BILL ANALYSIS �
AB 2236
Page A
ASSEMBLY THIRD READING
AB 2236 (Maienschein and Stone)
As Amended April 21, 2014
Majority vote
HUMAN SERVICES 7-0 APPROPRIATIONS 16-0
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|Ayes:|Stone, Maienschein, |Ayes:|Gatto, Bigelow, |
| |Ammiano, | |Bocanegra, Bradford, Ian |
| |Ian Calderon, Garcia, | |Calderon, Campos, Eggman, |
| |Grove, Hall | |Gomez, Holden, Jones, |
| | | |Linder, Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Revises existing statute authorizing the Department of
Social Services (DSS) to levy fines against Residential Care
Facilities for the Elderly (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.
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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.
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 the DSS legal division to review and the DSS
Community Care Licensing Division (CCLD) 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
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employees.
16)Requires DSS to amend existing regulations to comply with
changes adopted by this measure no later than January 1, 2016,
as specified.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)On-going significant costs to DSS, likely in the $200,000 -
$300,000 range (General Fund), for legal review and approval
of potential citations.
2)One-time minor costs to DSS, likely in the tens of thousands
(General Fund), for penalty system adjustments.
3)Unknown, but likely significant costs (General Fund) to DSS
and the courts for an expanded appeal and review process.
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 the DSS 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,
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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 requirements, may provide assistive
memory care services to individuals with dementia or Alzheimer's
disease.
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, California, 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."<1>
The proposal also includes a revision to civil penalties amounts
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.
---------------------------
<1> 2014-15 Budget Change Proposal #CCLD-2; Department of Social
Services; Social Services and Licensing. 2014-15 Budget.
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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 Health and
Safety Code Section 1569.185.
------------------------------------------
| 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 |
------------------------------------------
------------------------------------------
| Fee Schedule |
------------------------------------------
|------------+----------------+------------|
| 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 |
------------------------------------------
AB 2236
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|301-350 |$5,500 |$2,750 |
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|351-400 |$6,050 |$3,025 |
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|401-500 |$7,150 |$3,575 |
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|501-600 |$8,250 |$4,125 |
------------------------------------------
|601-700 |$9,350 |$4,675 |
|------------+----------------+------------|
|701+ |$11,000 |$5,500 |
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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.
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
AB 2236
Page G
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.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
FN: 0003829