text:
(a) (1) It is the intent of the Legislature in enacting this section to authorize the department to take quick, effective action to protect the health and safety of clients of community care facilities and to minimize the effects of transfer trauma that accompany the abrupt transfer of clients by appointing a temporary manager to assume the operation of a facility that is found to be in a condition in which continued operation by the licensee or his or her representative presents a substantial probability of imminent danger of serious physical harm or death to the clients.

(2) A temporary manager appointed pursuant to this section shall assume the operation of the facility in order to bring it into compliance with the law, facilitate a transfer of ownership to a new licensee, or ensure the orderly transfer of clients should the facility be required to close. Upon a final decision and order of revocation of the license or a forfeiture by operation of law, the department shall immediately issue a provisional license to the appointed temporary manager. Notwithstanding the applicable sections of this code governing the revocation of a provisional license, the provisional license issued to a temporary manager shall automatically expire upon the termination of the temporary manager. The temporary manager shall possess the provisional license solely for purposes of carrying out the responsibilities authorized by this section and the duties set forth in the written agreement between the department and the temporary manager. The temporary manager does not have the right to appeal the expiration of the provisional license.

(b) For purposes of this section, “temporary manager” means the person, corporation, or other entity appointed temporarily by the department as a substitute facility licensee or administrator with authority to hire, terminate, reassign staff, obligate facility funds, alter facility procedures, and manage the facility to correct deficiencies identified in the facility’s operation. The temporary manager has the final authority to direct the care and supervision activities of any person associated with the facility, including superseding the authority of the licensee and the administrator.

(c) The director may appoint a temporary manager when it is determined that it is necessary to temporarily suspend any license of a community care facility pursuant to Section 1550.5 and any of the following circumstances exist:

(1) The immediate relocation of the clients is not feasible based on transfer trauma, lack of alternate placements, or other emergency considerations for the health and safety of the clients.

(2) The licensee is unwilling or unable to comply with the requirements of Section 1556 for the safe and orderly relocation of clients when ordered to do so by the department.

(d) (1) Upon appointment, the temporary manager shall complete its application for a license to operate a community care facility and take all necessary steps and make best efforts to eliminate any substantial threat to the health and safety to clients or complete the transfer of clients to alternative placements pursuant to Section 1556. For purposes of a provisional license issued to a temporary manager, the licensee’s existing fire safety clearance shall serve as the fire safety clearance for the temporary manager’s provisional license.

(2) A person shall not impede the operation of a temporary manager. The temporary manager’s access to, or possession of, the property shall not be interfered with during the term of the temporary manager appointment. There shall be an automatic stay for a 60-day period subsequent to the appointment of a temporary manager of any action that would interfere with the functioning of the facility, including, but not limited to, termination of utility services, attachments or setoffs of client trust funds, and repossession of equipment in the facility.

(e) (1) The appointment of a temporary manager shall be immediately effective and shall continue for a period not to exceed 60 days unless otherwise extended in accordance with paragraph (2) of subdivision (h) at the discretion of the department or otherwise terminated earlier by any of the following events:

(A) The temporary manager notifies the department, and the department verifies, that the facility meets state and, if applicable, federal standards for operation, and will be able to continue to maintain compliance with those standards after the termination of the appointment of the temporary manager.

(B) The department approves a new temporary manager.

(C) A new operator is licensed.

(D) The department closes the facility.

(E) A hearing or court order ends the temporary manager appointment, including the appointment of a receiver under Section 1546.2.

(F) The appointment is terminated by the department or the temporary manager.

(2) The appointment of a temporary manager shall authorize the temporary manager to act pursuant to this section. The appointment shall be made pursuant to a written agreement between the temporary manager and the department that outlines the circumstances under which the temporary manager may expend funds. The department shall provide the licensee and administrator with a copy of the accusation to appoint a temporary manager at the time of appointment. The accusation shall notify the licensee of the licensee’s right to petition the Office of Administrative Hearings for a hearing to contest the appointment of the temporary manager as described in subdivision (f) and shall provide the licensee with a form and appropriate information for the licensee’s use in requesting a hearing.

(3) The director may rescind the appointment of a temporary manager and appoint a new temporary manager at any time that the director determines the temporary manager is not adhering to the conditions of the appointment.

(f) (1) The licensee of a community care facility may contest the appointment of the temporary manager by filing a petition for an order to terminate the appointment of the temporary manager with the Office of Administrative Hearings within 15 days from the date of mailing of the accusation to appoint a temporary manager under subdivision (e). On the same day the petition is filed with the Office of Administrative Hearings, the licensee shall serve a copy of the petition to the office of the director.

(2) Upon receipt of a petition under paragraph (1), the Office of Administrative Hearings shall set a hearing date and time within 10 business days of the receipt of the petition. The office shall promptly notify the licensee and the department of the date, time, and place of the hearing. The office shall assign the case to an administrative law judge. At the hearing, relevant evidence may be presented pursuant to Section 11513 of the Government Code. The administrative law judge shall issue a written decision on the petition within 10 business days of the conclusion of the hearing. The 10-day time period for holding the hearing and for rendering a decision may be extended by the written agreement of the parties.

(3) The administrative law judge shall uphold the appointment of the temporary manager if the department proves, by a preponderance of the evidence, that the circumstances specified in subdivision (c) applied to the facility at the time of the appointment. The administrative law judge shall order the termination of the temporary manager if the burden of proof is not satisfied.

(4) The decision of the administrative law judge is subject to judicial review as provided in Section 1094.5 of the Code of Civil Procedure by the superior court of the county where the facility is located. This review may be requested by the licensee of the facility or the department by filing a petition seeking relief from the order. The petition may also request the issuance of temporary injunctive relief pending the decision on the petition. The superior court shall hold a hearing within 10 business days of the filing of the petition and shall issue a decision on the petition within 10 days of the hearing. The department may be represented by legal counsel within the department for purposes of court proceedings authorized under this section.

(g) If the licensee of the community care facility does not protest the appointment or does not prevail at either the administrative hearing under paragraph (2) of subdivision (f) or the superior court hearing under paragraph (4) of subdivision (f), the temporary manager shall continue in accordance with subdivision (e).

(h) (1) If the licensee of the community care facility petitions the Office of Administrative Hearings pursuant to subdivision (f), the appointment of the temporary manager by the director pursuant to this section shall continue until it is terminated by the administrative law judge or by the superior court, or it shall continue until the conditions of subdivision (e) are satisfied, whichever is earlier.

(2) At any time during the appointment of the temporary manager, the director may request an extension of the appointment by filing a petition for hearing with the Office of Administrative Hearings and serving a copy of the petition on the licensee. The office shall proceed as specified in paragraph (2) of subdivision (f). The administrative law judge may extend the appointment of the temporary manager an additional 60 days upon a showing by the department that the conditions specified in subdivision (c) continue to exist.

(3) The licensee or the department may request review of the administrative law judge’s decision on the extension as provided in paragraph (4) of subdivision (f).

(i) The temporary manager appointed pursuant to this section shall meet the following qualifications:

(1) Be qualified to oversee correction of deficiencies on the basis of experience and education.

(2) Not be the subject of any pending actions by the department or any other state agency nor have ever been excluded from a department licensed facility or had a license or certification suspended or revoked by an administrative action by the department or any other state agency.

(3) Not have a financial ownership interest in the facility and not have a member of his or her immediate family who has a financial ownership interest in the facility.

(4) Not currently serve, or within the past two years have served, as a member of the staff of the facility.

(j) Payment of the costs of the temporary manager shall comply with the following requirements:

(1) Upon agreement with the licensee, the costs of the temporary manager and any other expenses in connection with the temporary management shall be paid directly by the facility while the temporary manager is assigned to that facility. Failure of the licensee to agree to the payment of those costs may result in the payment of the costs by the department and subsequent required reimbursement to the department by the licensee pursuant to this section.

(2) Direct costs of the temporary manager shall be equivalent to the sum of the following:

(A) The prevailing fee paid by licensees for positions of the same type in the facility’s geographic area.

(B) Additional costs that reasonably would have been incurred by the licensee if the licensee and the temporary manager had been in an employment relationship.

