AB 1122: Residential care facilities for the elderly: excluded persons.

(a)By January 1, 2017, the department shall prominently display on the left side of its main Internet Web site a link to the comprehensive list of all individuals, and associated information, who have been the subject of an administrative action since January 1, 1990, resulting in a license revocation or denial, or probation, or an individual exclusion or probation, regardless of whether the license revocation, denial, or probation, or individual exclusion or probation has been appealed and a reinstatement was received. The list shall be known as, and may be referred to as, the Excluded Persons Administrative Action List (EPAAL). The list shall contain the following information for each entry:

(1)The name of the individual, including his or her first, middle, and last name.

(2)The name and address, including the city and ZIP Code of the associated facility.

(3)The legal case tracking system case number, including any suffixes.

(4)The type of document, including any attachments, and the date of the document.

(5)The status and effective date of each administrative action taken.

(6)A violation code, using the protocol established in the legal case tracking system.

(7)A comments field, including a notation indicating whether the designation under appeal, denial of appeal, reinstatement, or denial of reinstatement applies.

(b)The list shall be updated and reposted to the Internet Web site every 30 days.

(c)An individual or facility name shall not be removed from the list.

(d)The department shall provide detailed instructions in a prominent place on the departments Internet Web site near or associated with the link to the EPAAL to consumers on how to obtain copies of administrative action documents referred to on the EPAAL.

(a)Each residential care facility for the elderly shall place in a conspicuous place copies of all licensing reports issued by the department within the preceding 12 months, and all licensing reports issued by the department resulting from the most recent annual visit of the department to the facility. This subdivision shall not apply to any portion of a licensing report referring to a complaint that was found by the department to be unfounded or unsubstantiated. The facility, during the admission process, shall inform the resident and the residents responsible person in writing that licensing reports are available for review at the facility, and that copies of licensing reports and other documents pertaining to the facility are available from the appropriate district office of the department. The facility shall provide the telephone number and address of the appropriate district office.

(b)A licensed residential care facility for the elderly shall provide written notice to a resident, the residents responsible party, if any, and the local long-term care ombudsman, within 10 days from the occurrence of either any of the following events:

(1)The department commences proceedings to suspend or revoke the license of the facility pursuant to Section 1569.50.

(2)A criminal action that relates to the health or safety of the residents is brought against the licensed residential care facility.

(c)The notice provided to a resident and the residents responsible party, if any, shall include the name and contact information for the local long-term care ombudsman and for the Community Care Licensing Division of the department with a statement that directs the resident or the residents responsible party to contact the division for information on the license status of the facility.

(d)The notice, described in subdivision (b), provided to a resident and the residents responsible party, if any, shall include the reason given for the commencement of proceedings to suspend or revoke the license of the facility, or the reason given for criminal action brought against the licensed residential care facility, or the reason given pursuant to subdivision (b) of Section 1569.58 for the exclusion of an individual pursuant to any administrative action taken by the department.

(e)Upon providing the notice described in subdivision (b), the licensed residential care facility shall also post a written notice, in at least 14-point type, in a conspicuous location in the facility, that may include where the mail boxes are located, where the facility license is posted, or any other easily accessible location in the facility. The posting shall include all of the following information:

(1)The date of the notice.

(2)The name of the residential care facility for the elderly.

(3)A statement that a copy of the most recent licensing report prepared by the department, and any additional reports of facility evaluation visits, within the preceding 12 months, may be obtained at the facility.

(4)The name and telephone number of the contact person designated by the Community Care Licensing Division of the department to provide information on the license status of the facility.

(f)The notice required to be posted pursuant to subdivision (e) shall remain posted until the deficiencies that gave rise to the notice are resolved.

(g)A licensee who fails to comply with the requirements of subdivision (b) or (c) shall be liable for civil penalties in the amount of one hundred dollars ($100) for each day of the failure to provide notification as required in this section. The total civil penalty for each day shall not exceed one hundred dollars ($100) regardless of the number of notices that the licensee fails to send that day. The total civil penalty for a continuous violation of subdivision (b) or (c) shall not exceed five thousand dollars ($5,000).

