BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: AB 2231
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|Author: |Calderon |
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|Version: |June 21, 2016 |Hearing |June 28, 2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Taryn Smith |
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Subject: Care facilities: civil penalties
SUMMARY
This bill increases civil penalties to licensed community care
facilities and imposes civil penalties for repeat violations, as
specified. This bill deletes the provisions that authorize the
department to impose those civil penalties, and instead makes
them mandatory. It requires the department to make a good faith
effort to work with the licensee to determine the cause of a
deficiency and to prevent any repeat violations, and to adopt
regulations setting forth the appeal procedures for
deficiencies. The bill requires civil penalties to be due and
payable when administrative appeals have been exhausted and to
be subject to late fees, except as specified.
ABSTRACT
Existing law:
1)Establishes the California Community Care Facilities Act,
which provides regulatory structure for coordinated and
comprehensive statewide system of care for mentally ill,
developmentally and physically disabled, and children and
adults who require care or services provided by licensed
community care facilities. (HSC 1500 et seq.)
AB 2231 (Calderon) Page 2
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2)Establishes a regulatory structure, within the Act, for
licensed Residential Care Facilities for Persons With Chronic
Life-Threatening Illness. (HSC 1568 et seq.)
3)Establishes a regulatory structure, for licensed Residential
Care Facilities for the Elderly. (HSC 1569 et seq.)
4)Establishes the California Child Day Care Facilities Act
within the Act, which creates a regulatory structure for
licensure of family day care homes and day care centers. (HSC
1596.70 et seq., 1596.90 et seq, and 1597.3 et seq.)
5)Establishes a framework for civil penalties, depending on the
seriousness of the violation, including repeat violations and
a review and appeal process for licensed care facilities, as
specified. (HSC 1548, 1568.0822, 1569.49, 1596.8595, 1569.99
and 1597.58)
6)Requires CDSS to post on its Internet Web site specified
information regarding number of citations, substantiated and
inconclusive complaint inspections, and noncompliant
inspections during the preceding five years for child day care
facilities. (HSC 1596.819)
7)Requires every child care resource and referral program to
provide an advisement to parents that they have the right to
information about any substantiated or inconclusive complaints
about a child care provider, as specified. (HSC 1596.859)
This bill:
1)Makes a number of changes to the civil penalty structure and
enforcement provisions for licensed community care facilities
including, but not limited to, Residential Care Facilities for
Persons With Chronic Life-Threatening Illness, Residential
Care Facilities for the Elderly (RCFEs), Day Care Centers, and
Family Day Care Homes, as follows:
AB 2231 (Calderon) Page 3
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a) Deletes language permitting CDSS to impose specified
civil penalties, and instead makes such imposition
required;
b) Increases the civil penalty amount that CDSS may levy to
$100 per day for certain violations if an agency or
facility fails to correct a deficiency within a specified
amount of time. Subjects any agency or facility that
repeats the violation to an immediate civil penalty of $250
per repeat violation, and $100 for each day the repeat
violation continues after citation;
c) 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;
d) Requires the notice of deficiency to state the manner in
which the deficiency constitutes a repeat violation;
e) Requires, if a licensee or licensee's representative
submits evidence to CDSS that a deficiency has been
corrected and the CDSS determines that the deficiency has
been corrected, the penalty to cease as of the day DSS
received that evidence;
f) Requires that if CDSS is able to verify that the
deficiency was corrected prior to the date on which the
department received the evidence that the deficiency was
corrected, the civil penalty shall cease as of that earlier
date;
g) Allows CDSS, if it deems necessary, to inspect the
facility within five working days after receiving evidence
that a deficiency has been corrected in order to confirm
that the deficiency has been corrected;
AB 2231 (Calderon) Page 4
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h) Requires that, if CDSS determines that the deficiency
has not been corrected, the civil penalties shall continue
to accrue from the date of the original citation;
i) Requires that 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, a correction of the deficiency shall not
impact the imposition of a civil penalty;
j) 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 CDSS 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;
aa) Requires CDSS to level a civil penalty of $15,000 if
CDSS determines that a violation resulted in the death of
resident of an Adult Residential Facilities for Persons
with Special Health Care Needs;
bb) Requires CDSS to level a civil penalty of $10,000 if
AB 2231 (Calderon) Page 5
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CDSS determines that a violation constitutes physical
abuse, or resulted in seriously bodily injury to a resident
of an Adult Residential Facilities for Persons with Special
Health Care Needs;
cc) Requires CDSS to levy a civil penalty of $7,500 if CDSS
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;
dd) Requires CDSS to levy a civil penalty of $2,500 if CDSS
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;
ee) Requires CDSS to level a civil penalty of $7,000,
$10,000 or $15,000 (depending on facility capacity) if CDSS
determines that a violation resulted the death of a person
receiving care in a small family home, crisis nursery, or
enhanced behavioral supports home;
ff) Requires CDSS to level a civil penalty of $2,500,
$5,000 or $10,000 (depending on facility capacity) if CDSS
determines that a violation constitutes physical abuse of
or results in seriously bodily injury to a person receiving
care in a small family home, crisis nursery, or enhanced
behavioral supports home;
gg) 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;
hh) 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
AB 2231 (Calderon) Page 6
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violation that resulted in death or serious bodily injury;
ii) Requires CDSS 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;
jj) Requires that penalties shall be due and payable when
administrative appeals have been exhausted. Unless payment
arrangements have been made that are acceptable to the
CDSS, a civil penalty not paid within 30 days shall be
subject to late fees, as specified in regulation; and
aaa) Requires DSS to adopt regulations setting forth the
appeal procedures for deficiencies.
