
facility, adult residential facility for persons with special health
care needs, 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,
facility licensed to care for 50 or less
fewer persons.
(B) Ten thousand dollars ($10,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed to care for 51 or 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, small family
home, crisis nursery, group home, enhanced behavioral
supports home licensed as a group home, or short-term
residential treatment center, 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,
facility licensed to care for 40 or less
fewer children.
(B) Ten thousand dollars ($10,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed 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,
facility licensed to care for more than 100 children.
(4) For a violation that the department determines resulted in the
death of a resident youth receiving care
at a runaway and homeless youth shelter,
shelter licensed as a group home, the civil penalty shall
be five thousand dollars ($5,000).
(5) For a violation that the department determines resulted in the
death of a child receiving care through a foster family agency, the
civil penalty shall be seven thousand five hundred dollars ($7,500).
(6) For a violation that the department determines resulted in the
death of an individual receiving care or services through a
full-service or noncustodial adoption agency, the civil penalty shall
be seven thousand five hundred dollars ($7,500).
(e)
(f) (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, home
licensed as an adult residential facility, adult residential facility
for persons with special health care needs, 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,
facility licensed to care for 50 or less
fewer persons.
(ii) Five thousand dollars ($5,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed to care for 51 or 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, small family home,
crisis nursery, group home, enhanced behavioral supports
home licensed as a group home, or short-term residential
treatment center, 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,
facility licensed to care for 40 or less
fewer children.
(ii) Five thousand dollars ($5,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed 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,
facility licensed 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 youth receiving care at a
runaway and homeless youth shelter, shelter
licensed as a group home, the civil penalty shall be one
thousand dollars ($1,000).
(E) 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
child receiving care through a foster family agency, the civil
penalty shall be two thousand five hundred dollars ($2,500).
(F) 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 an
individual receiving care or services through a full-service or
noncustodial adoption agency, the civil penalty shall be two thousand
five hundred dollars ($2,500).
(2) For purposes of subparagraphs (C) and (D),
(C), (D), (E), and (F) of paragraph (1), "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
(g) (1) Before
the issuance assessment of
a citation imposing a civil penalty pursuant to
subdivision (d) or (e), (e) or (f), 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
(2) If the department assesses a civil penalty pursuant to
subdivision (e) or (f), that civil penalty shall prevail and the
civil penalty for the underlying violation shall be waived.
(h) A citation of a violation issued by the department shall be
classified according to the nature of the violation and shall
indicate the classification on its face.
(1) A Type AA violation is a violation that the department
determines resulted in the death or serious bodily injury of, or that
constitutes physical abuse of, a client, pursuant to subdivision (e)
or (f).
(2) A Type A violation is a violation that the department
determines poses a direct and immediate risk to the health or safety
of a person in care.
(3) A Type B violation is a violation that does not meet the
standards of a Type AA or A violation, but that the department
determines poses a potential risk to the health or safety of a person
in care.
(4) A Type C violation is a violation that does not meet the
standards of a Type AA, A, or B violation.
(i) (1) 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. The department shall make a good faith effort to work
with the licensee to determine the cause of the deficiency
and ways to prevent any repeat violations.
(2) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(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)
or (f) within 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 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 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 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
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 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 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 or short-term residential treatment center against
moneys to be paid by a county for the care of minors after the group
home or short-term residential treatment center has exhausted its
appeal of the civil penalty assessment. The department shall provide
the group home or short-term residential treatment center 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.
(p) This section shall become operative on July 1, 2015.
SEC. 2. Section 1568.0822 of the Health and Safety Code 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 shall levy a
civil penalty. penalties as
follows:
(b) (1) The amount of the civil penalty
shall not be less than twenty-five dollars ($25) or more
than fifty dollars ($50) be one hundred dollars ($100)
per day for each violation of this chapter, except
where chapter if an agency or facility fails to
correct a deficiency af ter being provided a specified
length of time to correct that deficiency. If 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.
provided in this chapter, a correction of the
deficiency shall not impact the imposition of a civil penalty.
