BILL ANALYSIS Ó
AB 2231
Page 1
Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Susan Bonilla, Chair
AB 2231
(Calderon) - As Amended April 6, 2016
SUBJECT: Care facilities: civil penalties
SUMMARY: Increases the civil penalties for specified violations
and adopts penalties for repeat violations in licensed community
care facilities.
Specifically, this bill:
1)Makes a number of changes to civil penalty structure and
enforcement for various community care facilities including,
but not limited to, Residential Care Facilities for Persons
With Chronic Life-Threatening Illness (RCFCIs), Residential
Care Facilities for the Elderly (RCFEs), Day Care Centers, and
Family Day Care Homes:
a) Deletes language permitting DSS to impose specified
civil penalties, and instead makes such imposition
required;
b) Increases the civil penalty amount that DSS may levy to
$100 per day for each violation if an agency or facility
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fails to correct a deficiency within a specified amount of
time;
c) Requires, if a licensee or licensee's representative
submits evidence to DSS that a deficiency has been
corrected, the penalty to cease as of the day DSS receives
notification that a correction has been made;
d) Creates a process through which correction of a
violation can be verified, as specified;
e) Subjects any agency or facility that repeats a violation
to an immediate civil penalty of $250 per repeat violation,
and $100 for each day the repeat violation continues after
citation;
f) Defines a "repeat violation" as a 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;
g) Prohibits correction of a deficiency from impacting the
imposition of a civil penalty if a violation is serious or
occurs with such frequency that the violation warrants a
higher penalty or immediate civil penalty.
h) Makes a number of changes to civil penalties assessed
for more serious violations, such as fire clearance
violations and accessible bodies of water, that include:
i) Adding to the list of more serious violations any
violation that the department determines resulted in the
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injury or illness of a person in care;
ii) Deleting language
authorizing an assessment of $150 per violation per day,
and instead requiring the assessment of an immediate
civil penalty of $500 per violation and $100 for each day
the violation continues; and
iii) Requiring DSS to assess an
immediate civil penalty of $1,000 per repeat violation
and $100 for each day a repeat violation occurs if an
agency or facility is cited by the department for a
repeat violation;
i) Includes homes licensed as an adult residential
facilities and adult residential facility for persons with
special health care needs among facilities that are subject
to specified civil penalties if a violation is determined
to result in either the death of a resident, or to
constitute physical abuse of or result in seriously bodily
injury to a resident;
j) Requires the department to levy a civil penalty of
$7,500 if DSS determines that a violation resulted in the
death of a child receiving care through a foster family
agency or in the death of an individual receiving care or
services through a full-service or noncustodial adoption
agency;
aa) Requires DSS to levy a civil penalty of $2,500 if DSS
determines that a violation constitutes physical abuse, or
resulted in serious bodily injury to a child receiving care
through a foster family agency or a full-service or
noncustodial adoption agency;
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bb) Includes small family home, crisis nursery, group home,
and enhanced behavioral supports home licensed as a group
home as facilities that are subject to specified civil
penalties, the amount of which is based on facility
capacity, for a violation determined to result to result in
either the death of an individual, or to constitute
physical abuse of or result in seriously bodily injury to
an individual;
cc) Reduces the civil penalty amount due by the penalty
already assessed for the underlying violation when the
violation resulted in death or serious bodily injury;
dd) Requires the larger amount to prevail and be due and
payable as already assessed by the department if the
assessed amount of the civil penalty for an underlying
violation is greater than the civil penalty assessed for a
violation that resulted in death or serious bodily injury;
ee) Requires that any civil penalties that have already been
paid and are, upon appeal, determined not to have been
assessed in accordance with applicable statutes or
regulations, be refunded within 10 business days of a final
determination by an administrative law judge;
ff) Requires DSS to make a good faith effort to work with
the licensee to determine the cause of the deficiency and
ways to prevent any repeat violations;
gg) Requires DSS to adopt regulations setting forth the
appeal procedures for deficiencies; and
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hh) Makes additional technical changes.
EXISTING LAW:
1)Establishes the California RCFE Act, which requires facilities
that provide personal care and supervision, protective
supervision or health related services for persons 60 years of
age or older who voluntarily choose to reside in that facility
to be licensed by DSS. (H&S Code 1569 and 1569.1)
1)Permits any person to request an inspection of a RCFE through
the filing of a complaint, which may be made either orally or
in writing. (H&S Code 1569.35(a))
2)Prohibits the substance of the complaint from being provided
to the licensee sooner than at the time of the inspection,
unless otherwise permitted by the complainant, as specified.
(H&S Code 1569.25(b))
3)Requires DSS to review a complaint alleging denial of a
statutory right of access to a RCFE and promptly notify the
complainant of the department's proposed course of action.
(H&S Code 1569.35(d))
4)Establishes, beginning July 1, 2015, a new framework for civil
penalties applicable to violations determined by DSS to have
resulted in death or serious bodily injury, or determined by
DSS to constitute physical abuse for all facilities licensed
by DSS as follows. (HSC 1543, et seq.)
