(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.