The following is a general description of the administrative hearing process used by the California Department of Social Services for administrative hearings concerning community care facilities. The Department does not give legal advice to members of the public, and anyone using this process is encouraged to seek legal advice when needed. This administrative review process is fully described in the California Administravtive Procedure Act, the Health and Safety Code, and the Department's regulations, and this description is not intended to supersede, amend, modify or supplement the provisions of these statutes and regulations in anyway. In case of conflict between this description and the applicable statutes and regulations, the statutes and regulations are controlling. Cross references are included in the statutes and regulations to help the reader, but do not relieve the reader of the responsibility to draw his or her own conclusions about how any provision of the applicable statutes and regulations apply in a particular case. The reader is encouraged to READ THE APPLICABLE STATUTUES AND REGULATIONS, and to use this description merely as an introduction and general overview.
CDSS' Community Care Licensing Division licenses facilities for children and adults who cannot care for themselves. These facilities include child care centers and homes, foster homes, group homes, adult residential and day care facilities, and facilities for the chronically ill and elderly. CDSS' Legal Division assists the Community Care Licensing Division by providing legal advice concerning licensing laws and regulations that cover the operation of these facilities. (California Health and Safety Code §§ 1500 et seq., §§ 1568 et seq., §§ 1569 et. seq. and §§ 1596 et seq.; and California Code of Regulations, Title 22, Division 6 and Division 12.) The Legal Division also handles all administrative actions seeking to deny an application, to revoke a facility license or exclude an individual from a licensed facility.
To find out the status of a legal action, please call 916-654-1993 and ask to speak to the Unify Clerk. THE LEGAL DIVISION DOES NOT PROVIDE LEGAL ADVICE TO INDIVIDUALS OUTSIDE THE DEPARTMENT OF SOCIAL SERVICES. For legal advice, please contact your own attorney.
There are four basic legal actions that the Community Care Licensing Division may take:
- Denial of an application to operate a care facility. The formal document seeking the denial of an application is called a Statement of Issues.
- Revoking the license of an operating care facility. The formal document seeking the revocation of an existing license is an Accusation.
- The immediate suspension of a provider's license, plus seeking to revoke the operator's license. The formal document that suspends the facility's license is a Temporary Suspension Order, plus an Accusation that seeks the revocation of the facility's license.
- Seeking to exclude from licensed facilities, employees or other persons that have contact with clients. The formal document seeking the exclusion of a person from a licensed facility is called either an Accusation (Employee Exclusion) or Accusation (Name Clearing Action).
The legal grounds for taking an action are in the California Health and Safety Code and the California Code of Regulations. Click on the Facility Types link on the navigation bar to the left to go to a chart listing the facility types and the laws and regulations that cover each facility type. Grounds for taking an administrative action include such acts or omissions as: sexual or physical abuse of clients, neglect of clients, unsanitary or unsafe facility grounds, exceeding the facility's licensed capacity and failure to provide adequate and needed care to clients. The California Office of Administrative Hearings conducts all CDSS licensing hearings. (Click here to go the Office of Administrative Hearings Web Page for further information about the administrative hearing process .) To download a copy of the booklet published by the Office of Administrative Hearings regarding the administrative hearing process, click here.
The California Administrative Procedures Act governs the administrative hearing process itself. (California Government Code §§ 11400 and 11500 et seq.) The administrative hearing process starts with the CDSS serving the applicant, licensee or employee, called "the Respondent," with either a Statement of Issues or Accusation. The Statement of Issues or Accusation will contain the legal grounds for the administrative action, a copy of the licensing laws and regulations applicable to the licensing action, a request for the respondent to send CDSS a copy of all documents relevant to the action and a list of witnesses, and a document called a "Notice of Defense" by which the respondent may request a hearing. The respondent has fifteen days after CDSS serves the Statement of Issues or Accusation to return to CDSS the Notice of Defense. Failure to timely return the Notice of Defense to CDSS will result in a "Default Decision and Order" being issued against the respondent that upholds the sanctions sought by CDSS. The respondent may employ an attorney, at the respondent's own expense, to represent the respondent in the administrative hearing process, or the respondent may represent himself or herself.
Upon receipt of the respondent's Notice of Defense, the Department has the following time frames to begin the administrative hearing:
- For a Temporary Suspension Order, CDSS must have the hearing begin within 30 days of its receipt of the respondent's Notice of Defense. For facilities licensed pursuant to the Community Care Act (Cal. Health and Safety Code §§ 1500 et seq.), such as group homes, foster homes, small family homes and adult residential and day care facilities, CDSS must provide an Interim Hearing to the respondent within 10 days after the respondent files a request with the California Office of Administrative Hearings. The respondent has five days after service of the Temporary Suspension Order to file a request for an Interim Hearing.
