BILL NUMBER: AB 641 CHAPTERED
BILL TEXT
CHAPTER 729
FILED WITH SECRETARY OF STATE OCTOBER 9, 2011
APPROVED BY GOVERNOR OCTOBER 9, 2011
PASSED THE SENATE SEPTEMBER 7, 2011
PASSED THE ASSEMBLY SEPTEMBER 8, 2011
AMENDED IN SENATE AUGUST 23, 2011
AMENDED IN SENATE JULY 14, 2011
AMENDED IN SENATE JUNE 28, 2011
AMENDED IN ASSEMBLY MAY 10, 2011
AMENDED IN ASSEMBLY APRIL 14, 2011
AMENDED IN ASSEMBLY APRIL 6, 2011
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Feuer
(Coauthors: Assembly Members Ammiano, Atkins, Blumenfield, and
Huffman)
FEBRUARY 16, 2011
An act to amend Sections 1423, 1424, 1424.5, 1428, 1428.2, and
1429 of, and to repeal Section 1417.5 of, the Health and Safety Code,
and to add Section 14015.12 to the Welfare and Institutions Code,
relating to long-term care.
LEGISLATIVE COUNSEL'S DIGEST
AB 641, Feuer. Long-term care.
The existing Long-Term Care, Health, Safety, and Security Act of
1973 establishes an inspection and reporting system and a provisional
licensing mechanism, administered by the State Department of Public
Health, to ensure that long-term health care facilities, as defined,
are in compliance with state statutes, regulations, and federal
standards pertaining to patient care. The act requires the
department, if it determines that a violation of any state or federal
law or regulation relating to the operation or maintenance of the
facility warrants the issuance of a citation, to take specified
actions regarding federal enforcement remedies and citations. The act
prohibits the issuance of both a citation pursuant to state laws and
the recommendation that a federal civil monetary penalty be imposed.
This bill would delete this prohibition.
The act establishes a citation and appeals process, that includes
a citation review conference.
This bill would repeal the citation review conference process and
make conforming changes.
Existing law provides for the Medi-Cal program, which is
administered by the State Department of Health Care Services, under
which qualified low-income individuals receive health care services.
The Medi-Cal program is, in part, governed and funded by federal
Medicaid Program provisions. Existing law requires the State
Department of Health Care Services to consider whether an undue
hardship, as described, exists prior to finding that an applicant or
recipient is subject to a period of ineligibility for medical
assistance for home and facility care.
This bill would require the State Department of Health Care
Services to also consider whether an undue hardship exists for an
applicant for, or recipient of, home and facility care under
additional circumstances relating to the transfer of assets.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1417.5 of the Health and Safety Code is
repealed.
SEC. 2. Section 1423 of the Health and Safety Code is amended to
read:
1423. (a) If upon inspection or investigation the director
determines that any nursing facility is in violation of any state or
federal law or regulation relating to the operation or maintenance of
the facility, or determines that any other long-term health care
facility is in violation of any statutory provision or regulation
relating to the operation or maintenance of the facility, the
director shall promptly, but not later than 24 hours, excluding
Saturday, Sunday, and holidays, after the director determines or has
reasonable cause to determine that an alleged violation has occurred,
issue a notice to correct the violation and of intent to issue a
citation to the licensee. Before completing the investigation and
making the determination whether to issue a citation, the department
shall hold an exit conference with the licensee to identify the
potential for issuing a citation for any violation, discuss
investigative findings, and allow the licensee to provide the
department with additional information related to the violation. The
department shall consider this additional information, in conjunction
with information from the inspection or investigation, in
determining whether to issue a citation, or whether other action
would be appropriate. If the department determines that the violation
warrants the issuing of a citation and an exit conference has been
completed it shall either:
(1) Recommend the imposition of a federal enforcement remedy or
remedies on a nursing facility in accordance with federal law; or
(2) Issue a citation pursuant to state licensing laws, and if the
facility is a nursing facility, may recommend the imposition of a
federal enforcement remedy.
