Bill Text: CA AB486 | 2023-2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Long-term health facilities: citation appeals.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed) 2024-06-17 - From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on JUD. [AB486 Detail]

Download: California-2023-AB486-Introduced.html

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CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 486

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Introduced by Assembly Member Kalra

February 07, 2023

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An act to amend Section 1428 of the Health and Safety Code, relating to health facilities.

LEGISLATIVE COUNSEL'S DIGEST

AB 486, as introduced, Kalra. Long-term health facilities: citation appeals.

The Long-Term Care, Health, Safety, and Security Act of 1973 generally requires the State Department of Public Health to license and regulate long-term health care facilities and to establish an inspection and reporting system to ensure that long-term health care facilities are in compliance with state statutes and regulations.

The act defines a class “A” violation as a violation that the department determines presents either (1) imminent danger that death or serious harm to the patients or residents of the long-term health care facility would result therefrom, or (2) substantial probability that death or serious physical harm to patients or residents of the long-term health care facility would result therefrom. The act defines a class “AA” violation as a class “A” violation that the department determines to have been a substantial factor in the death of a resident of a long-term health care facility. The act defines a class “B” violation as a violation that the department determines has a direct or immediate relationship to the health, safety, or security of long-term health care facility patients or residents, other than class “AA” or “A” violations. Class “B” violations are also, unless otherwise determined by the department to be a class “A” violation, any violation of a patient’s rights as set forth in specified regulations that is determined by the department to cause, or under circumstances likely to cause, significant humiliation, indignity, anxiety, or other emotional trauma to a patient.

Under existing law, if a licensee decides to contest a class “AA” or “A” citation, the licensee is required, within 15 business days of the service of the citation, to inform the director of the licensee’s intent to adjudicate the validity of the violation in the superior court, and to file that action within 90 days, as specified. Existing law requires a licensee who desires to contest a class “B” citation to, within 15 working days after service of the citation, notify the director or the director’s designee that the licensee wishes to appeal the citation through specified department administrative adjudicatory procedures, or elects to submit the matter to binding arbitration through the American Arbitration Association.

This bill would delete the civil action provisions for contesting a class “AA” or “A” citation under these provisions, and would make those citation classifications subject to the administrative proceedings applicable for contesting a class “B” citation. The bill would make related conforming changes and various technical, nonsubstantive changes.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1428 of the Health and Safety Code is amended to read:

1428.

 (a) If the licensee desires to contest a citation or the proposed assessment of a civil penalty therefor, the licensee shall use the processes described in subdivisions (b) and (c) subdivision (b) for classes “AA,” “A,” or “B” citations.

(b)If a licensee intends to contest a class “AA” or a class “A” citation, the licensee shall inform the director in writing, within 15 business days of the service of the citation of the licensee’s intent to adjudicate the validity of the citation in the superior court in the county in which the long-term health care facility is located. In order to perfect a judicial appeal of a contested citation, a licensee shall file a civil action in the superior court in the county in which the long-term health care facility is located. The action shall be filed no later than 90 calendar days after a licensee notifies the director that he or she intends to contest the citation, and served not later than 90 days after filing. Notwithstanding any other provision of law, a licensee prosecuting a judicial appeal shall file and serve a case management statement pursuant to Rule 212 of the California Rules of Court within six months after the department files its answer in the appeal. Notwithstanding subdivision (d), the court shall dismiss the appeal upon motion of the department if the case management statement is not filed by the licensee within the period specified. The court may affirm, modify, or dismiss the citation, the level of the citation, or the amount of the proposed assessment of the civil penalty.

(b) (1) If a licensee desires to contest a class “AA” or “A” citation, the licensee shall, within 15 working days after service of the citation, notify the director or the director’s designee that the licensee wishes to appeal the citation through the procedures set forth in Section 100171.

(c)

(2) If a licensee desires to contest a class “B” citation, the licensee shall, within 15 working days after service of the citation, notify the director or the director’s designee that he or she the licensee wishes to appeal the citation through the procedures set forth in Section 100171 or elects to submit the matter to binding arbitration in accordance with subdivision (d). (c). The

(3) The administrative law judge may affirm, modify, or dismiss the citation citation, the level of the citation, or the proposed assessment of a civil penalty. The licensee may choose to have his or her their appeal heard by the administrative law judge or submit the matter to binding arbitration by notifying the director in writing within 15 business days of the service of the citation.