2)Requires CDSS to post on its Internet Web site specified
information regarding number of citations, substantiated and
unsubstantiated complaint inspections, and noncompliant
inspections during the preceding five years for child day care
facilities.
3)Requires every child care resource and referral program to
provide an advisement to parents that they have the right to
information about any substantiated or unsubstantiated
complaints about a child care provider, as specified.
4)Delays implementation of certain provisions of the bill,
including new standards for repeat violations and delayed
payments of civil penalties pending full adjudication of the
appeal process, until July 1, 2017.
5)Makes additional technical changes.
FISCAL IMPACT
AB 2231 (Calderon) Page 7
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According to the Assembly Appropriations Committee, this bill
may result in unknown, but potentially significant cost
pressures, likely in the low hundreds of thousands of dollars
(General Fund), to CDSS to address the anticipated increase in
appeals generated by the new penalty structure. There may also
be minor and absorbable costs to CDSS for training and updating
regulations.
BACKGROUND AND DISCUSSION
Purpose of the bill:
Civil penalties for violations that result in death, serious
bodily injury or physical abuse for most license types were
updated in via AB 2236 (Maienschein, Chapter 813, Statutes of
2014). However, according to the author, civil penalty amounts
for many other violations in facilities licensed by CDSS have
not been increased for almost 30 years. Under current law, in
most cases, the maximum penalty is $150 and repeat violations
are either $50 per day or $150 per day per violation. For all
others, the current civil penalty is $25 to $50 per day unless
the nature or seriousness of the violation warrants a higher
penalty.
The author states that this bill would increase the civil
penalty for repeat violations other than those resulting in
death, serious bodily injury or physical abuse, based on the
risk to health or safety of the individual in care. For less
severe violations, AB 2231 proposes to increase the basic civil
penalties to $100 per day per violation and repeat violations
will receive an immediate civil penalty of $250 per repeat
violation, and $100 for each day the repeat violation continues
after citation. For more serious violations, civil penalties
would be increased to an immediate penalty of $500, and $100 per
day; repeat violations would be assessed a civil penalty of
$1,000 and $100 per day.
AB 2231 (Calderon) Page 8
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Community Care Licensing Division (CCLD)
CCLD is the regulatory and enforcement program within CDSS with
the responsibility of protecting the health and safety of
children and adults residing in, or spending a portion of their
time in, out-of-home care. Facilities licensed by CCLD are
generally categorized as children's residential, adult, senior
or child care facilities. These 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, and adult care services.
The objective of CCLD is to ensure all clients are served by
licensed facilities that meet established standards for health
and safety, which provide a homelike setting with the least
restrictive environment for clients. CCLD is responsible for
the licensing of all community care facilities and for
investigating all complaints against those facilities.
Citations / Notices of Deficiency
When CDSS finds a licensed community care facility in violation
of an applicable law or regulation, the facility may be given a
citation, which includes a notice of deficiency that details the
reason for the violation, and assesses a civil penalty. The
cited facility is generally given the opportunity to correct the
violation and submit a Plan of Correction (POC) that documents
that the violation was corrected within a specified length of
time, and, thus, avoids payment of the civil penalty. If the
facility fails to correct the deficiency within an established
time frame, the fines accumulate daily.
Death or Serious Bodily Injury or Physical Abuse
AB 2231 (Calderon) Page 9
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AB 2236 increased civil penalties that may be imposed for a
violation that CDSS determines resulted in death or serious
bodily injury or which constitutes physical abuse to a resident
or child at a care facility, as defined. According to CDSS the
bill was intended to update statutes for all of the licensed
facilities under the department's authority, however, several
license types were inadvertently omitted from the bill.