A state citation shall be served upon the licensee within three
days after completion of the investigation, excluding Saturday,
Sunday, and holidays, unless the licensee agrees in writing to an
extension of time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a
reference to the statutory provision, standard, rule, or regulation
alleged to have been violated, the particular place or area of the
facility in which it occurred, as well as the amount of any proposed
assessment of a civil penalty. The name of any patient jeopardized by
the alleged violation shall not be specified in the citation in
order to protect the privacy of the patient. However, at the time the
licensee is served with the citation, the licensee shall also be
served with a written list of each of the names of the patients
alleged to have been jeopardized by the violation, that shall not be
subject to disclosure as a public record. The citation shall fix the
earliest feasible time for the elimination of the condition
constituting the alleged violation, when appropriate.
(b) Where no harm to patients, residents, or guests has occurred,
a single incident, event, or occurrence shall result in no more than
one citation for each statute or regulation violated.
(c) No citation shall be issued for a violation that has been
reported by the licensee to the state department, or its designee, as
an "unusual occurrence," if all of the following conditions are met:
(1) The violation has not caused harm to any patient, resident, or
guest, or significantly contributed thereto.
(2) The licensee has promptly taken reasonable measures to correct
the violation and to prevent a recurrence.
(3) The unusual occurrence report was the first source of
information reported to the state department, or its designee,
regarding the violation.
SEC. 3. Section 1424 of the Health and Safety Code, as amended by
Section 6 of Chapter 4 of the First Extraordinary Session of the
Statutes of 2011, is amended to read:
1424. Citations issued pursuant to this chapter shall be
classified according to the nature of the violation and shall
indicate the classification on the face thereof.
(a) In determining the amount of the civil penalty, all relevant
facts shall be considered, including, but not limited to, the
following:
(1) The probability and severity of the risk that 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 or disorder.
(4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
(5) The licensee's history of compliance with regulations.
(b) Relevant facts considered by the department in determining the
amount of the civil penalty shall be documented by the department on
an attachment to the citation and available in the public record.
This requirement shall not preclude the department or a facility from
introducing facts not listed on the citation to support or challenge
the amount of the civil penalty in any proceeding set forth in
Section 1428.
(c) Class "AA" violations are violations that meet the criteria
for a class "A" violation and that the state department determines to
have been a direct proximate cause of death of a patient or resident
of a long-term health care facility. Except as provided in Section
1424.5, a class "AA" citation is subject to a civil penalty in the
amount of not less than five thousand dollars ($5,000) and not
exceeding twenty-five thousand dollars ($25,000) for each citation.
In any action to enforce a citation issued under this subdivision,
the state department shall prove all of the following:
(1) The violation was a direct proximate cause of death of a
patient or resident.
(2) The death resulted from an occurrence of a nature that the
regulation was designed to prevent.
(3) The patient or resident suffering the death was among the
class of persons for whose protection the regulation was adopted.
If the state department meets this burden of proof, the licensee
shall have the burden of proving that the licensee did what might
reasonably be expected of a long-term health care facility licensee,
acting under similar circumstances, to comply with the regulation. If
the licensee sustains this burden, then the citation shall be
dismissed.
Except as provided in Section 1424.5, for each class "AA" citation
within a 12-month period that has become final, the state department
shall consider the suspension or revocation of the facility's
license in accordance with Section 1294. For a third or subsequent
class "AA" citation in a facility within that 12-month period that
has been sustained, the state department shall commence action to
suspend or revoke the facility's license in accordance with Section
1294.
(d) Class "A" violations are violations which the state department
determines present 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. A physical
condition or one or more practices, means, methods, or operations in
use in a long-term health care facility may constitute a class "A"
violation. The condition or practice constituting a class "A"
violation shall be abated or eliminated immediately, unless a fixed
period of time, as determined by the state department, is required
for correction. Except as provided in Section 1424.5, a class "A"
citation is subject to a civil penalty in an amount not less than one
thousand dollars ($1,000) and not exceeding ten thousand dollars
($10,000) for each and every citation.
