BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Jim Beall, Chair
BILL NO: AB 2236
A
AUTHOR: Maienschein
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VERSION: April 21, 2014
HEARING DATE: June 24, 2014
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FISCAL: Yes
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CONSULTANT: Sara Rogers
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SUBJECT
Residential care facilities for the elderly: civil
penalties
SUMMARY
This bill increases the minimum and maximum civil penalties
issued by the California Department of Social Services
(CDSS) against a Residential Care Facility for the Elderly
(RCFE) for serious violations, for violations that are
determined to be the direct proximate cause of death or
serious injury for a resident, and for other lesser
violations. This bill also provides that the deficiencies
appeals process must include an option for review by an
administrative law judge. This bill further requires CDSS
to prove that a death or serious injury was the result of a
violation that was the proximate cause of the injury or
death, as specified, and after CDSS has met that burden,
provides a licensee with an additional opportunity to prove
it did what might reasonably be expected of an RCFE, acting
under similar circumstances, to comply with the statute or
regulation. Additionally requires citations for death or
serious injury be reviewed by the department's legal
Continued---
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division and approved by the deputy director.
ABSTRACT
Existing Law:
1)Establishes the Residential Care Facilities for the
Elderly Act to license and regulate RCFEs as a separate
category within the existing residential care licensing
structure of CDSS. (HSC 1569 et seq.)
2)Provides that RCFEs shall be subject to unannounced
visits by CDSS and that the department shall visit
facilities as often as necessary to ensure the quality of
care provided, as specified. (HSC 1569.33)
3)Permits establishment of an emergency resident relocation
fund to not which more than 50 percent of each civil
penalty is transmitted to CDSS to be used for the
relocation and care of residents when a facility's
license is revoked or temporarily suspended, as
specified. (HSC 1569.48)
4)Requires that any person who operates an unlicensed
facility, as defined in HSC 1569.10 or 1569.44, shall be
assessed by the department an immediate civil penalty in
the amount of one hundred dollars ($100) per resident for
each day of the violation, unless other remedies
available to the department, including criminal
prosecution, are deemed more effective by the department,
as specified. (HSC 1549.485)
5)Permits CDSS to levy civil penalties for citations, in
addition to the suspension, temporary suspension or
revocation of a license and specifies penalties to be
issued for specific categories of violations, as follows:
a. Not less than $25 or more than $50 per day for
each violation except where the nature or
STAFF ANALYSIS OF ASSEMBLY BILL 2236 (Maienschein)
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seriousness of the violation or the frequency of the
violation warrants a higher penalty or an immediate
civil penalty assessment, or both, as determined by
the department.
b. Requires that in no event, shall a civil
penalty assessment exceed one hundred fifty dollars
($150) per day per violation, as specified. (HSC
1569.49 (b))
c. An immediate civil penalty of $150 per day per
violation for any of the following serious
violations (HSC 1569.49 (c)):
i. Fire clearance violations,
including, but not limited to, overcapacity,
ambulatory status, inoperable smoke alarms, and
inoperable fire alarm systems. The civil
penalty shall not be assessed if the licensee
has done either of the following: Requested the
appropriate fire clearance based on ambulatory,
nonambulatory, or bedridden status, and the
decision is pending, or initiated eviction
proceedings, as specified.
ii. Absence of supervision as required
by statute or regulation.
iii. Accessible bodies of water, when
prohibited in this chapter or regulations
adopted pursuant to this chapter.
iv. Accessible firearms, ammunition, or
both.
v. Refused licensing staff entry to a
facility or any part of a facility, as
specified in HSC 1569.32, HSC 1569.33, or HSC
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1569.35.
vi. The presence of an excluded person
on the premises.
d. Additionally, any RCFE that is cited for
repeating the same violation of this chapter within
12 months of the first violation is subject to an
immediate civil penalty of one hundred fifty dollars
($150) and fifty dollars ($50) for each day the
violation continues until the deficiency is
corrected. (HSC 1569.49 (d))
e. Any RCFE that is assessed a civil penalty which
repeats the same violation of this chapter within 12
months of the violation shall be assessed an
immediate civil penalty of one thousand dollars
($1,000) and one hundred dollars ($100) for each day
the violation continues until the deficiency is
corrected, as specified. (HSC 1569.49 (e))
6)Requires CDSS to adopt regulations setting forth the
appeal procedures for deficiencies. (HSC 1649.49 (a))
This bill:
1)Officially names the emergency relocation fund, The
Emergency Resident Relocation Fund, and establishes it in
the state Treasury. Additionally, requires, instead of
permitting, the department to deposit 50 percent of each
civil penalty assessed into the fund.