(C) Any other reasonable costs incurred by the temporary manager in furnishing services pursuant to this section.

(3) Direct costs may exceed the amount specified in paragraph (2) if the department is otherwise unable to attract a qualified temporary manager.

(k) (1) The responsibilities of the temporary manager may include, but are not limited to, the following:

(A) Paying wages to staff. The temporary manager shall have the full power to hire, direct, manage, and discharge employees of the facility, subject to any contractual rights they may have. The temporary manager shall pay employees at the same rate of compensation, including benefits, that the employees would have received from the licensee or wages necessary to provide adequate staff for the protection of clients and compliance with the law.

(B) Preserving client funds. The temporary manager shall be entitled to, and shall take possession of, all property or assets of clients that are in the possession of the licensee or administrator of the facility. The temporary manager shall preserve all property, assets, and records of clients of which the temporary manager takes possession.

(C) Contracting for outside services as may be needed for the operation of the facility. Any contract for outside services in excess of five thousand dollars ($5,000) shall be approved by the director.

(D) Paying commercial creditors of the facility to the extent required to operate the facility. The temporary manager shall honor all leases, mortgages, and secured transactions affecting the building in which the facility is located and all goods and fixtures in the building, but only to the extent of payments that, in the case of a rental agreement, are for the use of the property during the period of the temporary management, or that, in the case of a purchase agreement, come due during the period of the temporary management.

(E) Doing all things necessary and proper to maintain and operate the facility in accordance with sound fiscal policies. The temporary manager shall take action as is reasonably necessary to protect or conserve the assets or property of which the temporary manager takes possession and may use those assets or property only in the performance of the powers and duties set out in this section.

(2) Expenditures by the temporary manager in excess of five thousand dollars ($5,000) shall be approved by the director. Total encumbrances and expenditures by the temporary manager for the duration of the temporary management shall not exceed the sum of forty-nine thousand nine hundred ninety-nine dollars ($49,999) unless approved by the director in writing.

(3) The temporary manager shall make no capital improvements to the facility in excess of five thousand dollars ($5,000) without the approval of the director.

(l) (1) To the extent department funds are advanced for the costs of the temporary manager or for other expenses in connection with the temporary management, the department shall be reimbursed from the revenues accruing to the facility or to the licensee or an entity related to the licensee. Any reimbursement received by the department shall be redeposited in the account from which the department funds were advanced. If the revenues are insufficient to reimburse the department, the unreimbursed amount shall constitute grounds for a monetary judgment in civil court and a subsequent lien upon the assets of the facility or the proceeds from the sale thereof. Pursuant to Chapter 2 (commencing with Section 697.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, a lien against the personal assets of the facility or an entity related to the licensee based on the monetary judgment obtained shall be filed with the Secretary of State on the forms required for a notice of judgment lien. A lien against the real property of the facility or an entity related to the licensee based on the monetary judgment obtained shall be recorded with the county recorder of the county where the facility of the licensee is located or where the real property of the entity related to the licensee is located. The lien shall not attach to the interests of a lessor, unless the lessor is operating the facility. The authority to place a lien against the personal and real property of the licensee for the reimbursement of any state funds expended pursuant to this section shall be given judgment creditor priority.

(2) For purposes of this section, “entity related to the licensee” means an entity, other than a natural person, of which the licensee is a subsidiary or an entity in which a person who was obligated to disclose information under Section 1520 possesses an interest that would also require disclosure pursuant to Section 1520.

(m) Appointment of a temporary manager under this section does not relieve the licensee of any responsibility for the care and supervision of clients under this chapter. The licensee, even if the license is deemed surrendered or the facility abandoned, shall be required to reimburse the department for all costs associated with operation of the facility during the period the temporary manager is in place that are not accounted for by using facility revenues or for the relocation of clients handled by the department if the licensee fails to comply with the relocation requirements of Section 1556 when required by the department to do so. If the licensee fails to reimburse the department under this section, then the department, along with using its own remedies available under this chapter, may request that the Attorney General’s office, the city attorney’s office, or the local district attorney’s office seek any available criminal, civil, or administrative remedy, including, but not limited to, injunctive relief, restitution, and damages in the same manner as provided for in Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code.

(n) The department may use funds from the emergency client contingency account pursuant to Section 1546 when needed to supplement the operation of the facility or the transfer of clients under the control of the temporary manager appointed under this section if facility revenues are unavailable or exhausted when needed. Pursuant to subdivision (l), the licensee shall be required to reimburse the department for any funds used from the emergency client contingency account during the period of control of the temporary manager and any incurred costs of collection.

(o) This section does not apply to a residential facility that serves six or fewer persons and is also the principal residence of the licensee.

(p) Notwithstanding any other provision of law, the temporary manager shall be liable only for damages resulting from gross negligence in the operation of the facility or intentional tortious acts.

(q) All governmental immunities otherwise applicable to the state shall also apply to the state in the use of a temporary manager in the operation of a facility pursuant to this section.

(r) A licensee shall not be liable for any occurrences during the temporary management under this section except to the extent that the occurrences are the result of the licensee’s conduct.

(s) The department may adopt regulations for the administration of this section.

history: (History: Amended by Stats. 2015, Ch. 303, Sec. 273. (AB 731) Effective January 1, 2016.)

article: 4. Offenses


kind: section

code: HSC

text:
(a) It is the intent of the Legislature in enacting this section to authorize the department to take quick, effective action to protect the health and safety of residents of community care facilities and to minimize the effects of transfer trauma that accompany the abrupt transfer of clients through a system whereby the department may apply for a court order appointing a receiver to temporarily operate a community care facility. The receivership is not intended to punish a licensee or to replace attempts to secure cooperative action to protect the clients’ health and safety. The receivership is intended to protect the clients in the absence of other reasonably available alternatives. The receiver shall assume the operation of the facility in order to bring it into compliance with law, facilitate a transfer of ownership to a new licensee, or ensure the orderly transfer of clients should the facility be required to close.

(b) (1) Whenever circumstances exist indicating that continued management of a community care facility by the current licensee would present a substantial probability or imminent danger of serious physical harm or death to the clients, or the facility is closing or intends to terminate operation as a community care facility and adequate arrangements for the relocation of clients have not been made at least 30 days prior to the closing or termination, the director may petition the superior court for the county in which the community care facility is located for an order appointing a receiver to temporarily operate the community care facility in accordance with this section.

(2) The petition shall allege the facts upon which the action is based and shall be supported by an affidavit of the director. A copy of the petition and affidavit, together with an order to appear and show cause why temporary authority to operate the community care facility should not be vested in a receiver pursuant to this section, shall be delivered to the licensee, administrator, or a responsible person at the facility to the attention of the licensee and administrator. The order shall specify a hearing date, which shall be not less than 10, nor more than 15, days following delivery of the petition and order upon the licensee, except that the court may shorten or lengthen the time upon a showing of just cause.

(c) (1) If the director files a petition pursuant to subdivision (b) for appointment of a receiver to operate a community care facility, in accordance with Section 564 of the Code of Civil Procedure, the director may also petition the court, in accordance with Section 527 of the Code of Civil Procedure, for an order appointing a temporary receiver. A temporary receiver appointed by the court pursuant to this subdivision shall serve until the court has made a final determination on the petition for appointment of a receiver filed pursuant to subdivision (b). A receiver appointed pursuant to this subdivision shall have the same powers and duties as a receiver would have if appointed pursuant to subdivision (b). Upon the director filing a petition for a receiver, the receiver shall complete its application for a provisional license to operate a community care facility. For purposes of a provisional license issued to a receiver, the licensee’s existing fire safety clearance shall serve as the fire safety clearance for the receiver’s provisional license.