If the state department establishes that a violation occurred, the
licensee shall have the burden of proving that the licensee did what
might reasonably be expected of a long-term health care facility
licensee, acting under similar circumstances, to comply with the
regulation. If the licensee sustains this burden, then the citation
shall be dismissed.
(e) Except as provided in paragraph (4) of subdivision (a) of
Section 1424.5, class "B" violations are violations that the state
department determines have 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.
Unless otherwise determined by the state department to be a class "A"
violation pursuant to this chapter and rules and regulations adopted
pursuant thereto, any violation of a patient's rights as set forth
in Sections 72527 and 73523 of Title 22 of the California Code of
Regulations, that is determined by the state department to cause or
under circumstances likely to cause significant humiliation,
indignity, anxiety, or other emotional trauma to a patient is a class
"B" violation. A class "B" citation is subject to a civil penalty in
an amount not less than one hundred dollars ($100) and not exceeding
one thousand dollars ($1,000) for each and every citation. A class
"B" citation shall specify the time within which the violation is
required to be corrected. If the state department establishes that a
violation occurred, the licensee shall have the burden of proving
that the licensee did what might reasonably be expected of a
long-term health care facility licensee, acting under similar
circumstances, to comply with the regulation. If the licensee
sustains this burden, then the citation shall be dismissed.
In the event of any citation under this paragraph, if the state
department establishes that a violation occurred, the licensee shall
have the burden of proving that the licensee did what might
reasonably be expected of a long-term health care facility licensee,
acting under similar circumstances, to comply with the regulation. If
the licensee sustains this burden, then the citation shall be
dismissed.
(f) (1) Any willful material falsification or willful material
omission in the health record of a patient of a long-term health care
facility is a violation.
(2) "Willful material falsification," as used in this section,
means any entry in the patient health care record pertaining to the
administration of medication, or treatments ordered for the patient,
or pertaining to services for the prevention or treatment of
decubitus ulcers or contractures, or pertaining to tests and
measurements of vital signs, or notations of input and output of
fluids, that was made with the knowledge that the records falsely
reflect the condition of the resident or the care or services
provided.
(3) "Willful material omission," as used in this section, means
the willful failure to record any untoward event that has affected
the health, safety, or security of the specific patient, and that was
omitted with the knowledge that the records falsely reflect the
condition of the resident or the care or services provided.
(g) Except as provided in subdivision (a) of Section 1424.5, a
violation of subdivision (f) may result in a civil penalty not to
exceed ten thousand dollars ($10,000), as specified in paragraphs (1)
to (3), inclusive.
(1) The willful material falsification or willful material
omission is subject to a civil penalty of not less than two thousand
five hundred dollars ($2,500) or more than ten thousand dollars
($10,000) in instances where the health care record is relied upon by
a health care professional to the detriment of a patient by
affecting the administration of medications or treatments, the
issuance of orders, or the development of plans of care. In all other
cases, violations of this subdivision are subject to a civil penalty
not exceeding two thousand five hundred dollars ($2,500).
(2) Where the penalty assessed is one thousand dollars ($1,000) or
less, the violation shall be issued and enforced, except as provided
in this subdivision, in the same manner as a class "B" violation,
and shall include the right of appeal as specified in Section 1428.
Where the assessed penalty is in excess of one thousand dollars
($1,000), or for skilled nursing facilities or intermediate care
facilities as specified in paragraphs (1) and (2) of subdivision (a)
of Section 1418, in excess of two thousand dollars ($2,000), the
violation shall be issued and enforced, except as provided in this
subdivision, in the same manner as a class "A" violation, and shall
include the right of appeal as specified in Section 1428.
Nothing in this section shall be construed as a change in previous
law enacted by Chapter 11 of the Statutes of 1985 relative to this
paragraph, but merely as a clarification of existing law.
