BILL NUMBER: SB 1218	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Yee
   (Principal coauthor: Assembly Member Maienschein)

                        FEBRUARY 20, 2014

   An act to amend Sections 1569.48 and 1569.49 of the Health and
Safety Code, relating to residential care facilities.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1218, as introduced, Yee. Residential care facilities for the
elderly: civil penalties.
   Existing law establishes the State Department of Social Services
and sets forth its powers and duties, including, but not limited to,
the licensing and administration of residential care facilities for
the elderly.
   Existing law authorizes the department to impose various civil
penalties for licensing violations. Existing law sets the minimum
civil penalty at $25 and the maximum penalty at $150 per day per
violation, and permits additional civil penalties for repeat
violations within a 12-month period.
   This bill would increase the civil penalties, including the
penalties for repeat offenses, and would vary the minimum and maximum
penalties depending upon the seriousness of the harm to the
resident.
   This bill would, in the case of citations imposing civil penalties
for violations that caused death or serious bodily injury to the
resident, require that the decision to issue the citation be reviewed
by the department's legal office and be approved by the deputy
director prior to the issuance of the citation.
   This bill would require that the appeal procedure include notice
to the complainant, affected residents, and, if possible, their legal
representatives, the opportunity to participate in the appeal, and
an option for review by an administrative law judge.
   This bill would, in cases involving death or serious bodily injury
of a resident, require the department to prove that the violation
was a direct proximate cause of the death or serious bodily injury,
and that it resulted from an occurrence of a nature that the statute
or regulation was designed to prevent. The bill would require
dismissal of the citation if the licensee proves that the licensee
did what might reasonably be expected of a residential care facility
for the elderly licensee, acting under similar circumstances, to
comply with the statute or regulation.
   The bill would specify that, in an enforcement action pursuant to
these provisions, a licensee is liable for the acts and omissions of
its officers and employees.
   Existing law authorizes the establishment of a fund and authorizes
deposit of up to 50% of the revenue from these civil penalties into
this fund, to be utilized, upon appropriation by the Legislature, for
the purposes of relocation and care of residents when a facility's
license is revoked or temporarily suspended.
   This bill would, instead, establish the Emergency Resident
Relocation Fund and would require deposit of 50% of the revenue from
these civil penalties into the fund to be used for these purposes,
upon appropriation by the Legislature.
   This bill would require the department, by January 1, 2016, to
amend its regulations to accommodate changes in these provision made
by this bill.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 1569.48 of the Health and Safety Code is
amended to read:
   1569.48.   A fund may be established to which not more
than  The Emergency Resident Relocat   ion Fund
is hereby established within the State Treasury. The department
shall deposit into the fund    50 percent of each
penalty assessed pursuant to Section  1569.49 is transmitted
to the department for use   1569.49. Upon appropriation
by the Legislature, moneys in the fund   shall be used 
by the Community Care Licensing Division of the department to
 establish an   fund  emergency resident
relocation  fund to be utilized for the relocation 
and care of residents when a facility's license is revoked or
temporarily  suspended, when appropriated by the Legislature.
  suspended.  The money in the fund shall cover
costs, including, but not limited to, transportation expenses,
expenses incurred in notifying family members, and any other costs
directly associated with providing continuous care to the residents.
The department shall seek the advice of providers in developing a
state plan for emergency resident relocation.
  SEC. 2.  Section 1569.49 of the Health and Safety Code is amended
to read:
   1569.49.  (a)  In addition to the suspension, temporary
suspension, or revocation of a license issued under this chapter, the
department may levy a civil penalty. The department shall adopt
regulations setting forth the appeal procedures for deficiencies.
 The appeal procedure shall include notice to the complainant,
affected residents, and, if possible, their legal representatives,
and the opportunity to participate in the appeal. Appeal procedure
shall include an option for review by an administrative law judge.