2)Adds to the current deficiency appeals process notice to
the complainant, affected residents, and, if possible,
their legal representatives, and the opportunity to
participate in the appeal. Additionally, requires the
appeal procedure to include an option for review by an
administrative law judge.
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3)Increases the minimum civil penalty from $25 to $100 per
day per violation, and the maximum from $100 to $250 per
day per violation for general violations of law or
regulation.
4)Strikes the requirement that in no event, shall a civil
penalty assessment exceed one hundred fifty dollars
($150) per day per violation for serious offenses.
5)Specifies that civil penalties assessed on a per-day
basis shall end once the licensee submits documentation
of the correction, if the correction is verified by the
department.
6)Changes the civil penalty for specified serious
violations from $150 per violation per day to $1,000 per
violation per day. These include violations of fire
clearance, absence of supervision, accessible firearms
and others.
7)Adds a minimum civil penalty of $5,000 and maximum of
$15,000 for a violation that CDSS determines was the
direct proximate cause of death to a resident.
8)Adds a minimum civil penalty of $1,000 and maximum of
$10,000 for a violation that CDSS determines was the
direct proximate cause of "serious bodily injury" as
defined.
9)Adds a minimum civil penalty of $500 and maximum of
$2,500 for a violation that CDSS determines constitutes
"physical abuse" as defined, but does not result in
"serious bodily injury," as defined, and it is determined
by the department that the abuse was committed by the
licensee or an employee of the licensee.
10)Requires the department to prove in cases of death or
serious injury both of the following:
STAFF ANALYSIS OF ASSEMBLY BILL 2236 (Maienschein)
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a. The violation was a direct proximate cause of
the death or serious bodily injury of a resident.
b. The death or serious bodily injury resulted
from an occurrence of a nature that the statute or
regulation was designed to prevent.
11)Requires dismissal of a citation if the licensee proves
that he or she did what might reasonably be expected of
an RCFE licensee, acting under similar circumstances, to
comply with the statute or regulation.
12)Requires that prior to the issuance of a citation
imposing a civil penalty for death or serious bodily
injury, the decision shall be reviewed by the
department's legal division and approved by the deputy
director.
13)Changes the civil penalty for a repeated violation
within 12 months from an immediate civil penalty of $150,
plus $50 per day for each day the violation is repeated,
to an immediate penalty of $1,000 and $200 per day that
the violation is repeated, until the licensee submits
documentation of the correction, if the correction is
verified by CDSS.
14)Requires CDSS in assessing a civil penalty for a
violation to consider all relevant information,
including, but not limited to, both of the following:
a. The probability and severity of the risk of
harm that the violation presents to the resident's
mental and physical condition.
b. The good faith efforts of the facility to
prevent the violation from occurring.
15)Requires that in any enforcement actions taken by the
department, the licensee shall be liable for the acts and
omissions of its officers and employees.
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16)Requires CDSS by January 1, 2016, to amend its
regulations to reflect changes in this bill and
stipulates that existing regulations shall remain in
effect until those amendments are made to regulation.
FISCAL IMPACT
An analysis by the Assembly Committee on Appropriations
projected ongoing significant costs to CDSS, likely in the
$200,000 to $300,000 range (GF), for legal review and
approval of potential citations, one-time minor costs to
CDSS, likely in the tens of thousands (GF), for penalty
system adjustments and unknown, but likely significant
costs CDSS and the courts for an expanded appeal and review
process.
BACKGROUND AND DISCUSSION
According to the author, the current civil penalty
structure for RCFEs does not distinguish between violations
of differing severities and has remained essentially
unchanged since its establishment in 1985. The author
states that today, the civil penalty for a violation that
led to a death of a resident of an RCFE is $150 and that
such a low fine is not meaningful.