(2) (A) Any agency or facility that repeats a violation specified
in paragraph (1) within 12 months of a prior violation, having a
similar factual description of the deficiency as stated in the
notification of deficiency, shall be subject to an immediate civil
penalty of two hundred fifty dollars ($250) per violation and one
hundred dollars ($100) for each day the violation continues after
citation.
(c) Notwithstanding Section 1568.07, the department shall assess
an immediate civil penalty of one five
hundred fifty dollars ($150)
($500) per day per violation and
one hundred dollars ($100) for each day the violation continues after
citation for any of the following serious violations:
(1) Any violation that the department determines resulted in the
injury or illness of a resident.
(1)
(2) (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)
(3) Absence of supervision, as required by statute and
regulation.
(3)
(4) Accessible bodies of water, when prohibited in this
chapter or regulations adopted pursuant to this chapter.
(4)
(5) Accessible firearms, ammunition, or both.
(5)
(6) Refused entry to a facility or any part of a
facility in violation of Section 1568.07 or 1568.071.
(6)
(7) The presence of an excluded
a person subject to a department Order of Exclusion
on the premises.
(d) Any facility that repeats a violation specified in subdivision
(c) within 12 months of a prior violation having a similar factual
description of the deficiency as stated in the notice of deficiency,
shall be subject to an immediate civil penalty of one thousand
dollars ($1,000) per violation and one hundred dollars ($100) for
each day the violation continues after citation.
(d)
(e) 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)
(f) 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
(g) (1) Before
the issuance assessment of a
citation imposing a civil penalty pursuant to
subdivision (d) or (e), (e) or (f), the
decision shall be approved by the program administrator of the
Community Care Licensing Division.
(2) If the department issues a citation pursuant to subdivision
(e) or (f), that civil penalty shall prevail and the civil penalty
for the underlying violation shall be waived.
(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
(h) A citation of a violation issued by the department shall be
classified according to the nature of the violation and shall
indicate the classification on its face.
(1) A Type AA violation is a violation that the department
determines resulted in the death or serious bodily injury of, or that
constitutes physical abuse of, a client, pursuant to subdivision (e)
or (f).
(2) A Type
A violation is a violation that the department determines poses a
direct and immediate risk to the health or safety of a person in
care.
(3) A Type B violation is a violation that does not meet the
standards of a Type AA or A violation, but that the department
determines poses a potential risk to the health or safety of a person
in care.
(4) A Type C violation is a violation that does not meet the
standards of a Type AA, A, or B violation.
(i) (1) 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. The department shall make a good
faith effort to work with the licensee to determine the cause of the
deficiency and ways to prevent any repeat violations.
(2) The department shall adopt regulations setting forth appeal
procedures for deficiencies.
(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
subdivision (e) or (f) within 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 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 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
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 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 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.
(o) This section shall become operative on July 1, 2015.
SEC. 3. Section 1569.49 of the Health and Safety Code 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 shall levy a
civil penalty. penalties as follows:
(b) (1) The amount of the civil penalty
shall not be less than twenty-five dollars ($25) or more
than fifty dollars ($50) be one hundred dollars ($100)
per day for each violation of this chapter if the agency
or facility failed to correct a deficiency after being provided a
specified length of time to correct that deficiency. If 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. a correction of the deficiency
shall not impact the imposition of a civil penalty.
(2) (A) Any agency or facility that repeats a violation specified
in paragraph (1) within 12 months of a prior violation having a
similar factual description of the deficiency as stated on the
notification of deficiency, shall be subject to an immediate civil
penalty of two hundred fifty dollars ($250) per violation and one
hundred dollars ($100) for each day the violation continues after
citation.
(c) Notwithstanding Section 1569.33, the
(c) The department shall assess
an immediate civil penalty of one hundred fifty
five hundred dollars ($150) per day
($500) per violation and one hundred dollars ($100)
for each day the violation continues after citation for any of
the following serious violations:
(1) Any violation that results in the injury or illness of a
resident.
