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 resident’s mental and physical condition.
(2)The resident’s medical condition.
(3)The resident’s mental condition and the resident’s 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 civ
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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 resident’s mental and physical condition.
(2)
The resident’s medical condition.
(3)
The resident’s mental condition and the resident’s 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)
(1)
Class “AA” violations are violations that
meet the criteria for a class “A” violation and that the department determines to have been a substantial factor in the death of a 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 department shall prove all of the following:
(A)
The violation was a substantial factor in the death of a resident. A substantial factor is more than a remote or trivial factor, but is not required to be the only cause of harm.
(B)
The death resulted from an occurrence of the nature that the
regulation was designed to prevent.
(C)
The resident suffering the death was among the class of persons for whose protection the regulation was adopted.
(2)
If the 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.
(3)
Except as provided in Section 1424.5, for each class “AA” citation within a 12-month period that has become final, the 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 department shall commence action to suspend or revoke the facility’s license in accordance with Section 1294.
(d)
(1)
Class “A” violations are violations that the department determines present either (1) imminent danger that death or serious harm to the residents of the long-term health care facility would result therefrom, or (2) substantial probability that death or serious physical harm to 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 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 citation.
(2)
If the 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)
(1)
Except as provided in paragraph (4) of subdivision (a) of Section
1424.5, class “B” violations are violations that the department determines have a direct or immediate relationship to the health, safety, or security of long-term health care facility residents, other than class “AA” or “A” violations. Unless otherwise determined by the department to be a class “A” violation pursuant to this chapter and regulations adopted pursuant thereto, a 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 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 citation. A class “B” citation shall specify the
time within which the violation is required to be corrected. If the 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.
(2)
When a citation is issued pursuant to this paragraph, if the 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)
A willful material falsification or willful material omission in the health record of a resident of a long-term health care facility is a violation.
(2)
“Willful material falsification,” as used in this section, means any entry in the resident’s 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 pressure 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)
As used in this section,
“willful material omission” means the willful failure to record any untoward event that has affected the health, safety, or security of the specific resident, 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 resident 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)
(A)
When 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.
(B)
This section does not change previous law enacted by Chapter 11 of the Statutes of 1985 relative to this paragraph, but is a clarification of existing law.
(3)
This subdivision does not preclude the 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, a single act, omission, or occurrence may not be cited both as a class “A” or class “B” violation and as a violation of this subdivision.
(h)
When the licensee has failed to post the notices required by Section 9718 of the Welfare and Institutions Code in the manner required under Section 1422.6, the 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. When 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. When 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. 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 resident 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)
This section is not 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.