BILL NUMBER: AB 2231 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2016
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 amended, 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
shall levy civil penalties as follows:
(b) (1) The amount of the civil penalty shall be one hundred
dollars ($100) per day for each violation of this chapter 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 provided in this chapter, a correction of the
deficiency shall not impact the imposition of a civil penalty.
(A) If a licensee or a licensee's representative submits evidence
to the department that the licensee has corrected a deficiency, and
the department, after reviewing that evidence, has determined that
the deficiency has been corrected, the civil penalty shall cease as
of the day the department received that evidence.
(B) If the department deems it necessary, the department shall
inspect the facility within five working days after the department
receives evidence pursuant to subparagraph (A) to confirm that the
deficiency has been corrected.
(C) If the department determines that the deficiency has not been
corrected, the civil penalties shall continue to accrue from the date
of the original citation.
(D) If the department is able to verify that the deficiency was
corrected prior to the date on which the department received the
evidence pursuant to subparagraph (A), the civil penalty shall cease
as of that earlier date.
(2) Any (A) If the
department issues a notification of deficiency to
an agency or facility that repeats
for a repeat violation of 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 (1), the
department shal l assess an immediate civil penalty
of two hundred fifty dollars ($250) per repeat violation
and one hundred dollars ($100) for each day the repeat
violation continues after citation.
(B) For purposes of this section, "repeat violation" means the
violation within 12 months of a prior violation of a statutory or
regulatory provision designated by the same combination of letters or
numerals, or both letters and numerals.
(3) 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 provided in this chapter, a
correction of the deficiency shall not impact the imposition of a
civil penalty.
(c) The department shall assess an immediate civil penalty of five
hundred dollars ($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 the department determines resulted in the
injury or illness of a person in care.
(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.
(3) Absence of supervision, as required by statute or regulation.
(4) Accessible bodies of water when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(5) Accessible firearms, ammunition, or both.
(6) Refused entry to a facility or any part of a facility in
violation of Section 1533, 1534, or 1538.
(7) The presence of a person subject to a department Order of
Exclusion on the premises.
(d) Any If the department cites
an agency or facility that repeats a
for a repeat 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, (c), the department shall
be subject to assess an immediate civil
penalty of one thousand dollars ($1,000) per repeat
violation and one hundred dollars ($100) for each day the repeat
violation continues after citation.
(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 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 facility
licensed to care for 50 or fewer persons.
(B) Ten thousand dollars ($10,000) for a facility licensed to care
for 51 or more persons.
(3) For a violation that the department determines resulted in the
death of a person receiving care at a therapeutic day services
facility, community treatment facility, 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 facility
licensed to care for 40 or fewer children.
(B) Ten thousand dollars ($10,000) for a facility licensed to care
for 41 to 100, inclusive, children.
(C) Fifteen thousand dollars ($15,000) for a facility licensed to
care for more than 100 children.
(4) For a violation that the department determines resulted in the
death of a youth receiving care at a runaway and homeless youth
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).
(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 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 facility
licensed to care for 50 or fewer persons.
(ii) Five thousand dollars ($5,000) for a facility licensed to
care for 51 or more 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,
community treatment facility, 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 facility
licensed to care for 40 or fewer children.
(ii) Five thousand dollars ($5,000) for a facility licensed to
care for 41 to 100, inclusive, children.
(iii) Ten thousand dollars ($10,000) for a 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
youth receiving care at a runaway and homeless youth 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), (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.
(g) (1) Before the assessment of a civil penalty pursuant to
subdivision (e) or (f), the decision shall be approved by the program
administrator of the Community Care Licensing Division.
(2) If the (A) The
department assesses a shall reduce the
amount of a civil penalty due pursuant to
subdivision (e) or (f), that (f) by the
amount of the civil penalty shall prevail and the
civil penalty already assessed for the
underlying violation shall be waived.
violation.
(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.
(B) If the amount of the civil penalty that the department has
already assessed for the underlying violation exceeds the amount of
the penalty pursuant to subdivision (e) or (f), the larger amount
shall prevail and be due and payable as already assessed by the
department.
(i)
( h) (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)
( i) (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 (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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrative law judge.
(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)
( j) (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) (i) 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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrator of the Community Care
Licensing Division.
(l)
( k) The department shall adopt regulations
implementing this section.
(m)
( l) 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)
( m) 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)
( 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.
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 shall levy civil penalties as follows:
(b) (1) The amount of the civil penalty shall be one hundred
dollars ($100) per day for each violation of this chapter 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 provided in this chapter, a correction of the
deficiency shall not impact the imposition of a civil penalty.