(2) At the time of the hearing, the department shall advise the licensee of the name of the proposed receiver. The receiver shall be a certified community care facility administrator or other responsible person or entity, as determined by the court, from a list of qualified receivers established by the department, and, if need be, with input from providers of residential care and consumer representatives. Persons appearing on the list shall have experience in the delivery of care services to clients of community care facilities, and, if feasible, shall have experience with the operation of a community care facility, shall not be the subject of any pending actions by the department or any other state agency, and shall not have ever been excluded from a department licensed facility nor have had a license or certification suspended or revoked by an administrative action by the department or any other state agency. The receivers shall have sufficient background and experience in management and finances to ensure compliance with orders issued by the court. The owner, licensee, or administrator shall not be appointed as the receiver unless authorized by the court.

(3) If at the conclusion of the hearing, which may include oral testimony and cross-examination at the option of any party, the court determines that adequate grounds exist for the appointment of a receiver and that there is no other reasonably available remedy to protect the clients, the court may issue an order appointing a receiver to temporarily operate the community care facility and enjoining the licensee from interfering with the receiver in the conduct of his or her duties. In these proceedings, the court shall make written findings of fact and conclusions of law and shall require an appropriate bond to be filed by the receiver and paid for by the licensee. The bond shall be in an amount necessary to protect the licensee in the event of any failure on the part of the receiver to act in a reasonable manner. The bond requirement may be waived by the licensee.

(4) The court may permit the licensee to participate in the continued operation of the facility during the pendency of any receivership ordered pursuant to this section and shall issue an order detailing the nature and scope of participation.

(5) Failure of the licensee to appear at the hearing on the petition shall constitute an admission of all factual allegations contained in the petition for purposes of these proceedings only.

(6) The licensee shall receive notice and a copy of the application each time the receiver applies to the court or the department for instructions regarding his or her duties under this section, when an accounting pursuant to subdivision (i) is submitted, and when any other report otherwise required under this section is submitted. The licensee shall have an opportunity to present objections or otherwise participate in those proceedings.

(d) A person shall not impede the operation of a receivership created under this section. The receiver’s access to, or possession of, the property shall not be interfered with during the term of the receivership. There shall be an automatic stay for a 60-day period subsequent to the appointment of a receiver of any action that would interfere with the functioning of the facility, including, but not limited to, cancellation of insurance policies executed by the licensees, termination of utility services, attachments or setoffs of client trust funds and working capital accounts, and repossession of equipment in the facility.

(e) When a receiver is appointed, the licensee may, at the discretion of the court, be divested of possession and control of the facility in favor of the receiver. If the court divests the licensee of possession and control of the facility in favor of the receiver, the department shall immediately issue a provisional license to the receiver. Notwithstanding the applicable sections of this code governing the revocation of a provisional license, the provisional license issued to a receiver shall automatically expire upon the termination of the receivership. The receiver shall possess the provisional license solely for purposes of carrying out the responsibilities authorized by this section and the duties ordered by the court. The receiver shall have no right to appeal the expiration of the provisional license.

(f) A receiver appointed pursuant to this section:

(1) May exercise those powers and shall perform those duties ordered by the court, in addition to other duties provided by statute.

(2) Shall operate the facility in a manner that ensures the safety and adequate care for the clients.

(3) Shall have the same rights to possession of the building in which the facility is located, and of all goods and fixtures in the building at the time the petition for receivership is filed, as the licensee and administrator would have had if the receiver had not been appointed.

(4) May use the funds, building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to clients and to any other persons receiving services from the facility at the time the petition for receivership was filed.

(5) Shall take title to all revenue coming to the facility in the name of the receiver who shall use it for the following purposes in descending order of priority:

(A) To pay wages to staff. The receiver shall have full power to hire, direct, manage, and discharge employees of the facility, subject to any contractual rights they may have. The receiver shall pay employees at the same rate of compensation, including benefits, that the employees would have received from the licensee or wages necessary to provide adequate staff for the protection of the clients and compliance with the law.

(B) To preserve client funds. The receiver shall be entitled to, and shall take, possession of all property or assets of clients that are in the possession of the licensee or operator of the facility. The receiver shall preserve all property, assets, and records of clients of which the receiver takes possession.

(C) To contract for outside services as may be needed for the operation of the community care facility. Any contract for outside services in excess of five thousand dollars ($5,000) shall be approved by the court.

(D) To pay commercial creditors of the facility to the extent required to operate the facility. Except as provided in subdivision (h), the receiver shall honor all leases, mortgages, and secured transactions affecting the building in which the facility is located and all goods and fixtures in the building of which the receiver has taken possession, but only to the extent of payments which, in the case of a rental agreement, are for the use of the property during the period of receivership, or which, in the case of a purchase agreement, come due during the period of receivership.

(E) To receive a salary, as approved by the court.

(F) To do all things necessary and proper to maintain and operate the facility in accordance with sound fiscal policies. The receiver shall take action as is reasonably necessary to protect or conserve the assets or property of which the receiver takes possession and may use those assets or property only in the performance of the powers and duties set out in this section and by order of the court.

(G) To ask the court for direction in the treatment of debts incurred prior to the appointment, if the licensee’s debts appear extraordinary, of questionable validity, or unrelated to the normal and expected maintenance and operation of the facility, or if payment of the debts will interfere with the purposes of receivership.

(g) (1) A person who is served with notice of an order of the court appointing a receiver and of the receiver’s name and address shall be liable to pay the receiver, rather than the licensee, for any goods or services provided by the community care facility after the date of the order. The receiver shall give a receipt for each payment and shall keep a copy of each receipt on file. The receiver shall deposit amounts received in a special account and shall use this account for all disbursements. Payment to the receiver pursuant to this subdivision shall discharge the obligation to the extent of the payment and shall not thereafter be the basis of a claim by the licensee or any other person. A client shall not be evicted nor may any contract or rights be forfeited or impaired, nor may any forfeiture be effected or liability increased, by reason of an omission to pay the licensee, operator, or other person a sum paid to the receiver pursuant to this subdivision.

(2) This section shall not be construed to suspend, during the temporary management by the receiver, any obligation of the licensee for payment of local, state, or federal taxes. A licensee shall not be held liable for acts or omissions of the receiver during the term of the temporary management.

(3) Upon petition of the receiver, the court may order immediate payment to the receiver for past services that have been rendered and billed, and the court may also order a sum not to exceed one month’s advance payment to the receiver of any sums that may become payable under the Medi-Cal program.

(h) (1) A receiver shall not be required to honor a lease, mortgage, or secured transaction entered into by the licensee of the facility and another party if the court finds that the agreement between the parties was entered into for a collusive, fraudulent purpose or that the agreement is unrelated to the operation of the facility.

(2) A lease, mortgage, or secured transaction or an agreement unrelated to the operation of the facility that the receiver is permitted to dishonor pursuant to this subdivision shall only be subject to nonpayment by the receiver for the duration of the receivership, and the dishonoring of the lease, mortgage, security interest, or other agreement, to this extent, by the receiver shall not relieve the owner or operator of the facility from any liability for the full amount due under the lease, mortgage, security interest, or other agreement.

(3) If the receiver is in possession of real estate or goods subject to a lease, mortgage, or security interest that the receiver is permitted to dishonor pursuant to paragraph (1), and if the real estate or goods are necessary for the continued operation of the facility, the receiver may apply to the court to set a reasonable rent, price, or rate of interest to be paid by the receiver during the duration of the receivership. The court shall hold a hearing on this application within 15 days. The receiver shall send notice of the application to any known owner of the property involved at least 10 days prior to the hearing.

(4) Payment by the receiver of the amount determined by the court to be reasonable is a defense to any action against the receiver for payment or possession of the goods or real estate, subject to the lease or mortgage, which is brought by any person who received the notice required by this subdivision. However, payment by the receiver of the amount determined by the court to be reasonable shall not relieve the owner or operator of the facility from any liability for the difference between the amount paid by the receiver and the amount due under the original lease, mortgage, or security interest.

(i) A monthly accounting shall be made by the receiver to the department of all moneys received and expended by the receiver on or before the 15th day of the following month or as ordered by the court, and the remainder of income over expenses for that month shall be returned to the licensee. A copy of the accounting shall be provided to the licensee. The licensee or owner of the community care facility may petition the court for a determination as to the reasonableness of any expenditure made pursuant to paragraph (5) of subdivision (f).

