1417. This chapter shall be known and may be cited as the Long-Term
Care, Health, Safety, and Security Act of 1973.
1417.1. It is the intent of the Legislature in enacting this
chapter to establish (1) a citation system for the imposition of
prompt and effective civil sanctions against long-term health care
facilities in violation of the laws and regulations of this state,
and the federal laws and regulations as applicable to nursing
facilities as defined in subdivision (k) of Section 1250, relating to
patient care; (2) an inspection and reporting system to ensure that
long-term health care facilities are in compliance with state
statutes and regulations pertaining to patient care; and (3) a
provisional licensing mechanism to ensure that full-term licenses are
issued only to those long-term health care facilities that meet
state standards relating to patient care.
1417.15. (a) (1) If one or more of the following remedies is
actually imposed for violation of state or federal requirements, the
long-term health care facility shall post a notice of the imposed
remedy or remedies, in the form specified in subdivision (c), on all
doors providing ingress to or egress from the facility, except as
specified in paragraph (2):
(A) License suspension.
(B) Termination of certification for Medicare or Medi-Cal.
(C) Denial of payment by Medicare or Medi-Cal for all otherwise
eligible residents.
(D) Denial of payment by Medicare or Medi-Cal for otherwise
eligible incoming residents.
(E) Ban on admission of any type.
(2) For purposes of this subdivision, a distinct part nursing
facility shall only be required to post the notice on all main doors
providing ingress to or egress from the distinct part, and not on all
of the doors providing ingress to or egress from the facility. An
intermediate care facility/developmentally disabled habilitative and
an intermediate care facility/developmentally disabled-nursing shall
post this notice on the inside of all doors providing ingress to or
egress from the facility.
(b) A violation of the requirement of subdivision (a) shall be
issued and enforced in the manner of a class "B" violation.
(c) The form of the notice established pursuant to subdivision (a)
shall be entitled "Notice of Violation Remedies." Each notice shall
list the remedy or remedies imposed, as set forth in subdivision (a),
and shall include the date the remedy was imposed. The notice shall
be typeset on white bond paper, 8 1/2 x 11 inches in size, in
boldface black type in a 16-point sans serif type font. A facility
may remove the notice on or after the date on which the sanction is
lifted.
1417.2. (a) Notwithstanding Section 1428, moneys collected as a
result of state and federal civil penalties imposed under this
chapter or federal law shall be deposited into accounts that are
hereby established in the Special Deposit Fund created pursuant to
Section 16370 of the Government Code. These accounts are titled the
State Health Facilities Citation Penalties Account, into which moneys
derived from civil penalties for violations of state law shall be
deposited, and the Federal Health Facilities Citation Penalties
Account, into which moneys derived from civil penalties for
violations of federal law shall be deposited. Moneys from these
accounts shall be used, notwithstanding Section 16370 of the
Government Code, upon appropriation by the Legislature, in accordance
with state and federal law for the protection of health or property
of residents of long-term health care facilities, including, but not
limited to, the following:
(1) Relocation expenses incurred by the department, in the event
of a facility closure.
(2) Maintenance of facility operation pending correction of
deficiencies or closure, such as temporary management or
receivership, in the event that the revenues of the facility are
insufficient.
(3) Reimbursing residents for personal funds lost. In the event
that the loss is a result of the actions of a long-term health care
facility or its employees, the revenues of the facility shall first
be used.
(4) The costs associated with informational meetings required
under Section 1327.2.
(b) Notwithstanding subdivision (a), the balance in the State
Health Facilities Citation Penalties Account shall not, at any time,
exceed ten million dollars ($10,000,000).
(c) Moneys from the Federal Health Facilities Citation Penalties
Account, in the amount not to exceed one hundred thirty thousand
dollars ($130,000), may also be used, notwithstanding Section 16370
of the Government Code, upon appropriation by the Legislature, in
accordance with state and federal law for the improvement of quality
of care and quality of life for long-term health care facilities
residents pursuant to Section 1417.3.
(d) The department shall post on its Internet Web site, and shall
update on a quarterly basis, all of the following regarding the funds
in the State Health Facilities Citation Penalties Account and the
Federal Health Facilities Citation Penalties Account:
(1) The specific sources of funds deposited into the account.
(2) The amount of funds in the account that have not been
allocated.
(3) A detailed description of how funds in the account have been
allocated and expended, including, but not limited to, the names of
persons or entities that received the funds, the amount of salaries
paid to temporary managers, and a description of equipment purchased
with the funds. However, the description shall not include the names
of residents.
1417.3. The department shall promote quality of care and quality of
life for residents, clients, and patients in long-term health care
facility services through specific activities that include, but are
not limited to, all of the following:
(a) Research and evaluation of innovative facility resident care
models.
(b) (1) Provision of statewide training on effective facility
practices.
(2) Training also shall include topics related to the provision of
quality of care and quality of life for facility residents. The
topics for training shall be identified by the department through a
periodic survey. The curriculum for the training provided under this
paragraph shall be developed in consultation with representatives
from provider associations, consumer associations, and others, as
deemed appropriate by the state department.
(c) The establishment of separate units to respond to facility
requests for technical assistance regarding licensing and
certification requirements, compliance with federal and state
standards, and related operational issues.
(d) State employees providing technical assistance to facilities
pursuant to this section are only required to report violations they
discover during the provision of the assistance to the appropriate
district office if the violations constitute an immediate and serious
threat to the health and welfare of, or have resulted in actual harm
to, patients, residents, or clients of the facility.
(e) The state department shall measure facility satisfaction and
the effectiveness of the technical assistance provided pursuant to
subdivision (c).
(f) No person employed in the technical assistance or training
units under subdivisions (b) and (c) shall also participate in the
licensing, surveying, or direct regulation of facilities.
(g) This section shall not diminish the department's ongoing
survey and enforcement process.
1417.4. (a) There is hereby established in the state department the
Quality Awards Program for nursing homes.
(b) The department shall establish criteria under the program,
after consultation with stakeholder groups, for recognizing all
skilled nursing facilities that provide exemplary care to residents.
(c) (1) Monetary awards shall be made to Quality Awards Program
recipients that serve high proportions of Medi-Cal residents to the
extent funds are appropriated each year in the annual Budget Act.
(2) Monetary awards presented under this section and paid for by
funds appropriated from the General Fund shall be used for staff
bonuses and distributed in accordance with criteria established by
the department.
(3) Monetary awards presented under this section and paid for from
funds from the Federal Citation Penalty Account shall be used to
fund innovative facility grants to improve the quality of care and
quality of life for residents in skilled nursing facilities, or to
fund innovative efforts to increase employee recruitment, or
retention, or both, subject to federal approval.
(d) The department shall establish criteria for selecting
facilities to receive the quality awards, in consultation with senior
advocacy organizations, employee labor organizations representing
facility employees, nursing home industry representatives, and other
interested parties as deemed appropriate by the department. The
criteria established pursuant to this subdivision shall not be
considered regulations within the meaning of Section 11342 of the
Government Code, and shall not be subject to adoption as regulations
pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
(e) The department shall publish an annual listing of the Quality
Awards Program recipients with the dollar amount awarded, if
applicable. The department shall also publish an annual listing of
the Quality Awards Program recipients that receive innovative
facility grants with the purpose of the grant and the grant amount.
(f) All of the funds available for the programs described in this
section shall be disbursed to qualified facilities by January 1,
2002, and January 1 of each year thereafter.
