BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Jim Beall, Chair
BILL NO: AB 2236
A
AUTHOR: Maienschein and Stone
B
VERSION: August 22, 2014
HEARING DATE: August 27, 2014
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FISCAL: Yes
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CONSULTANT: Sara Rogers
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SUBJECT
Community Care Facilities: Civil Penalties
SUMMARY
This bill, commencing July 1, 2015, would increase the
amount of civil penalties that may be imposed for a
violation that the California Department of Social Services
(CDSS) determines results in the death or serious bodily
injury or which constitutes physical abuse to a resident or
child at a care facility, as defined. Additionally, this
bill permits a licensee to request a formal review of a
civil penalty assessed for the death of, or serious bodily
injury or physical abuse to, a resident or child at the
care facility within 10 days of receipt of the notice of
the civil penalty assessment, as specified.
ABSTRACT
Existing Law:
1)Establishes the Community Care Facilities Act (CCFA),
providing for the licensure and regulation of nonmedical
residential care, day treatment, adult day care, or
Continued---
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Stone) Page 2
foster family agency services for children or adults.
(HSC 1500 et seq.)
2)Establishes the Residential Care Facilities for the
Elderly Act to license and regulate Residential Care
Facilities for the Elderly (RCFEs) as a separate category
within the existing residential care licensing structure
of CDSS. (HSC 1569 et seq.)
3)Provides for the licensure and regulation of Residential
Care Facilities for Persons with Chronic,
Life-Threatening Illness (RCFE-CI) under a separate
category. (HSC 168.01 et seq.)
4)Establishes the Child Day Care Act, providing for the
licensure and regulation of child day care facilities,
and large and small family day care homes. (HSC 1596.70
et seq.)
5)Permits CDSS to levy civil penalties for licensure
violations, and provides that in no event shall a civil
penalty assessment exceed $150 per day, per violation.
(HSC 1548, 1568.0822, 1569.49, 1596.99, 1597.58)
6)Permits CDSS to establish an appeal process for civil
penalties via regulation. (HSC 1548, 1568.0822, 1569.49,
1596.99, 1597.58)
This bill:
1)Establishes specified civil penalties for violations
determined by CDSS to have resulted in the death, serious
bodily injury or which constitute physical abuse of a
resident or participant. (See chart in Background and
Discussion below)
2)Defines physical abuse, pertaining to a facility that
serves children, to mean physical injury or death
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inflicted upon a child by another person by other than
accidental means, sexual abuse as defined in WIC 11165.1,
neglect as defined in WIC 11165.2, unlawful corporal
punishment or injury as defined in WIC 11165.4, where the
person responsible for the child's welfare is a licensee,
administrator, or employee of any facility licensed to
care for children.
3)Defines physical abuse, pertaining to a facility serving
adults, in accordance with WIC 15610.63 to mean any of
the following:
Assault, as defined in Section 240 of the Penal
Code.
Battery, as defined in Section 242 of the Penal
Code.
Assault with a deadly weapon or force likely to
produce great bodily injury, as defined in Section
245 of the Penal Code.
Unreasonable physical constraint, or prolonged
or continual deprivation of food or water.
Sexual assault, that means any of the
following:
o Sexual battery, as defined in Section
243.4 of the Penal Code.
o Rape, as defined in Section 261 of
the Penal Code.
o Rape in concert, as described in
Section 264.1 of the Penal Code.
o Spousal rape, as defined in Section
262 of the Penal Code.
o Incest, as defined in Section 285 of
the Penal Code.
o Sodomy, as defined in Section 286 of
the Penal Code.
o Oral copulation, as defined in
Section 288a of the Penal Code.
o Sexual penetration, as defined in
Section 289 of the Penal Code.
o Lewd or lascivious acts as defined in
paragraph (2) of subdivision (b) of Section 288
of the Penal Code.
Use of a physical or chemical restraint or
psychotropic medication under any of the following
conditions:
o For punishment.
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o For a period beyond that for which
the medication was ordered pursuant to the
instructions of a physician and surgeon
licensed in the State of California, who is
providing medical care to the elder or
dependent adult at the time the instructions
are given.
o For any purpose not authorized by the
physician and surgeon.
