1428
. (a) If the licensee desires to contest a citation or the
proposed assessment of a civil penalty therefor, the licensee shall
use the processes described in subdivisions (b) and (c) for classes
"AA," "A," or "B" citations.
(b) If a licensee intends to contest a class "AA" or a class "A"
citation, the licensee shall inform the director in writing, within
15 business days of the service of the citation of the licensee's
intent to adjudicate the validity of the citation in the superior
court in the county in which the long-term health care facility is
located. In order to perfect a judicial appeal of a contested
citation, a licensee shall file a civil action in the superior court
in the county in which the long-term health care facility is located.
The action shall be filed no later than 90 calendar days after a
licensee notifies the director that he or she intends to contest the
citation, and served not later than 90 days after filing.
Notwithstanding any other provision of law, a licensee prosecuting a
judicial appeal shall file and serve a case management statement
pursuant to Rule 212 of the California Rules of Court within six
months after the department files its answer in the appeal.
Notwithstanding subdivision (d), the court shall dismiss the appeal
upon motion of the department if the case management statement is not
filed by the licensee within the period specified. The court may
affirm, modify, or dismiss the citation, the level of the citation,
or the amount of the proposed assessment of the civil penalty.
(c) If a licensee desires to contest a class "B" citation, the
licensee shall, within 15 working days after service of the citation,
notify the director or the director's designee that he or she wishes
to appeal the citation through the procedures set forth in Section
100171 or elects to submit the matter to binding arbitration in
accordance with subdivision (d). The administrative law judge may
affirm, modify, or dismiss the citation or the proposed assessment of
a civil penalty. The licensee may choose to have his or her appeal
heard by the administrative law judge or submit the matter to binding
arbitration by notifying the director in writing within 15 business
days of the service of the citation.
(d) If a licensee is dissatisfied with the decision of the
administrative law judge, the licensee may, in lieu of seeking
judicial review of the decision as provided in Section 1094.5 of the
Code of Civil Procedure, elect to submit the matter to binding
arbitration by filing, within 60 days of its receipt of the decision,
a request for arbitration with the American Arbitration Association.
The parties shall agree upon an arbitrator designated from the
American Arbitration Association in accordance with the association's
established rules and procedures. The arbitration hearing shall be
set within 45 days of the election to arbitrate, but in no event less
than 28 days from the date of selection of an arbitrator. The
arbitration hearing may be continued up to 15 additional days if
necessary at the arbitrator's discretion. Except as otherwise
specifically provided in this subdivision, the arbitration hearing
shall be conducted in accordance with the American Arbitration
Association's established rules and procedures. The arbitrator shall
determine whether the licensee violated the regulation or regulations
cited by the department, and whether the citation meets the criteria
established in Sections 1423 and 1424. If the arbitrator determines
that the licensee has violated the regulation or regulations cited by
the department, and that the class of the citation should be upheld,
the proposed assessment of a civil penalty shall be affirmed,
subject to the limitations established in Section 1424. The licensee
and the department shall each bear its respective portion of the cost
of arbitration. A resident, or his or her designated representative,
or both, may make an oral or written statement regarding the
citation, at any arbitration hearing to which the matter has been
submitted.
(e) If an appeal is prosecuted under this section, including an
appeal taken in accordance with Section 100171, the department shall
have the burden of establishing by a preponderance of the evidence
that (1) the alleged violation did occur, (2) the alleged violation
met the criteria for the class of citation alleged, and (3) the
assessed penalty was appropriate. The department shall also have the
burden of establishing by a preponderance of the evidence that the
assessment of a civil penalty should be upheld. If a licensee appeals
a contested citation or the assessment of a civil penalty, no civil
penalty shall be due and payable unless and until the appeal is
terminated in favor of the department.
(f) In assessing the civil penalty for a violation, all relevant
facts shall be considered, including, but not limited to, all of the
following:
(1) The probability and severity of the risk which the violation
presents to the patient's or resident's mental and physical
condition.
(2) The patient's or resident's medical condition.
(3) The patient's or resident's mental condition and his or her
history of mental disability.
(4) The good faith efforts exercised by the facility to prevent
the violation from occurring.
(5) The licensee's history of compliance with regulations.
(g) Except as otherwise provided in this subdivision, an
assessment of civil penalties for a class "A" or class "B" violation
shall be trebled and collected for a second and subsequent violation
for which a citation of the same class was issued within any 12-month
period. Trebling shall occur only if the first citation issued
within the 12-month period was issued in the same class, a civil
penalty was assessed, and a plan of correction was submitted for the
previous same-class violation occurring within the period, without
regard to whether the action to enforce the previous citation has
become final. However, the increment to the civil penalty required by
this subdivision shall not be due and payable unless and until the
previous action has terminated in favor of the department.
If the class "B" citation is issued for a patient's rights
violation, as defined in subdivision (e) of Section 1424, it shall
not be trebled unless the department determines the violation has a
direct or immediate relationship to the health, safety, security, or
welfare of long-term health care facility residents.
(h) The director shall prescribe procedures for the issuance of a
notice of violation with respect to violations having only a minimal
relationship to safety or health.
(i) Actions brought under this chapter shall be set for trial at
the earliest possible date and shall take precedence on the court
calendar over all other cases except matters to which equal or
superior precedence is specifically granted by law. Times for
responsive pleading and for hearing the proceeding shall be set by
the judge of the court with the object of securing a decision as to
subject matters at the earliest possible time.
(j) If the citation is dismissed, the department shall take action
immediately to ensure that the public records reflect in a prominent
manner that the citation was dismissed.
(k) Penalties paid on violations under this chapter shall be
applied against the department's accounts to offset any costs
incurred by the state pursuant to this chapter. Any costs or
penalties assessed pursuant to this chapter shall be paid within 30
days of the date the decision becomes final. If a facility does not
comply with this requirement, the state department shall withhold any
payment under the Medi-Cal program until the debt is satisfied. No
payment shall be withheld if the department determines that it would
cause undue hardship to the facility or to patients or residents of
the facility.
(l) The amendments made to subdivisions (a) and (c) of this
section by Chapter 84 of the Statutes of 1988, to extend the number
of days allowed for the provision of notification to the director, do
not affect the right, that is also contained in those amendments, to
request judicial relief from these time limits.
(m) If a licensee exercises its right to a citation review
conference prior to January 1, 2012, the citation review conference
and all notices, reviews, and appeals thereof shall be conducted
pursuant to this section as it read on December 31, 2011.