1417.5. (a) The department, in consultation with stakeholders,
shall develop recommendations to address the findings published in
the June 2010 report entitled, "Department of Public Health: It
Reported Inaccurate Financial Information and Can Likely Increase
Revenues for the State and Federal Health Facilities Citation
Penalties Accounts" (Report 2010-108). The recommendations shall
address, but not be limited to, all of the following:
(1) Streamlining the citation appeal process, including the
citation review conference process.
(2) Increasing citation penalty amounts, including late penalty
fees, and annually adjusting penalty amounts to reflect an inflation
indicator, such as the California Consumer Price Index.
(3) Revising state law to enable the department to recommend that
the federal Centers for Medicare and Medicaid Services impose a
federal civil money penalty when the department's Licensing and
Certification Division determines that a facility is out of
compliance with both state and federal requirements.
(4) Authorizing the department to collect citation penalty amounts
upon appeal of the citation and allowing the department to place
those funds into a special interest bearing account.
(b) The department shall provide the recommendations to the fiscal
and policy committees of the Legislature no later than March 1,
2011.
1418. As used in this chapter:
(a) "Long-term health care facility" means any facility licensed
pursuant to Chapter 2 (commencing with Section 1250) that is any of
the following:
(1) Skilled nursing facility.
(2) Intermediate care facility.
(3) Intermediate care facility/developmentally disabled.
(4) Intermediate care facility/developmentally disabled
habilitative.
(5) Intermediate care facility/developmentally disabled-nursing.
(6) Congregate living health facility.
(7) Nursing facility.
(8) Intermediate care facility/developmentally disabled-continuous
nursing.
(b) "Long-term health care facility" also includes a pediatric day
health and respite care facility licensed pursuant to Chapter 8.6
(commencing with Section 1760).
(c) "Long-term health care facility" does not include a general
acute care hospital or an acute psychiatric hospital, except for that
distinct part of the hospital that provides skilled nursing
facility, intermediate care facility, or pediatric day health and
respite care facility services.
(d) "Licensee" means the holder of a license issued under Chapter
2 (commencing with Section 1250) or Chapter 8.6 (commencing with
Section 1760) for a long-term health care facility.
1418.1. (a) Any person receiving respite care services shall be
permitted to bring medications to the skilled nursing facility or
intermediate care facility if the contents have been examined and
positively identified upon the patient's admission to the facility by
the patient's personal physician and surgeon or a pharmacist
retained by the facility.
(b) A skilled nursing facility or intermediate care facility
providing respite care services shall not be required to afford a
person receiving respite care services a bedhold when the person is
transferred to a general acute care hospital, as defined in Section
1250.
(c) A skilled nursing facility or intermediate care facility
providing respite care services shall permit the personal physician
and surgeon of a person receiving respite care services to issue
advance orders for care and treatment for a period not to exceed 90
days from the date of admission of the person, based on the person's
medical history, diagnosis, and physical assessment conducted upon
admission. The skilled nursing facility or intermediate care facility
may readmit the person for respite care services on the basis of the
advance orders for care and treatment, unless the personal physician
and surgeon of the person indicates that there has been a
significant change in the person's medical condition. These advance
orders shall only be used by the skilled nursing or intermediate care
facility during periods in which the person is receiving respite
care services.
(d) A skilled nursing facility or intermediate care facility
providing respite care services may implement an abbreviated resident
assessment and care planning procedure for persons admitted for
respite care services consistent with the facility's obligation to
protect the health and safety of residents and the general public.
The abbreviated resident assessment and care planning procedure shall
address the necessary care services required by the person admitted
for respite care during the length of the respite care stay. The
abbreviated resident assessment and care planning procedure documents
do not have to be updated with every readmission of the same person
to the facility for respite care services, unless the personal
physician and surgeon of the person indicates that there has been a
significant change in the person's medical condition.
(e) As used in this section, "respite care services" means service
provided to frail elderly or functionally impaired persons in a
licensed skilled nursing facility or intermediate care facility, as
defined in Section 1250, on a temporary or periodic basis to relieve
persons who are providing their care at home.
(f) As used in this section, "temporary or periodic" means a
period of time not to exceed 15 consecutive days or a total of 45
days in any one year.
(g) No more than 10 percent of a skilled nursing or intermediate
care facility's total licensed bed capacity may be used during any
one calendar year for the provision of respite care services as
defined in this section. A facility may exceed this limit with the
prior written approval of the State Department of Health Services.
1418.2. (a) Every facility licensed pursuant to subdivisions (c),
(d), (e), and (g) of Section 1250 and every skilled nursing facility
licensed separately under subdivision (a) of Section 1250 shall
establish and maintain a resident council. Each council shall include
the residents of the health facility, and may include family members
of residents, advocates, or ombudsman groups interested in residents
of health facilities, and personnel of the health facility. Family
members of residents shall be invited to meetings of resident
councils.
The council shall meet at regularly scheduled intervals, maintain
written minutes, including names of council members present, and have
minutes available for review by the state department upon its
request. Facility policies on resident councils shall in no way limit
the right of residents to meet independently with outside persons or
facility personnel as determined solely by the residents of the
facility.
Written minutes of regularly scheduled council meetings may
include recommendations from the council to the licensee of the
health facility which shall be provided to the licensee. The licensee
shall provide evidence of review and action on these recommendations
to the state department upon its request.
(b) Any health facility which fails to establish a resident
council as prescribed in subdivision (a) shall be subject to the
provisions of Section 1280.
(c) The state department shall, by regulation, specify those
circumstances under which a health facility may be exempted from the
provisions of subdivisions (a) and (b), including, but not limited
to, the following:
(1) A resident population consisting of a majority of patients
with progressively disabling disorders defined in Section 1250.4.
(2) Facilities with no more than six residents which provide
alternate means for residents to actively share in planning and
enhancing of life in the facility.
(3) Other circumstances as determined by the state department.
1418.21. (a) A skilled nursing facility that has been certified for
purposes of Medicare or Medicaid shall post the overall facility
rating information determined by the federal Centers for Medicare and
Medicaid Services (CMS) in accordance with the following
requirements:
(1) The information shall be posted in at least the following
locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, such as
dining, resident council meetings, or activities.
(2) The information shall be posted on white or light-colored
paper that includes all of the following, in the following order:
(A) The full name of the facility, in a clear and easily readable
font of at least 28 point.
(B) The full address of the facility in a clear and easily
readable font of at least 20 point.
(C) The most recent overall star rating given by CMS to that
facility, except that a facility shall have seven business days from
the date when it receives a different rating from CMS to include the
updated rating in the posting. The star rating shall be aligned in
the center of the page. The star rating shall be expressed as the
number that reflects the number of stars given to the facility by
CMS. The number shall be in a clear and easily readable font of at
least two inches print.
(D) Directly below the star symbols shall be the following text in
a clear and easily readable font of at least 28 point:
"The above number is out of 5 stars."
(E) Directly below the text described in subparagraph (D) shall be
the following text in a clear and easily readable font of at least
14 point:
"This facility is reviewed annually and has been licensed by the
State of California and certified by the federal Centers for Medicare
and Medicaid Services (CMS). CMS rates facilities that are certified
to accept Medicare or Medicaid. CMS gave the above rating to this
facility. A detailed explanation of this rating is maintained at this
facility and will be made available upon request. This information
can also be accessed online at the Nursing Home Compare Internet Web
site at https://www.medicare.gov/NHcompare. Like any information, the
Five-Star Quality Rating System has strengths and limits. The
criteria upon which the rating is determined may not represent all of
the aspects of care that may be important to you. You are encouraged
to discuss the rating with facility staff. The Five-Star Quality
Rating System was created to help consumers, their families, and
caregivers compare nursing homes more easily and help identify areas
about which you may want to ask questions. Nursing home ratings are
assigned based on ratings given to health inspections, staffing, and
quality measures. Some areas are assigned a greater weight than other
areas. These ratings are combined to calculate the overall rating
posted here."