(3) Nothing in this subdivision shall preclude the state
department from issuing a class "A" or class "B" citation for any
violation that meets the requirements for that citation, regardless
of whether the violation also constitutes a violation of this
subdivision. However, no single act, omission, or occurrence may be
cited both as a class "A" or class "B" violation and as a violation
of this subdivision.
(h) Where the licensee has failed to post the notices as required
by Section 9718 of the Welfare and Institutions Code in the manner
required under Section 1422.6, the state department shall assess the
licensee a civil penalty in the amount of one hundred dollars ($100)
for each day the failure to post the notices continues. Where the
total penalty assessed is less than two thousand dollars ($2,000),
the violation shall be issued and enforced in the same manner as a
class "B" violation, and shall include the right of appeal as
specified in Section 1428. Where the assessed penalty is equal to or
in excess of two thousand dollars ($2,000), the violation shall be
issued and enforced in the same manner as a class "A" violation and
shall include the right of appeal as specified in Section 1428. Any
fines collected pursuant to this subdivision shall be used to fund
the costs incurred by the California Department of Aging in producing
and posting the posters.
(i) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to patient safety or health.
(j) The department shall provide a copy of all citations issued
under this section to the affected residents whose treatment was the
basis for the issuance of the citation, to the affected residents'
designated family member or representative of each of the residents,
and to the complainant if the citation was issued as a result of a
complaint.
(k) Nothing in this section is intended to change existing
statutory or regulatory requirements governing the ability of a
licensee to contest a citation pursuant to Section 1428.
(l) The department shall ensure that district office activities
performed under Sections 1419 to 1424, inclusive, are consistent with
the requirements of these sections and all applicable laws and
regulations. To ensure the integrity of these activities, the
department shall establish a statewide process for the collection of
postsurvey evaluations from affected facilities.
SEC. 4. Section 1424.5 of the Health and Safety Code, as amended
by Section 7 of Chapter 4 of the First Extraordinary Session of the
Statutes of 2011, is amended to read:
1424.5. (a) In lieu of the fines specified in subdivisions (c),
(d), (e), and (g) of Section 1424, fines imposed on skilled nursing
facilities or intermediate care facilities, as specified in
paragraphs (1) and (2) of subdivision (a) of Section 1418, shall be
as follows:
(1) A class "AA" citation is subject to a civil penalty in an
amount not less than twenty-five thousand dollars ($25,000) and not
exceeding one hundred thousand dollars ($100,000) for each and every
citation. For a second or subsequent class "AA" citation in a skilled
nursing facility or intermediate care facility within a 24-month
period, the state department shall commence action to suspend or
revoke the facility's license in accordance with Section 1294.
(2) A class "A" citation is subject to a civil penalty in an
amount not less than two thousand dollars ($2,000) and not exceeding
twenty thousand dollars ($20,000) for each and every citation.
(3) Any "willful material falsification" or "willful material
omission," as those terms are defined in subdivision (f) of Section
1424, in the health record of a resident is subject to a civil
penalty in an amount not less than two thousand dollars ($2,000) and
not exceeding twenty thousand dollars ($20,000) for each and every
citation.
(4) A class "B" citation is subject to a civil penalty in an
amount not less than one hundred dollars ($100) and not exceeding two
thousand dollars ($2,000) for each and every citation. Class "B"
violations are violations that the state department determines have 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. Unless otherwise determined by the
state department to be a class "A" violation pursuant to this chapter
and rules and regulations adopted pursuant thereto, any violation of
a patient's rights as set forth in Sections 72527 and 73523 of Title
22 of the California Code of Regulations, that is determined by the
state department to cause, or under circumstances to be likely to
cause, significant humiliation, indignity, anxiety, or other
emotional trauma to a patient is a class "B" violation. A class "B"
citation shall specify the time within which the violation is
required to be corrected. If the state department establishes that a
violation occurred, the licensee shall have the burden of proving
that the licensee did what might reasonably be expected of a
long-term health care facility licensee, acting under similar
circumstances, to comply with the regulation. If the licensee
sustains this burden, then the citation shall be dismissed.