(1)
(2) (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)
(3) Absence of supervision as required by statute or
regulation.
(3)
(4) Accessible bodies of water, when prohibited in this
chapter or regulations adopted pursuant to this chapter.
(4)
(5) Accessible firearms, ammunition, or both.
(5)
(6) Refused entry to a facility or any part of a
facility in violation of Section 1569.32, 1569.33, or 1569.35.
(6)
(7) The presence of an excluded
a person subject to a department Order of Exclusion
on the premises.
(d) Any facility that repeats a violation specified in subdivision
(c) within 12 months of a prior violation, having a similar factual
description of the deficiency as stated on the notification of
deficiency, shall be subject to an immediate civil penalty of one
thousand dollars ($1,000) per violation and one hundred dollars
($100) for each day the violation continues after citation.
(d)
(e) 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)
(f) 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
(g) (1) Before
the assessment of a citation imposing a
civil penalty pursuant to subdivision (d) or (e),
(e) or (f), 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) If the department assesses a civil penalty pursuant to
subdivision (e) or (f), that civil penalty shall prevail and the
civil penalty for the underlying violation shall be waived.
(h) A violation cited by the department shall be classified
according to the nature of the violation and shall indicate the
classification on its face.
(1) A Type AA violation is a violation that the department
determines resulted in the death or serious bodily injury of, or that
constitutes physical abuse of, a client, pursuant to subdivision (e)
or (f).
(2) A Type A violation is a violation that the department
determines poses a direct and immediate risk to the health or safety
of a person in care.
(3) A Type B violation is a violation that does not meet the
standards of a Type AA or A violation, but that the department
determines poses a potential risk to the health or safety of a person
in care.
(4) A Type C violation is a violation that does not meet the
standards of a Type AA, A, or B violation.
(2) A
(i) (1) 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. The department shall make a good faith effort to work
with the licensee to determine the cause of the deficiency and ways
to prevent any repea t violations.
(2) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(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 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 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 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
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 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 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.
(o) This section shall become operative on July 1, 2015.
SEC. 4. Section 1596.8595 of the Health and Safety Code is amended
to read:
1596.8595. (a) (1) Each licensed child day care facility shall
post a copy of any licensing report pertaining to the facility that
documents either a facility visit or a complaint investigation that
results in a citation for a violation that, if not corrected, will
create a direct and immediate risk to the health, safety, or personal
rights of children in care. The licensing report provided by the
department shall be posted immediately upon receipt, adjacent to the
postings required pursuant to Section 1596.817 and on, or immediately
adjacent to, the interior side of the main door to the facility and
shall remain posted for 30 consecutive days.
(2) A family day care home shall comply with the posting
requirements contained in paragraph (1) during the hours when clients
are present.
(3) Failure to comply with paragraph (1) shall result in an
immediate civil penalty of one hundred dollars ($100).
(b) (1) Notwithstanding subdivision (b) of Section 1596.859, the
licensee shall post a licensing report or other appropriate document
verifying the licensee's compliance or noncompliance with the
department's order to correct a deficiency that is subject to posting
pursuant to paragraph (1) of subdivision (a). The licensing report
or other document shall be posted immediately upon receipt, adjacent
to the postings required pursuant to Section 1596.817, on, or
immediately adjacent to, the interior side of the main door into the
facility and shall be posted for a period of 30 consecutive days.
(2) A family day care home shall comply with the posting
requirements contained in paragraph (1) during the hours when clients
are present.
(3) Failure to comply with paragraph (1) shall result in an
immediate civil penalty of one hundred dollars ($100).
(c) (1) A licensed child day care facility shall provide to the
parents or guardians of each child receiving services in the facility
copies of any licensing report that documents any Type A or
more serious citation that represents an immediate risk to the
health, safety, or personal rights of children in care as set forth
in paragraph (1) of subdivision (a) of Section 1596.893b.