1)Defines serious bodily injury, pertaining to facilities
serving adults except RCFEs, in accordance with Penal
Code 243(f)(4), to mean a serious impairment of physical
condition, including, but not limited to, the following:
loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily
member or organ; a wound requiring extensive suturing;
and serious disfigurement.
2)Defines serious bodily injury, pertaining to RCFEs, in
accordance with WIC 15610.67 to mean an injury involving
extreme physical pain, substantial risk of death, or
protracted loss or impairment of function of a bodily
member, organ, or of mental faculty, or requiring medical
intervention, including, but not limited to,
hospitalization, surgery, or physical rehabilitation.
3)Defines serious injury, pertaining to child day care
facilities and family day care homes, in accordance with
HSC 1596.8865 to mean a serious impairment of physical
condition, including, but not limited to, the following:
loss of consciousness; concussion; bone fracture;
protracted loss or impairment of function of any bodily
member or organ; a wound requiring extensive suturing;
and serious disfigurement.
4)Provides that a civil penalty for physical abuse, serious
bodily injury or death must be approved by the Director
of CDSS.
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5)Permits a licensee to submit to the department a written
request for a formal review of a civil penalty within 10
days of receipt of the notice according to the following
structure:
Within ten days of assessment, the penalty may
be appealed to the regional manager. The regional
manager must respond within 60 days.
Within ten days of the response, the penalty
may be appealed to the program administrator. The
program administrator must respond within 60 days.
Within ten days of the response, the penalty
may be appealed to the deputy director for CCLD. The
deputy director must provide a final response within
60 days.
After administrative appeal is exhausted, the
licensee may appeal to an Administrative Law Judge.
9. Provides that the provisions of this bill shall take
effect beginning July 1, 2015.
FISCAL IMPACT
The Senate Appropriations Analysis of a prior version of
this bill stated there are ongoing costs to CDSS in the
range of $150,000 to $300,000 (General Fund) for legal
review of potential citations prior to issuance, dependent
on the volume of citations to be handled. Additionally,
there are potentially significant ongoing costs in the
hundreds of thousands of dollars (General Fund) to CDSS for
the expanded appeal and review process. The analysis
additionally states there are one-time costs to DSS
potentially in excess of $150,000 (General Fund) to revise
regulations and make penalty system adjustments. The cost
estimate for the prior language of this bill is expected to
reflect cost estimates for the current version as well.
BACKGROUND AND DISCUSSION
According to the author, the current civil penalty
structure for community care facilities does not
distinguish between violations of differing severities and
has remained essentially unchanged since its establishment
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in 1985. The author states that today, the maximum civil
penalty that CDSS can assess for a violation that led to a
death or serious bodily injury of a resident, or which
constitute physical abuse is $150 and that such a low fine
is not meaningful.
The current version of this bill is the result of extensive
negotiations that included legislative staff, CDSS, the
administration, facility representation and consumer
groups.
2014-2015 Budget Act
As part of the Governor's 2014-2015 proposed budget, the
Administration put forth trailer bill language that had
substantial overlap with provisions of this bill. However,
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 established a penalty
structure for serious offenses, including but not limited
to death, serious bodily injury and physical abuse, 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 be either
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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 set dollar amounts
for each violation type and for each facility, depending on
size of the facility as follows:
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COMMENTS
Negotiations with stakeholders have led to significant
changes in the final content of the bill. Specifically, it
was the author's initial intent to address the civil
penalty amounts for "zero tolerance" violations in RCFEs
that are considered to place residents or participants at
risk of death or serious injury, such as an unsecured
swimming pool or fire hazard. However, the Governor's
proposal sought to amend civil penalties for all
CDSS-licensed facilities, and the administration indicated
it was opposed to amending civil penalties for RCFEs alone.
This version of the bill reflects the author's response to
facilities' varied concerns with the existing structure of
"zero tolerance" violations. As a result of these concerns,
the bill was narrowed to focus only on single-occurrence
type violations that led to death, serious bodily injury or
physical abuse.
PRIOR VOTES
The current version of this bill has not been voted on.
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POSITIONS
Support: None received
Oppose: None received
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