This bill would increase civil penalties for RCFEs from the
current maximum of $150 per day to as much as $15,000 for
incidents that result in death and up to $10,000 for those
resulting in serious injury. In instances of physical abuse
without serious bodily injury the bill authorizes a civil
penalty of up to $2,500. According to the author, this bill
creates a broader range of fine options for CDSS to
consider, and requires that specified serious violations,
including a lack of fire clearance, the presence of an
excluded individual, refusing to allow entry to a state
inspector would be subject to a penalty of $1,000 per day,
per violation.
The author states that lower level citations, which
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currently carry penalties of $25 to $100, would be
increased to $100 to $250 per incident per day. Further,
the author states that this bill also establishes an
appeals process similar to that used for nursing homes for
the most serious violations. It requires that citations of
death or serious injury be reviewed by the department's
legal staff and signed off by the department's deputy
director prior to issuance.
Recent events
A series of recent events has drawn attention to questions
about the adequacy of oversight with the Community Care
Licensing Division of CDSS and the state's ability to
protect people who receive services within CDSS-licensed
facilities.
In July 2013, ProPublica and Frontline reporters wrote
and produced a series of stories on Emeritus, the
nation's largest RCFE provider.<1> Featured in the
article was a woman who died after receiving poor care at
in a facility in Auburn, California. The series
documented chronic understaffing, a lack of required
assessments and substandard care.
Reports in September 2013, prompted by a consumer
watchdog group that had hand-culled through stacks of
documents in San Diego, revealed that more than two dozen
seniors had died in recent years in RCFEs under
questionable circumstances that went ignored or
unpunished by CCL.<2>
-------------------------
<1>
http://www.propublica.org/article/life-and-death-in-assisted
-living-single
<2> "Care Home Deaths Show System Failures," San Diego
Union Tribune, Sept.7, 2013
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In late October 2013, 19 frail seniors were abandoned at
Valley Springs Manor in Castro Valley by the licensee and
all but two staff after the state began license
revocation proceedings for the facility. CDSS inspectors,
noting the facility had been abandoned, left the two
unpaid service staff to care for the abandoned residents
with insufficient food and medication, handing them a
$3,800 citation before leaving for the weekend. The next
day sheriff's deputies and paramedics sent the patients
to local hospitals.
Residential Care Facilities for the Elderly
Within California's continuum of long term care, situated
between in-home care and skilled nursing facilities, is the
RCFE, also commonly called Assisted Living, Board and Care,
or Residential Care. There are approximately 8,000 Assisted
Living, Board and Care, and Continuing Care Retirement
homes that are licensed as RCFEs in California. These
residences are designed to provide homelike housing options
to residents who need some help with activities of daily
living, such as cooking, bathing, or getting dressed, but
otherwise do not need continuous, 24-hour assistance or
nursing care. Increasingly residents are entering RCFEs
with significant health needs including diabetes, bedsores,
or require the use of oxygen tanks, catheters, colostomies
or ileostomies.
The RCFE licensure category includes facilities with as few
as six beds to those with hundreds of residents, whose
needs may vary widely. Typically, the smaller facilities
are homes in residential neighborhoods while the larger
facilities resemble apartment complexes with structured
activities for their residents. Generally, residents are
free to leave the facility if they choose, and may
entertain guests, and otherwise maintain a high level of
independence. Facilities licensed to serve residents with
dementia or Alzheimer's disease, also known as "memory care
units," may maintain a secure perimeter.
Joint Hearing on RCFEs
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On February 11, 2014, the Senate and Assembly Human
Services Committees jointly held an informational hearing
investigating efforts to increase accountability and
oversight of Assisted Living Facilities. Testimony during
the hearing highlighted significant technological barriers
to the tracking of complaints and deficiencies, limited
follow-up practices by the department to ensure that
deficiencies are corrected, frequent failure to collect
assessed fines and penalties, a lengthy appeals process
that hinders immediate action when necessary, and use of a
shortened inspection tool that has not been validated for
use in RCFEs.
CDSS acknowledged at the hearing that there were serious
and historic failures of regulatory oversight over RCFEs,
highlighted most recently at Valley Springs Manor in
Alameda County. CDSS has acknowledged that it waited until
after the facility administrator abandoned the residents to
take emergency action, despite receiving no communication
or response from the licensee during the nearly five months
since the Department had initiated license revocation
proceedings. CDSS said it made a "judgment error" in
deciding that the facility, then staffed only by an
untrained janitor and cook, and without access to
medications or sufficient food, could function through the
weekend.