(2) Upon enrollment of a new child in a facility, the licensee
shall provide to the parents or legal guardians of the newly
enrolling child copies of any licensing report that the licensee has
received during the prior 12-month period that documents any Type A
or more serious citation that represents an immediate risk
to the health, safety, or personal rights of children in care as set
forth in paragraph (1) of subdivision (a) of Section 1596.893b.
(3) The licensee shall require each recipient of the licensing
report described in paragraph (1) pertaining to a complaint
investigation to sign a statement indicating that he or she has
received the document and the date it was received.
(4) The licensee shall keep verification of receipt in each child'
s file.
(d) (1) A licensed child day care facility shall provide to the
parents or legal guardians of each child receiving services in the
facility copies of any licensing document pertaining to a conference
conducted by a local licensing agency management representative with
the licensee in which issues of noncompliance are discussed.
(2) Upon enrollment of a new child in a facility, the licensee
shall provide to the parents or legal guardians of the newly
enrolling child copies of any licensing document that the licensee
has received during the prior 12-month period that pertains to a
conference conducted by a local licensing agency management
representative with the licensee in which issues of noncompliance are
discussed.
(3) The licensee shall require each recipient of the licensing
document pertaining to a conference to sign a statement indicating
that he or she has received the document and the date it was
received.
(4) The licensee shall keep verification of receipt in each child'
s file.
SEC. 5. Section 1596.99 of the Health and Safety Code 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
shall levy a civil
penalty. penalties as follows:
(b) (1) The amount of the civil penalty
shall not be less than twenty-five dollars ($25) nor more
than fifty dollars ($50) be one hundred dollars ($100)
per day for each violation of this chapter except
where if an agency or facility fails to correct a
deficiency after being provided a specified length of time to correct
the deficiency. If 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. provided in this
chapter. A correction of a deficiency shall not impact the imposition
of a civil penalty.
(2) (A) Any agency or facility that repeats a violation specified
in paragraph (1) within 12 months of a prior violation having a
similar factual description of the deficiency on the notification of
deficiency, shall be subject to an immediate civil penalty of two
hundred fifty dollars ($250) per violation and one hundred dollars
($100) for each day the violation continues after citation.
(c) Notwithstanding Sections 1596.893a, 1596.893b, and
1596.98, the The department shall assess an
immediate civil penalty of one five
hundred fifty dollars ($150)
($500) per day per violation and
one hundred dollars ($100) for each day the violation continues after
citation, for any of the following serious violations:
(1) Any violation that the department determines resulted in the
injury or illness of a child.
(1)
(2) Fire clearance violations, including, but not
limited to, overcapacity, inoperable smoke alarms, and inoperable
fire alarm systems.
(2)
(3) 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)
(4) Accessible bodies of water.
(4)
(5) Accessible firearms, ammunition, or both.
(5)
(6) Refused entry to a facility or any part of a
facility in violation of Section 1596.852, 1596.853, or 1597.09.
(6)
(7) The presence of an excluded
a person subject to a department Order of Exclusion
on the premises.
(d) Any facility that repeats a violation specified in subdivision
(c) within 12 months of a prior violation, having a similar factual
description of deficiency as stated in the notification of
deficiency, shall be subject to an immediate civil penalty of one
thousand dollars ($1,000) per violation and one hundred dollars
($100) for each day the violation continues after citation.
(d)
(e) 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,
facility licensed to care for 30 or less
fewer children.
(2) Ten thousand dollars ($10,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed 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,
facility licensed to care for more than 100 children.
(e)
(f) (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,
facility licensed to care for 30 or less
fewer children.
(B) Five thousand dollars ($5,000) for a licensee
licensed, among all of the licensee's facilities,
facility licensed 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,
facility licensed 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)
(g) (1) Before the
issuance assessment of a citation
imposing a civil penalty pursuant to subdivision
(d) or (e), (e) or (f), 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.
(2) If the department assesses a civil penalty pursuant to
subdivision (e) or (f), that civil penalty shall prevail and the
civil penalty for the underlying violation shall be waived.