(F) Directly below the text described in subparagraph (E), the
following text shall appear in a clear and easily readable font of at
least 14 point:
"State licensing information on skilled nursing facilities is
available on the State Department of Public Health's Internet Web
site at: www.cdph.ca.gov, under Programs, Licensing and
Certification, Health Facilities Consumer Information System."
(3) For the purposes of this section, "a detailed explanation of
this rating" shall include, but shall not be limited to, a printout
of the information explaining the Five-Star Quality Rating System
that is available on the CMS Nursing Home Compare Internet Web site.
This information shall be maintained at the facility and shall be
made available upon request.
(4) The requirements of this section shall be in addition to any
other posting or inspection report availability requirements.
(b) Violation of this section shall constitute a class B
violation, as defined in subdivision (e) of Section 1424 and,
notwithstanding Section 1290, shall not constitute a crime. Fines
from a violation of this section shall be deposited into the State
Health Facilities Citation Penalties Account, created pursuant to
Section 1417.2.
(c) This section shall be operative on January 1, 2011.
1418.3. (a) Each licensed skilled nursing facility shall, when
requested by a member of a patient's family, allow the family to meet
privately with a family member who is a resident in the facility.
(b) "Family member" for the purposes of this section means an
immediate family member or family member designated and documented on
the patient's record at the time of admission to the facility.
1418.4. (a) No licensed skilled nursing facility or intermediate
care facility may prohibit the formation of a family council, and,
when requested by a member of the resident's family or the resident's
representative, the family council shall be allowed to meet in a
common meeting room of the facility at least once a month during
mutually agreed upon hours.
(b) Facility policies on family councils shall in no way limit the
right of residents, family members, and family council members to
meet independently with outside persons, including members of
nonprofit or government organizations or with facility personnel
during nonworking hours.
(c) "Family council" for the purpose of this section means a
meeting of family members, friends, or representatives of two or more
residents to confer in private without facility staff.
(d) Family councils shall also be provided adequate space on a
prominent bulletin board or other posting area for the display of
meeting notices, minutes, newsletters, or other information
pertaining to the operation or interest of the family council.
(e) Staff or visitors may attend family council meetings, at the
group's invitation.
(f) The facility shall provide a designated staff person who shall
be responsible for providing assistance and responding to written
requests that result from family council meetings.
(g) The facility shall consider the views and act upon the
grievances and recommendations of a family council concerning
proposed policy and operational decisions affecting resident care and
life in the facility.
(h) The facility shall respond in writing to written requests or
concerns of the family council, within 10 working days.
(i) When a family council exists, the facility shall include
notice of the family council meetings in at least a quarterly
mailing, and shall inform family members or representatives of new
residents who are identified on the admissions agreement, during the
admissions process, or in the resident's records, of the existence of
the family council. The notice shall include the time, place, and
date of meetings, and the person to contact regarding involvement in
the family council.
(j) No facility shall willfully interfere with the formation,
maintenance, or promotion of a family council. For the purposes of
this subdivision, willful interference shall include, but not be
limited to, discrimination or retaliation in any way against an
individual as a result of his or her participation in a family
council, or the willful scheduling of facility events in conflict
with a previously scheduled family council meeting.
(k) (1) Violation of the provisions of this section shall
constitute a violation of the residents' rights.
(2) Violation of the provisions of this section shall constitute a
class "B" violation, as defined in Section 1424.
1418.5. No regulation adopted with respect to skilled nursing
facilities or intermediate care facilities shall prohibit patients in
the facility from storing nonprescription or topical ophthalmic
medications at their bedside unless contraindicated by the patient's
attending physician or the facility.
1418.6. No long-term health care facility shall accept or retain
any patient for whom it cannot provide adequate care.
1418.7. (a) Long-term health care facilities, as defined in Section
1418, shall develop and implement policies and procedures designed
to reduce theft and loss.
(b) The facility program shall include all of the following:
(1) Establishment and posting of the facility's theft and loss
policies.
(2) Orientation of employees to those policies.
(3) Documentation of theft and loss of property with a value of
twenty-five dollars ($25) or more.
(4) Inventory of patient's personal property upon admission.
(5) Inventory of and surrender of patient's personal property upon
death or discharge.
(6) Regular review of the effectiveness of the policies and
procedures.
(7) Marking of patient's personal property, including dentures and
prosthetic and orthopedic devices.
(8) Reports to local law enforcement of stolen property with a
value of one hundred dollars ($100) or more.
(9) Methods for securing personal property.
(10) Notification of residents and families of the facility's
policies.
(c) The policies and procedures developed by the facilities
pursuant to this section shall be in accordance with Section 1289.4,
as added by Assembly Bill 2047 of the 1987-88 Regular Session of the
Legislature, if that bill is enacted and becomes effective.
(d) If a facility has shown clear and convincing evidence of its
efforts to comply with the requirements of this section, no citation
shall be issued as a result of the occasional occurrence of theft and
loss in a facility.
1418.8. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility or intermediate care facility prescribes
or orders a medical intervention that requires that informed consent
be obtained prior to administration of the medical intervention, but
is unable to obtain informed consent because the physician and
surgeon determines that the resident lacks capacity to make decisions
concerning his or her health care and that there is no person with
legal authority to make those decisions on behalf of the resident,
the physician and surgeon shall inform the skilled nursing facility
or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to
make a decision regarding his or her health care if the resident is
unable to understand the nature and consequences of the proposed
medical intervention, including its risks and benefits, or is unable
to express a preference regarding the intervention. To make the
determination regarding capacity, the physician shall interview the
patient, review the patient's medical records, and consult with
skilled nursing or intermediate care facility staff, as appropriate,
and family members and friends of the resident, if any have been
identified.
(c) For purposes of subdivision (a), a person with legal authority
to make medical treatment decisions on behalf of a patient is a
person designated under a valid Durable Power of Attorney for Health
Care, a guardian, a conservator, or next of kin. To determine the
existence of a person with legal authority, the physician shall
interview the patient, review the medical records of the patient, and
consult with skilled nursing or intermediate care facility staff, as
appropriate, and with family members and friends of the resident, if
any have been identified.
(d) The attending physician and the skilled nursing facility or
intermediate care facility may initiate a medical intervention that
requires informed consent pursuant to subdivision (e) in accordance
with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate
care facility has been prescribed a medical intervention by a
physician and surgeon that requires informed consent and the
physician has determined that the resident lacks capacity to make
health care decisions and there is no person with legal authority to
make those decisions on behalf of the resident, the facility shall,
except as provided in subdivision (h), conduct an interdisciplinary
team review of the prescribed medical intervention prior to the
administration of the medical intervention. The interdisciplinary
team shall oversee the care of the resident utilizing a team approach
to assessment and care planning, and shall include the resident's
attending physician, a registered professional nurse with
responsibility for the resident, other appropriate staff in
disciplines as determined by the resident's needs, and, where
practicable, a patient representative, in accordance with applicable
federal and state requirements. The review shall include all of the
following:
(1) A review of the physician's assessment of the resident's
condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To
determine the desires of the resident, the interdisciplinary team
shall interview the patient, review the patient's medical records,
and consult with family members or friends, if any have been
identified.
(4) The type of medical intervention to be used in the resident's
care, including its probable frequency and duration.
(5) The probable impact on the resident's condition, with and
without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or
utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend
of the resident who is unable to take full responsibility for the
health care decisions of the resident, but who has agreed to serve on
the interdisciplinary team, or other person authorized by state or
federal law.
