California § 1280.3 - Commencing on the effective date of the regulations adopted pursuant to this sect

§ 1280.3. Commencing on the effective date of the regulations adopted pursuant to this sect

(a) Commencing on the effective date of the regulations adopted pursuant to this section, the director may assess an administrative penalty against a licensee of a health facility licensed under subdivision (a), (b), or (f) of Section 1250 for a deficiency constituting an immediate jeopardy violation as determined by the department up to a maximum of seventy-five thousand dollars ($75,000) for the first administrative penalty, up to one hundred thousand dollars ($100,000) for the second subsequent administrative penalty, and up to one hundred twenty-five thousand dollars ($125,000) for the third and every subsequent violation. An administrative penalty issued after three years from the date of the last issued immediate jeopardy violation shall be considered a first administrative penalty so long as the facility has not received additional immediate jeopardy violations and is found by the department to be in substantial compliance with all state and federal licensing laws and regulations. The department shall have full discretion to consider all factors when determining the amount of an administrative penalty pursuant to this section. (b) Except as provided in subdivision (c), for a violation of this chapter or the rules and regulations promulgated thereunder that does not constitute a violation of subdivision (a), the department may assess an administrative penalty in an amount of up to twenty-five thousand dollars ($25,000) per violation. This subdivision shall also apply to violation of regulations set forth in Article 1 (commencing with Section 127400) of Chapter 2.5 of Part 2 of Division 107 or the rules and regulations promulgated thereunder. The department shall promulgate regulations establishing the criteria to assess an administrative penalty against a health facility licensed pursuant to subdivision (a), (b), or (f) of Section 1250. The criteria shall include, but need not be limited to, the following: (1) The patient’s physical and mental condition. (2) The probability and severity of the risk that the violation presents to the patient. (3) The actual financial harm to patients, if any. (4) The nature, scope, and severity of the violation. (5) The facility’s history of compliance with related state and federal statutes and regulations. (6) Factors beyond the facility’s control that restrict the facility’s ability to comply with this chapter or the rules and regulations promulgated thereunder. (7) The demonstrated willfulness of the violation. (8) The extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring. (c) The department shall not assess an administrative penalty for minor violations. (d) The regulations shall not change the definition of immediate jeopardy as established in this section. (e) The regulations shall apply only to incidents occurring on or after the effective date of the regulations. (f) (1) Notwithstanding subdivision (a), if the department determines that a health facility licensed under subdivision (a), (b), or (f) of Section 1250 has violated a regulation adopted pursuant to Section 1276.4, the department shall assess an administrative penalty of fifteen thousand dollars ($15,000) for the first violation and thirty thousand dollars ($30,000) for the second and each subsequent violation. For purposes of this subdivision, multiple violations found on the same inspection survey shall constitute a single violation for purposes of determining whether the violation was a first, second, or subsequent violation. For purposes of this subdivision, the department shall treat violations on separate days as separate violations. (2) A violation occurring more than three years after the date of the last violation shall be treated as a first violation. (3) Notwithstanding any other law, the department may, without taking any regulatory actions pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, implement, interpret, or make specific this subdivision by means of an All Facilities Letter (AFL) or similar instruction. (4) (A) Notwithstanding paragraph (1), a general acute care hospital shall not be subject to an administrative penalty under that paragraph if the hospital demonstrates to the satisfaction of the department all of the following: (i) That any fluctuation in required staffing levels was unpredictable and uncontrollable. (ii) Prompt efforts were made to maintain required staffing levels. (iii) In making those efforts, the hospital immediately used and subsequently exhausted the hospital’s on-call list of nurses and the charge nurse. For purposes of this paragraph, an “on-call list” shall be comprised of nurses who are scheduled to be on call for the shift and unit where an alleged violation occurred, or nurses who are assigned to a regularly scheduled float pool shift to cover any shortages across one or more specified units. A hospital contacting, or attempting to contact, licensed nurses who are not scheduled to be on call and who are not assigned to a float pool for the unit and shift where an alleged violation occurred shall not be considered as exhausting an on-call list for purposes of this paragraph. (B) This paragraph does not affect the obligation of a general acute care hospital to maintain proper staffing levels as prescribed in Section 70217 of Title 22 of the California Code of Regulations. (5) This section does not prohibit the department from issuing an administrative penalty for a staffing violation pursuant to this section and an administrative penalty for any resulting harm pursuant to subdivision (a). (g) If the licensee disputes a determination by the department regarding the alleged deficiency or alleged failure to correct a deficiency, or regarding the reasonableness of the proposed deadline for correction or the amount of the penalty, the licensee may, within 10 working days, request a hearing pursuant to Section 131071. Penalties shall be paid when all appeals have been exhausted and the department’s position has been upheld. (h) For purposes of this section, “immediate jeopardy” means a situation in which the licensee’s noncompliance with one or more requirements of licensure has caused, or is likely to cause, serious injury or death to the patient. (i) In enforcing subdivision (a) and paragraph (1) of subdivision (f), the department shall take into consideration the special circumstances of small and rural hospitals, as defined in Section 124840, in order to protect access to quality care in those hospitals.