CDSS has additionally stated that the Community Care
Licensing division (CCL) erred in not directing existing
staff or deploying additional field staff to remain on site
until the transfer of the residents was completed and the
facility was closed. At the hearing, the Department
acknowledged that despite the severity of the violations of
the licensee, the maximum fine that could be imposed was a
$150 fine/per violation per day. In such an instance, this
bill would increase the maximum to $1,000 per day.
2014-2015 Budget Act
As part of the Governor's 2014-2015 proposed budget, the
Administration put forth trailer bill language that had
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substantial overlap with provisions of this bill but that
language ultimately was not included in SB 855 (Committee
on Budget and Fiscal Review, 2014) the Human Services
omnibus trailer bill which was passed by the Legislature on
June 15th. Instead of amending the civil penalty structure
in the budget, the Legislature adopted the following intent
language:
The Legislature finds and declares that the current civil
penalty structure for facilities licensed by the State
Department of Social Services is insufficient to ensure
the health and safety of those in care. It is the intent
of the Legislature to comprehensively increase these
penalties for all facilities in subsequent legislation,
with particular emphasis on penalties for violations that
result in serious injury or death.
In its original proposal, the Administration proposed
significant changes to the civil penalty structure using a
substantially different methodology than this bill.
Specifically, the Governor's proposal sought to amend the
penalty structure for all community care facilities,
residential care facilities for the elderly and child care
facilities and homes. This bill addresses the civil
penalties only for Residential Care Facilities for the
Elderly. Additionally, the Governor's proposal established
a penalty structure for serious offenses of five times the
amount of the annual licensing fee per day per violation.
The stated reasoning behind this method was that given the
wide variation in size of facilities, even within licensing
categories, it was not feasible to set an appropriate
penalty amount that would not either be excessively
burdensome on small facilities, or so small as to have no
deterrent effect on large facilities. The department argued
that establishing a civil penalty structure based on a
factor of a facilities licensing fee would create a
structural penalty variation proportionate to the size of
each facility.
In contrast, this measure establishes a range of dollar
amounts that the department would have discretion in
setting; however the bill does not establish clear criteria
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for how the department would set varied civil penalties
within the range.
COMMENTS
Staff recommends the author commit to engage in a
stakeholder meeting with both policy committees and
stakeholders to discuss the following:
1. The Legislature's adopted intent language in the
2014-2015 Budget Act to comprehensively increase civil
penalties for all facilities in subsequent legislation,
pending further policy conversations regarding the
appropriate methodology. At this time, a comprehensive
policy conversation has not occurred, and the policy
committees have not had an opportunity to consider the
Governor's proposed methodology, or alternative
methodologies such as a blend between the two
approaches. This bill would establish a course of action
for RCFEs in advance of that conversation.
2. Concerns have been raised with provisions of this bill
that require CDSS to have a burden of proof that a
licensing violation was the "proximate cause" of death
or serious injury of a resident. "Proximate cause" is
not a clearly defined legal term, but originated with
civil law cases and was later applied to death
certification as the proximate cause of death. Such
proof requires that a medical examiner or coroner be
able to explain the reasoning behind a death
certification. For example, if an individual is
neglected in an RCFE and develops bed sores, and then
later dies as a result of an infection that was obtained
after the resident was sent to the hospital, the bill as
drafted may not permit the department to cite the RCFE
for that death.
3. Concerns have been raised about establishing a range of
penalties for death, serious injuries and serious
violations, which this bill would do. The concerns
center on creating a situation in which the citation
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amount is subjective and would lead to an increase the
number of citations that are appealed, leading to
substantial costs to the department to collect civil
penalties.
PRIOR VOTES
Assembly Floor 78 - 0
Assembly Appropriations 16 - 0
Assembly Human Services 7 - 0
POSITIONS
Support: California Assisted Living Association
California Long-Term Care Ombudsman
Association
Congress of California Seniors
Law Offices of Sanford I. Horowitz
Leading Age California
Stanislaus County Commission on Aging
2 Individuals
Oppose: None received.
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