(g) The interdisciplinary team shall periodically evaluate the use
of the prescribed medical intervention at least quarterly or upon a
significant change in the resident's medical condition.
(h) In case of an emergency, after obtaining a physician and
surgeon's order as necessary, a skilled nursing or intermediate care
facility may administer a medical intervention that requires informed
consent prior to the facility convening an interdisciplinary team
review. If the emergency results in the application of physical or
chemical restraints, the interdisciplinary team shall meet within one
week of the emergency for an evaluation of the medical intervention.
(i) Physicians and surgeons and skilled nursing facilities and
intermediate care facilities shall not be required to obtain a court
order pursuant to Section 3201 of the Probate Code prior to
administering a medical intervention which requires informed consent
if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a
resident of a skilled nursing facility or intermediate care facility
for whom medical intervention has been prescribed, ordered, or
administered pursuant to this section to seek appropriate judicial
relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under
this section is in accordance with reasonable medical standards, is
subject to administrative sanction if the physician or health care
provider believes in good faith that the action is consistent with
this section and the desires of the resident, or if unknown, the best
interests of the resident.
(l) The determinations required to be made pursuant to
subdivisions (a), (e), and (g), and the basis for those
determinations shall be documented in the patient's medical record
and shall be made available to the patient's representative for
review.
1418.81. (a) In order to assure the provision of quality patient
care and as part of the planning for that quality patient care,
commencing at the time of admission, a skilled nursing facility, as
defined in subdivision (c) of Section 1250, shall include in a
resident's care assessment the resident's projected length of stay
and the resident's discharge potential. The assessment shall include
whether the resident has expressed or indicated a preference to
return to the community and whether the resident has social support,
such as family, that may help to facilitate and sustain return to the
community. The assessment shall be recorded with the relevant
portions of the minimum data set, as described in Section 14110.15 of
the Welfare and Institutions Code. The plan of care shall reflect,
if applicable, the care ordered by the attending physician needed to
assist the resident in achieving the resident's preference of return
to the community.
(b) The skilled nursing facility shall evaluate the resident's
discharge potential at least quarterly or upon a significant change
in the resident's medical condition.
(c) The interdisciplinary team shall oversee the care of the
resident utilizing a team approach to assessment and care planning
and shall include the resident's attending physician, a registered
professional nurse with responsibility for the resident, other
appropriate staff in disciplines as determined by the resident's
needs, and, where practicable, a resident's representative, in
accordance with applicable federal and state requirements.
(d) If return to the community is part of the care plan, the
facility shall provide to the resident or responsible party and
document in the care plan the information concerning services and
resources in the community. That information may include information
concerning:
(1) In-home supportive services provided by a public authority or
other legally recognized entity, if any.
(2) Services provided by the Area Agency on Aging, if any.
(3) Resources available through an independent living center.
(4) Other resources or services in the community available to
support return to the community.
(e) If the resident is otherwise eligible, a skilled nursing
facility shall make, to the extent services are available in the
community, a reasonable attempt to assist a resident who has a
preference for return to the community and who has been determined to
be able to do so by the attending physician, to obtain assistance
within existing programs, including appropriate case management
services, in order to facilitate return to the community. The
targeted case management services provided by entities other than the
skilled nursing facility shall be intended to facilitate and sustain
return to the community.
(f) Costs to skilled nursing facilities to comply with this
section shall be allowable for Medi-Cal reimbursement purposes
pursuant to Section 1324.25, but shall not be considered a new state
mandate under Section 14126.023 of the Welfare and Institutions Code.
1418.9. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility prescribes, orders, or increases an order
for an antipsychotic medication for the resident, the physician and
surgeon shall do both of the following:
(1) Obtain the informed consent of the resident for purposes of
prescribing, ordering, or increasing an order for the medication.
(2) Seek the consent of the resident to notify the resident's
interested family member, as designated in the medical record. If the
resident consents to the notice, the physician and surgeon shall
make reasonable attempts, either personally or through a designee, to
notify the interested family member, as designated in the medical
record, within 48 hours of the prescription, order, or increase of an
order.
(b) Notification of an interested family member is not required
under paragraph (2) of subdivision (a) if any of the following
circumstances exist:
(1) There is no interested family member designated in the medical
record.
(2) The resident has been diagnosed as terminally ill by his or
her physician and surgeon and is receiving hospice services from a
licensed, certified hospice agency in the facility.
(3) The resident has not consented to the notification.
(c) As used in this section, the following definitions shall
apply:
(1) "Resident" means a patient of a skilled nursing facility who
has the capacity to consent to make decisions concerning his or her
health care, including medications.
(2) "Designee" means a person who has agreed with the physician
and surgeon to provide the notice required by this section.
(3) "Antipsychotic medication" means a medication approved by the
United States Food and Drug Administration for the treatment of
psychosis.
(4) "Increase of an order" means an increase of the dosage of the
medication above the dosage range stated in a prior consent from the
resident.
(d) This section shall not be construed to require consent from an
interested family member for an attending physician and surgeon of a
resident to prescribe, order, or increase an order for antipsychotic
medication.
1418.91. (a) A long-term health care facility shall report all
incidents of alleged abuse or suspected abuse of a resident of the
facility to the department immediately, or within 24 hours.
(b) A failure to comply with the requirements of this section
shall be a class "B" violation.
(c) For purposes of this section, "abuse" shall mean any of the
conduct described in subdivisions (a) and (b) of Section 15610.07 of
the Welfare and Institutions Code.
(d) This section shall not change any reporting requirements under
Section 15630 of the Welfare and Institutions Code, or as otherwise
specified in the Elder Abuse and Dependent Adult Civil Protection
Act, Chapter 11 (commencing with Section 15600) of Part 3 of Division
9 of the Welfare and Institutions Code.
1419. (a) The department shall establish a centralized consumer
response unit within the Licensing and Certification Division of the
department to respond to consumer inquiries and complaints.
(b) Upon receipt of consumer inquiries, the unit shall offer
assistance to consumers in resolving concerns about the quality of
care and the quality of life in long-term health care facilities.
This assistance may include, but shall not be limited to, all of
the following:
(1) Offering to provide to consumers education and information
about state licensing and federal certification standards, resident
rights, name and address of facilities, referral to other entities as
appropriate, and facility compliance history.
(2) Offering to participate in telephone conference calls between
consumers and providers to resolve concerns within the scope of the
authority of the department. If the inquiry or concern is determined
to warrant an onsite investigation, the inquiry or concern shall be
considered a complaint and handled pursuant to the complaint
investigation process set forth in Section 1420.
(3) Initiating onsite investigations in response to oral or
written complaints made pursuant to this section if the unit
determines that there is a reasonable basis to believe that the
allegations in the complaints describe one or more violations of
state law by a long-term care facility.
(c) Nothing in subdivision (a) or (b) shall preclude the
department from taking any or all enforcement actions available under
state or federal law.
(d) Any person may request an inspection of any long-term health
care facility in accordance with this chapter by giving to the
department oral or written notice of an alleged violation of
applicable requirements of state law. Any written notice may be
signed by the complainant setting forth with reasonable particularity
the matters complained of. Oral notice may be made by telephone or
personal visit. Any oral complaint shall be reduced to writing by the
department. The substance of the complaint shall be provided to the
licensee no earlier than at the commencement of the inspection.
(e) Neither the substance of the complaint provided the licensee
nor any copy of the complaint or record published, released, or
otherwise made available to the licensee shall disclose the name of
any individual complainant or other person mentioned in the
complaint, except the name or names of any duly authorized officer,
employee, or agent of the state department conducting the
investigation or inspection pursuant to this chapter, unless the
complainant specifically requests the release of the name or names or
the matter results in a judicial proceeding.
