BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2236|
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THIRD READING
Bill No: AB 2236
Author: Maienschein (R) and Stone (D), et al.
Amended: 8/22/14 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 4-0, 6/24/14
AYES: Beall, DeSaulnier, Liu, Wyland
NO VOTE RECORDED: Berryhill
SENATE APPROPRIATIONS COMMITTEE : 5-0, 8/14/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Walters, Gaines
SENATE HUMAN SERVICES COMMITTEE : 3-0, 8/27/14 (Pursuant to
Senate Rule 29.10)
AYES: Beall, Berryhill, DeSaulnier
NO VOTE RECORDED: Liu, Wyland
ASSEMBLY FLOOR : 78-0, 5/28/14 - See last page for vote
SUBJECT : Residential care facilities for the elderly: civil
penalties
SOURCE : Author
DIGEST : This bill, beginning July 1, 2015, establishes a new
framework for civil penalties applicable to violations
determined by the Department of Social Services (DSS) to have
resulted in death or serious bodily injury, or determined by DSS
to constitute physical abuse for all facilities licensed by DSS.
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Senate Floor Amendments of 8/22/14 amend civil penalties
applicable to death, serious bodily injury and physical abuse
for all facility types licensed by DSS, as specified.
ANALYSIS :
Existing law:
1. Establishes the Residential Care Facilities for the Elderly
Act to license and regulate the Residential Care Facility for
the Elderly (RCFE) as a separate category within the existing
residential care licensing structure of DSS.
2. Provides that RCFEs shall be subject to unannounced visits
by DSS and that DSS shall visit facilities as often as
necessary to ensure the quality of care provided, as
specified.
3. Permits establishment of an emergency resident relocation
fund to not which more than 50% of each civil penalty is
transmitted to DSS to be used for the relocation and care of
residents when a facility's license is revoked or temporarily
suspended, as specified.
4. Requires that any person who operates an unlicensed
facility, as defined, shall be assessed by DSS an immediate
civil penalty in the amount of $100 per resident for each day
of the violation, unless other remedies available to DSS,
including criminal prosecution, are deemed more effective by
DSS, as specified.
5. Permits DSS 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 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 DSS.
B. Requires that in no event, shall a civil penalty
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assessment exceed $150 per day per violation, as
specified.
C. An immediate civil penalty of $150 per day per
violation for any of serious violations, as specified.
D. Additionally, any RCFE that is cited for repeating the
same violation within 12 months of the first violation is
subject to an immediate civil penalty of $150 and $50 for
each day the violation continues until the deficiency is
corrected.
E. Any RCFE that is assessed a civil penalty which
repeats the same violation within 12 months of the
violation shall be assessed an immediate civil penalty of
$1,000 and $100 for each day the violation continues until
the deficiency is corrected, as specified.
1. Requires DSS to adopt regulations setting forth the appeal
procedures for deficiencies.
This bill:
1. Establishes, beginning July 1, 2015, a new framework for
civil penalties applicable to violations determined by the
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:
--------------------------------------------------------------
|Facility type |Size | Serious Bodily |Death |
| | |Injury/ Physical | |
| | | Abuse | |
| | | | |
|------------------------+-----------+------------------+------|
|RCFE/ARF/CCH/SRF/EBSH |All sizes |$10,000 |$15,00|
| | | |0 |
| | | | |
|------------------------+-----------+------------------+------|
|Emergency Homeless |d25 beds |$1,000 |$5,000|
|Youth Shelter | | | |
| | | | |
|------------------------+-----------+------------------+------|
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|Small Child Care Home |d8 |$1,000 |$5,000|
| |children | | |
| | | | |
|------------------------+-----------+------------------+------|
|Large Child Care Home |9-14 |$2,000 |$7,500|
| |children | | |
| | | | |
|------------------------+-----------+------------------+------|
|Child Care Facility |1 30 |$2,500 |$7,500|
| |children | | |
| | | | |
|------------------------+-----------+------------------+------|
|Child Care Facility |31 100 |$5,000 |$10,00|
| |children | |0 |
| | | | |
|------------------------+-----------+------------------+------|
|Child Care Facility |100+ |$10,000 |$15,00|
| |children | |0 |
| | | | |
|------------------------+-----------+------------------+------|
|Adult Day |d50 adults |$2,500 |$7,500|
| | | | |
| | | | |
|------------------------+-----------+------------------+------|
|Adult Day |50+ adults |$5,000 |$10,00|
| | | |0 |
|------------------------+-----------+------------------+------|
|FFA/GH/TSCF/THPP/CTF |d40 youth |$2,500 |$7,500|
| | | | |
| | | | |
|------------------------+-----------+------------------+------|
|FFA/GH/TSCF/THPP/CTF |41 100 |$5,000 |$10,00|
| |youth | |0 |
| | | | |
|------------------------+-----------+------------------+------|
|FFA/GH/TSCF/THPP/CTF |100+ youth |$10,000 |$15,00|
| | | |0 |
| | | | |
| | | | |
--------------------------------------------------------------
ARF Adult Residential Facility
CCH Community Crisis Home
CTF Community Treatment Facility
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EBSH Enhanced Behavioral Supports Home
FFA Foster Family Agency
GH Group Home
RCFE Residential Care Facility for the Elderly
SRF Social Rehabilitation Facility
THPP Transitional Housing Placement Provider
TSCF Transitional Shelter Care Facility
2. Defines physical abuse, serious injury, and death pursuant
to existing definitions in the Welfare and Institutions Code
and Penal Code, as specified.
