1550.5
. 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.