BILL ANALYSIS Ó
AB 2231
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CONCURRENCE IN SENATE AMENDMENTS
AB
2231 (Calderon)
As Amended August 17, 2016
Majority vote
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|ASSEMBLY: |75-0 |(May 31, 2016) |SENATE: |39-0 |(August 23, |
| | | | | |2016) |
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Original Committee Reference: HUM. S.
SUMMARY: Increases the civil penalties for specified violations
and adopts penalties for repeat violations in licensed community
care facilities, including, but not limited to, Residential Care
Facilities for Persons with Chronic Life-Threatening Illnesses
(RCFCIs), Residential Care Facilities for the Elderly (RCFEs),
Day Care Centers, and Family Day Care Homes. Further, makes
changes to the existing appeals process.
The Senate amendments:
1)Delay implementation of certain provisions of the bill,
including: increased civil penalties for less serious
violations, adoption of penalties for repeat violations, and
changes to the existing appeals process, as specified, until
July 1, 2017.
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2)Make the following changes to provisions of the bill as they
relate to all facility types within the scope of the bill,
operative as of July 1, 2017:
a) Requires a notification of deficiency to state the
manner in which the deficiency constitutes a repeat
violation and that it be submitted to a supervisor for
review and approval.
b) Allows the Department of Social Services (DSS), in its
sole discretion, to reduce the civil penalty for a cited
repeat violation to the level of the underlying violation,
if applicable, if it determines that the cited repeat
violation is not substantially similar to the original
violation.
c) Removes the requirement that DSS shall refund to a
licensee who prevails in an appeal the amount of any civil
penalty that the licensee has paid within 10 business days
of a final determination by an administrative law judge.
d) Requires civil penalties to be due and payable when
administrative appeals have been exhausted and makes a
civil penalty not paid within 30 days subject to late fees,
unless payment arrangements have been made and are
acceptable to the department.
3)Make technical changes.
4)Make chaptering amendments.
EXISTING LAW:
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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
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 Senate Appropriations Committee
on August 11, 2016, this bill may result in the following:
1)Estimated one-time costs to DSS 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. (General Fund)
2)One-time costs potentially in excess of $150,000 to DSS to
revise regulations and make penalty system adjustments for
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licensed community care facilities. (General Fund)
3)Potential revenue to DSS from assessing civil penalties for
violations. (Child Health and Safety Fund)
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
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.
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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
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."
PRIOR LEGISLATION
AB 1387 (Chu), Chapter 486, Statutes of 2015, revised the
appeals process for civil penalties.
AB 1467 (Bloom) of the 2015-16 regular session, 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.
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.
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Analysis Prepared by:
Kelsy Castillo / HUM. S. / (916) 319-2089 FN:
0004370