(A) If a licensee or a licensee's representative submits evidence
to the department that the licensee has corrected a deficiency, and
the department, after reviewing that evidence, has determined that
the deficiency has been corrected, the civil penalty shall cease as
of the day the department received that evidence.
(B) If the department deems it necessary, the department shall
inspect the facility within five working days after the department
receives evidence pursuant to subparagraph (A) to confirm that the
deficiency has been corrected.
(C) If the department determines that the deficiency has not been
corrected, the civil penalties shall continue to accrue from the date
of the original citation.
(D) If the department is able to verify that the deficiency was
corrected prior to the date on which the department received the
evidence pursuant to subparagraph (A), the civil penalty shall cease
as of that earlier date.
(2) (A) Any If the department
issues a notification of deficiency to an
agency or facility that repeats for a repeat
violation of 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, (1), the department shall
be subject to assess an immediate civil penalty
of two hundred fifty dollars ($250) per repeat violation
and one hundred dollars ($100) for each day the repeat
violation continues after citation.
(B) For purposes of this section, "repeat violation" means the
violation within 12 months of a prior violation of a statutory or
regulatory provision designated by the same combination of letters or
numerals, or both letters and numerals.
(3) 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 provided in this chapter, a
correction of the deficiency shall not impact the imposition of a
civil penalty.
(c) Notwithstanding Section 1568.07, the department shall assess
an immediate civil penalty of five hundred dollars ($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 the department determines resulted in the
injury or illness of a resident.
(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.
(3) Absence of supervision, as required by statute and regulation.
(4) Accessible bodies of water, when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(5) Accessible firearms, ammunition, or both.
(6) Refused entry to a facility or any part of a facility in
violation of Section 1568.07 or 1568.071.
(7) The presence of a person subject to a department Order of
Exclusion on the premises.
(d) Any If the department issues a
notification of deficiency to a facility that repeats
a for a repeat violation of 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, (c), the
department shall be subject to assess
an immediate civil penalty of one thousand dollars ($1,000) per
repeat violation and one hundred dollars ($100) for each
day the repeat violation continues after citation.
(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).
(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).
(g) (1) Before the assessment of a civil penalty pursuant to
subdivision (e) or (f), the decision shall be approved by the program
administrator of the Community Care Licensing Division.
(2) If the (A) The
department issues a citation shall
reduce the amount of a civil penalty due pursuant to
subdivision (e) or (f), that (f) by the
amount of the civil penalty shall
prevail and the civil penalty
already assessed for the underlying violation
shall be waived. violation.
(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.
(B) If the amount of the civil penalty that the department has
already assessed for the underlying violation exceeds the amount of
the penalty pursuant to subdivision (e) or (f), the larger amount
shall prevail and be due and payable as already assessed by the
department.
(i)
( h) (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 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)
( i) (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 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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrative law judge.
(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)
( j) (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) (i) 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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrator of the Community Care
Licensing Division.
(l)
(k) The department shall adopt regulations implementing
this section.
(m)
( l) 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)
(m) 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.
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
shall levy civil penalties as follows:
(b) (1) The amount of the civil penalty shall 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 provided in this chapter, a
correction of the deficiency shall not impact the imposition of a
civil penalty.
(A) If a licensee or a licensee's representative submits evidence
to the department that the licensee has corrected a deficiency, and
the department, after reviewing that evidence, has determined that
the deficiency has been corrected, the civil penalty shall cease as
of the day the department received that evidence.
(B) If the department deems it necessary, the department shall
inspect the facility within five working days after the department
receives evidence pursuant to subparagraph (A) to confirm that the
deficiency has been corrected.
(C) If the department determines that the deficiency has not been
corrected, the civil penalties shall continue to accrue from the date
of the original citation.
(D) If the department is able to verify that the deficiency was
corrected prior to the date on which the department received the
evidence pursuant to subparagraph (A), the civil penalty shall cease
as of that earlier date.
(2) (A) Any If the department issues a
notification of deficiency t o an agency
or facility that repeats for a repeat
violation of 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, (1), the department shall
be subject to assess an immediate civil penalty
of two hundred fifty dollars ($250) per repeat violation
and one hundred dollars ($100) for each day the repeat
violation continues after citation.
(B) For purposes of this section, "repeat violation" means the
violation within 12 months of a prior violation of a statutory or
regulatory provision designated by the same combination of letters or
numerals or, both letters and numerals.
