BILL ANALYSIS �
AB 2236
Page A
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 2236 (Maienschein/Stone) - As Amended: April 21, 2014
SUBJECT : Residential Facilities for the Elderly (RCFE): Fines
SUMMARY : Revises existing statute authorizing the Department of
Social Services (DSS) to levy fines against RCFEs for specified
violations of the law. Specifically, this bill :
1)Specifies the establishment of the Emergency Resident
Relocation Fund in the State Treasury, in which DSS is
required to deposit 50% of each penalty assessed upon a RCFE.
2)Provides that moneys in the fund may be appropriated to fund
the emergency relocation of residents and to provide for the
care of residents when a RCFE's license is revoked or
temporarily suspended.
3)Requires RCFE civil penalty appeals to include a notice to the
complainant, affected residents, and if possible, their legal
representative, and the opportunity to participate in the
appeal, which shall include an option for review before an
administrative law judge.
4)Increases the minimum civil penalty that may be levied against
a RCFE from $25 to $100 and the maximum civil penalty from $50
to $250 per day per violation.
5)Deletes the requirement that no civil penalty may be assessed
for more than $150.
6)Increases the civil penalty for a serious violation from $150
to $1,000 per day per violation.
7)Authorizes DSS to levy a civil penalty between $5,000 and
$15,000 for a violation that results in the death of a
resident.
8)Authorizes DSS to levy a civil penalty between $1,000 and
$5,000 for a violation that results in serious bodily injury
to a resident, as specified.
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9)Authorizes DSS to levy a civil penalty between $500 and $2,500
for a violation that results in the physical abuse of a
resident, as specified.
10)Provides that DSS has the burden of proof for any violation
that results in the serious bodily injury or death of a
resident and requires the RCFE to have the burden of proving
that it did what might reasonably be expected of a RCFE to
comply with the law. In cases where the RCFE meets the burden
of proof, the citation is required to be dismissed.
11)Requires DSS' legal division to review and DSS' Community
Care Licensing Division Deputy Director to approve the
issuance of a citation imposing a civil penalty, as specified.
12)Increases the civil penalty for a single repeated violation
in a 12-month period from a minimum of $150 to $1,000 per day
per violation and in increased ongoing civil penalty from $50
to $200 for each day the violation continues, as specified.
13)Increases the civil penalty for multiple repeated violations
in a 12-month period from a minimum of $150 to $1,000 per day
per violation and in increased ongoing civil penalty from $50
to $200 for each day the violation continues, as specified.
14)Requires DSS to consider all relevant information when
determining whether to assess a civil penalty upon a RCFE, as
specified.
15)Clarifies that a RCFE, in any enforcement action, shall be
liable for any acts and omissions of its officers and
employees.
16)Requires DSS to amend existing regulations to comply with
changes adopted by this measure no later than January 1, 2016,
as specified.
EXISTING LAW
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. (H&S Code 1569 and 1569.1)
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2)Permits any person to request an inspection of a RCFE through
the filing of a complaint, which may be made either orally or
in writing. (H&S Code 1569.35(a))
3)Prohibits the substance of the complaint from being provided
to the licensee sooner than at the time of the inspection,
unless otherwise permitted by the complainant, as specified.
(H&S Code 1569.25(b))
4)Requires DSS to review a complaint alleging denial of a
statutory right of access to a RCFE and promptly notify the
complainant of the department's proposed course of action.
(H&S Code 1569.35(d))
5)Permits a RCFE to appeal a determination of a violation as the
result of a complaint investigation within ten days, as
specified, and requires DSS to dismiss the deficiency if it
was found to not have been issued in accordance with
applicable statute or regulations. (H&S Code 1569.335 and
Section 87763(a) and (b) of Title 22, CCR)
6)Requires DSS to assess a civil penalty of no less than $25 and
no more than $50 per violation per day for all serious
deficiencies, up to a maximum of $150 per day, unless the
seriousness or frequency of the violation warrants a higher or
immediate civil penalty. (H&S Code 1569.49(b) and Section
87761(a) of Title 22, CCR)
7)Requires DSS to assess an immediate civil penalty of $150 per
day per violation for serious violations, as specified. (H&S
Code 1569.49(c))
8)Pursuant to regulations, requires DSS to assess an immediate
civil penalty of $100 per violation per day for a maximum of
five days if a licensee if found to be employing an individual
who has not obtained a criminal background check and
clearance, as specified. (Section 87761(b) of Title 22, CCR)
9)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
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corrected. (H&S Code 1569.49(d) and (e))
10)Authorizes DSS to temporarily suspend or revoke any license
of a RCFE if it finds that the licensee has violated statue or
regulations governing the operation of a RCFE, as specified.