(h) Citations issued by the department shall be classified
according to the nature of the violation and shall indicate the
classification on its face.
(1) A Type AA violation is a violation that the department
determines resulted in the death or serious bodily injury of, or that
constitutes physical abuse of, a client, pursuant to subdivision (e)
or (f).
(2) A Type A violation is a violation that the department
determines poses a direct and immediate risk to the health or safety
of a person in care.
(3) A Type B violation is a violation that does not meet the
standards of a Type AA or A violation, but that the department
determines poses a potential risk to the health or safety of a person
in care.
(4) A Type C violation is a violation that does not meet the
standards of a Type AA, A, or B violation.
(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
(j) (1) 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. The department shall make a good
faith effort to work with the licensee to determine the cause of the
deficiency and ways to prevent any repeat violations.
(2) The department shall adopt regulations setting forth the
appeal procedures for deficiencies.
(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 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 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 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
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 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 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.
(o) This section shall become operative on July 1, 2015.
SEC. 6. Section 1597.58 of the Health and Safety Code 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 shall levy a civil penalty.
(b) (1) The amount of the civil penalty
shall not be less than twenty-five dollars ($25) nor more
than fifty dollars ($50) be one hundred dollars ($100)
per day for each violation of this chapter except
where if an agency or facility fails to correct a
deficiency after being provided a specified length of time to correct
that deficiency. If the nature or seriousness of the violation
or the frequency of the violation warrants a higher penalty or an
immediate civil penalty assessment
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. provided in this chapter, a correction
of the deficiency shall not impact the imposition of a civil penalty.
(2) (A) Any facility that repeats a violation specified in
paragraph (1) within 12 months of a prior violation having a similar
factual description of deficiency as stated on the notification of
deficiency, shall be subject to an immediate civil penalty of two
hundred fifty dollars ($250) per violation and one hundred dollars
($100) for each day the violation continues after citation.
(c) Notwithstanding Sections 1596.893a, 1596.893b,
1597.56, and 1597.62, the The department shall
assess an immediate civil penalty of one five
hundred fifty dollars ($150)
($500) per day per violation
and one hundred dollars ($100) for each day the violation
continues after citation, for any of the following serious
violations:
(1) Any violation that results the
department determines resulted in the injury, illness,
or death injury or illness 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 a
person subject to a department Order of Exclusion on the
premises.
(d) Any facility that repeats a violation specified in subdivision
(c) within 12 months of a prior violation, having a similar factual
description of deficiency as stated in the notification of
deficiency, is subject to an immediate civil penalty of one thousand
dollars ($1,000) per violation and one hundred dollars ($100) for
each day the violation continues after citation.
(d)
(e) 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)
(f) (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)
(g) (1) Before the
issuance assessment of a citation
imposing a civil penalty pursuant to subdivision
(d) or (e), (e) or (f), 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, 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.
(2) If the department assesses a civil penalty pursuant to
subdivision (e) or (f), that civil penalty shall prevail and the
civil penalty for the underlying violation shall be waived.
(h) A violation cited by the department shall be classified
according to the nature of the violation and shall indicate the
classification on its face.
(1) A Type AA violation is a violation that the department
determines resulted in the death or serious bodily injury of, or that
constitutes physical abuse of, a client, pursuant to subdivision (e)
or (f).
(2) A Type A violation is a violation that the department
determines poses a direct and immediate risk to the health or safety
of a person in care.
(3) A Type B violation is a violation that does not meet the
standards of a Type AA or A violation, but that the department
determines poses a potential risk to the health or safety of a person
in care.
(4) A Type C violation is a violation that does not meet the
standards of a Type AA, A, or B violation.
(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
(j) (1) 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. The department shall make a good
faith effort to work with the lice nsee to determine the
cause of the deficiency and ways to prevent any repeat violations.
(2) The department shall adopt regulations setting forth appeal
procedures for deficiencies.
(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 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 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 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
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 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 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.
(o) This section shall become operative on July 1, 2015.