(3) 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 provided in this chapter, a
correction of the deficiency shall not impact the imposition of a
civil penalty.
(c) The department shall assess an immediate civil penalty of five
hundred dollars ($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.
(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.
(3) Absence of supervision as required by statute or regulation.
(4) Accessible bodies of water, when prohibited in this chapter or
regulations adopted pursuant to this chapter.
(5) Accessible firearms, ammunition, or both.
(6) Refused entry to a facility or any part of a facility in
violation of Section 1569.32, 1569.33, or 1569.35.
(7) The presence of a person subject to a department Order of
Exclusion on the premises.
(d) Any If the department issues a
notification of deficiency to a facility that repeats
a for a repeat violation of 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, (c), the
department shall be subject to assess
an immediate civil penalty of one thousand dollars ($1,000) per
repeat violation and one hundred dollars ($100) for each
day the repeat violation continues after citation.
(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).
(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).
(g) (1) Before the assessment of a civil penalty pursuant to
subdivision (e) or (f), the decision shall be approved by the program
administrator of the Community Care Licensing Division.
(2) If the (A) The
department assesses a shall reduce the
amount of a civil penalty pursuant to subdivision (e) or
(f), that (f) by the amount of the
civil penalty shall prevail and the civil penalty
already assessed for the underlying violation
shall be waived. violation.
(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.
(B) If the amount of the civil penalty that the department has
already assessed for the underlying violation exceeds the amount of
the penalty pursuant to subdivision (e) or (f), the larger amount
shall prevail and be due and payable as already assessed by the
department.
(i)
( h) (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)
( i) (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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrative law judge.
(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)
(j) (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)
(i) 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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrator of the Community Care
Licensing Division.
(l)
( k) The department shall adopt regulations
implementing this section.
(m)
( l) 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)
( m) 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.
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 inspection
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 the
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 a citation issued pursuant to
subdivision (e) or (f) of Section 1569.99 or subdivision (e) or (f)
of Section 1597.58 or 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 a citation issued
pursuant to subdivision (e) or (f) of Section 1569.99 or subdivis
ion (e) or (f) of Section 1597.58 or 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 shall levy civil
penalties as follows:
(b) (1) The amount of the civil penalty shall be one hundred
dollars ($100) per day for each violation of this chapter 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 provided in this chapter. A correction of a
deficiency shall not impact the imposition of a civil penalty.
(A) If a licensee or a licensee's representative submits evidence
to the department that the licensee has corrected a deficiency, and
the department, after reviewing that evidence, has determined that
the deficiency has been corrected, the civil penalty shall cease as
of the day the department received that evidence.
(B) If the department deems it necessary, the department shall
inspect the facility within five working days after the department
receives evidence pursuant to subparagraph (A) to confirm that the
deficiency has been corrected.
(C) If the department determines that the deficiency has not been
corrected, the civil penalties shall continue to accrue from the date
of the original citation.
(D) If the department is able to verify that the deficiency was
corrected prior to the date on which the department received the
evidence pursuant to subparagraph (A), the civil penalty shall cease
as of that earlier date.
(2) (A) Any If the department issues a
notification of deficiency to an agency
or facility that repeats for a repeat
violation of 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,
(1), the department shall be subject to
assess an immediate civil penalty of two
hundred fifty dollars ($250) per repeat violation and one
hundred dollars ($100) for each day the repeat violation
continues after citation.
(B) For purposes of this section, "repeat violation" means the
violation within 12 months of a prior violation of a statutory or
regulatory provision designated by the same combination of letters or
numerals, or both letters and numerals.
(3) 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 provided in this chapter. A
correction of a deficiency shall not impact the imposition of a civil
penalty.
(c) The department shall assess an immediate civil penalty of five
hundred dollars ($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 the department determines resulted in the
injury or illness of a child.
(2) Fire clearance violations, including, but not limited to,
overcapacity, inoperable smoke alarms, and inoperable fire alarm
systems.
(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.
(4) Accessible bodies of water. water if
prohibited by this chapter or regulations adopted pursuant to this
chapter.
(5) Accessible firearms, ammunition, or both.
(6) Refused entry to a facility or any part of a facility in
violation of Section 1596.852, 1596.853, or 1597.09.
(7) The presence of a person subject to a department Order of
Exclusion on the premises.
(d) Any If the department
issues a notice of deficiency to a facility that
repeats a for a repeat violation of 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, (c), the
department shall be subject to assess
an immediate civil penalty of one thousand dollars ($1,000) per
repeat violation and one hundred dollars ($100) for each
day the repeat violation continues after citation.
