BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2231


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          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