(d)

(c) If a licensee is dissatisfied with the decision of the administrative law judge, the licensee may, in lieu of seeking judicial review of the decision as provided in Section 1094.5 of the Code of Civil Procedure, elect to submit the matter to binding arbitration by filing, within 60 days of its receipt of the decision, a request for arbitration with the American Arbitration Association. The parties shall agree upon an arbitrator designated from the American Arbitration Association in accordance with the association’s established rules and procedures. The arbitration hearing shall be set within 45 days of the election to arbitrate, but in no event less than 28 days from the date of selection of an arbitrator. The arbitration hearing may be continued up to 15 additional days if necessary at the arbitrator’s discretion. Except as otherwise specifically provided in this subdivision, the arbitration hearing shall be conducted in accordance with the American Arbitration Association’s established rules and procedures. The arbitrator shall determine whether the licensee violated the regulation or regulations cited by the department, and whether the citation meets the criteria established in Sections 1423 and 1424. If the arbitrator determines that the licensee has violated the regulation or regulations cited by the department, and that the class of the citation should be upheld, the proposed assessment of a civil penalty shall be affirmed, subject to the limitations established in Section 1424. The licensee and the department shall each bear its respective portion of the cost of arbitration. A resident, or his or her the resident’s designated representative, or both, may make an oral or written statement regarding the citation, at any arbitration hearing to which the matter has been submitted.

(e)

(d) If an appeal is prosecuted under this section, including an appeal taken in accordance with Section 100171, the department shall have the burden of establishing by a preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged violation met the criteria for the class of citation alleged, and (3) the assessed penalty was appropriate. The department shall also have the burden of establishing by a preponderance of the evidence that the assessment of a civil penalty should be upheld. If a licensee appeals a contested citation or the assessment of a civil penalty, no civil penalty shall the civil penalty shall not be due and payable unless and until the appeal is terminated in favor of the department.

(f)

(e) In assessing the civil penalty for a violation, all relevant facts shall be considered, including, but not limited to, all of the following:

(1) The probability and severity of the risk which the violation presents to the patient’s or resident’s mental and physical condition.

(2) The patient’s or resident’s medical condition.

(3) The patient’s or resident’s mental condition and his or her history of mental disability.

(4) The good faith efforts exercised by the facility to prevent the violation from occurring.

(5) The licensee’s history of compliance with regulations.

(g)

(f) Except as otherwise provided in this subdivision, an assessment of civil penalties for a class “A” or class “B” violation shall be trebled and collected for a second and subsequent violation for which a citation of the same class was issued within any 12-month period. Trebling shall occur only if the first citation issued within the 12-month period was issued in the same class, a civil penalty was assessed, and a plan of correction was submitted for the previous same-class violation occurring within the period, without regard to whether the action to enforce the previous citation has become final. However, the increment to the civil penalty required by this subdivision shall not be due and payable unless and until the previous action has terminated in favor of the department.

If the class “B” citation is issued for a patient’s rights violation, as defined in subdivision (e) of Section 1424, it shall not be trebled unless the department determines the violation has a direct or immediate relationship to the health, safety, security, or welfare of long-term health care facility residents.

(h)

(g) The director shall prescribe procedures for the issuance of a notice of violation with respect to violations having only a minimal relationship to safety or health.

(i)

(h) Actions brought under this chapter shall be set for trial hearing by an administrative law judge at the earliest possible date and shall take precedence on the court calendar over all other cases except matters matters except those to which equal or superior precedence is specifically granted by law. In addition, actions for class “AA” and “A” violations shall take precedence over actions for class “B” violations. Times for responsive pleading and for hearing the proceeding shall be set by the judge of the court administrative law judge, pursuant to Section 100171, with the object of securing a decision as to subject matters at the earliest possible time.

(j)

(i) If the citation is dismissed, the department shall take action immediately to ensure that the public records reflect in a prominent manner that the citation was dismissed.

(k)

(j) Penalties paid on violations under this chapter shall be applied against the department’s accounts to offset any costs incurred by the state pursuant to this chapter. Any costs or penalties assessed pursuant to this chapter shall be paid within 30 days of the date the decision becomes final. If a facility does not comply with this requirement, the state department shall withhold any payment under the Medi-Cal program until the debt is satisfied. No payment shall Payment shall not be withheld if the department determines that it would cause undue hardship to the facility or to patients or residents of the facility.

(l) The amendments made to subdivisions (a) and (c) of this section by Chapter 84 of the Statutes of 1988, to extend the number of days allowed for the provision of notification to the director, do not affect the right, that is also contained in those amendments, to request judicial relief from these time limits.

(m) If a licensee exercises its right to a citation review conference prior to January 1, 2012, the citation review conference and all notices, reviews, and appeals thereof shall be conducted pursuant to this section as it read on December 31, 2011.