(H&S Code 1569.50)
11)Authorizes the Director of DSS to temporarily suspend any
license if he or she determines that the action is necessary
to protect the residents or clients of a RCFE from abuse,
abandonment, or any other substantial threat to health or
safety, as specified. (H&S Code 1569.50(e))
FISCAL EFFECT : Unknown
COMMENTS :
Background : It is the intent of the Legislature, in
establishing the RCFE Act, to help provide a system of
residential care to allow older persons to voluntarily live
independently in a homelike environment as opposed to being
forced to live in an institutionalized facility, such as a
nursing home, or having to move between medical and nonmedical
environments. RCFEs, commonly referred to as assisted living
facilities, are licensed retirement residential homes and board
and care homes that accommodate and provide services to meet the
varying, and at times, fluctuating health care needs of
individuals who are 60 years of age and over, and persons under
the age of 60 with compatible needs. Licensed by DSS' Community
Care Licensing Division (CCLD), they can range in size from
residential homes with six or less beds to more formal
residential facilities with 100 beds or more.
There is also no uniform common care model; rather the types of
assistive services can vary widely, which can include differing
levels of personal care and protective supervision, based upon
the needs of the resident.
If a resident needs medical care in his or her residence in
order to maintain an independent lifestyle, incidental medical
services are permitted to be provided by a licensed or otherwise
approved external provider, such as a home healthcare agency
(HHA), which is licensed by the California Department of Public
Health. Additionally, some RCFEs, upon approval of DSS and
after having met specified orientation and training
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requirements, may provide assistive memory care services to
individuals with dementia or Alzheimer's disease.
Existing regulations also lay out the circumstances under which
an individual may be allowed to reside in RCFEs. Specifically,
they include persons:<1>
Capable of administering their own medications;
Receiving medical care and treatment outside the
facility or who are receiving needed medical care from a
visiting nurse;
Who because of forgetfulness or physical limitations
need only be reminded or to be assisted to take medication
usually prescribed for self-administration;
With problems including, but not limited to,
forgetfulness, wandering, confusion, irritability, and
inability to manage money;
With mild temporary emotional disturbance resulting from
personal loss or change in living arrangement;
Who are temporarily bedridden, as specified; and
Who are under 60 years of age whose needs are compatible
with other residents in care, if they require the same
amount of care and supervision as do the other residents in
the facility.
Regulations also provides specific prohibitions on individuals
who are allowed to reside in a RCFE, which includes whether the
resident has active communicable tuberculosis, requires 24-hour
skilled nursing or intermediate care, has an ongoing behavioral
or mental disorder, or has dementia, unless otherwise permitted
by CCLD.<2>
Growing demand: Over the past thirty years, the demand for
RCFEs has grown substantially. Although RCFEs have been
generally available, they experienced explosive growth in the
1990s, more than doubling the number of beds between 1990 and
---------------------------
<1> Section 87455(b) of Title 22, California Code of
Regulations.
<2> Section 87455(c) of Title 22, California Code of
Regulations.
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2002,<3> and continued to grow 16% between 2001 and 2010.<4>
Nationwide, states reported 1.2 million beds in licensed RCFEs
in 2010.<5> That same year, the national Centers for Disease
Control reported that 40% of RCFE residents needed help with
three or more activities of daily living and three-fourths of
residents had at least two of the 10 most common chronic
conditions.<6>
According to DSS, as of March 5, 2014 there are 7,589 licensed
RCFEs in California with a capacity to serve 176,317 residents.
The Governor's 2014-15 CCLD budget proposal : In response to a
growing number of highly publicized incidents at licensed
community care facilities throughout the state, most notably the
abandonment of Valley Springs Manor, a licensed RCFE in Castro
Valley, CA, by its owner and licensee, the Governor has proposed
an increase of $7.5 million for CCLD. The proposal includes a
request to increase the number of administrative and inspection
analyst positions to:
"enhance health and safety outcomes for children and adults
in Community Care Facilities by ensuring a robust
enforcement program with a continued emphasis on increasing
visits to facilities, qualifications of facility
administrators, and civil penalties; updating facility
fees; establishing clear fiscal, program and corporate
accountability; developing necessary resources for
populations with medical and mental health needs; and
efficiently deploying staff and managers."<7>
The proposal also includes a revision to civil penalties amounts
---------------------------
<3> Flores and Newcomer, "Monitoring Quality of Care in
Residential Care for the Elderly: The Information Challenge".
Journal of Aging and Social Policy, 21:225-242, 2009.