(j) (1) The receiver shall be appointed for an initial period of not more than three months. The initial three-month period may be extended for additional periods not exceeding three months, as determined by the court pursuant to this section. At the end of one month, the receiver shall report to the court on its assessment of the probability that the community care facility will meet state standards for operation by the end of the initial three-month period and will continue to maintain compliance with those standards after termination of the receiver’s management. If it appears that the facility cannot be brought into compliance with state standards within the initial three-month period, the court shall take appropriate action as follows:

(A) Extend the receiver’s management for an additional three months if there is a substantial likelihood that the facility will meet state standards within that period and will maintain compliance with the standards after termination of the receiver’s management. The receiver shall report to the court in writing upon the facility’s progress at the end of six weeks of any extension ordered pursuant to this paragraph.

(B) Order the director to revoke or temporarily suspend, or both, the license pursuant to Article 5 (commencing with Section 1550) and extend the receiver’s management for the period necessary to transfer clients in accordance with the transfer plan, but for not more than three months from the date of initial appointment of a receiver, or 14 days, whichever is greater. An extension of an additional three months may be granted if deemed necessary by the court.

(2) If it appears at the end of six weeks of an extension ordered pursuant to subparagraph (A) of paragraph (1) that the facility cannot be brought into compliance with state standards for operation or that it will not maintain compliance with those standards after the receiver’s management is terminated, the court shall take appropriate action as specified in subparagraph (B) of paragraph (1).

(3) In evaluating the probability that a community care facility will maintain compliance with state standards of operation after the termination of receiver management ordered by the court, the court shall consider at least the following factors:

(A) The duration, frequency, and severity of past violations in the facility.

(B) History of compliance in other care facilities operated by the proposed licensee.

(C) Efforts by the licensee to prevent and correct past violations.

(D) The financial ability of the licensee to operate in compliance with state standards.

(E) The recommendations and reports of the receiver.

(4) Management of a community care facility operated by a receiver pursuant to this section shall not be returned to the licensee, to any person related to the licensee, or to any person who served as a member of the facility’s staff or who was employed by the licensee prior to the appointment of the receiver unless both of the following conditions are met:

(A) The department believes that it would be in the best interests of the clients of the facility, requests that the court return the operation of the facility to the former licensee, and provides clear and convincing evidence to the court that it is in the best interests of the facility’s clients to take that action.

(B) The court finds that the licensee has fully cooperated with the department in the appointment and ongoing activities of a receiver appointed pursuant to this section, and, if applicable, any temporary manager appointed pursuant to Section 1546.1.

(5) The owner of the facility may at any time sell, lease, or close the facility, subject to the following provisions:

(A) If the owner closes the facility, or the sale or lease results in the closure of the facility, the court shall determine if a transfer plan is necessary. If the court so determines, the court shall adopt and implement a transfer plan consistent with the provisions of Section 1556.

(B) If the licensee proposes to sell or lease the facility and the facility will continue to operate as a community care facility, the court and the department shall reevaluate any proposed transfer plan. If the court and the department determine that the sale or lease of the facility will result in compliance with licensing standards, the transfer plan and the receivership shall, subject to those conditions that the court may impose and enforce, be terminated upon the effective date of the sale or lease.

(k) (1) The salary of the receiver shall be set by the court commensurate with community care facility industry standards, giving due consideration to the difficulty of the duties undertaken, and shall be paid from the revenue coming to the facility. If the revenue is insufficient to pay the salary in addition to other expenses of operating the facility, the receiver’s salary shall be paid from the emergency client contingency account as provided in Section 1546. State advances of funds in excess of five thousand dollars ($5,000) shall be approved by the director. Total advances for encumbrances and expenditures shall not exceed the sum of forty-nine thousand nine hundred ninety-nine dollars ($49,999) unless approved by the director in writing.

(2) To the extent state funds are advanced for the salary of the receiver or for other expenses in connection with the receivership, as limited by subdivision (g), the state shall be reimbursed from the revenues accruing to the facility or to the licensee or an entity related to the licensee. Any reimbursement received by the state shall be redeposited in the account from which the state funds were advanced. If the revenues are insufficient to reimburse the state, the unreimbursed amount shall constitute grounds for a monetary judgment in civil court and a subsequent lien upon the assets of the facility or the proceeds from the sale thereof. Pursuant to Chapter 2 (commencing with Section 697.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, a lien against the personal assets of the facility or an entity related to the licensee based on the monetary judgment obtained shall be filed with the Secretary of State on the forms required for a notice of judgment lien. A lien against the real property of the facility or an entity related to the licensee based on the monetary judgment obtained shall be recorded with the county recorder of the county where the facility of the licensee is located or where the real property of the entity related to the licensee is located. The lien shall not attach to the interests of a lessor, unless the lessor is operating the facility. The authority to place a lien against the personal and real property of the licensee for the reimbursement of any state funds expended pursuant to this section shall be given judgment creditor priority.

(3) For purposes of this subdivision, “entity related to the licensee” means an entity, other than a natural person, of which the licensee is a subsidiary or an entity in which any person who was obligated to disclose information under Section 1520 possesses an interest that would also require disclosure pursuant to Section 1520.

(l) (1) This section does not impair the right of the owner of a community care facility to dispose of his or her property interests in the facility, but any facility operated by a receiver pursuant to this section shall remain subject to that administration until terminated by the court. The termination shall be promptly effectuated, provided that the interests of the clients have been safeguarded as determined by the court.

(2) This section does not limit the power of the court to appoint a receiver under any other applicable provision of law or to order any other remedy available under law.

(m) (1) Notwithstanding any other provision of law, the receiver shall be liable only for damages resulting from gross negligence in the operation of the facility or intentional tortious acts.

(2) All governmental immunities otherwise applicable to the State of California shall also apply in the use of a receiver in the operation of a facility pursuant to this section.

(3) The licensee shall not be liable for any occurrences during the receivership except to the extent that the occurrences are the result of the licensee’s conduct.

(n) The department may adopt regulations for the administration of this section. This section does not impair the authority of the department to temporarily suspend licenses under Section 1550.5 or to reach a voluntary agreement with the licensee for alternate management of a community care facility including the use of a temporary manager under Section 1546.1. This section does not authorize the department to interfere in a labor dispute.

(o) This section does not apply to a residential facility that serves six or fewer persons and is also the principal residence of the licensee.

(p) This section does not apply to a licensee that has obtained a certificate of authority to offer continuing care contracts, as defined in paragraph (8) of subdivision (c) of Section 1771.

history: (History: Amended by Stats. 2015, Ch. 303, Sec. 274. (AB 731) Effective January 1, 2016.)

division: 2. LICENSING PROVISIONS

article: 4. Offenses

path: 2. LICENSING PROVISIONS > 3. California Community Care Facilities Act > 4. Offenses


citation: HSC § 1547

text:
(a) (1) Notwithstanding any other provision of this chapter, any person who violates Section 1503.5 or 1508, or both, may be assessed by the department an immediate civil penalty in the amount of two hundred dollars ($200) per day of the violation, unless the conditions described in paragraph (2) apply.

(2) A person who violates Section 1503.5 or 1508 and provides residential care to children may be assessed an immediate civil penalty in the amount of one thousand dollars ($1,000) per day of the violation.

(b) The civil penalty authorized in subdivision (a) shall be imposed if an unlicensed facility is operated and the operator refuses to seek licensure or the operator seeks licensure and the licensure application is denied and the operator continues to operate the unlicensed facility, unless other remedies available to the department, including criminal prosecution, are deemed more effective by the department.

(c) An operator may appeal the assessment to the director. The department shall adopt regulations setting forth the appeal procedure.

(d) For purposes of this section, “person” means an individual, firm, association, organization, partnership, business trust, corporation, limited liability company, company, or political subdivision of the state.

history: (History: Amended by Stats. 2023, Ch. 438, Sec. 1. (AB 426) Effective January 1, 2024.)

chapter: 3. California Community Care Facilities Act

article: 4. Offenses


citation: HSC § 1548

text:
(a) In addition to the suspension, temporary suspension, or revocation of a license issued under this chapter, the department shall levy civil penalties as follows:

(b) (1) The amount of the civil penalty shall be one hundred dollars ($100) per day for each violation of this chapter if an agency or facility fails to correct a deficiency after being provided a specified length of time to correct that deficiency.

