BILL ANALYSIS Ó
AB 2231
Page 1
ASSEMBLY THIRD READING
AB
2231 (Calderon)
As Amended April 6, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Human Services |6-0 |Bonilla, Calderon, | |
| | |Lopez, Maienschein, | |
| | |Mark Stone, Thurmond | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |20-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, Eggman, | |
| | |Gallagher, Eduardo | |
| | |Garcia, Roger | |
| | |Hernández, Holden, | |
| | |Jones, Obernolte, | |
| | |Quirk, Santiago, | |
| | |Wagner, Weber, Wood | |
| | | | |
| | | | |
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AB 2231
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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 Department of Social
Services(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
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,
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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
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;
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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;
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;
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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
1)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. (Health and Safety Code Section (HSC)
1569 and 1569.1)
1)Establishes, beginning July 1, 2015, a new framework for civil
penalties applicable to violations determined by DSS to have
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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.)
2)Requires DSS to assess an immediate civil penalty of $150 per
day per violation for serious violations, as specified. (HSC
1569.49(c))
3)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. (HSC 1569.49(d) and (e))
FISCAL EFFECT: According to the Assembly Appropriations
Committee, this bill may result in the following costs:
1)Unknown, but potentially significant cost pressures, likely in
the low hundreds of thousands of dollars (General Fund), to
DSS to address the anticipated increase in appeals generated
by the new penalty structure.
2)Minor and absorbable costs to DSS for training and updating
regulations.
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
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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.
Appeals process: Following the adoption of AB 2236
(Maienschein), Chapter 813, Statutes of 2014, 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 enhance 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
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
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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."
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."
PRIOR LEGISLATION
AB 1387 (Chu), Chapter 486, Statutes of 2015, revised the
appeals process for civil penalties.
AB 1467 (Bloom) of 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), 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.
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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.
Analysis Prepared by:
Kelsy Castillo / HUM. S. / (916) 319-2089 FN:
0003218