(b) A licensee may, in lieu of contesting a class "AA" or class "A"
citation pursuant to Section 1428, transmit to the state department,
the minimum amount specified by law, or 65 percent of the amount
specified in the citation, whichever is greater, for each violation,
within 30 business days after the issuance of the citation.
SEC. 5. 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) 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.
(c) 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 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). The administrative law judge may
affirm, modify, or dismiss the citation or the proposed assessment of
a civil penalty. The licensee may choose to have his or her 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) 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 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) 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 be due and payable unless and until the appeal is
terminated in favor of the department.
(f) 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) 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) 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) Actions brought under this chapter shall be set for trial at
the earliest possible date and shall take precedence on the court
calendar over all other cases except matters to which equal or
superior precedence is specifically granted by law. Times for
responsive pleading and for hearing the proceeding shall be set by
the judge of the court with the object of securing a decision as to
subject matters at the earliest possible time.
(j) 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) 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 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.
SEC. 6. Section 1428.2 of the Health and Safety Code is amended to
read:
1428.2. In the case of a class "A" or class "AA" citation issued
to a long-term health care facility which is appealed, the citation
shall expire and have no further legal effect, if the Attorney
General has not filed an action in the court of competent
jurisdiction, within one year from the date the facility notifies the
State Department of Public Health of its intent to contest the
citation in court.
SEC. 7. Section 1429 of the Health and Safety Code is amended to
read:
1429. (a) Each class "AA" and class "A" citation specified in
subdivisions (c) and (d) of Section 1424 that is issued, or a copy or
copies thereof, shall be prominently posted for 120 days. The
citation or copy shall be posted in a place or places in plain view
of the patients or residents in the long-term health care facility,
persons visiting those patients or residents, and persons who inquire
about placement in the facility.
(1) The citation shall be posted in at least the following
locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, such as
dining, resident council meetings, or activities.
(2) The citation, along with a cover sheet, shall be posted on a
white or light-colored sheet of paper, at least 81/2 by 11 inches in
size, that includes all of the following information:
(A) The full name of the facility, in a clear and easily readable
font in at least 28-point type.
(B) The full address of the facility, in a clear and easily
readable font in at least 20-point type.
(C) Whether the citation is class "AA" or class "A."
(3) The facility may post the plan of correction.
(4) The facility may post a statement disputing the citation or a
statement showing the appeal status, or both.
(5) The facility may remove and discontinue the posting required
by this section if the citation is withdrawn or dismissed by the
department.
(b) Each class "B" citation specified in subdivision (e) of
Section 1424 that is issued pursuant to this section and that has
become final, or a copy or copies thereof, shall be retained by the
licensee at the facility cited until the violation is corrected to
the satisfaction of the department. Each citation shall be made
promptly available by the licensee for inspection or examination by
any member of the public who so requests. In addition, every licensee
shall post in a place or places in plain view of the patient or
resident in the long-term health care facility, persons visiting
those patients or residents, and persons who inquire about placement
in the facility, a prominent notice informing those persons that
copies of all final uncorrected citations issued by the department to
the facility will be made promptly available by the licensee for
inspection by any person who so requests.
(c) A violation of this section shall constitute a class "B"
violation, and shall be subject to a civil penalty in the amount of
one thousand dollars ($1,000), as provided in subdivision (e) of
Section 1424. Notwithstanding Section 1290, a violation of this
section shall not constitute a crime. Fines imposed pursuant to this
section shall be deposited into the State Health Facilities Citation
Penalties Account, created pursuant to Section 1417.2.
SEC. 8. Section 14015.12 is added to the Welfare and Institutions
Code, to read:
14015.12. (a) For the purposes of this section, the following
definitions shall apply:
(1) "Opposite-sex spouse" means a person of the opposite sex who
is legally married to an applicant for, or recipient of, home and
facility care.
(2) "Registered domestic partner" means a person that meets the
requirements of Section 297 of the Family Code and with whom the
applicant for, or recipient of, home and facility care shares the
common residence.