5)Defines physical abuse, serious injury, and death pursuant to
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existing definitions in the Welfare and Institutions Code and
Penal Code, as specified. (WIC 15610.63 et seq. and PEN 243
et seq.)
6)Requires the administrator of the Community Care Licensing
Division to approve the civil penalty assessment. (HSC 1548
et seq.)
7)Provides a licensee shall have the right to submit a written
request for a formal review of a civil penalty within 10 days
of receipt of the notice of a civil penalty assessment and
requires the licensee to provide all supporting documentation
at that time. (HSC 1548 et seq.)
8)Requires the review be conducted by a regional manager of the
Community Care Licensing Division, who may amend or dismiss
the penalty if they determine that the civil penalty was not
assessed in accordance with applicable statutes or regulations
of DSS, and requires the licensee be notified in writing of
the regional manager's decision within 60 days of the request
to review the assessment of the civil penalty. (HSC 1548 et
seq.)
9)Provides the licensee may further appeal to the program
administrator of the Community Care Licensing Division within
10 days of receipt of the notice of the regional manager's
decision and shall provide all supporting documentation at
that time. If the program administrator determines that the
civil penalty was not assessed in accordance with applicable
statutes or regulations, they may amend or dismiss the civil
penalty. Requires the licensee be notified in writing of the
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program administrator's decision within 60 days of the request
to review the regional manager's decision. (HSC 1548 et seq.)
10)Provides upon exhausting the deputy director review, a
licensee may appeal a civil penalty assessed to an
administrative law judge, as specified. (HSC 1548 et seq.)
11)Provides if, in addition to an assessment of civil penalties,
DSS elects to file an administrative action to suspend or
revoke the facility license that includes violations relating
to the assessment of the civil penalties, DSS review of the
pending appeal shall cease and the assessment of the civil
penalties shall be heard as part of the administrative action
process. (HSC 1548 et seq.)
12)Requires DSS to assess a civil penalty of no less than $25
and no more than $50 per violation per day for all serious
deficiencies, up to a maximum of $150 per day, unless the
seriousness or frequency of the violation warrants a higher or
immediate civil penalty. (H&S Code 1569.49(b) and Section
87761(a) of Title 22, CCR)
13)Requires DSS to assess an immediate civil penalty of $150 per
day per violation for serious violations, as specified. (H&S
Code 1569.49(c))
14)Pursuant to regulations, requires DSS to assess an immediate
civil penalty of $100 per violation per day for a maximum of
five days if a licensee is found to be employing an individual
who has not obtained a criminal background check and
clearance, as specified. (Section 87761(b) of Title 22, CCR)
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15)Requires DSS to assess tiered immediate civil penalties for
multiple repeated violations ranging from an immediate civil
penalty of $150 and $50 per an initial repeated violation per
day to an immediate civil penalty of $1,000 and $100 per
subsequent repeated violation per day within a 12 month period
for each day the violation continues until the deficiency is
corrected. (H&S Code 1569.49(d) and (e))
FISCAL EFFECT: Unknown.
COMMENTS:
DSS Community Care Licensing Division (CCLD): Facilities
licensed by CCLD, which include Community Care Facilities,
Residential Care Facilities for the Elderly, and child care
facilities, typically provide non-medical care and supervision
for children and adults in need, which includes persons with
disabilities, seniors in need of residential care, children in
foster care and at-risk children needing shelter services,
families in need of early childhood education (child care), and
adult care services. CCLD is responsible for the licensing of
all community care facilities and for investigating all
complaints against those facilities.