(A) If a licensee or a licensee’s representative submits evidence to the department that the licensee has corrected a deficiency, and the department, after reviewing that evidence, has determined that the deficiency has been corrected, the civil penalty shall cease as of the day the department received that evidence.

(B) If the department deems it necessary, the department shall inspect the facility within five working days after the department receives evidence pursuant to subparagraph (A) to confirm that the deficiency has been corrected.

(C) If the department determines that the deficiency has not been corrected, the civil penalty shall continue to accrue from the date of the original citation.

(D) If the department is able to verify that the deficiency was corrected prior to the date on which the department received the evidence pursuant to subparagraph (A), the civil penalty shall cease as of that earlier date.

(2) (A) If the department issues a notification of deficiency to an agency or facility for a repeat violation of a violation specified in paragraph (1), the department shall assess an immediate civil penalty of two hundred fifty dollars ($250) per repeat violation and one hundred dollars ($100) for each day the repeat violation continues after citation. The notification of deficiency shall state the manner in which the deficiency constitutes a repeat violation and shall be submitted to a supervisor for review and approval.

(B) For purposes of this section, “repeat violation” means a violation within 12 months of a prior violation of a statutory or regulatory provision designated by the same combination of letters or numerals, or both letters and numerals.

(C) Notwithstanding subparagraphs (A) and (B), the department, in its sole discretion, may reduce the civil penalty for the cited repeat violation to the level of the underlying violation, as applicable, if it determines that the cited repeat violation is not substantially similar to the original violation.

(3) If 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 provided in this chapter, a correction of the deficiency shall not impact the imposition of a civil penalty.

(c) The department shall assess an immediate civil penalty of five hundred dollars ($500) per violation and one hundred dollars ($100) for each day the violation continues after citation for any of the following serious violations:

(1) A violation that the department determines resulted in the injury or illness of a person in care.

(2) (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.

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

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

(5) Accessible firearms, ammunition, or both.

(6) Refused entry to a facility or any part of a facility in violation of Section 1533, 1534, or 1538.

(7) The presence of a person subject to a department Order of Exclusion on the premises.

(d) If the department issues a notification of deficiency to an agency or facility for a repeat violation specified in subdivision (c), the department shall assess an immediate civil penalty of one thousand dollars ($1,000) per repeat violation and one hundred dollars ($100) for each day the repeat violation continues after citation. The notification of deficiency shall state the manner in which the deficiency constitutes a repeat violation and shall be submitted to a supervisor for review and approval.

(e) (1) For a violation that the department determines resulted in the death of a resident at an adult residential facility, social rehabilitation facility, enhanced behavioral supports home licensed as an adult residential facility, adult residential facility for persons with special health care needs, or community crisis home, the civil penalty shall be fifteen thousand dollars ($15,000).

(2) For a violation that the department determines resulted in the death of a person receiving care at an adult day program, the civil penalty shall be assessed as follows:

(A) Seven thousand five hundred dollars ($7,500) for a facility licensed to care for 50 or fewer persons.

(B) Ten thousand dollars ($10,000) for a facility licensed to care for 51 or more persons.

(3) For a violation that the department determines resulted in the death of a person receiving care at a therapeutic day services facility, community treatment facility, transitional shelter care facility, transitional housing placement provider, small family home, crisis nursery, group home, enhanced behavioral supports home licensed as a group home, group home for children with special health care needs, or short-term residential therapeutic program, the civil penalty shall be assessed as follows:

(A) Seven thousand five hundred dollars ($7,500) for a facility licensed to care for 40 or fewer children.

(B) Ten thousand dollars ($10,000) for a facility licensed to care for 41 to 100, inclusive, children.

(C) Fifteen thousand dollars ($15,000) for a facility licensed to care for more than 100 children.

(4) For a violation that the department determines resulted in the death of a youth receiving care at a youth homelessness prevention center licensed as a group home, the civil penalty shall be five thousand dollars ($5,000).

(5) For a violation that the department determines resulted in the death of a child receiving care through a foster family agency, the civil penalty shall be seven thousand five hundred dollars ($7,500).

(6) For a violation that the department determines resulted in the death of an individual receiving care or services through a full-service or noncustodial adoption agency, the civil penalty shall be seven thousand five hundred dollars ($7,500).

(f) (1) (A) 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 243 of the Penal Code, to a resident at an adult residential facility, social rehabilitation facility, enhanced behavioral supports home licensed as an adult residential facility, adult residential facility for persons with special health care needs, or community crisis home, the civil penalty shall be ten thousand dollars ($10,000).

(B) 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 243 of the Penal Code, to a person receiving care at an adult day program, the civil penalty shall be assessed as follows:

(i) Two thousand five hundred dollars ($2,500) for a facility licensed to care for 50 or fewer persons.

(ii) Five thousand dollars ($5,000) for a facility licensed to care for 51 or more persons.

(C) For a violation that the department determines constitutes physical abuse, as defined in paragraph (2), or resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to a person receiving care at a therapeutic day services facility, community treatment facility, transitional shelter care facility, transitional housing placement provider, small family home, crisis nursery, group home, enhanced behavioral supports home licensed as a group home, group home for children with special health care needs, or short-term residential therapeutic program, the civil penalty shall be assessed as follows:

(i) Two thousand five hundred dollars ($2,500) for a facility licensed to care for 40 or fewer children.

(ii) Five thousand dollars ($5,000) for a facility licensed to care for 41 to 100, inclusive, children.

(iii) Ten thousand dollars ($10,000) for a facility licensed to care for more than 100 children.

(D) For a violation that the department determines constitutes physical abuse, as defined in paragraph (2), or resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to a youth receiving care at a youth homelessness prevention center licensed as a group home, the civil penalty shall be one thousand dollars ($1,000).

(E) For a violation that the department determines constitutes physical abuse, as defined in paragraph (2), or resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to a child receiving care through a foster family agency, the civil penalty shall be two thousand five hundred dollars ($2,500).

(F) For a violation that the department determines constitutes physical abuse, as defined in paragraph (2), or resulted in serious bodily injury, as defined in Section 243 of the Penal Code, to an individual receiving care or services through a full-service or noncustodial adoption agency, the civil penalty shall be two thousand five hundred dollars ($2,500).

(2) For purposes of subparagraphs (C), (D), (E), and (F) of paragraph (1), “physical abuse” includes physical injury inflicted upon a child by another person by other than accidental means, sexual abuse as defined in Section 11165.1 of the Penal Code, neglect as defined in Section 11165.2 of the Penal Code, or unlawful corporal punishment or injury as defined in Section 11165.4 of the Penal Code if the person responsible for the child’s welfare is a licensee, administrator, or employee of any facility licensed to care for children.

(g) (1) Before the assessment of a civil penalty pursuant to subdivision (e) or (f), the decision shall be approved by the program administrator of the Community Care Licensing Division.

(2) (A) The department shall reduce the amount of a civil penalty due pursuant to subdivision (e) or (f) by the amount of the civil penalty already assessed for the underlying violation.

(B) If the amount of the civil penalty that the department has already assessed for the underlying violation exceeds the amount of the penalty pursuant to subdivision (e) or (f), the larger amount shall prevail and be due and payable as already assessed by the department.

(h) (1) A notification of a deficiency written by a representative of the department shall include a factual description of the nature of the deficiency fully stating the manner in which the licensee failed to comply with the specified statute or regulation, and, if applicable, the particular place or area of the facility in which the deficiency occurred. The department shall make a good faith effort to work with the licensee to determine the cause of the deficiency and ways to prevent any repeat violations.

(A) For an adult residential facility for persons with special health care needs, the department may consult with the State Department of Developmental Services in making a determination that a violation resulted in the death of a resident at the facility or that a violation 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 243 of the Penal Code, to a resident at the facility.

(B) For a group home for children with special health care needs, the department may consult with the State Department of Developmental Services in making a determination that a violation resulted in the death of an individual receiving care at the facility or that a violation 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 243 of the Penal Code, to an individual receiving care at the facility.