(3) "Same-sex spouse" means a person of the same sex who is
legally married to an applicant for, or recipient of, home and
facility care.
(b) In addition to the requirements of Section 14015.1, the
department shall consider, at initial application or redetermination,
whether an undue hardship, as described in subdivision (c), exists
prior to finding that an applicant or recipient is subject to a
period of ineligibility for medical assistance for home and facility
care pursuant to this article. No person shall be subject to a period
of ineligibility for medical assistance for home and facility care
at the time of the initial application or redetermination if the
department determines that an undue hardship exists.
(c) An undue hardship shall be found to exist under any of the
following circumstances:
(1) The applicant for, or recipient of, home and facility care
transferred all or any portion of his or her ownership interest in
the shared principal residence to his or her same-sex spouse or
registered domestic partner.
(2) (A) Subject to the requirements of subparagraph (B), the
applicant for, or recipient of, home and facility care transferred
his or her ownership interest in resources other than the shared
principal residence to his or her same-sex spouse or registered
domestic partner and the value of those resources does not exceed the
value of resources that the individual could transfer to his or her
same-sex spouse or registered domestic partner and does not exceed
the community spouse resource allowance that would be available to
that person if he or she was an opposite-sex spouse. When considering
whether an undue hardship exists under this paragraph, the Medi-Cal
eligibility determination rules applicable to resource evaluations
for an applicant for, or recipient of, home and facility care and his
or her opposite-sex spouse shall be used to determine the resources
available to an applicant for, or recipient of, home and facility
care and his or her same-sex spouse or registered domestic partner.
(B) If the value of the resources transferred exceeds the limit
specified in subparagraph (A), the amount of resources transferred
that meet the limit shall be subject to the undue hardship exception
specified in subparagraph (A) and the amount of resources transferred
in excess of the limit shall not be subject to an undue hardship
exception under this section and shall be considered a transfer of
assets for less than fair market value.
(3) (A) Subject to the requirements of subparagraph (B), the
applicant for, or recipient of, home and facility care transferred
his or her income or right to receive income to his or her same-sex
spouse or registered domestic partner and the amount of the
transferred income does not exceed the amount of income that the
individual could transfer to his or her same-sex spouse or registered
domestic partner and does not exceed the maximum monthly spousal
income allowance that would be available to that person if he or she
was an opposite-sex spouse. When considering whether an undue
hardship exists under this paragraph, the Medi-Cal eligibility
determination rules applicable to income evaluations for an applicant
for, or recipient of, home and facility care and his or her
opposite-sex spouse shall be used to determine the income available
to an applicant for, or recipient of, home and facility care and his
or her same-sex spouse or registered domestic partner.
(B) If the amount of income transferred exceeds the limit
specified in subparagraph (A), the amount of income transferred that
meets the limit shall be subject to the undue hardship exception
specified in subparagraph (A) and the amount of income transferred in
excess of the limit shall not be subject to an undue hardship
exception under this section and shall continue to be included in the
applicant's or recipient's share of cost. To the extent that the
excess income transferred was the applicant's or recipient's right to
receive a future income stream and that transfer can be revoked, the
applicant or recipient shall revoke the transfer. To the extent that
the transferred income stream cannot be revoked, that future income
stream shall be considered a transfer of assets for less than fair
market value.
(d) This section shall be implemented pursuant to the requirements
of Title XIX of the federal Social Security Act (42 U.S.C. Sec. 1396
et seq.) and any regulations adopted pursuant to that act.
(e) (1) The department shall submit a state plan amendment or seek
other federal approval before implementing the undue hardship
circumstances identified in this section. The department shall
request, in the state plan amendment or other federal approval
request, that the effective date of approval be retroactive to
January 1, 2012.
(2) This section shall be implemented only if, and to the extent
that, a state plan amendment is approved or other federal approval is
obtained and federal financial participation is available.
(f) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
department shall implement this section by means of all-county
letters or similar instructions, without taking regulatory action.
SEC. 9. The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.