BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2231|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 2231
Author: Calderon (D), et al.
Amended: 8/17/16 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 (1) increases the amount of civil penalties imposed
for licensing violations, and imposes civil penalties for a
repeat violation, as specified; (2) authorizes the California
Department of Social Services (CDSS) to reduce the civil penalty
for a repeat violation to the level of the underlying violation,
as specified; (3) deletes the provisions that authorize CDSS to
impose civil penalties, and instead requires civil penalties;
(4) 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, and to adopt regulations setting
forth the appeal procedures for deficiencies; (5) requires civil
penalties to be due and payable when administrative appeals have
been exhausted and to be subject to late fees, except as
specified; and (6) deletes obsolete provisions.
Senate Floor Amendments of 8/17/16 address chaptering conflicts
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Page 2
with AB 1997 (Stone) regarding civil penalties for licensed
community care facilities and make additional technical changes.
ANALYSIS:
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.)
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)
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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, 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;
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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;
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:
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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;
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;
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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
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)Incorporates changes in Section 1548 of the Health and Safety
Code proposed by AB 1997 (Stone) that would become operative
only if AB 1997 and this bill are both chaptered and become
effective on or before January 1, 2017.
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
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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 and assessed 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 penalties that may be
imposed for a violation that CDSS determines resulted 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.
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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 |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| |
| | | | * | |
|-----------------------------+----------+--------+-------+--------|
|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) | | | | |
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|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 | | | | |
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* depending upon capacity of the facility
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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. AB 2231
also proposes to increase the civil penalties associated with
these violations (see below).
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| "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 |
| | | | |
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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. Additionally, AB 2236 established
a four-step appeal process, 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
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Page 10
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
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:
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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 adjustments for 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,
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Page 12
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina
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
8/18/16 17:28:26
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