1420. (a) (1) Upon receipt of a written or oral complaint, the
state department shall assign an inspector to make a preliminary
review of the complaint and shall notify the complainant within two
working days of the receipt of the complaint of the name of the
inspector. Unless the state department determines that the complaint
is willfully intended to harass a licensee or is without any
reasonable basis, it shall make an onsite inspection or investigation
within 10 working days of the receipt of the complaint. In any case
in which the complaint involves a threat of imminent danger of death
or serious bodily harm, the state department shall make an onsite
inspection or investigation within 24 hours of the receipt of the
complaint. In any event, the complainant shall be promptly informed
of the state department's proposed course of action and of the
opportunity to accompany the inspector on the inspection or
investigation of the facility. Upon the request of either the
complainant or the state department, the complainant or his or her
representative, or both, may be allowed to accompany the inspector to
the site of the alleged violations during his or her tour of the
facility, unless the inspector determines that the privacy of any
patient would be violated thereby.
(2) When conducting an onsite inspection or investigation pursuant
to this section, the state department shall collect and evaluate all
available evidence and may issue a citation based upon, but not
limited to, all of the following:
(A) Observed conditions.
(B) Statements of witnesses.
(C) Facility records.
(3) Within 10 working days of the completion of the complaint
investigation, the state department shall notify the complainant and
licensee in writing of the department's determination as a result of
the inspection or investigation.
(b) Upon being notified of the state department's determination as
a result of the inspection or investigation, a complainant who is
dissatisfied with the state department's determination, regarding a
matter which would pose a threat to the health, safety, security,
welfare, or rights of a resident, shall be notified by the state
department of the right to an informal conference, as set forth in
this section. The complainant may, within five business days after
receipt of the notice, notify the director in writing of his or her
request for an informal conference. The informal conference shall be
held with the designee of the director for the county in which the
long-term health care facility which is the subject of the complaint
is located. The long-term health care facility may participate as a
party in this informal conference. The director's designee shall
notify the complainant and licensee of his or her determination
within 10 working days after the informal conference and shall
apprise the complainant and licensee in writing of the appeal rights
provided in subdivision (c).
(c) If the complainant is dissatisfied with the determination of
the director's designee in the county in which the facility is
located, the complainant may, within 15 days after receipt of this
determination, notify in writing the Deputy Director of the Licensing
and Certification Division of the state department, who shall assign
the request to a representative of the Complainant Appeals Unit for
review of the facts that led to both determinations. As a part of the
Complainant Appeals Unit's independent investigation, and at the
request of the complainant, the representative shall interview the
complainant in the district office where the complaint was initially
referred. Based upon this review, the Deputy Director of the
Licensing and Certification Division of the state department shall
make his or her own determination and notify the complainant and the
facility within 30 days.
(d) Any citation issued as a result of a conference or review
provided for in subdivision (b) or (c) shall be issued and served
upon the facility within three working days of the final
determination, unless the licensee agrees in writing to an extension
of this time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant by registered or certified mail.
(e) A miniexit conference shall be held with the administrator or
his or her representative upon leaving the facility at the completion
of the investigation to inform him or her of the status of the
investigation. The department shall also state the items of
noncompliance and compliance found as a result of a complaint and
those items found to be in compliance, provided the disclosure
maintains the anonymity of the complainant. In any matter in which
there is a reasonable probability that the identity of the
complainant will not remain anonymous, the state department shall
also notify the facility that it is unlawful to discriminate or seek
retaliation against a resident, employee, or complainant.
(f) For purposes of this section, "complaint" means any oral or
written notice to the state department, other than a report from the
facility of an alleged violation of applicable requirements of state
or federal law or any alleged facts that might constitute such a
violation.
1421. (a) Any duly authorized officer, employee, or agent of the
state department may enter and inspect any long-term health care
facility, including, but not limited to, interviewing residents and
reviewing records, at any time to enforce any provision of this
chapter.
(b) Patients shall be treated with consideration, respect, and
full recognition of dignity during the course of the investigation or
inspection.
(c) Inspections conducted pursuant to complaints filed with the
state department shall be conducted in such a manner as to ensure
maximum effectiveness while respecting the rights of patients in the
facility. No advance notice shall be given of any inspection
conducted pursuant to this chapter unless previously and specifically
authorized by the director or required by federal law.
(d) Any public employee giving any advance notice in violation of
this section shall be deemed to be in violation of subdivision (t) of
Section 19572 of the Government Code and shall be suspended from all
duties without pay for a period determined by the director.
(e) Except as otherwise specified by law, any duly authorized
officer, employee, or agent of the state department shall not limit
the scope of practice of registered nurses acting under Section 2725
of the Business and Professions Code. Further, these agents shall not
prohibit the performing of functions by registered nurses when those
nurses are performing under standardized procedures, where their
activity is consistent with the scope of nursing practice, as set
forth in Section 2725 of the Business and Professions Code.
1421.1. (a) Within 24 hours of the occurrence of any of the events
specified in subdivision (b), the licensee of a skilled nursing
facility shall notify the department of the occurrence. This
notification may be in written form if it is provided by telephone
facsimile or overnight mail, or by telephone with a written
confirmation within five calendar days. The information provided
pursuant to this subdivision may not be released to the public by the
department unless its release is needed to justify an action taken
by the department or it otherwise becomes a matter of public record.
A violation of this section is a class "B" violation.
(b) All of the following occurrences shall require notification
pursuant to this section:
(1) The licensee of a facility receives notice that a judgment
lien has been levied against the facility or any of the assets of the
facility or the licensee.
(2) A financial institution refuses to honor a check or other
instrument issued by the licensee to its employees for a regular
payroll.
(3) The supplies, including food items and other perishables, on
hand in the facility fall below the minimum specified by any
applicable statute or regulation.
(4) The financial resources of the licensee fall below the amount
needed to operate the facility for a period of at least 45 days based
on the current occupancy of the facility. The determination that
financial resources have fallen below the amount needed to operate
the facility shall be based upon the current number of occupied beds
in the facility multiplied by the current daily Medi-Cal
reimbursement rate multiplied by 45 days.
(5) The licensee fails to make timely payment of any premiums
required to maintain required insurance policies or bonds in effect,
or any tax lien levied by any government agency.
1421.5. (a) (1) Within 24 hours of the filing of a bankruptcy
petition under Title 11 of the United States Code or any other laws
of the United States, by any person or entity holding a controlling
interest in a long-term health care facility, the licensee of the
long-term health care facility shall provide written notification to
the department of the filing of the petition and the location of the
court in which the petition was filed. The written notification may
be provided to the department by telephone facsimile or overnight
mail.
(2) Within 24 hours of the appointment of a trustee by the
bankruptcy court, the long-term health care facility shall provide
written notification to the department of the name, address, and
telephone number of the trustee. The written notification may be
provided to the department by telephone facsimile or overnight mail.
(3) The department shall provide written notification to the
trustee of the requirements of operating a licensed long-term health
care facility within three days of being notified of the appointment
of the trustee. The contents of this written notice may be provided
to the trustee by telephone facsimile or overnight mail and shall
include, but not be limited to, all of the following:
(A) The trustee is required to manage and operate the long-term
health care facility according to the requirements of state law, in
the same manner that the owner or possessor of the facility would be
required to manage and operate the facility, including, but not
limited to, complying with Article 8.5 (commencing with Section 1336)
of Chapter 2, Chapter 3.9 (commencing with Section 1599), and
Sections 72527, 73523, and 76525 of Title 22 of the California Code
of Regulations.