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

(i) (1) 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 subdivision (e) or (f) within 15 business days of receipt of the notice of a civil penalty assessment and shall provide all available supporting documentation at that time. The review shall be conducted by the deputy director of the Community Care Licensing Division. The licensee may submit additional supporting documentation that was unavailable at the time of submitting the request for review within the first 30 business days after submitting the request for review. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for review. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the deputy director determines that the civil penalty was not assessed, or the finding of deficiency was not made, in accordance with applicable statutes or regulations of the department, the deputy director may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the deputy director’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.

(2) Upon exhausting the review described in paragraph (1), a licensee may further appeal that decision 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.

(3) 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.

(4) Civil penalties shall be due and payable when administrative appeals have been exhausted. Unless payment arrangements have been made that are acceptable to the department, a civil penalty not paid within 30 days shall be subject to late fees, as specified by the department in regulation.

(j) (1) A licensee shall have the right to submit to the department a written request for a formal review of any other civil penalty or deficiency not described in subdivision (i) within 15 business days of receipt of the notice of a civil penalty assessment or a finding of a deficiency, and shall provide all available supporting documentation at that time. The review shall be conducted by a regional manager of the Community Care Licensing Division. The licensee may submit additional supporting documentation that was unavailable at the time of submitting the request for review within the first 30 business days after submitting the request for review. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for review. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the regional manager determines that the civil penalty was not assessed, or the finding of the deficiency was not made, in accordance with applicable statutes or regulations of the department, the regional manager may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the regional manager’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee.

(2) Upon exhausting the review described in paragraph (1), the licensee may further appeal that decision to the program administrator of the Community Care Licensing Division within 15 business days of receipt of notice of the regional manager’s decision. The licensee may submit additional supporting documentation that was unavailable at the time of appeal to the program administrator within the first 30 business days after requesting that appeal. If the department requires additional information from the licensee, that information shall be requested within the first 30 business days after receiving the request for the appeal. The licensee shall provide this additional information within 30 business days of receiving the request from the department. If the program administrator determines that the civil penalty was not assessed, or the finding of the deficiency was not made, in accordance with applicable statutes or regulations of the department, the program administrator may amend or dismiss the civil penalty or finding of deficiency. The licensee shall be notified in writing of the program administrator’s decision within 60 business days of the date when all necessary information has been provided to the department by the licensee. The program administrator’s decision is considered final and concludes the licensee’s administrative appeal rights regarding the appeal conducted pursuant to this paragraph.

(3) Civil penalties shall be due and payable when administrative appeals have been exhausted. Unless payment arrangements have been made that are acceptable to the department, a civil penalty not paid within 30 days shall be subject to late fees, as specified by the department in regulation.

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

(l) The department shall, by January 1, 2016, amend its regulations to reflect the changes to this section made by Section 2 of Chapter 813 of the Statutes of 2014.

(m) As provided in Section 11466.31 of the Welfare and Institutions Code, the department may offset civil penalties owed by a group home or short-term residential therapeutic program against moneys to be paid by a county for the care of minors after the group home or short-term residential therapeutic program has exhausted its appeal of the civil penalty assessment. The department shall provide the group home or short-term residential therapeutic program a reasonable opportunity to pay the civil penalty before instituting the offset provision.

(n) Notwithstanding the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer the changes made by the act that added this subdivision through all-county letters or similar written instructions until regulations are adopted pursuant to the Administrative Procedure Act.

history: (History: Amended by Stats. 2021, Ch. 76, Sec. 10. (AB 136) Effective July 16, 2021.)

article: 4. Offenses


text: The Legislature finds and declares that the current civil penalty structure for facilities licensed by the State Department of Social Services is insufficient to ensure the health and safety of those in care. It is the intent of the Legislature to comprehensively increase these penalties for all facilities in subsequent legislation, with particular emphasis on penalties for violations that result in serious injury or death.

history: (History: Added by Stats. 2014, Ch. 29, Sec. 13. (SB 855) Effective June 20, 2014.)

article: 4. Offenses


citation: HSC § 1549

text: The civil, criminal, and administrative remedies available to the department pursuant to this article are not exclusive, and may be sought and employed in any combination deemed advisable by the department to enforce this chapter.

history: (History: Added by Stats. 1985, Ch. 1415, Sec. 6.)

article: 4. Offenses


citation: HSC § 1550

text:
The department may deny an application for, or suspend or revoke, any license, or any special permit, certificate of approval, or administrator certificate, issued under this chapter upon any of the following grounds and in the manner provided in this chapter, or may deny a transfer of a license pursuant to paragraph (2) of subdivision (b) of Section 1524 for any of the following grounds:

(a) Violation of this chapter or of the rules and regulations promulgated under this chapter by the licensee or holder of a special permit or certificate.

(b) Aiding, abetting, or permitting the violation of this chapter or of the rules and regulations promulgated under this chapter.

(c) Conduct which is inimical to the health, morals, welfare, or safety of either the people of this state or an individual in, or receiving services from, the facility or certified family home.

(d) The conviction of a licensee, holder of a special permit or certificate, or other person mentioned in Section 1522, at any time before or during licensure, of a crime as defined in Section 1522.

(e) The licensee of any facility, the holder of a special permit or certificate, or the person providing direct care or supervision knowingly allows any child to have illegal drugs or alcohol.

(f) Engaging in acts of financial malfeasance concerning the operation of a facility or certified family home, 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.

history: (History: Amended by Stats. 2014, Ch. 29, Sec. 14. (SB 855) Effective June 20, 2014.)

article: 5. Suspension and Revocation

path: 2. LICENSING PROVISIONS > 3. California Community Care Facilities Act > 5. Suspension and Revocation


text:
The director may temporarily suspend any license prior to any hearing when, in the opinion of the director, the action is urgent to protect residents or clients of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety. The director shall serve the licensee with the temporary suspension order, a copy of available discovery and other relevant evidence in the possession of the department, including, but not limited to, affidavits, declarations, and any other evidence upon which the director relied in issuing the temporary suspension order, the names of the department’s witnesses, and the effective date of the temporary suspension and at the same time shall serve the licensee with an accusation.

(a) (1) The department shall notify the licensee, upon service of an order of temporary license suspension, of the licensee’s right to an interim hearing on the order. The department shall also provide the licensee with a form and appropriate information for the licensee’s use in requesting an interim hearing. The department shall also notify the licensee, upon service, of the licensee’s independent right to seek review of the order by the superior court pursuant to Section 1085 of the Code of Civil Procedure.

(2) (A) The licensee may request an interim hearing by mailing or delivering a written request to the Office of Administrative Hearings. The licensee shall mail or deliver the request to the address or location specified on the request form served with the order. The licensee shall mail or deliver the request within five days after service of the order. Upon receipt of a timely request for an interim hearing, the Office of Administrative Hearings shall set a hearing date and time which shall be within 10 working days of the office’s receipt of the request. The Office of Administrative Hearings shall promptly notify the licensee of the date, time, and place of the hearing. The licensee’s request for an interim hearing shall not stay the operation of the order.

(B) Nothing in this section precludes a licensee from proceeding directly to a full evidentiary hearing or from seeking review of the temporary suspension order by the superior court without first requesting an interim hearing. Nothing in this section requires resolution of the interim hearing prior to review of the temporary suspension order by the superior court. The relief that may be ordered is a stay of the temporary suspension order.

(3) (A) An interim hearing shall be held before an administrative law judge of the Office of Administrative Hearings. The interim hearing shall be held at the regional office of the Office of Administrative Hearings having jurisdiction over the location of the facility.

(B) For purposes of the interim hearing conducted pursuant to this section, the licensee and department shall, at a minimum, have the following rights:

(i) To be represented by counsel.

(ii) To have a record made of the proceedings, copies of which may be obtained by the licensee upon payment of reasonable charges associated with the record.