3. Requires the Director of DSS approve the civil penalty
assessment.
4. Provides a licensee shall have the right to submit a written
request for a formal review of a civil penalty within 10 days
of receipt of the notice of a civil penalty assessment and
requires the licensee provide all supporting documentation at
that time.
5. Requires the review be conducted by a regional manager of
the Community Care Licensing Division, who may amend or
dismiss the penalty if they determine that the civil penalty
was not assessed in accordance with applicable statutes or
regulations of DSS, and requires the licensee be notified in
writing of the regional manager's decision within 60 days of
the request to review the assessment of the civil penalty.
6. Provides the licensee may further appeal to the program
administrator of the Community Care Licensing Division within
10 days of receipt of the notice of the regional manager's
decision and shall provide all supporting documentation at
that time. If the program administrator determines that the
civil penalty was not assessed in accordance with applicable
statutes or regulations, they may amend or dismiss the civil
penalty. Requires the licensee be notified in writing of the
program administrator's decision within 60 days of the
request to review the regional manager's decision.
7. Provides the licensee may further appeal to the deputy
director of the Community Care Licensing Division within 10
days of receipt of the notice of the program director's
decision and shall provide all supporting documentation at
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that time. If the deputy director determines that the civil
penalty was not assessed in accordance with applicable
statutes or regulations, they may amend or dismiss the civil
penalty. Requires the licensee be notified in writing of the
deputy director's decision within 60 days of the request to
review the program administrator's decision.
8. Provides upon exhausting the deputy director review, a
licensee may appeal a civil penalty assessed to an
administrative law judge, as specified.
9. Provides that in all proceedings conducted in accordance
with this bill, the standard of proof shall be by a
preponderance of the evidence.
10.Provides if, in addition to an assessment of civil
penalties, DSS elects to file an administrative action to
suspend or revoke the facility license that includes
violations relating to the assessment of the civil penalties,
DSS review of the pending appeal shall cease and the
assessment of the civil penalties shall be heard as part of
the administrative action process.
11.Requires DSS adopt regulations implementing this bill, and
requires DSS, by January 1, 2016, amend its regulations to
reflect the changes by this bill.
Background
Recent events . A series of recent events has drawn attention to
questions about the adequacy of oversight with the Community
Care Licensing Division of DSS and the state's ability to
protect people who receive services within DSS-licensed
facilities.
In July 2013, ProPublica and Frontline reporters wrote and
produced a series of stories on Emeritus, the nation's largest
RCFE provider. 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.
In late October 2013, 19 frail seniors were abandoned at Valley
Springs Manor in Castro Valley by the licensee and all but two
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staff after the state began license revocation proceedings for
the facility. DSS 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.
Comments
According to the author's office, 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's office 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 increases 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's office, this bill creates a broader
range of fine options for DSS 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's office states that lower level citations, which
currently carry penalties of $25 to $100, will be increased to
$100 to $250 per incident per day. Further, the author's office
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 DSS' legal staff and signed off by DSS'
deputy director prior to issuance.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/25/14)
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California Assisted Living Association
California Long-Term Care Ombudsman Association
California State Retirees
Congress of California Seniors
Consumer Attorneys of California
Law Offices of Sanford I. Horowitz
Leading Age California
Stanislaus County Commission on Aging
The ARC and United Cerebral Palsy California Collaboration
ASSEMBLY FLOOR : 78-0, 5/28/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hern�ndez, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Mansoor, Medina, Melendez, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, John A.
P�rez, V. Manuel P�rez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Donnelly, Vacancy
JL:e 8/27/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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