BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2231| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 2231 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) AB 2231 Page 3 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; AB 2231 Page 4 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: AB 2231 Page 5 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; AB 2231 Page 6 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 AB 2231 Page 7 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. AB 2231 Page 8 ------------------------------------------------------------------ | | 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| | | | | | * | | |-----------------------------+----------+--------+-------+--------| |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 AB 2231 Page 9 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). ----------------------------------------------------------------- | "Zero Tolerance" Violations | ----------------------------------------------------------------- |---------------+---------------+----------------+----------------| | |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. 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 AB 2231 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: AB 2231 Page 11 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, AB 2231 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 **** END ****