(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 facility
licensed to care for 30 or fewer children.
(2) Ten thousand dollars ($10,000) for a facility licensed to care
for 31 to 100, inclusive, children.
(3) Fifteen thousand dollars ($15,000) for a facility licensed to
care for more than 100 children.
(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 facility
licensed to care for 30 or fewer children.
(B) Five thousand dollars ($5,000) for a facility licensed to care
for 31 to 100, inclusive, children.
(C) Ten thousand dollars ($10,000) for a 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.
(g) (1) Before the assessment of a civil penalty pursuant to
subdivision (e) or (f), the decision shall be approved by the program
administrator of the Community Care Licensing Division.
(2) If the (A) The
department assesses shall reduce the
amount of a civil penalty pursuant to subdivision (e) or
(f), that (f) by the amount of the
civil penalty shall prevail and the civilpenalty
already assessed for the underlying violation
shall be waived. violation.
(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.
(B) If the amount of the civil penalty that the department has
already assessed for the underlying violation exceeds the amount of
the penalty pursuant to subdivision (e) or (f), the larger amount
shall prevail and be due and payable as already assessed by the
department.
(i)
( h) Notwithstanding any 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)
( 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 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)
( 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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrative law judge.
(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)
( 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
(k) (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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the program administrator of the Community
Care Licensing Division.
(m)
( l) 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)
( m) 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
shall levy a civil penalty.
(b) (1) The amount of the civil penalty shall be one hundred
dollars ($100) per day for each violation of this chapter 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 provided in this chapter, a correction of the
deficiency shall not impact the imposition of a civil penalty.
(A) If a licensee or a licensee's representative submits evidence
to the department that the licensee has corrected a deficiency, and
the department, after reviewing that evidence, has determined that
the deficiency has been corrected, the civil penalty shall cease as
of the day the department received that evidence.
(B) If the department deems it necessary, the department shall
inspect the facility within five working days after the department
receives evidence pursuant to subparagraph (A) to confirm that the
deficiency has been corrected.
(C) If the department determines that the deficiency has not been
corrected, the civil penalties shall continue to accrue from the date
of the original citation.
(D) If the department is able to verify that the deficiency was
corrected prior to the date on which the department received the
evidence pursuant to subparagraph (A), the civil penalty shall cease
as of that earlier date.
(2) (A) Any If the department issues a
notification of deficiency to a facility
that repeats for a repeat violation of
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, (1), the
department shall be subject to assess
an immediate civil penalty of two hundred fifty dollars ($250)
per repeat violation and one hundred dollars ($100) for
each day the repeat violation continues after citation.
(B) For purposes of this section, "repeat violation" means the
violation within 12 months of a prior violation of a statutory or
regulatory provision designated by the same combination of letters or
numerals, or both letters and numerals.
(3) 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 provided in this chapter, a
correction of the deficiency shall not impact the imposition of a
civil penalty.
(c) The department shall assess an immediate civil penalty of five
hundred dollars ($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 the department determines resulted in the
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. water if
prohibited by this chapter or regulations adopted pursuant to this
chapter.
(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 a person subject to a department Order of
Exclusion on the premises.
(d) Any If the department issues a
notification of deficiency to a facility that repeats
a for a repeat violation of 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
(c), the department shall assess an immediate civil
penalty of one thousand dollars ($1,000) per repeat
violation and one hundred dollars ($100) for each day the repeat
violation continues after citation.
(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.
(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.
(g) (1) Before the assessment of a civil penalty pursuant to
subdivision (e) or (f), the decision shall be approved by the program
administrator of the Community Care Licensing Division.
(2) If the (A) The
department assesses shall reduce the
amount of a civil penalty due pursuant to
subdivision (e) or (f), that (f) by the
amount of the civil penalty shall prevail and the
civil penalty already assessed for the
underlying violation shall be waived.
violation.
(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.
(B) If the amount of the civil penalty that the department has
already assessed for the underlying violation exceeds the amount of
the penalty pursuant to subdivision (e) or (f), the larger amount
shall prevail and be due and payable as already assessed by the
department.
(i)
( h) 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)
( 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 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.
(k)
(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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
review pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrative law judge.
(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)
( 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
(k) (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) (A) 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.
(B) Notwithstanding any other law, if a licensee prevails in an
appeal pursuant to subparagraph (A), the department shall refund to
the licensee the amount of any civil penalty that the licensee had
paid in connection with the citation within 10 business days of a
final determination by the administrator of the Community Care
Licensing Division.
(n)
( l) 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.