- For actions where CDSS orders that an employee or person having contact with clients be removed from a licensed facility, CDSS has 60 days after it receives the excluded person's Notice of Defense to start the hearing. If the person no longer works at the facility or has contact with the client's before CDSS seeks the person's exclusion, CDSS may still file an Employee Exclusion or Name Clearing Action to bar the person from future contact with clients. However, CDSS need not have the hearing begin within 60 days, unless the person subsequently seeks to work in or have contact with clients in a licensed facility and CDSS orders the facility not to permit the person access into the facility. Then, CDSS has 60 days to begin the hearing if the person seeks to contest this subsequent exclusion while the hearing on the Employee Exclusion or Name Clearing Action has not yet started.
- When CDSS simply seeks the denial of an application or the revocation of an existing license, CDSS must set the matter for hearing within 90 days after its receipt of the respondent's Notice of Defense.
The respondent is entitled to receive upon request, a list of CDSS's potential witnesses and a copy of all documents in the possession of CDSS that are relevant to the administrative action. The respondent is also to send CDSS a list and a copy of all relevant documents. The respondent may also subpoena witnesses to compel their attendance at the hearing. A respondent may request a subpoena from the Office of Administrative Hearings. (Subpoena for persons) (Subpoena Duces Tecum, for documents). If the respondent wants to postpone (continue), the hearing, the respondent must make a formal request to the Office of Administrative Hearings, after contacting the assigned CDSS attorney to inform CDSS of the grounds for the continuance. (List of OAH telephone numbers.)
At the hearing, CDSS need only prove its allegations by a preponderance of the evidence, meaning that it is more likely than not that the alleged facts occurred. CDSS will present its case first by calling witnesses to testify and introducing documents and other evidence to prove its allegations. After CDSS rests (stops its presentation of its case) the respondent has the opportunity to call witnesses and present any relevant evidence to disprove or explain the alleged misconduct. CDSS cannot call the respondent to testify in CDSS's case-in-chief. However, CDSS may call the respondent to testify in CDSS' rebuttal if the respondent does not testify when the respondent presents his or her case. The administrative law judge who hears the case will ensure that the hearing goes according to law. At the conclusion of the hearing, the administrative law judge will state that either that the parties submit the case (or matter) meaning completed, or will ask for additional evidence or legal briefs to be submitted. Upon receipt of this requested material, the case shall be closed.
After a case is closed, the administrative law judge will review all the evidence presented by the parties and issue a Proposed Decision that is sent to CDSS. After receiving the Proposed Decision, CDSS may formally adopt the Proposed Decision, let the Proposed Decision become effective by operation of law or internally review the case, also known as Alternation. The time frames for CDSS to issue a final Decision after receiving the Proposed Decision are:
- 30 days after the close of the hearing for a Temporary Suspension Order. If CDSS does not issue a final Decision after 30 days, the Temporary Suspension Order is lifted and the facility may reopen. However, CDSS may still issue a final Decision that revokes the facility's license or imposes some form of disciplinary action, such as probation.
- 60 days after the close of the hearing for an Employee Exclusion or Name Clearing Action if CDSS ordered the person removed from the facility. If CDSS does not issue a final Decision after 60 days, the exclusion order is lifted and the person may return to facility. However, CDSS may still issue a final Decision that excludes the person from the facility or imposes some form of disciplinary action, such as probation.
- For a standard Statement of Issues, Accusation or Employee Exclusion or Name Clearing Action when CDSS does not remove the person from the facility, the law imposes no time restriction when CDSS must issue a final Decision after the hearing is closed.
- However, CDSS must formally adopt or decide to alternate, overturn the Proposed Decision, within 100 days after CDSS' receipt of the Proposed Decision. Otherwise, the Proposed Decision becomes effective by operation of law.
CDSS has 100 days after receiving the Proposed Decision to either adopt the Proposed Decision and to begin the alternation process, otherwise, the Proposed Decision becomes effective and binding upon CDSS after 100 days. If CDSS seeks to alternate the Proposed Decision, CDSS will order the hearing transcript and send the respondent a copy of the transcript. Both parties will have the opportunity to give written arguments stating why the Proposed Decision should be changed or left alone. CDSS, after reviewing the transcript and the written briefs, will issue a written decision that resolves the administrative action.
If the respondent wishes to appeal the final Decision, the respondent only has 30 days after the effective date of the Decision to file in Superior Court a Writ of Mandate Action. The procedures required to file a Writ of Mandate Action are in California Code of Civil Procedure Section 1094.5 and California Government Section 11523. If the respondent wishes to file a Writ of Mandate Action, the respondent should obtain the services of an attorney at the respondent's own expense.