Current civil penalty structure: The current civil penalty
structure for the state's community care facilities remained
virtually unchanged for 30 years until the passage of AB 2236
(Maienschein) Chapter 813, Statutes of 2014, which created a new
framework for civil penalties for violations that resulted in
death or serious bodily injury, or is determined by DSS to
constitute physical abuse, as follows:
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----------------------------------------------------------------
| Facility type |Size |Serious Bodily |Death |
| | |Injury/ | |
| | |Physical Abuse | |
|-------------------------+-------------+----------------+-------|
|RCFE/ARF/CCH/SRF/EBSH |All sizes |$10,000 |$15,000|
| | | | |
|-------------------------+-------------+----------------+-------|
|Emergency Homeless Youth |d25 beds |$1,000 |$5,000 |
|Shelter | | | |
|-------------------------+-------------+----------------+-------|
|Small Child Care Home |d8 children |$1,000 |$5,000 |
|-------------------------+-------------+----------------+-------|
|Large Child Care Home |9-14 |$2,000 |$7,500 |
| |children | | |
|-------------------------+-------------+----------------+-------|
|Child Care Facility |1 30 |$2,500 |$7,500 |
| |children | | |
|-------------------------+-------------+----------------+-------|
|Child Care Facility |31 100 |$5,000 |$10,000|
| |children | | |
|-------------------------+-------------+----------------+-------|
|Child Care Facility |100+ |$10,000 |$15,000|
| |children | | |
|-------------------------+-------------+----------------+-------|
|Adult Day |d50 adults |$2,500 |$7,500 |
|-------------------------+-------------+----------------+-------|
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|Adult Day |50+ adults |$5,000 |$10,000|
| | | | |
|-------------------------+-------------+----------------+-------|
|FFA/GH/TSCF/THPP/CTF |d40 youth |$2,500 |$7,500 |
|-------------------------+-------------+----------------+-------|
|FFA/GH/TSCF/THPP/CTF |41 100 |$5,000 |$10,000|
| |youth | | |
|-------------------------+-------------+----------------+-------|
|FFA/GH/TSCF/THPP/CTF |100+ youth |$10,000 |$15,000|
| | | | |
----------------------------------------------------------------
ARF Adult Residential Facility
CCH Community Crisis Home
CTF Community Treatment Facility
EBSH Enhanced Behavioral Supports Home
FFA Foster Family Agency
GH Group Home
RCFE Residential Care Facility for the Elderly
SRF Social Rehabilitation Facility
THPP Transitional Housing Placement Provider
TSCF Transitional Shelter Care Facility
Appeals process: Following the adoption of AB 2236, a
subsequent bill, AB 1387 (Chu) Chapter 486, Statutes of 2015,
was introduced in order to streamline the appeals process for
community care facility civil penalty and violation appeals and
enhanced the complaint process for residential care facilities
for the elderly. Specifically, AB 1387 provided for a two-level
appeals process for a civil penalty assessed that DSS determined
resulted in the death, physical abuse, or serious bodily injury
of an individual, with the first level involving a review by the
deputy director of CCLD, and the second level involving an
appeal to an administrative law judge. It also established a
separate two-step process for lesser violations. The bill
required that a licensee submit a request for a formal review
within 15 days of receipt of the notice of the civil penalty
assessment of decision, and required that the licensee provide
all available supporting documentation at the time a request for
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a formal review of a civil penalty is submitted.
Need for this bill: According to the author's office, "Other
than those penalties increased in AB 2236, civil penalties for
DSS-licensed facilities have not been increased for almost 30
years. This includes penalties for violations like the presence
of a person specifically excluded from the facility or the
absence of supervision of individuals in care. The current
maximum penalty amount of $150 if DSS discovers a serious
violation is a relic from 3 decades ago. [This bill] provides
the long overdue adjustment by increasing civil penalties for
the violations which were not addressed in AB 2236. It also
corrects drafting errors and omissions from AB 2236. This bill
will once again make civil penalties a relevant tool to achieve
compliance and will help DSS protect the health and safety of
those in care."
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Opposition: Some groups have expressed concern about the
language of the bill, citing the need to scale down civil
penalties based on the size of the facility for violations that
result in death or serious bodily injury. According to 6Beds,
Inc., "A single penalty of either $15,000 or $10,000 represents
months of income for some small residential care facilities,
especially those that take care of SSI residents and other
low-income residents. It is difficult to ignore the
disproportionate economic impact that these large penalties
have...penalties that result in the closure of facilities?reduce
the number of available beds in the marketplace at a time when
beds are needed to serve California's growing population of
older adults."
Additional concerns: Several groups have raised additional
concerns with regards to the definition of "repeat violation."
The bill defines a repeat violation as having the same statutory
or regulatory citation within 12 months of the prior violation,
and defines citation as the same statutory or regulatory
combination of letters and numerals. However, some have
expressed concern that regulations are vague and may trigger a
civil penalty for a repeat violation even though the facts of
the situations were completely unrelated. Concerns have also
been raised with regards to when fees assessed should be paid.
Some groups contend that fees should be paid upon the completion
of the appeals process in order to eliminate the need for CCLD
to create and manage a refund process. By requiring that fees
be paid upon completion of the appeals process, a licensee will
not be forced to pay a significant fine when the fine was in
fact issued in error.
PRIOR LEGISLATION
AB 1387 (Chu), Chapter 486, Statutes of 2015, Established in
statute an appeals process for civil penalties.
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AB 1467 (Bloom), 2015, would have introduced a system of civil
penalties tiered based on facility capacity and contained other
provisions substantially similar to this bill. It died in the
Assembly Human Services Committee.
AB 2236 (Maienschein and Stone), Chapter 813, Statutes of 2014,
increased monetary civil penalties assessed for violations which
resulted in the death, serious bodily injury, or physical abuse
of a person receiving care in various DSS-licensed facilities.
AB 978 (Benoit), Chapter 291, Statutes of 2008, required DSS to
assess immediate civil penalties of $150 per day per violation
for serious violations of health and safety statutes or
regulations.
REGISTERED SUPPORT / OPPOSITION:
Support
California Long-Term Care Ombudsman Association (CLTCOA)
National Association of Social Workers, CA Chapter (NASW-CA)
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Opposition
6Beds, Inc.
Analysis Prepared by:Kelsy C. Castillo / HUM. S. / (916)
319-2089