(h)For purposes of this section, responsible party means an individual, including the patients relative, health care surrogate decisionmaker, or a placement agency, who assists the resident in placement or assumes varying degrees of responsibility for the well-being of the resident, as designated by the resident in writing.

(a)Placement agency means any county welfare department, county social service department, county mental health department, county public guardian, general acute care hospital discharge planner or coordinator, state-funded program or private agency providing placement or referral services, conservator pursuant to Part 3 (commencing with Section 1800) of Division 4 of the Probate Code, conservator pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code, and regional center for persons with developmental disabilities which is engaged in finding homes or other places for the placement of elderly persons for temporary or permanent care.

(b)A placement agency shall not place individuals in licensed residential care facilities for the elderly when the individual, because of his or her health condition, cannot be cared for within the limits of the license or requires inpatient care in a health facility. Violation of this subdivision is a misdemeanor.

(c)A placement agency or employee of a placement agency shall not place, refer, or recommend placement of a person in a facility providing care and supervision, or protective supervision, unless the facility is licensed as a residential care facility for the elderly or is exempt from licensing under Section 1569.145. Violation A violation of this subdivision is a misdemeanor.

(d)Any employee of a placement agency who knows, or reasonably suspects, that a facility which is not exempt from licensing is operating without a license shall report the name and address of the facility to the department. Failure to report as required by this subdivision is a misdemeanor.

(e)The department shall investigate any report filed under subdivision (d). If the department has probable cause to believe that the facility which is the subject of the report is operating without a license, the department shall investigate the facility within 10 days after receipt of the report.

(f)A placement agency shall notify the appropriate licensing agency of any known or suspected incidents which that would jeopardize the health or safety of residents in a residential care facility for the elderly. Reportable incidents include, but are not limited to, all of the following:

(1)Incidents of physical abuse.

(2)Any violation of personal rights.

(3)Any situation in which a facility is unclean, unsafe, unsanitary, or in poor condition.

(4)Any situation in which a facility has insufficient personnel or incompetent personnel on duty.

(5)Any situation in which residents experience mental or verbal abuse.

(a)In addition to the suspension, temporary suspension, or revocation of a license issued under this chapter, the department may levy a civil penalty.

(b)The amount of the civil penalty shall not be less than twenty-five dollars ($25) or more than fifty dollars ($50) per day for each violation of this chapter except where the nature or seriousness of the violation or the frequency of the violation warrants a higher penalty or an immediate civil penalty assessment, or both, as determined by the department. In no event, shall a civil penalty assessment exceed one hundred fifty dollars ($150) per day per violation.

(c)Notwithstanding Section 1569.33, the department shall assess an immediate civil penalty of one hundred fifty dollars ($150) per day per violation for any of the following serious violations:

(1)(A)Fire clearance violations, including, but not limited to, overcapacity, ambulatory status, inoperable smoke alarms, and inoperable fire alarm systems. The civil penalty shall not be assessed if the licensee has done either of the following:

(i)Requested the appropriate fire clearance based on ambulatory, nonambulatory, or bedridden status, and the decision is pending.

(ii)Initiated eviction proceedings.

(B)A licensee denied a clearance for bedridden residents may appeal to the fire authority, and, if that appeal is denied, may subsequently appeal to the Office of the State Fire Marshal, and shall not be assessed an immediate civil penalty until the final appeal is decided, or after 60 days has passed from the date of the citation, whichever is earlier.

(2)Absence of supervision as required by statute or regulation.

(3)Accessible bodies of water, when prohibited in this chapter or regulations adopted pursuant to this chapter.

(4)Accessible firearms, ammunition, or both.

(5)Refused entry to a facility or any part of a facility in violation of Section 1569.32, 1569.33, or 1569.35.

(6)The presence of an excluded person on the premises.

(d)For a violation that the department determines resulted in the death of a resident, the civil penalty shall be fifteen thousand dollars ($15,000).

(e)For a violation that the department determines constitutes physical abuse, as defined in Section 15610.63 of the Welfare and Institutions Code, or resulted in serious bodily injury, as defined in Section 15610.67 of the Welfare and Institutions Code, to a resident, the civil penalty shall be ten thousand dollars ($10,000).