(B) The transfer of patients pursuant to the liquidation of a
licensed long-term health care facility presents a compelling public
health and safety risk, and the trustee will not be exempted from
complying with applicable state law for any reason.
(b) (1) As mandated by subdivision (b) of Section 959 of Title 28
of the United States Code, an individual appointed as a trustee in a
bankruptcy proceeding described in this section that involves any
person or entity holding a controlling interest in a long-term health
care facility shall comply with all state licensing and federal
certification requirements applicable to the long-term health care
facility, including, but not limited to, those governing patient
rights, transfer or discharge, and facility closure. The transfer of
patients pursuant to the liquidation of a licensed long-term health
care facility presents a compelling public health and safety risk,
and a trustee shall not be exempted from complying with applicable
state law for any reason.
(2) If a trustee fails to comply with the state licensing
requirements applicable to a long-term health care facility, the
department shall report the trustee's actions to the bankruptcy court
and intervene as appropriate to ensure continued facility compliance
with those requirements.
1422. (a) The Legislature finds and declares that it is the public
policy of this state to ensure that long-term health care facilities
provide the highest level of care possible. The Legislature further
finds that inspections are the most effective means of furthering
this policy. It is not the intent of the Legislature by the amendment
of subdivision (b) enacted by Chapter 1595 of the Statutes of 1982
to reduce in any way the resources available to the state department
for inspections, but rather to provide the state department with the
greatest flexibility to concentrate its resources where they can be
most effective. It is the intent of the Legislature to create a
survey process that includes state-based survey components and that
determines compliance with federal and California requirements for
certified long-term health care facilities. It is the further intent
of the Legislature to execute this inspection in the form of a single
survey process, to the extent that this is possible and permitted
under federal law. The inability of the state to conduct a single
survey in no way exempts the state from the requirement under this
section that state-based components be inspected in long-term health
care facilities as required by law.
(b) (1) (A) Notwithstanding Section 1279 or any other provision of
law, without providing notice of these inspections, the department,
in addition to any inspections conducted pursuant to complaints filed
pursuant to Section 1419, shall conduct inspections annually, except
with regard to those facilities which have no class "AA," class "A,"
or class "B" violations in the past 12 months. The state department
shall also conduct inspections as may be necessary to ensure the
health, safety, and security of patients in long-term health care
facilities. Every facility shall be inspected at least once every two
years. The department shall vary the cycle in which inspections of
long-term health care facilities are conducted to reduce the
predictability of the inspections.
(B) Inspections and investigations of long-term health care
facilities that are certified by the Medicare Program or the Medicaid
Program shall determine compliance with federal standards and
California statutes and regulations to the extent that California
statutes and regulations provide greater protection to residents, or
are more precise than federal standards, as determined by the
department. Notwithstanding any other provision of law, the
department may, without taking regulatory action 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
paragraph by means of an All Facilities Letter (AFL) or similar
instruction. Prior to issuing an AFL or similar instruction, the
department shall consult with interested parties and shall inform the
appropriate committees of the Legislature. The department shall also
post the AFL or similar instruction on its Web site so that any
person may observe which California laws and regulations provide
greater protection to its residents or are more precise than federal
standards. Nothing in this subdivision is intended to change existing
statutory or regulatory requirements governing the care provided to
long-term health care facility residents.
(C) In order to ensure maximum effectiveness of inspections
conducted pursuant to this article, the department shall identify all
state law standards for the staffing and operation of long-term
health care facilities. Costs of the additional survey and inspection
activities required by Chapter 895 of the Statutes of 2006 shall be
included as Licensing and Certification Program activities for the
purposes of calculating fees in accordance with Section 1266.
(2) The state department shall submit to the federal Department of
Health and Human Services on or before July 1, 1985, for review and
approval, a request to implement a three-year pilot program designed
to lessen the predictability of the long-term health care facility
inspection process. Two components of the pilot program shall be (A)
the elimination of the present practice of entering into a one-year
certification agreement, and (B) the conduct of segmented inspections
of a sample of facilities with poor inspection records, as defined
by the state department. At the conclusion of the pilot project, an
analysis of both components shall be conducted by the state
department to determine effectiveness in reducing inspection
predictability and the respective cost benefits. Implementation of
this pilot project is contingent upon federal approval.
(c) Except as otherwise provided in subdivision (b), the state
department shall conduct unannounced direct patient care inspections
at least annually to inspect physician and surgeon services, nursing
services, pharmacy services, dietary services, and activity programs
of all the long-term health care facilities. Facilities evidencing
repeated serious problems in complying with this chapter or a history
of poor performance, or both, shall be subject to periodic
unannounced direct patient care inspections during the inspection
year. The direct patient care inspections shall assist the state
department in the prioritization of its efforts to correct facility
deficiencies.
(d) All long-term health care facilities shall report to the state
department any changes in the nursing home administrator or the
director of nursing services within 10 calendar days of the changes.
(e) Within 90 days after the receipt of notice of a change in the
nursing home administrator or the director of nursing services, the
state department may conduct an abbreviated inspection of the
long-term health care facilities.
(f) If a change in a nursing home administrator occurs and the
Board of Nursing Home Administrators notifies the state department
that the new administrator is on probation or has had his or her
license suspended within the previous three years, the state
department shall conduct an abbreviated survey of the long-term
health care facility employing that administrator within 90 days of
notification.
1422.1. (a) Notwithstanding Section 1422, the State Department of
Health Services shall conduct, when feasible, annual licensing
inspections of licensed long-term health care facilities providing
special treatment programs for the mentally disordered, concurrently
with inspections conducted by the State Department of Mental Health
for the purposes of approving the special treatment program.
(b) The State Department of Health Services survey teams
conducting inspections pursuant to this section shall include at
least one licensed mental health professional if the inspections are
not done concurrently pursuant to subdivision (a).
(c) Survey team members shall receive training specific to the
mental health treatment needs of mentally disordered residents served
in these facilities.
1422.5. (a) The department shall develop and establish a consumer
information service system to provide updated and accurate
information to the general public and consumers regarding long-term
care facilities in their communities. The consumer information
service system shall include, but need not be limited to, all of the
following elements:
(1) An on-line inquiry system accessible through a statewide
toll-free telephone number and the Internet.
(2) Long-term health care facility profiles, with data on services
provided, a history of all citations and complaints for the last two
full survey cycles, and ownership information. The profile for each
facility shall include, but not be limited to, all of the following:
(A) The name, address, and telephone number of the facility.
(B) The number of units or beds in the facility.
(C) Whether the facility accepts Medicare or Medi-Cal patients.
(D) Whether the facility has a special care unit or program for
people with Alzheimer's disease and other dementias, and whether the
facility participates in the voluntary disclosure program for special
care units.
(E) Whether the facility is a for-profit or not-for-profit
provider.
(3) Information regarding substantiated complaints shall include
the action taken and the date of action.
(4) Information regarding the state citations assessed shall
include the status of the state citation, including the facility's
plan or correction, and information as to whether an appeal has been
filed.
(5) Any appeal resolution pertaining to a citation or complaint
shall be updated on the file in a timely manner.
(b) Where feasible, the department shall interface the consumer
information service system with its Automated Certification and
Licensure Information Management System.
(c) It is the intent of the Legislature that the department, in
developing and establishing the system pursuant to subdivision (a),
maximize the use of available federal funds.
(d) (1) Notwithstanding the consumer information service system
established pursuant to subdivision (a), by January 1, 2002, the
state department shall develop a method whereby information is
provided to the public and consumers on long-term health care
facilities. The information provided shall include, but not be
limited to, all of the following elements:
(A) Substantiated complaints, including the action taken and the
date of the action.
