BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 2231|
          |Office of Senate Floor Analyses   |                              |
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                                    THIRD READING


          Bill No:  AB 2231
          Author:   Calderon (D), et al.
          Amended:  8/15/16 in Senate
          Vote:     21  

           SENATE HUMAN SERVICES COMMITTEE:  4-0, 6/28/16
           AYES: McGuire, Hancock, Liu, Nguyen
           NO VOTE RECORDED: Berryhill

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 8/11/16
           AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

           ASSEMBLY FLOOR:  75-0, 5/31/16 - See last page for vote

           SUBJECT:   Care facilities:  civil penalties


          SOURCE:    California Department of Social Services


          DIGEST:  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 of Social Services 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. 
          ANALYSIS:


          Existing law:








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          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.)


          2)Establishes a regulatory structure 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 the California Department of Social Services (CDSS)  
            to post on its Internet Web site information about the 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)








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          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, Day Care Centers, and Family  
            Day Care Homes, as follows:


             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)   Permits CDSS to reduce the civil penalty for the cited  
               repeat violation to the level of the underlying violation,  
               as applicable, if it determines that the cited repeat  
               violation is not substantially similar to the original  
               violation; 









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             f)   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 CDSS  
               received that evidence;  


             g)   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; 


             h)   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; 


             i)   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; 


             j)   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; 


             aa)  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;









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               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;


             bb)  Requires CDSS to level civil penalties on its licensees  
               if CDSS determines that a violation resulted in the death,  
               constitutes physical abuse, or resulted in serious bodily  
               injury, as specified. 


             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 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;


             ff)  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 








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             gg)  Requires CDSS to adopt regulations setting forth the  
               appeal procedures for deficiencies.


          2)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. 


          3)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.


          4)Makes additional technical changes.


          Background

          The Community Care Licensing Division (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.   


          CCLD is responsible for the licensing of all community care  
          facilities and for investigating all complaints against those  
          facilities. 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  








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          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 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.   


          This bill resets the amount of civil penalty 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.  In those cases, it  
          requires that the decision to issue the citation be approved by  
          the CCLD Program Administrator prior to issuance of the  
          citation. The chart below shows 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.

           ------------------------------------------------------------------ 
          |                             |          Civil Penalties           |
          |                             |    for Violation Resulting in:     |
           ------------------------------------------------------------------ 
           ----------------------------------------------------------------- 
          |        License Type         |  Serious Bodily  |     Death      |
          |                             |     Injury/      |                |
          |                             |  Physical Abuse  |                |
           ----------------------------------------------------------------- 
          |-----------------------------+----------+--------+-------+--------|
          |                             | Current  |Proposed|Current|Proposed|
          |                             |          |        |       |        |
          |-----------------------------+----------+--------+-------+--------|
          |Adoption Agencies            | $2,500 - | $2,500 |$7,500 | $7,500 |
          |                             | $10,000* |        |   -   |        |
          |                             |          |        |$15,000|        |
          |                             |          |        |   *   |        |
          |-----------------------------+----------+--------+-------+--------|
          |Foster Family Agencies       | $2,500 - | $2,500 |$7,500 | $7,500 |
          |                             | $10,000* |        |   -   |        |
          |                             |          |        |$15,000|        |
          |                             |          |        |   *   |        |








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          |-----------------------------+----------+--------+-------+--------|
          |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 |
          |Persons with Special Health  |          |        |       |        |
          |Care Needs                   |          |        |       |        |
           ------------------------------------------------------------------ 
                                  * depending upon capacity of the facility


          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;  
          absence of required supervision; and accessible firearms,  
          ammunition, or both.

          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, this 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 (see below).  


           ----------------------------------------------------------------- 
          |                   "Zero Tolerance" Violations                   |
           ----------------------------------------------------------------- 
          |---------------+---------------+----------------+----------------|








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          |               |Initial        |   1st Repeat   |   2nd Repeat   |
          |               |Penalty        |   violation    |   Violation    |
          |---------------+---------------+----------------+----------------|
          |Current        |$150/day       |$150 & $50/day  |$150/day        |
          |---------------+---------------+----------------+----------------|
          |Proposed       |$500 &         |$1,000 &        |$1,000 &        |
          |               |$100/day       |$100/day        |$100/day        |
          |               |               |                |                |
           ----------------------------------------------------------------- 

          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 this bill, will  
          receive a civil penalty of $250 and $100 per day.  

          AB 2236 (Maienschein, Chapter 813, Statutes of 2014) 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.  This bill  
          also requires CDSS to promulgate regulations that would assess  
          late fees if payments are not made within 30 days or acceptable  








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          payment arrangements have been made. 

          Related/Prior 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 tiered  
          civil penalties 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.   


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          According to the Senate Appropriations Committee: 


           Estimated one-time costs to CDSS of $438,000 for fiscal year  
            2016-17 and ongoing costs of $378,000 per year for  
            administrative costs, enforcement, and addressing the  
            anticipated increase in appeals generated by the new penalty  
            structure. (GF)


           One-time costs potentially in excess of $150,000 to CDSS to  
            revise regulations and make penalty system adjustments for  








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            licensed community care facilities. (GF)


           Potential revenue to CDSS from assessing civil penalties for  
            violations. (Child Health and Safety Fund)




          SUPPORT:   (Verified8/12/16)


          California Department of Social Services (source)
          California Advocates for Nursing Home Reform
          California Assisted Living Association
          California Commission on Aging
          California Long Term-Care Ombudsman Association
          National Association of Social Workers 
          Office of the State Long-Term Care Ombudsman
          6 Beds, Inc.
          The Arc


          OPPOSITION:   (Verified8/12/16)


          None received


          ARGUMENTS IN SUPPORT:     CDSS writes that AB 2231 will make  
          changes that are long overdue and help ensure the health and  
          safety of children, the elderly, this disabled and any person  
          receiving care in CDSS licensed facilities.




           ASSEMBLY FLOOR:  75-0, 5/31/16
           AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,  
            Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,  
            Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,  
            Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina  








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            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mayes, McCarty, Medina, Melendez,  
            Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Quirk,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark  
            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Rendon
           NO VOTE RECORDED: Dahle, Beth Gaines, Gallagher, Mathis,  
            Patterson



          Prepared by:  Taryn Smith / HUMAN S. / (916) 651-1524
          8/15/16 20:33:28


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