(iii) To present written evidence in the form of relevant declarations, affidavits, and documents. No later than five working days prior to the interim hearing, the department and the respondent shall serve the opposing party, by overnight delivery or facsimile transmission, with any additional available pertinent discovery that the department or respondent will present at the hearing and that was not provided to the licensee at the time the temporary suspension order was issued. The additional discovery shall include, but not be limited to, affidavits, declarations, and the names of witnesses who will testify at the full evidentiary hearing. The department and the respondent shall have a continuing obligation to exchange discovery as described in this section, up to and including the day of the interim hearing. There shall be no oral testimony at the interim hearing.

(iv) In lieu of an affidavit by an alleged victim named in the accusation, the department and the respondent shall be permitted, at the discretion of the administrative law judge, to introduce at the interim hearing hearsay evidence as to any statement made by the alleged victim as if the alleged victim executed an affidavit. In deciding whether the hearsay statement should be admitted as evidence in the interim hearing, the administrative law judge shall consider the circumstances that would indicate the trustworthiness of the statement.

(v) To present oral argument.

(C) Consistent with the standards of proof applicable to a preliminary injunction entered under Section 527 of the Code of Civil Procedure, the administrative law judge shall vacate the temporary suspension order where, in the exercise of discretion, the administrative law judge concludes both of the following:

(i) There is a reasonable probability that the licensee will prevail in the underlying action.

(ii) The likelihood of physical or mental abuse, abandonment, or other substantial threat to the health or safety of residents or clients in not sustaining the order does not outweigh the likelihood of injury to the licensee in sustaining the order.

(D) The interim hearing shall be reported or recorded pursuant to subdivision (d) of Section 11512 of the Government Code.

(4) The administrative law judge shall issue a verbal interim decision at the conclusion of the interim hearing which sustains or vacates the order. The administrative law judge shall issue a written interim decision within five working days following the conclusion of the interim hearing. The written interim decision shall include findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached.

(5) The interim decision shall be subject to review only pursuant to Section 1094.5 of the Code of Civil Procedure. The department or the licensee may file a petition for that review. A petition for review under Section 1094.5 of the Code of Civil Procedure shall be heard by the court within 10 days of its filing and the court shall issue its judgment on the petition within 10 days of the conclusion of the hearing.

(6) The department may proceed with the accusation as otherwise provided by this section and Section 1551 notwithstanding an interim decision by the administrative law judge that vacates the order of temporary license suspension.

(b) Upon receipt of a notice of defense to the accusation by the licensee, the director shall, within 15 days, set the matter for a full evidentiary hearing, and the hearing shall be held as soon as possible but not later than 30 days after receipt of the notice. The temporary suspension shall remain in effect until the time the hearing is completed and the director has made a final determination on the merits, unless it is earlier vacated by interim decision of the administrative law judge or a superior court judge. However, the temporary suspension shall be deemed vacated if the director fails to make a final determination on the merits within 30 days after the original hearing has been completed.

history: (History: Amended by Stats. 1997, Ch. 728, Sec. 1. Effective January 1, 1998.)

article: 5. Suspension and Revocation


text:
(a) The department shall conduct an unannounced visit to a facility within 30 days after the effective date of a temporary suspension of a license in order to ensure that the facility is nonoperational, unless the department previously has verified that the facility is nonoperational.

(b) The department shall conduct an unannounced visit to a facility within 30 days after the effective date of a revocation of a license, in order to ensure that the facility is nonoperational, unless the department previously has verified that the facility is nonoperational.

history: (History: Added by Stats. 2008, Ch. 291, Sec. 8. Effective September 25, 2008.)

article: 5. Suspension and Revocation


citation: HSC § 1551

text:
(a) Proceedings for the suspension, revocation, or denial of a license, registration, special permit, certificate of approval, or any administrator certificate under this chapter, or denial of transfer of a license pursuant to paragraph (2) of subdivision (c) of Section 1524, 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 the event of conflict between this chapter and the Government Code, the Government Code shall prevail.

(b) In all proceedings conducted in accordance with this section, the standard of proof to be applied shall be by the preponderance of the evidence.

(c) If the license, special permit, certificate of approval, or administrator certificate is not temporarily suspended pursuant to Section 1550, the hearing shall be held within 90 calendar days after receipt of the notice of defense, unless a continuance of the hearing is granted by the department or the administrative law judge. When the matter has been set for hearing only the administrative law judge may grant a continuance of the hearing. The administrative law judge may, but need not, grant a continuance of the hearing only upon finding the existence of one or more of the following:

(1) The death or incapacitating illness of a party, a representative or attorney of a party, a witness to an essential fact, or of the parent, child, or member of the household of such person, when it is not feasible to substitute another representative, attorney, or witness because of the proximity of the hearing date.

(2) Lack of notice of hearing as provided in Section 11509 of the Government Code.

(3) A material change in the status of the case where a change in the parties or pleadings requires postponement, or an executed settlement or stipulated findings of fact obviate the need for hearing. A partial amendment of the pleadings shall not be good cause for continuance to the extent that the unamended portion of the pleadings is ready to be heard.

(4) A stipulation for continuance signed by all parties or their authorized representatives, including, but not limited to, a representative, which is communicated with the request for continuance to the administrative law judge no later than 25 business days before the hearing.

(5) The substitution of the representative or attorney of a party upon showing that the substitution is required.

(6) The unavailability of a party, representative, or attorney of a party, or witness to an essential fact due to a conflicting and required appearance in a judicial matter if when the hearing date was set, the person did not know and could neither anticipate nor at any time avoid the conflict, and the conflict with request for continuance is immediately communicated to the administrative law judge.

(7) The unavailability of a party, a representative or attorney of a party, or a material witness due to an unavoidable emergency.

(8) Failure by a party to comply with a timely discovery request if the continuance request is made by the party who requested the discovery.

history: (History: Amended by Stats. 2014, Ch. 29, Sec. 15. (SB 855) Effective June 20, 2014.)

article: 5. Suspension and Revocation


text:
(a) The administrative law judge conducting a hearing under this article may permit the testimony of a child witness, or a similarly vulnerable witness, including a witness who is developmentally disabled, to be taken outside the presence of the respondent or respondents if all of the following conditions exist:

(1) The administrative law judge determines that taking the witness’s testimony outside the presence of the respondent or respondents is necessary to ensure truthful testimony.

(2) The witness is likely to be intimidated by the presence of the respondent or respondents.

(3) The witness is afraid to testify in front of the respondent or respondents.

(b) If the testimony of the witness is taken outside of the presence of the respondent or respondents, the department shall provide for the use of one-way closed-circuit television so the respondent or respondents can observe the testimony of the witness. Nothing in this section shall limit a respondent’s right of cross-examination.

(c) The administrative law judge conducting a hearing under this section may clear the hearing room of any persons who are not a party to the action in order to protect any witness from intimidation or other harm, taking into account the rights of all persons.

history: (History: Added by Stats. 1994, Ch. 1267, Sec. 3. Effective January 1, 1995.)

article: 5. Suspension and Revocation


text:
(a) (1) An out-of-court statement made by a minor under 12 years of age who is the subject or victim of an allegation at issue is admissible evidence at an administrative hearing conducted pursuant to this article. The out-of-court statement may be used to support a finding of fact unless an objection is timely made and the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence. However, the out-of-court statement may not be the sole basis for the finding of fact, unless the adjudicator finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability.

(2) The proponent of the statement shall give reasonable notice to all parties of the intended introduction of the statement at the hearing.

(3) For purposes of this subdivision, an objection is timely if it identifies with reasonable specificity the disputed out-of-court statement and it gives the proponent of the evidence a reasonable period of time to prepare a response to the objection prior to the hearing.

