Challenging State Citations in California
Eric S. Emanuels, Prout LeVangie, LLP
Significantly, in California state surveyors may respond to anonymous complaints about the quality of patient care services. They are obligated to respond to those complaints unannounced. Typically, an investigation of a complaint is made by a registered nurse, employed by the California Department of Public Health, Licensing & Certification Division. This nurse is commonly referred to as a Health Facility Evaluator Nurse. This nurse will review portions of the patient medical record, and interview staff and other percipient witnesses. If the case involves a patient transferred to a general acute care hospital, moreover, the nurse evaluator likely will review acute care hospital records and speak with physicians at the acute care hospital. The nurse then determines if there is a violation of regulations.
Levels of Potential Citations
California Health and Safety Code §1424 defines the three levels of citations issued against skilled nursing facilities in California.
A) Class “B” Violation
A Class B violation is a violation that the State Department determines to have a direct or immediate relationship to the health, safety or security of a long-term health care facility patient other than a Class “AA” or “A” violation. A Class “B citation is subject to a civil penalty in the amount not less $100.00 and not exceeding $1,000.00.
B) Class “A” Violation
A Class “A” violation is a violation which a State Department present either (1) imminent danger that death or serious harm to the patients of a long-term health care facility would result there from or (2) a substantial probability that death or serious physical harm to patients of the long-term health care facility would result there from. A Class “A” citation is subject to a civil monetary penalty (hereinafter “CMP”) in an amount not less than $2,000.00 and not exceeding $20,000.00 for each and every citation. Health & Safety code Sec. 1424.5
C) Class “AA” Violation
A Class “AA” violation is a violation that meets the criteria for a Class “A”, and which 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. This is subject to a CMP in the amount of not less than $25,000.00, and not exceeding $100,000.00 for each citation. Health & Safety Code Sec. 1424.5
CHALLENGING THE CITATIONS
- Procedure For Initiating Action
Pursuant to Health and Safety Code §1428, the skilled nursing facility is required to inform the California Department of Public Health (CDPH) within fifteen business days of the service of the citation or the receipt of the citation of its intention to either attend citation review conference or to bypass that process and go directly to the Superior Court. Once this is accomplished, the skilled nursing facility then has 90 calendar days to both file and serve a complaint in the Superior Court challenging the citation.
Reasons to Contest “AA” and “A” Citations
These citations typically are posted on the CDPH website, and can be accessed very easily by potential family members of residents for evaluating where to place a resident. Moreover, a skilled nursing facility receiving direct admissions from a general acute care hospital needs to be cognizant of the fact that discharge planners do become aware of citation history and are critical in steering residents qualifying for skilled care to a skilled nursing facility with an adverse violation. Thus, successful challenges to the violation results in a mandatory change in the public database.
Also, the amount of the CMP can be trebled for any subsequent Class “A” citation or a Class “B” citation if the first citation was issued within a 12-month period, and a subsequent citation was issued in that same time frame, and in the same class, e.g., quality of care. Health & Safety Code Sec. 1428(h). Thus, this can save the facility a significant amount of money if there is a successful challenge to an earlier Class “A” citation. This obviously is less with a Class “B” citation carrying a substantially less monetary penalty.
Moreover, if there is a penalty assessed for a “AA” citation, and that penalty is not paid in a timely manner (defined by statute, as within 30 days of the date the decision become final) the state is required to withhold payments under the Medi-Cal Program until the debt is satisfied. This, obviously, can disrupt operational functioning of a skilled nursing facility, particularly dependent upon Medi-Cal payments to run the day-to-day operations of the facility.
One of the most critical reasons to challenge “AA” citations is that Health and Safety Code §1424.5 requires CPDH to initiate an immediate action to revoke the license of a skilled nursing facility, if there is a second “AA” citation in a skilled nursing facility within a 24-month period. Having gone through this process, this can be terribly time consuming and expensive, although we have been successful in preserving licensure, it can cost a significant amount of time and money, in addition to disruption to the staff, and is also subject to significant adverse publicity, thus further affecting/maintaining adequate census.
Finally, an unchallenged violation can be used in subsequent civil lawsuits adversely increasing the value of those lawsuits. Specifically, California Evidence Code Sec. 669 presumes negligence for violation of a statute. This provision provides that the failure of a person to exercise due care is presumed if (1) He violated a statute, ordinance or regulation of a public entity, (2) The violation proximately caused death or serious injury to person or property; (3) The death or injury resulted from an occurrence the statute was designed to prevent; (4) The person suffering the death or injury was within the class of persons the statute or regulation was designed to protect.
Generally, it is cost savings to the facility based upon actual money, i.e., legal fees and reductions in CMPs, but because of less tangible factors as well. These factors have been discussed, but to reiterate include the requirement by CDPH to change its public database, which also is reflected in the five star system, as well continuing efforts to maintain discharge planners at the acute care hospital confident in the ability of the skilled nursing facility to render appropriate care to its residents. This helps to maintain census.
Generally, these matters are not terribly expensive to appeal, and they are generally resolved within a 12-month period under the Health and Safety Code, these cases are required to be resolved and set on a more priority basis, but this generally is not a problem.