(B) State citations assessed, including the status of any citation
and whether an appeal has been filed.
(C) State actions, including license suspensions, revocations, and
receiverships.
(D) Federal enforcement sanctions imposed, including any denial of
payment, temporary management, termination, or civil money penalty
of five hundred dollars ($500) or more.
(E) Any information or data beneficial to the public and
consumers.
(2) This subdivision shall become inoperative on July 1, 2003.
(e) In implementing this section, the department shall ensure the
confidentiality of personal and identifying information of residents
and employees and shall not disclose this information through the
consumer information service system developed pursuant to this
section.
1422.6. Each skilled nursing facility and intermediate care
facility shall post a copy of the notice required pursuant to Section
9718 of the Welfare and Institutions Code in a conspicuous location
in at least four areas of the facility, as follows:
(a) One location that is accessible to members of the public.
(b) One location that is used for employee breaks.
(c) One location that is next to a telephone designated for
resident use.
(d) One location that is used for communal functions for
residents, such as for dining or resident council meetings and
activities.
1422.7. The state department shall provide the office, as defined
in subdivision (c) of Section 9701 of the Welfare and Institutions
Code, with copies of inspection reports for long-term health care
facilities upon request. The state department shall provide the
office with copies of all class "AA," "A," and "B" citations issued.
1423. (a) If upon inspection or investigation the director
determines that any nursing facility is in violation of any state or
federal law or regulation relating to the operation or maintenance of
the facility, or determines that any other long-term health care
facility is in violation of any statutory provision or regulation
relating to the operation or maintenance of the facility, the
director shall promptly, but not later than 24
1417. This chapter shall be known and may be cited as the Long-Term
Care, Health, Safety, and Security Act of 1973.
1417.1. It is the intent of the Legislature in enacting this
chapter to establish (1) a citation system for the imposition of
prompt and effective civil sanctions against long-term health care
facilities in violation of the laws and regulations of this state,
and the federal laws and regulations as applicable to nursing
facilities as defined in subdivision (k) of Section 1250, relating to
patient care; (2) an inspection and reporting system to ensure that
long-term health care facilities are in compliance with state
statutes and regulations pertaining to patient care; and (3) a
provisional licensing mechanism to ensure that full-term licenses are
issued only to those long-term health care facilities that meet
state standards relating to patient care.
1417.15. (a) (1) If one or more of the following remedies is
actually imposed for violation of state or federal requirements, the
long-term health care facility shall post a notice of the imposed
remedy or remedies, in the form specified in subdivision (c), on all
doors providing ingress to or egress from the facility, except as
specified in paragraph (2):
(A) License suspension.
(B) Termination of certification for Medicare or Medi-Cal.
(C) Denial of payment by Medicare or Medi-Cal for all otherwise
eligible residents.
(D) Denial of payment by Medicare or Medi-Cal for otherwise
eligible incoming residents.
(E) Ban on admission of any type.
(2) For purposes of this subdivision, a distinct part nursing
facility shall only be required to post the notice on all main doors
providing ingress to or egress from the distinct part, and not on all
of the doors providing ingress to or egress from the facility. An
intermediate care facility/developmentally disabled habilitative and
an intermediate care facility/developmentally disabled-nursing shall
post this notice on the inside of all doors providing ingress to or
egress from the facility.
(b) A violation of the requirement of subdivision (a) shall be
issued and enforced in the manner of a class "B" violation.
(c) The form of the notice established pursuant to subdivision (a)
shall be entitled "Notice of Violation Remedies." Each notice shall
list the remedy or remedies imposed, as set forth in subdivision (a),
and shall include the date the remedy was imposed. The notice shall
be typeset on white bond paper, 8 1/2 x 11 inches in size, in
boldface black type in a 16-point sans serif type font. A facility
may remove the notice on or after the date on which the sanction is
lifted.
1417.2. (a) Notwithstanding Section 1428, moneys collected as a
result of state and federal civil penalties imposed under this
chapter or federal law shall be deposited into accounts that are
hereby established in the Special Deposit Fund created pursuant to
Section 16370 of the Government Code. These accounts are titled the
State Health Facilities Citation Penalties Account, into which moneys
derived from civil penalties for violations of state law shall be
deposited, and the Federal Health Facilities Citation Penalties
Account, into which moneys derived from civil penalties for
violations of federal law shall be deposited. Moneys from these
accounts shall be used, notwithstanding Section 16370 of the
Government Code, upon appropriation by the Legislature, in accordance
with state and federal law for the protection of health or property
of residents of long-term health care facilities, including, but not
limited to, the following:
(1) Relocation expenses incurred by the department, in the event
of a facility closure.
(2) Maintenance of facility operation pending correction of
deficiencies or closure, such as temporary management or
receivership, in the event that the revenues of the facility are
insufficient.
(3) Reimbursing residents for personal funds lost. In the event
that the loss is a result of the actions of a long-term health care
facility or its employees, the revenues of the facility shall first
be used.
(4) The costs associated with informational meetings required
under Section 1327.2.
(b) Notwithstanding subdivision (a), the balance in the State
Health Facilities Citation Penalties Account shall not, at any time,
exceed ten million dollars ($10,000,000).
(c) Moneys from the Federal Health Facilities Citation Penalties
Account, in the amount not to exceed one hundred thirty thousand
dollars ($130,000), may also be used, notwithstanding Section 16370
of the Government Code, upon appropriation by the Legislature, in
accordance with state and federal law for the improvement of quality
of care and quality of life for long-term health care facilities
residents pursuant to Section 1417.3.
(d) The department shall post on its Internet Web site, and shall
update on a quarterly basis, all of the following regarding the funds
in the State Health Facilities Citation Penalties Account and the
Federal Health Facilities Citation Penalties Account:
(1) The specific sources of funds deposited into the account.
(2) The amount of funds in the account that have not been
allocated.
(3) A detailed description of how funds in the account have been
allocated and expended, including, but not limited to, the names of
persons or entities that received the funds, the amount of salaries
paid to temporary managers, and a description of equipment purchased
with the funds. However, the description shall not include the names
of residents.
1417.3. The department shall promote quality of care and quality of
life for residents, clients, and patients in long-term health care
facility services through specific activities that include, but are
not limited to, all of the following:
(a) Research and evaluation of innovative facility resident care
models.
(b) (1) Provision of statewide training on effective facility
practices.
(2) Training also shall include topics related to the provision of
quality of care and quality of life for facility residents. The
topics for training shall be identified by the department through a
periodic survey. The curriculum for the training provided under this
paragraph shall be developed in consultation with representatives
from provider associations, consumer associations, and others, as
deemed appropriate by the state department.
(c) The establishment of separate units to respond to facility
requests for technical assistance regarding licensing and
certification requirements, compliance with federal and state
standards, and related operational issues.
(d) State employees providing technical assistance to facilities
pursuant to this section are only required to report violations they
discover during the provision of the assistance to the appropriate
district office if the violations constitute an immediate and serious
threat to the health and welfare of, or have resulted in actual harm
to, patients, residents, or clients of the facility.
(e) The state department shall measure facility satisfaction and
the effectiveness of the technical assistance provided pursuant to
subdivision (c).
(f) No person employed in the technical assistance or training
units under subdivisions (b) and (c) shall also participate in the
licensing, surveying, or direct regulation of facilities.
(g) This section shall not diminish the department's ongoing
survey and enforcement process.
1417.4. (a) There is hereby established in the state department the
Quality Awards Program for nursing homes.