(b) This section shall not be construed to limit the right of any party to the administrative hearing to subpoena a witness whose statement is admitted as evidence or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant.

history: (History: Added by Stats. 2002, Ch. 707, Sec. 1. Effective January 1, 2003.)

article: 5. Suspension and Revocation


text: Notwithstanding Sections 11425.10 and 11425.20 of the Government Code, a proceeding conducted pursuant to this chapter against a foster family home, certified family home, or resource family of a foster family agency shall be confidential and not open to the public in order to preserve the confidential information of a child or foster parent consistent with the confidentiality requirements in Section 1536 of this code, Section 11167.5 of the Penal Code, and Sections 827, 10850, and 16519.55 of the Welfare and Institutions Code. Notwithstanding this requirement, an administrative law judge may admit those persons deemed to have a direct and legitimate interest in a particular case or the work of the court on a case-by-case basis and with any admonishments, limitations, or protective orders that may be necessary to preserve the confidential nature of the proceedings.

history: (History: Amended by Stats. 2020, Ch. 104, Sec. 10. (AB 2944) Effective September 18, 2020.)

article: 5. Suspension and Revocation


text: In addition to the witness fees and mileage provided by Section 11450.40 of the Government Code, the department may pay actual, necessary, and reasonable expenses in an amount not to exceed the per diem allowance payable to a nonrepresented state employee on travel status. The department may pay witness expenses in advance of the hearing.

history: (History: Amended by Stats. 1995, Ch. 938, Sec. 60. Effective January 1, 1996. Operative July 1, 1997, by Sec. 98 of Ch. 938.)

article: 5. Suspension and Revocation


text:
(a) In any administrative proceeding conducted pursuant to this article in which a child or other minor is the victim in an allegation of inappropriate sexual conduct, evidence of specific instances of the victim’s sexual conduct with individuals other than the alleged perpetrator is subject to all of the following limitations:

(1) The evidence is not discoverable unless it is to be offered at an administrative proceeding to attack the credibility of the victim, as provided for in subdivision (b). This paragraph is intended only to limit the scope of discovery and is not intended to affect the methods of discovery authorized by statute.

(2) The evidence is not admissible at the administrative proceeding unless offered to attack the credibility of the victim, as provided for in subdivision (b).

(3) Reputation or opinion evidence regarding the sexual behavior of the victim is not admissible for any purpose.

(b) Evidence of specific instances of a victim’s sexual conduct with individuals other than the alleged perpetrator is presumed inadmissible absent an offer of proof establishing its relevance and reliability and that its probative value is not substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or confuse the issues.

(c) As used in this section, “victim” means a person who claims to have been subjected to inappropriate sexual conduct by an alleged perpetrator, including, but not limited to, a person who is an adult at the time of hearing, but was under 18 years of age at the time of the alleged inappropriate sexual conduct.

history: (History: Added by Stats. 2018, Ch. 910, Sec. 17. (AB 1930) Effective January 1, 2019.)

article: 5. Suspension and Revocation


citation: HSC § 1553

text:
The withdrawal of an application for a license or a special permit after it has been filed with the state department shall not, unless the state department consents in writing to such withdrawal, deprive the state department of its authority to institute or continue a proceeding against the applicant for the denial of the license or a special permit upon any ground provided by law or to enter an order denying the license or special permit upon any such ground.

The suspension, expiration, or forfeiture by operation of law of a license or a special permit issued by the state department, or its suspension, forfeiture, or cancellation by order of the state department or by order of a court of law, or its surrender without the written consent of the state department, shall not deprive the state department of its authority to institute or continue a disciplinary proceeding against the licensee or holder of a special permit upon any ground provided by law or to enter an order suspending or revoking the license or special permit or otherwise taking disciplinary action against the licensee or holder of a special permit on any such ground.

history: (History: Added by Stats. 1973, Ch. 1203.)

article: 5. Suspension and Revocation


citation: HSC § 1554

text: Any license, registration, or special permit suspended pursuant to this chapter, and any special permit revoked pursuant to this chapter, may be reinstated pursuant to the provisions of Section 11522 of the Government Code.

history: (History: Amended by Stats. 1980, Ch. 1285.)

article: 5. Suspension and Revocation


citation: HSC § 1555

text: Whenever a license, registration, or special permit issued under this chapter for a community care facility is suspended, revoked, temporarily suspended, forfeited, canceled, or expires, the department shall provide written notice of that occurrence within 10 days to the local director of social services and the probation officer of the county in which the community care facility is located.

history: (History: Added by Stats. 1984, Ch. 821, Sec. 1.)

article: 5. Suspension and Revocation


citation: HSC § 1556

text:
(a) If the director determines that it is necessary to temporarily suspend any license or special permit of a community care facility in order to protect the residents or clients of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety, the department shall make every effort to minimize transfer trauma for the residents or clients.

(b) The department shall contact any local agency that may have assessment, placement, protective, or advocacy responsibility for the residents or clients of a facility after a decision is made to temporarily suspend the license or special permit of the facility and prior to its implementation. The department shall work together with these agencies and the licensee, if the director determines it to be appropriate, to locate alternative placement sites, and to contact relatives or other persons responsible for the care of these residents or clients, provide onsite evaluation of the residents or clients, and assist in the transfer of the residents or clients.

(c) In any case where the department alleges that a client or resident has a health condition or health conditions which cannot be cared for within the limits of the license or special permit, or requires inpatient care in a health facility licensed pursuant to Chapter 2 (commencing with Section 1250), the department shall do all of the following:

(1) Consult with appropriate medical personnel about when the client or resident should be removed from the facility and how transfer trauma can be minimized.

(2) If the department temporarily suspends the license or special permit of a facility, use medical personnel deemed appropriate by the department to provide onsite evaluation of the clients or residents.

(3) If the department does not suspend the license or special permit of a facility, order the licensee to remove only those clients or residents who have health conditions which cannot be cared for within the limits of the license or special permit or require inpatient care in a health facility licensed pursuant to Chapter 2 (commencing with Section 1250), as determined by the department, if the department determines that other clients or residents are not in physical danger.

(d) In any case where the department orders the temporary suspension of a licensee or orders the licensee, or holder of a special permit, to remove a client or resident who has a health condition or health conditions which cannot be cared for within the limits of the license or special permit or requires inpatient care in a health facility licensed pursuant to Chapter 2 (commencing with Section 1250), the department may require the licensee or holder of a special permit to do all of the following:

(1) Prepare and submit to the department a written plan for the safe and orderly relocation of the client or resident, in a form acceptable to the department.

(2) Comply with all terms and conditions of the approved relocation plan.

(3) Provide any other information as may be required by the department for the proper administration and enforcement of this section.

history: (History: Amended by Stats. 2014, Ch. 29, Sec. 16. (SB 855) Effective June 20, 2014.)

article: 5. Suspension and Revocation


text:
(a) If the department, as a condition of licensure, requires the chief executive officer or other authorized member of the board of directors and the administrator of a foster family agency to attend an orientation given by the licensing agency that outlines the applicable rules and regulations for operation of a foster family agency, that orientation shall include, but not be limited to, a description of policies, procedures, or practices that violate paragraph (1) or (2) of subdivision (i) of Section 11166 of the Penal Code.

(b) If the department requires, as part of an application for licensure for a foster family agency, a written plan of operation, that plan of operation shall include a written plan establishing policies, procedures, or practices to ensure that the foster family agency does not violate paragraph (1) or (2) of subdivision (i) of Section 11166 of the Penal Code.

(c) For purposes of this section, a foster family agency is defined in paragraph (4) of subdivision (a) of Section 1502.

history: (History: Added by Stats. 2016, Ch. 850, Sec. 2. (AB 1001) Effective January 1, 2017.)

article: 5. Suspension and Revocation


text: Each facility required to be licensed pursuant to this chapter shall keep a current record of clients in the facility, including the client’s name and ambulatory status, and the name, address, and telephone number of the client’s physician and of any person or agency responsible for the care of the client. The facility shall protect the privacy and confidentiality of this information.

history: (History: Added by Stats. 1985, Ch. 869, Sec. 3. See similar Section 1557.5 added by Stats. 1985, Ch. 1096.)

article: 5. Suspension and Revocation


text:
Each facility required to be licensed shall keep a current record of all of the following:

(a) Clients in the facility, including each client’s name and ambulatory status.

(b) The name, address, and telephone number of each client’s physician.

(c) The name, address, and telephone number of any person or agency responsible for the care of a client.

The facility shall respect the privacy and confidentiality of this information.

history: (History: Added by Stats. 1985, Ch. 1096, Sec. 2.)

article: 5. Suspension and Revocation