This bill would reset the amount of civil penalties that may be
imposed for a violation that the department determines results
in the death of, or serious bodily injury or physical abuse to,
a resident or child at the care facility.
This bill would, in those cases, require that the decision to
issue the citation be approved by the Program Administrator of
CDSS's Community Care Licensing Division prior to issuance of
the citation. The chart on the next page shows the proposed
revised civil penalties for violations that resulted in death or
serious bodily injury or physical abuse for each license type as
outlined in this bill.
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| | Civil Penalties |
| | For Violation Resulting in: |
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| License Type | Serious Bodily | Death |
| | Injury/ | |
| | Physical Abuse | |
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| | Current |Propose|Current|Propose|
| | | d | | d |
|-----------------------------+----------+-------+-------+-------|
|Adoption Agencies | $2,500 - |$2,500 |$7,500 |$7,500 |
| | $10,000* | | - | |
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| | | |$15,000| |
| | | | * | |
|-----------------------------+----------+-------+-------+-------|
|Foster Family Agencies | $2,500 - |$2,500 |$7,500 |$7,500 |
| | $10,000* | | - | |
| | | |$15,000| |
| | | | * | |
|-----------------------------+----------+-------+-------+-------|
|Crisis Nurseries and Small | 0 |$2,500 | 0 |$7,500 |
|Family Homes (capacity of | | | | |
|zero to 40) | | | | |
|-----------------------------+----------+-------+-------+-------|
|Crisis Nurseries and Small | 0 |$5,000 | 0 |$10,000|
|Family Homes (capacity of 39 | | | | |
| to 100) | | | | |
|-----------------------------+----------+-------+-------+-------|
|Crisis Nurseries and Small | 0 |$10,000| 0 |$15,000|
|Family Homes (capacity of | | | | |
|more than 100) | | | | |
|-----------------------------+----------+-------+-------+-------|
|Adult Residential Facility | 0 |$10,000| 0 |$15,000|
|for Persons with Special | | | | |
|Health Care Needs | | | | |
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* depending upon capacity of the facility
Zero Tolerance Violations
CDSS informally refers to certain serious violations as "zero
tolerance" violations. These are violations which, by statute,
require immediate assessment of a civil penalty. Examples of
"zero tolerance" violations include:
Fire clearance violations, including, but not limited
to, overcapacity, ambulatory status, inoperable smoke
alarms, and inoperable fire alarm systems. (with the
exception of family day care homes)
Absence of required supervision.
Accessible bodies of water, as defined.
Accessible firearms, ammunition, or both.
Refused entry to a facility or any part of a facility,
as specified.
AB 2231 (Calderon) Page 11
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The presence of an excluded person the premises.
AB 2231 proposes to add to the list of "zero tolerance"
violations a violation that the department determines resulted
in the injury or illness of a person in the care of children's
residential, adult facilities, senior facilities and child care
facilities, as specified. Additionally, the bill clarifies that
an "excluded person" is one that is subject of a department's
Order of Exclusion on the premises. AB 2231 also proposes to
increase the civil penalties associated with these violations,
as shown in the table below.
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| "Zero Tolerance" Violations |
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|----------------+-------------+----------------+----------------|
| |Initial |1st Repeat |2nd Repeat |
| |Penalty |violation |Violation |
|----------------+-------------+----------------+----------------|
|Current Civil |$150 per day |$150 & $50 per |$150 per day |
|Penalty | |day | |
|----------------+-------------+----------------+----------------|
|Proposed Civil |$500 & $100 |$1,000 & $100 |$1,000 & $100 |
|Penalty |per day |per day |per day |
| | | | |
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All other (less serious) violations
As the table below shows, this bill proposes to set the civil
penalty for less serious violations (those that did not result
in death or serious injury, were not found to have involved
physical abuse, or do not rise to the level of "zero tolerance"
violations) at $100 per day. Repeat violations, as defined in
the bill, would receive a civil penalty of $250 and $100 per
day.
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| All Other Violations |
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|----------------+-------------+-----------------+---------------|
AB 2231 (Calderon) Page 12
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| |Initial |1st Repeat |2nd Repeat |
| |Penalty |violation |Violation |
|----------------+-------------+-----------------+---------------|
|Current Civil |$25- $50 per |$150 & $50 per |$150 per day |
|Penalty |day |day | |
|----------------+-------------+-----------------+---------------|
|Proposed Civil |$100 per day |$250 & $100 per |$250 & $100 |
|Penalty | |day |per day |
| | | | |
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Appeals
AB 2236 also required the CDSS to adopt regulations setting
forth appeal procedures for civil penalty violations. The bill
allowed licensees to request a formal review of a civil penalty
assessed for the death of, or serious bodily injury or physical
abuse to, a resident or child at a licensed care facility within
10 days of receipt of the notice of the civil penalty.