   (b)  The amount of the civil penalty shall not be less than
 twenty-five dollars ($25)   one hundred dollars
($100)  or more than  fifty dollars ($50) 
 two hundred fifty dollars ($250)  per day for each
violation of this  chapter 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 the department. In no event, shall a civil
penalty assessment exceed one hundred fifty dollars ($150) per day
per violation.   chapter, or of any regulations adopted
by the department pursuant to this chapter. When assessed, the
per-day civil penalty shall end once the licensee submits
documentation of   correction, if the correction is verified
by the department. 
   (c) Notwithstanding Section 1569.33, the department shall assess
an immediate civil penalty of  one hundred fifty dollars
($150)   one thousand dollars ($1,000)  per day per
violation for any of the following serious violations:
   (1) (A) 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:
   (i) Requested the appropriate fire clearance based on ambulatory,
nonambulatory, or bedridden status, and the decision is pending.
   (ii) Initiated eviction proceedings.
   (B) A licensee denied a clearance for bedridden residents may
appeal to the fire authority, and, if that appeal is denied, may
subsequently appeal to the Office of the State Fire Marshal, and
shall not be assessed an immediate civil penalty until the final
appeal is decided, or after 60 days has passed from the date of the
citation, whichever is earlier.
   (2) Absence of supervision as required by statute or regulation.
   (3) Accessible bodies of water, when prohibited in this chapter or
regulations adopted pursuant to this chapter.
   (4) Accessible firearms, ammunition, or both.
   (5) Refused entry to a facility or any part of a facility in
violation of Section 1569.32, 1569.33, or 1569.35.
   (6) The presence of an excluded person on the premises. 
   (d) For a violation that the department determines was the direct
proximate cause of death to a resident, the minimum civil penalty
shall be five thousand dollars ($5,000) and the maximum civil penalty
shall be fifteen thousand dollars ($15,000).  
   (e) For a violation that the department determines was the direct
proximate cause of "serious bodily injury" as defined in Section
15610.67 of the Welfare and Institutions Code, the minimum civil
penalty shall be one thousand dollars ($1,000) and the maximum civil
penalty shall be ten thousand dollars ($10,000).  
   (f) For a violation that the department determines constitutes
"physical abuse" as defined in Section 15610.63 of the Welfare and
Institutions Code, but does not result in "serious bodily injury" as
defined in Section 15610.67 of the Welfare and Institutions Code, and
it is determined by the department that the abuse was committed by
the licensee or an employee of the licensee, the minimum civil
penalty shall be five hundred dollars ($500) and the maximum civil
penalty shall be two thousand five hundred dollars ($2,500). 

   (g) (1) In any action to enforce a citation issued under
subdivisions (d) or (e), the department shall have the burden of
proving both of the following:  
   (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.
 
   (2) If the department meets its burden of proof, the licensee
shall have the burden of proving that the licensee did what might
reasonably be expected of a residential care facility for the elderly
licensee, acting under similar circumstances, to comply with the
statute or regulation. If the licensee sustains this burden, then the
citation shall be dismissed.  
   (h) Prior to the issuance of a citation imposing a civil penalty
under subdivision (d) or (e), the decision shall be reviewed by the
department's legal division and approved by the deputy director.
 
   (d) 
    (i)  Notwithstanding Section 1569.33, any residential
care facility for the elderly 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)   one thousand
dollars ($1,000) and, thereafter, an ongoing civil penalty of two
hundred dollars ($200)  for each day the violation continues
until the  licensee submits documentation demonstrating that the
 deficiency is corrected  , if the correction is verified by
the department . 
   (e) 
    (j)  Any residential care facility for the elderly that
is assessed a civil penalty pursuant to subdivision  (d)
which   (i) that  repeats the same violation of
this chapter within 12 months of the violation subject to subdivision
 (d)   (i)  shall be assessed an immediate
civil penalty of  one thousand dollars ($1,000) and one
hundred dollars ($100)   two thousand dollars($2,000)
and, thereafter, an ongoing civil penalty of two hundred dollars
($200)  for each day the violation continues until the 
licensee submits documentation demonstrating that the 
deficiency is corrected  , if the correction is verified by the
department  . 
   (k) In assessing a civil penalty for a violation under this
section, the department shall consider all relevant information,
including, but not limited to, both of the following:  
   (1) The probability and severity of the risk of harm that the
violation presents to the resident's mental and physical condition.
 
   (2) The good faith efforts of the facility to prevent the
violation from occurring.  
   (l) In any enforcement actions taken by the department, the
licensee shall be liable for the acts and omissions of its officers
and employees.  
   (f) 
    (m)  The department shall adopt regulations implementing
this section. 
   (n) The department shall, by January 1, 2016, adopt amendments to
its regulations adopted pursuant to this section in order to
incorporate changes necessary to accommodate amendments to this
section made by the act that added this subdivision. The regulations
adopted or amended by the department pursuant to subdivision (m)
shall remain in effect until amended by the department pursuant to
this subdivision.