1424
. Citations issued pursuant to this chapter shall be classified
according to the nature of the violation and shall indicate the
classification on the face thereof.
(a) In determining the amount of the civil penalty, all relevant
facts shall be considered, including, but not limited to, the
following:
(1) The probability and severity of the risk that the violation
presents to the patient's or resident's mental and physical
condition.
(2) The patient's or resident's medical condition.
(3) The patient's or resident's mental condition and his or her
history of mental disability or disorder.
(4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
(5) The licensee's history of compliance with regulations.
(b) Relevant facts considered by the department in determining the
amount of the civil penalty shall be documented by the department on
an attachment to the citation and available in the public record.
This requirement shall not preclude the department or a facility from
introducing facts not listed on the citation to support or challenge
the amount of the civil penalty in any proceeding set forth in
Section 1428.
(c) Class "AA" violations are violations that meet the criteria
for a class "A" violation and that the state department determines to
have been a direct proximate cause of death of a patient or resident
of a long-term health care facility. Except as provided in Section
1424.5, a class "AA" citation is subject to a civil penalty in the
amount of not less than five thousand dollars ($5,000) and not
exceeding twenty-five thousand dollars ($25,000) for each citation.
In any action to enforce a citation issued under this subdivision,
the state department shall prove all of the following:
(1) The violation was a direct proximate cause of death of a
patient or resident.
(2) The death resulted from an occurrence of a nature that the
regulation was designed to prevent.
(3) The patient or resident suffering the death was among the
class of persons for whose protection the regulation was adopted.
If the state department meets this burden of proof, the licensee
shall have the burden of proving that the licensee did what might
reasonably be expected of a long-term health care facility licensee,
acting under similar circumstances, to comply with the regulation. If
the licensee sustains this burden, then the citation shall be
dismissed.
Except as provided in Section 1424.5, for each class "AA" citation
within a 12-month period that has become final, the state department
shall consider the suspension or revocation of the facility's
license in accordance with Section 1294. For a third or subsequent
class "AA" citation in a facility within that 12-month period that
has been sustained, the state department shall commence action to
suspend or revoke the facility's license in accordance with Section
1294.
(d) Class "A" violations are violations which the state department
determines present either (1) imminent danger that death or serious
harm to the patients or residents of the long-term health care
facility would result therefrom, or (2) substantial probability that
death or serious physical harm to patients or residents of the
long-term health care facility would result therefrom. A physical
condition or one or more practices, means, methods, or operations in
use in a long-term health care facility may constitute a class "A"
violation. The condition or practice constituting a class "A"
violation shall be abated or eliminated immediately, unless a fixed
period of time, as determined by the state department, is required
for correction. Except as provided in Section 1424.5, a class "A"
citation is subject to a civil penalty in an amount not less than one
thousand dollars ($1,000) and not exceeding ten thousand dollars
($10,000) for each and every citation.
If the state department establishes that a violation occurred, the
licensee shall have the burden of proving that the licensee did what
might reasonably be expected of a long-term health care facility
licensee, acting under similar circumstances, to comply with the
regulation. If the licensee sustains this burden, then the citation
shall be dismissed.
(e) Except as provided in paragraph (4) of subdivision (a) of
Section 1424.5, class "B" violations are violations that the state
department determines have a direct or immediate relationship to the
health, safety, or security of long-term health care facility
patients or residents, other than class "AA" or "A" violations.
Unless otherwise determined by the state department to be a class "A"
violation pursuant to this chapter and rules and regulations adopted
pursuant thereto, any violation of a patient's rights as set forth
in Sections 72527 and 73523 of Title 22 of the California Code of
Regulations, that is determined by the state department to cause or
under circumstances likely to cause significant humiliation,
indignity, anxiety, or other emotional trauma to a patient is a class
"B" violation. A class "B" citation is subject to a civil penalty in
an amount not less than one hundred dollars ($100) and not exceeding
one thousand dollars ($1,000) for each and every citation. A class
"B" citation shall specify the time within which the violation is
required to be corrected. If the state department establishes that a
violation occurred, the licensee shall have the burden of proving
that the licensee did what might reasonably be expected of a
long-term health care facility licensee, acting under similar
circumstances, to comply with the regulation. If the licensee
sustains this burden, then the citation shall be dismissed.