Additionally, AB 2236 established a four-step appeal process
that potentially would be heard by a regional manager of the
CCLD's program administrator and deputy director, and ultimately
to an administrative law judge, as specified.
A subsequent bill, AB 1387 (Chu, Chapter 486, Statutes of 2015)
streamlined the four-step appeals process for serious violations
by reducing it to two steps; created a separate two-step appeal
process for all other civil penalties and violations; extended
and clarified timelines for submission and request of
information during the appeals process; and enhanced the process
for complaints by adopting a timeline and complainant
communication requirements for CDSS.
This bill requires civil penalties to be due when the
administrative appeal process has been exhausted. The bill also
requires CDSS to promulgate regulations that would assess late
fees if payments are not made within 30 days or acceptable
payment arrangements have been made.
The table below shows CDSS appeals activity and outcomes from
January 1, 2016 through May 31, 2016.
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AB 2231 (Calderon) Page 13
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|Program Type |Appeals |Appeals| Appeals |Appeals | Enhanced |
| |Received| | Denied |Approved| Civil |
| | |Pending| | | Penalty |
| | | | | |Related to |
| | | | | |Death |
|-----------------+--------+-------+---------+--------+-----------|
|Adult and Senior | 123 | 49 | 64 | 9 |1 |
|Care | | | | | |
|-----------------+--------+-------+---------+--------+-----------|
|Child Care | 211 | 108 | 72 | 31 | 0 |
|-----------------+--------+-------+---------+--------+-----------|
|Children's | 40 | 9 | 20 | 11 |0 |
|Residential | | | | | |
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Related legislation:
AB 1387 (Chu, Chapter 486, Statutes of 2015) revised the appeals
process for civil penalties.
AB 1467 (Bloom, 2015) would have introduced a system of civil
penalties that would be tiered based on facility capacity and
contained other provisions substantially similar to this bill.
It was held 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 CDSS-licensed facilities.
AB 978 (Benoit, Chapter 291, Statutes of 2008) required CDSS to
assess immediate civil penalties of $150 per day per violation
for serious violations of health and safety statutes or
regulations.
COMMENTS
AB 2231 is the most recent in a series of bills that have sought
to update and modernize the CDSS civil penalty and appeals
AB 2231 (Calderon) Page 14
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processes. Current language is the product of multiple
stakeholder meetings. As a result of this coordinated
communication, the author and the sponsor (CDSS) have worked
with opposition to address many of the formal concerns. For
example, recent amendments:
Clarify that the notification of deficiency will state
the manner in which the deficiency constitutes a repeat
violation.
Provide that penalties are due and payable when
administrative appeals have been exhausted.
Delay implementation until July 1, 2017 in order to
allow for training of CDSS staff.
Delete reference to "inconclusive" complaint inspections
and instead reference "unsubstantiated" complaint
inspections.
However, a coalition of licensed facilities and their
represented employees has taken a positon of oppose unless
amended. The opposition suggests further amendments are needed
in order to clarify the meaning of repeat violations and how
those violations are processed. Per the opposition, this bill
falls just short of its attempt to provide specificity to the
phrase repeat violation. According to opponents of the bill,
some CDSS regulations are exceptionally broad and could trigger
a repeat violation even though the facts of the situations were
completely unrelated. The coalition states there must be some
discretion within CDSS to consider the facts or nature of the
violations in order to avoid using an overly broad "catch all"
regulation (same letters and numbers) to cite two unrelated
violations as repeats.
PRIOR VOTES
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|Assembly Floor: |75 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Appropriations Committee: |20 - |
| |0 |
|-----------------------------------------------------------+-----|
|Assembly Human Services Committee: |6 - |
| |0 |
| | |
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POSITIONS
Support:
California Department of Social Services (Sponsor)
California Advocates for Nursing Home Reform
California Commission on Aging
The Arc
The California Long Term-Care Ombudsman Association
The National Association of Social Workers
The Office of the State Long-Term Care Ombudsman
Oppose:
6 Beds, Inc.
UDW AFSCME Local 3930
CCDAA/CALA/Leading Age California/SEIU/California Alliance/
UDW AFSCME Local 3930
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