(f)Prior to the issuance of a citation imposing a civil penalty pursuant to subdivision (d) or (e), the decision shall be approved by the director.

(g)Notwithstanding Section 1569.33, any residential care facility for the elderly that is cited for repeating the same violation of this chapter within 12 months of the first violation is subject to an immediate civil penalty of one hundred fifty dollars ($150) and fifty dollars ($50) for each day the violation continues until the deficiency is corrected.

(h)Any residential care facility for the elderly that is assessed a civil penalty pursuant to subdivision (g) that repeats the same violation of this chapter within 12 months of the violation subject to subdivision (g) shall be assessed an immediate civil penalty of one thousand dollars ($1,000) and one hundred dollars ($100) for each day the violation continues until the deficiency is corrected.

(i)(1)The department shall adopt regulations setting forth the appeal procedures for deficiencies.

(2)A licensee shall have the right to submit to the department a written request for a formal review of a civil penalty assessed pursuant to subdivisions (d) and (e) within 10 days of receipt of the notice of a civil penalty assessment and shall provide all supporting documentation at that time. The review shall be conducted by a regional manager of the Community Care Licensing Division. If the regional manager determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the regional managers decision within 60 days of the request to review the assessment of the civil penalty.

(3)The licensee may further appeal to the program administrator of the Community Care Licensing Division within 10 days of receipt of the notice of the regional managers decision and shall provide all supporting documentation at that time. If the program administrator determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the program administrators decision within 60 days of the request to review the regional managers decision.

(4)The licensee may further appeal to the deputy director of the Community Care Licensing Division within 10 days of receipt of the notice of the program directors decision and shall provide all supporting documentation at that time. If the deputy director determines that the civil penalty was not assessed in accordance with applicable statutes or regulations of the department, he or she may amend or dismiss the civil penalty. The licensee shall be notified in writing of the deputy directors decision within 60 days of the request to review the program administrators decision.

(5)Upon exhausting the deputy director review, a licensee may appeal a civil penalty assessed pursuant to subdivision (d) or (e) to an administrative law judge. Proceedings shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the powers granted by those provisions. In all proceedings conducted in accordance with this section, the standard of proof shall be by a preponderance of the evidence.

(6)If, in addition to an assessment of civil penalties, the department elects to file an administrative action to suspend or revoke the facility license that includes violations relating to the assessment of the civil penalties, the department review of the pending appeal shall cease and the assessment of the civil penalties shall be heard as part of the administrative action process.

(j)The department shall adopt regulations implementing this section.

(k)The department shall, by January 1, 2016, amend its regulations to reflect the changes to this section made by the act that added this subdivision.

(l)This section shall become operative on July 1, 2015.

(a)The department may prohibit any person from being a member of the board of directors, an executive director, a board member, or an officer of a licensee, or a licensee from employing, or continuing the employment of, or allowing in a licensed facility, or allowing contact with clients of a licensed facility by, any employee, prospective employee, or person who is not a client who has:

(1)Violated, or aided or permitted the violation by any other person of, any provisions of this chapter or of any rules or regulations promulgated under this chapter.

(2)Engaged in conduct that is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility, or the people of the State of California.

(3)Been denied an exemption to work or to be present in a facility, when that person has been convicted of a crime as defined in Section 1569.17.

(4)Engaged in any other conduct that would constitute a basis for disciplining a licensee.

(5)Engaged in acts of financial malfeasance concerning the operation of a facility, including, but not limited to, improper use or embezzlement of client moneys and property or fraudulent appropriation for personal gain of facility moneys and property, or willful or negligent failure to provide services for the care of clients.

(b)The excluded person, the facility, and the licensee shall be given written notice of the basis of the departments action and of the excluded persons right to an appeal. The notice shall be served either by personal service or by registered mail. Within 24 hours after receiving the notice of the departments action to exclude the person, the licensee shall post next to the facility license the departments unredacted letter. Following the date of service of the notice, all new admissions shall be notified in writing of the excluded person action. Within 15 days after the department serves the notice, the excluded person may file with the department a written appeal of the exclusion order. If the excluded person fails to file a written appeal within the prescribed time, the departments action shall be final.

