About Deficiency Citations From Community Care Licensing Division LPA’s
Licensing Program Analysts (LPAs) are the enforcement arm of Community Care Licensing, a regulatory agency charged by the California State Legislature with protecting the health and safety of elderly residents through enforcement of Title 22 regulations. LPAs are not paid well and must inspect many facilities. Consequently, LPAs, like many overworked and underpaid individuals, make mistakes and may make an error in interpreting the sections of Title 22, Division 6, Chapter 8 during your facility evaluation.
Type A, B, and C Deficiency Citations
When an LPA determines that the RCFE has been deficient in complying with a section of Title 22 or the Heath and Safety Code, they must determine whether a citation should be issued, and if so, the length of time permitted for a correction to be made. The driving force behind the classification of the deficiency will be whether there is an immediate, potential, or neither immediate nor potential risk to the health, safety, or personal rights of the residents. Type A deficiency citations are issued by Community Care Licensing LPAs when there is an immediate risk created by the deficiency; Type B deficiency citations are issued when there is only a potential risk of the same; and Type C citations are issued when the deficiency creates neither an immediate nor potential risk and the licensee has maintained substantial compliance.
Learn more about Community Care Licensing Deficiency Citations.
How To Appeal A Deficiency Citation Issued By A Licensing Program Analyst
It is always helpful to look at the regulation first:
22 CCR 87763 – Appeal Process
(a) A licensee or his/her representative may request in writing a review of a notice of deficiency, notice of penalty and/or health condition relocation order within 10 working days of receipt of the notice or order. This review shall be conducted by a higher level staff person other than the evaluator who issued the notice of deficiency, notice of penalty, and/or health condition relocation order.
(b) If the reviewer determines that a notice of deficiency or notice of penalty was not issued in accordance with applicable statutes and regulations of the Department, he/she shall amend or dismiss the notice. In addition, the reviewer may extend the date specified for correction of a deficiency if warranted by the facts or circumstances presented to support a request for extension.
The important thing to note from the statute are that you have only 10 working days to file a written request for review of the deficiency to the higher level staff person (in most cases the Licensing Program Manager). If you want to retain a California assisted living attorney to handle your appeal and present the strongest case possible, you need to contact the attorney shortly after receiving the citation in order to file your appeal on time. A good practice is to call the Licensing Program Manager before filing an appeal to confirm that you have 10 working days to file the written appeal, not 10 calendar days. Some LPM’s incorrectly interpret the language 10 working days used in the statute as 10 calendar days. To be clear, California Courts have interpreted in several cases the term “working days” as meaning Monday through Friday, or rather 5 days per week, in direct opposition to the term “calendar days” which means 1 day within a 24 hour period, of which there are 365 in a calendar year. See Peters v. Cal., 188 Cal. App. 3d 1421, 1427 (Cal. App. 4th Dist. 1987) (“The State of California’s position is that in some 30-day periods there are 21 working days and in half of the 30-day periods there are 22 working days, an average of 21.5 working days per 30-day period… If the Legislature had intended that the state employee be entitled to pay for 30 working days, the Legislature is perfectly capable of saying so and the use of the term “30 calendar days” requires exactly the opposite result from the one appellant urges.”) Hence, you have 10 working days, otherwise known as business days, to file your written appeal; not 10 calendar days.