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.
(Amended by Stats. 1997, Ch. 728, Sec. 1. Effective January 1, 1998.)