(c)(1)The department may require the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility pending a final decision of the matter, when, in the opinion of the director, the action is necessary to protect residents or clients from physical or mental abuse, abandonment, or any other substantial threat to their health or safety.

(2)If the department requires the immediate removal of a member of the board of directors, an executive director, or an officer of a licensee or exclusion of an employee, prospective employee, or person who is not a client from a facility the department shall serve an order of immediate exclusion upon the excluded person that shall notify the excluded person of the basis of the departments action and of the excluded persons right to a hearing.

(3)Within 15 days after the department serves an order of immediate exclusion, the excluded person may file a written appeal of the exclusion with the department. The departments action shall be final if the excluded person does not appeal the exclusion within the prescribed time. The department shall do the following upon receipt of a written appeal:

(A)Within 30 days of receipt of the appeal, serve an accusation upon the excluded person.

(B)Within 60 days of receipt of a notice of defense by the excluded person pursuant to Section 11506 of the Government Code, conduct a hearing on the accusation.

(4)An order of immediate exclusion of the excluded person from the facility shall remain in effect until the hearing is completed and the director has made a final determination on the merits. However, the order of immediate exclusion shall be deemed vacated if the director fails to make a final determination on the merits within 60 days after the original hearing has been completed.

(d)An excluded person who files a written appeal of the exclusion order with the department pursuant to this section shall, as part of the written request, provide his or her current mailing address. The excluded person shall subsequently notify the department in writing of any change in mailing address, until the hearing process has been completed or terminated.

(e)Hearings held pursuant to this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Division 3 of Title 2 of the Government Code. The standard of proof shall be the preponderance of the evidence and the burden of proof shall be on the department.

(f)The department may institute or continue a disciplinary proceeding against a member of the board of directors, an executive director, or an officer of a licensee or an employee, prospective employee, or person who is not a client upon any ground provided by this section. The department may enter an order prohibiting any person from being a member of the board of directors, an executive director, or an officer of a licensee, or prohibiting the excluded persons employment or presence in the facility, or otherwise take disciplinary action against the excluded person, notwithstanding any resignation, withdrawal of employment application, or change of duties by the excluded person, or any discharge, failure to hire, or reassignment of the excluded person by the licensee or that the excluded person no longer has contact with clients at the facility.

(g)A licensees failure to comply with the departments exclusion order after being notified of the order shall be grounds for disciplining the licensee pursuant to Section 1569.50.

(h)(1)(A)In cases where When the excluded person appealed the exclusion order and there is a decision and order of the department upholding the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or from being a certified foster parent for the remainder of the excluded persons life, unless otherwise ordered by the department.

(B)The excluded individual may petition for reinstatement one year after the effective date of the decision and order of the department upholding the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the decision and order.

(2)(A)In cases where When the department informed the excluded person of his or her right to appeal the exclusion order and the excluded person did not appeal the exclusion order, the person shall be prohibited from working in any facility or being licensed to operate any facility licensed by the department or a certified foster parent for the remainder of the excluded persons life, unless otherwise ordered by the department.

(B)The excluded individual may petition for reinstatement after one year has elapsed from the date of the notification of the exclusion order pursuant to Section 11522 of the Government Code. The department shall provide the excluded person with a copy of Section 11522 of the Government Code with the exclusion order.

The department shall conduct an unannounced visit to a facility within 30 days after the department serves an order of immediate exclusion from the facility upon the licensee or a person subject to immediate removal or exclusion from the facility pursuant to paragraph (3) of subdivision (c) of Section 1569.17 and 1569.17, subdivision (b) of section 1569.58, or subdivision (c) of Section 1569.58 in order to ensure that the excluded person is not within the facility, unless the department previously has verified that the excluded person is not within the facility. 1569.58. On the unannounced visit to the facility, the department shall verify that the exclusion notice has been posted pursuant to subdivision (b) of Section 1569.58. The failure to post the required notice shall subject the licensee to a civil penalty pursuant to paragraph (8) of subdivision (c) of Section 1569.49.