Bill Text: CA AB486 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Amended.html
classes “AA,” “A,” or class “AA” or “A” citations, or subdivision (c) for class “B” citations.
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-Amended.html
|
Amended
IN
Assembly
March 22, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 486
| Introduced by Assembly Member Kalra |
February 07, 2023 |
An act to amend Section 1428 of the Health and Safety Code, relating to health facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 486, as amended, 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 divides violations into classes AA, A, and B, depending on the severity and probability of the harm resulting or that could result from the violation.
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. Existing law authorizes a licensee that disagrees with the determination of an administrative law judge to seek judicial review.
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 authorize an administrative law judge to affirm, modify, or dismiss a citation, the class of a citation, or the proposed penalty. The bill would authorize a licensee to seek judicial review of an administrative law judge’s decision in the context of a class “AA” or “A” citation and would authorize a licensee to elect to submit the decision of an administrative law judge to arbitration for 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: NOBill 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 subdivision (b) for(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.
The administrative law judge may affirm, modify, or dismiss the citation, the class of the citation, or the proposed assessment of a civil penalty.
(2) If a licensee is dissatisfied with the decision of the administrative law judge, the licensee may seek judicial review of the decision pursuant to Section 1094.5 of the Code of Civil Procedure.
(2)
(c) (1) 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 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 (c). paragraph (2).
(3)The
The administrative law judge may affirm, modify, or dismiss the citation, the level
class of the citation, or the proposed assessment of a civil penalty. The licensee may choose to have 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.
(c)
(2) 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, may 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 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.
(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, the civil penalty shall not be due and payable unless and until the appeal is terminated in favor of the department.
(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
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.
(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.
(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.
(h) Actions brought under this chapter shall be set for
hearing by an administrative law judge at the earliest possible date and shall take precedence over all other 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
administrative law judge, pursuant to Section 100171, with the object of securing a decision as to subject matters at the earliest possible time.
(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.
(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.
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.