<4> SCAN Foundation. "Long Term Care Fundamentals: Residential
Care Facilities for the Elderly." March 2011.
http://thescanfoundation.org/sites/thescanfoundation.org/files/LT
C_Fundamental_7_0.pdf
<5> "Assisted Living and Residential Care in the States in
2010," Mollica, Robert, AARP Public Policy Institute
<6> "Residents Living in Residential Care Facilities: United
States, 2010, Caffrey, Christine, et al., US Centers for
Disease Control, April 2012
<7> 2014-15 Budget Change Proposal #CCLD-2; Department of Social
Services; Social Services and Licensing. 2014-15 Budget.
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that may be assessed to all facilities except for foster family
homes. Its approach is different than as proposed by this
measure. It would delete the current civil penalty structure
and replace it with one that associates it with licensing
application fee amounts. In cases where a licensee has multiple
violations, the proposal would limit the civil penalty to the
highest rate. Specifically, it breaks down the penalties into
three categories. The first would address "zero tolerance
violations," which would apply to violations relating to fire
clearances, absence of supervision, accessible bodies of water,
accessible firearms, refused entry to a facility, the presence
of an excluded person, and incidences that result in the injury,
illness, or death of a client. In such cases, the penalty would
be equal to five times of the licensee's annual fee per day per
violation until the deficiency is corrected.
The second addresses "repeat violations," which would trigger an
initial immediate civil penalty equal to three times the
licensee's annual fee and a subsequent assessment equal to one
and one half times the licensee's annual fee per repeat
violation for each day the violation goes uncorrected.
Lastly, the third would revise all other violations to be 25% of
the licensee's annual fee per day per violation.
For reference, below is the current fee schedule as described in
Section 1569.185 of the Health and Safety Code.
------------------------------------------
| Fee Schedule |
------------------------------------------
|------------+----------------+------------|
|Capacity |Initial |Annual |
| |Application | |
|------------+----------------+------------|
| 1-3 |$413 |$413 |
|------------+----------------+------------|
| 4-6 |$825 |$413 |
|------------+----------------+------------|
| 7-15 |$1,239 |$619 |
|------------+----------------+------------|
| 16-30 |$1,650 |$825 |
|------------+----------------+------------|
| 31-49 |$2,064 |$1,032 |
|------------+----------------+------------|
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| 50-74 |$2,477 |$1,239 |
|------------+----------------+------------|
| 75-100 |$2,891 |$1,445 |
|------------+----------------+------------|
|101-150 |$3,304 |$1,652 |
|------------+----------------+------------|
|151-200 |$3,852 |$1,926 |
|------------+----------------+------------|
|201-250 |$4,400 |$2,200 |
|------------+----------------+------------|
|251-300 |$4,950 |$2,475 |
|------------+----------------+------------|
|301-350 |$5,500 |$2,750 |
|------------+----------------+------------|
|351-400 |$6,050 |$3,025 |
|------------+----------------+------------|
|401-500 |$7,150 |$3,575 |
|------------+----------------+------------|
|501-600 |$8,250 |$4,125 |
|------------+----------------+------------|
|601-700 |$9,350 |$4,675 |
|------------+----------------+------------|
|701+ |$11,000 |$5,500 |
------------------------------------------
Need for the bill: Stating the need for the bill, the authors
write:
The current civil penalty structure was established in 1985
with the passage of the California Residential Care
Facilities for the Elderly Act and has remained essentially
unchanged. Existing law authorizes the department to
impose various civil penalties for licensing violations and
sets the minimum civil penalty at $25 and the maximum
penalty at $150 per day per violation. Additional civil
penalties may be issued for repeat violations within a
12-month period.
Over the last six months, a series of incidents raised
serious questions about the adequacy of oversight of the
7,500 RCFEs and their 170,000 residents that is provided by
the California Department of Social Services. In many
cases, those facilities that were identified as endangering
residents' health or safety had been issued citations that
were unresolved and fines that were unpaid.
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This bill would increase civil penalties for RCFEs from the
current maximum of $150 per day to $1,000 per violation,
per day for specified serious incidents including lack of
fire clearance, accessible firearms, the presence of an
excluded individual, refusing to allow entry to a state
inspector and other violations. For incidents that result
in death or serious injury, or in instances of physical
abuse, the bill requires much more significant penalties:
An incident resulting in a clients' death is punishable by
a penalty of up to $15,000. A serious injury is punishable
by up to $10,000, and an incident of physical abuse without
serious bodily injury is punishable by penalties of up to
$2,500. A $150 fine for a death or serious injury case is
just not meaningful.
REGISTERED SUPPORT / OPPOSITION :
Support
Alliance on Aging of Monterey County
Consumer Attorneys of California
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089