In the event of any citation under this paragraph, if the state
department establishes that a violation occurred, the licensee shall
have the burden of proving that the licensee did what might
reasonably be expected of a long-term health care facility licensee,
acting under similar circumstances, to comply with the regulation. If
the licensee sustains this burden, then the citation shall be
dismissed.
(f) (1) Any willful material falsification or willful material
omission in the health record of a patient of a long-term health care
facility is a violation.
(2) "Willful material falsification," as used in this section,
means any entry in the patient health care record pertaining to the
administration of medication, or treatments ordered for the patient,
or pertaining to services for the prevention or treatment of
decubitus ulcers or contractures, or pertaining to tests and
measurements of vital signs, or notations of input and output of
fluids, that was made with the knowledge that the records falsely
reflect the condition of the resident or the care or services
provided.
(3) "Willful material omission," as used in this section, means
the willful failure to record any untoward event that has affected
the health, safety, or security of the specific patient, and that was
omitted with the knowledge that the records falsely reflect the
condition of the resident or the care or services provided.
(g) Except as provided in subdivision (a) of Section 1424.5, a
violation of subdivision (f) may result in a civil penalty not to
exceed ten thousand dollars ($10,000), as specified in paragraphs (1)
to (3), inclusive.
(1) The willful material falsification or willful material
omission is subject to a civil penalty of not less than two thousand
five hundred dollars ($2,500) or more than ten thousand dollars
($10,000) in instances where the health care record is relied upon by
a health care professional to the detriment of a patient by
affecting the administration of medications or treatments, the
issuance of orders, or the development of plans of care. In all other
cases, violations of this subdivision are subject to a civil penalty
not exceeding two thousand five hundred dollars ($2,500).
(2) Where the penalty assessed is one thousand dollars ($1,000) or
less, the violation shall be issued and enforced, except as provided
in this subdivision, in the same manner as a class "B" violation,
and shall include the right of appeal as specified in Section 1428.
Where the assessed penalty is in excess of one thousand dollars
($1,000), or for skilled nursing facilities or intermediate care
facilities as specified in paragraphs (1) and (2) of subdivision (a)
of Section 1418, in excess of two thousand dollars ($2,000), the
violation shall be issued and enforced, except as provided in this
subdivision, in the same manner as a class "A" violation, and shall
include the right of appeal as specified in Section 1428.
Nothing in this section shall be construed as a change in previous
law enacted by Chapter 11 of the Statutes of 1985 relative to this
paragraph, but merely as a clarification of existing law.
(3) Nothing in this subdivision shall preclude the state
department from issuing a class "A" or class "B" citation for any
violation that meets the requirements for that citation, regardless
of whether the violation also constitutes a violation of this
subdivision. However, no single act, omission, or occurrence may be
cited both as a class "A" or class "B" violation and as a violation
of this subdivision.
(h) Where the licensee has failed to post the notices as required
by Section 9718 of the Welfare and Institutions Code in the manner
required under Section 1422.6, the state department shall assess the
licensee a civil penalty in the amount of one hundred dollars ($100)
for each day the failure to post the notices continues. Where the
total penalty assessed is less than two thousand dollars ($2,000),
the violation shall be issued and enforced in the same manner as a
class "B" violation, and shall include the right of appeal as
specified in Section 1428. Where the assessed penalty is equal to or
in excess of two thousand dollars ($2,000), the violation shall be
issued and enforced in the same manner as a class "A" violation and
shall include the right of appeal as specified in Section 1428. Any
fines collected pursuant to this subdivision shall be used to fund
the costs incurred by the California Department of Aging in producing
and posting the posters.
(i) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to patient safety or health.
(j) The department shall provide a copy of all citations issued
under this section to the affected residents whose treatment was the
basis for the issuance of the citation, to the affected residents'
designated family member or representative of each of the residents,
and to the complainant if the citation was issued as a result of a
complaint.
(k) Nothing in this section is intended to change existing
statutory or regulatory requirements governing the ability of a
licensee to contest a citation pursuant to Section 1428.
(l) The department shall ensure that district office activities
performed under Sections 1419 to 1424, inclusive, are consistent with
the requirements of these sections and all applicable laws and
regulations. To ensure the integrity of these activities, the
department shall establish a statewide process for the collection of
postsurvey evaluations from affected facilities.