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
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
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Amended
IN
Senate
July 03, 2023 |
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Amended
IN
Assembly
May 22, 2023 |
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Amended
IN
Assembly
March 22, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 486
| Introduced by Assembly Member Kalra (Coauthor: Senator Rubio) |
February 07, 2023 |
An act to amend Section 1428 of of, and to add and repeal Section 1428.3 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.
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, 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. The bill would make related conforming changes and various technical, nonsubstantive changes.
Notwithstanding those provisions, the bill would delay application of its changes with respect to contesting class “AA”and class “A” citations with respect to the Laguna Honda Hospital and Rehabilitation Center as specified, until the earlier of January 1, 2025, or 30 days after the facility provides documentation to the department regarding its recertification to participate in the federal Medicare and Medicaid programs. Until that time, the bill would authorize the facility to appeal class “AA” and class “A” citations to the superior court in the same manner as provided under existing law, as specified. The bill would repeal that authorization on January 1, 2026.
This bill would make legislative findings and declarations as to the necessity of a special statute for the Laguna Honda Hospital and Rehabilitation Center in the City and
County of San Francisco.
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 class “AA” or “A” citations, or subdivision (c) for class “B” citations.(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.
(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 paragraph (2).
The administrative law judge may affirm, modify, or dismiss the citation, the 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. The licensee may seek judicial review of an administrative law judge’s decision pursuant to Section 1094.5 of the Code of Civil Procedure.
(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, 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.
SEC. 2.
Section 1428.3 is added to the Health and Safety Code, to read:1428.3.
(a) Notwithstanding subdivision (b) of Section 1428, if the Laguna Honda Hospital and Rehabilitation Center in the City and County of San Francisco is decertified by the federal Centers for Medicare and Medicaid Services as of January 1, 2024, that facility may continue to appeal class “A” and “AA” citations to the superior court in accordance with the requirements of subdivision (b) of Section 1428, as amended by Section 5 of Chapter 729 of the Statutes of 2011, until January 1, 2026, or 30 days after the date the licensee provides the State Department of Public Health with documentation that the facility has been recertified to participate in both the federal Medicare and Medicaid programs, whichever occurs first.(b) This
section shall remain in effect only until January 1, 2026, and as of that date is repealed.