(b) The department shall establish criteria under the program,
after consultation with stakeholder groups, for recognizing all
skilled nursing facilities that provide exemplary care to residents.
(c) (1) Monetary awards shall be made to Quality Awards Program
recipients that serve high proportions of Medi-Cal residents to the
extent funds are appropriated each year in the annual Budget Act.
(2) Monetary awards presented under this section and paid for by
funds appropriated from the General Fund shall be used for staff
bonuses and distributed in accordance with criteria established by
the department.
(3) Monetary awards presented under this section and paid for from
funds from the Federal Citation Penalty Account shall be used to
fund innovative facility grants to improve the quality of care and
quality of life for residents in skilled nursing facilities, or to
fund innovative efforts to increase employee recruitment, or
retention, or both, subject to federal approval.
(d) The department shall establish criteria for selecting
facilities to receive the quality awards, in consultation with senior
advocacy organizations, employee labor organizations representing
facility employees, nursing home industry representatives, and other
interested parties as deemed appropriate by the department. The
criteria established pursuant to this subdivision shall not be
considered regulations within the meaning of Section 11342 of the
Government Code, and shall not be subject to adoption as regulations
pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
(e) The department shall publish an annual listing of the Quality
Awards Program recipients with the dollar amount awarded, if
applicable. The department shall also publish an annual listing of
the Quality Awards Program recipients that receive innovative
facility grants with the purpose of the grant and the grant amount.
(f) All of the funds available for the programs described in this
section shall be disbursed to qualified facilities by January 1,
2002, and January 1 of each year thereafter.
1417.5. (a) The department, in consultation with stakeholders,
shall develop recommendations to address the findings published in
the June 2010 report entitled, "Department of Public Health: It
Reported Inaccurate Financial Information and Can Likely Increase
Revenues for the State and Federal Health Facilities Citation
Penalties Accounts" (Report 2010-108). The recommendations shall
address, but not be limited to, all of the following:
(1) Streamlining the citation appeal process, including the
citation review conference process.
(2) Increasing citation penalty amounts, including late penalty
fees, and annually adjusting penalty amounts to reflect an inflation
indicator, such as the California Consumer Price Index.
(3) Revising state law to enable the department to recommend that
the federal Centers for Medicare and Medicaid Services impose a
federal civil money penalty when the department's Licensing and
Certification Division determines that a facility is out of
compliance with both state and federal requirements.
(4) Authorizing the department to collect citation penalty amounts
upon appeal of the citation and allowing the department to place
those funds into a special interest bearing account.
(b) The department shall provide the recommendations to the fiscal
and policy committees of the Legislature no later than March 1,
2011.
1418. As used in this chapter:
(a) "Long-term health care facility" means any facility licensed
pursuant to Chapter 2 (commencing with Section 1250) that is any of
the following:
(1) Skilled nursing facility.
(2) Intermediate care facility.
(3) Intermediate care facility/developmentally disabled.
(4) Intermediate care facility/developmentally disabled
habilitative.
(5) Intermediate care facility/developmentally disabled-nursing.
(6) Congregate living health facility.
(7) Nursing facility.
(8) Intermediate care facility/developmentally disabled-continuous
nursing.
(b) "Long-term health care facility" also includes a pediatric day
health and respite care facility licensed pursuant to Chapter 8.6
(commencing with Section 1760).
(c) "Long-term health care facility" does not include a general
acute care hospital or an acute psychiatric hospital, except for that
distinct part of the hospital that provides skilled nursing
facility, intermediate care facility, or pediatric day health and
respite care facility services.
(d) "Licensee" means the holder of a license issued under Chapter
2 (commencing with Section 1250) or Chapter 8.6 (commencing with
Section 1760) for a long-term health care facility.
1418.1. (a) Any person receiving respite care services shall be
permitted to bring medications to the skilled nursing facility or
intermediate care facility if the contents have been examined and
positively identified upon the patient's admission to the facility by
the patient's personal physician and surgeon or a pharmacist
retained by the facility.
(b) A skilled nursing facility or intermediate care facility
providing respite care services shall not be required to afford a
person receiving respite care services a bedhold when the person is
transferred to a general acute care hospital, as defined in Section
1250.
(c) A skilled nursing facility or intermediate care facility
providing respite care services shall permit the personal physician
and surgeon of a person receiving respite care services to issue
advance orders for care and treatment for a period not to exceed 90
days from the date of admission of the person, based on the person's
medical history, diagnosis, and physical assessment conducted upon
admission. The skilled nursing facility or intermediate care facility
may readmit the person for respite care services on the basis of the
advance orders for care and treatment, unless the personal physician
and surgeon of the person indicates that there has been a
significant change in the person's medical condition. These advance
orders shall only be used by the skilled nursing or intermediate care
facility during periods in which the person is receiving respite
care services.
(d) A skilled nursing facility or intermediate care facility
providing respite care services may implement an abbreviated resident
assessment and care planning procedure for persons admitted for
respite care services consistent with the facility's obligation to
protect the health and safety of residents and the general public.
The abbreviated resident assessment and care planning procedure shall
address the necessary care services required by the person admitted
for respite care during the length of the respite care stay. The
abbreviated resident assessment and care planning procedure documents
do not have to be updated with every readmission of the same person
to the facility for respite care services, unless the personal
physician and surgeon of the person indicates that there has been a
significant change in the person's medical condition.
(e) As used in this section, "respite care services" means service
provided to frail elderly or functionally impaired persons in a
licensed skilled nursing facility or intermediate care facility, as
defined in Section 1250, on a temporary or periodic basis to relieve
persons who are providing their care at home.
(f) As used in this section, "temporary or periodic" means a
period of time not to exceed 15 consecutive days or a total of 45
days in any one year.
(g) No more than 10 percent of a skilled nursing or intermediate
care facility's total licensed bed capacity may be used during any
one calendar year for the provision of respite care services as
defined in this section. A facility may exceed this limit with the
prior written approval of the State Department of Health Services.
1418.2. (a) Every facility licensed pursuant to subdivisions (c),
(d), (e), and (g) of Section 1250 and every skilled nursing facility
licensed separately under subdivision (a) of Section 1250 shall
establish and maintain a resident council. Each council shall include
the residents of the health facility, and may include family members
of residents, advocates, or ombudsman groups interested in residents
of health facilities, and personnel of the health facility. Family
members of residents shall be invited to meetings of resident
councils.
The council shall meet at regularly scheduled intervals, maintain
written minutes, including names of council members present, and have
minutes available for review by the state department upon its
request. Facility policies on resident councils shall in no way limit
the right of residents to meet independently with outside persons or
facility personnel as determined solely by the residents of the
facility.
Written minutes of regularly scheduled council meetings may
include recommendations from the council to the licensee of the
health facility which shall be provided to the licensee. The licensee
shall provide evidence of review and action on these recommendations
to the state department upon its request.
(b) Any health facility which fails to establish a resident
council as prescribed in subdivision (a) shall be subject to the
provisions of Section 1280.
(c) The state department shall, by regulation, specify those
circumstances under which a health facility may be exempted from the
provisions of subdivisions (a) and (b), including, but not limited
to, the following:
(1) A resident population consisting of a majority of patients
with progressively disabling disorders defined in Section 1250.4.
(2) Facilities with no more than six residents which provide
alternate means for residents to actively share in planning and
enhancing of life in the facility.
(3) Other circumstances as determined by the state department.
1418.21. (a) A skilled nursing facility that has been certified for
purposes of Medicare or Medicaid shall post the overall facility
rating information determined by the federal Centers for Medicare and
Medicaid Services (CMS) in accordance with the following
requirements:
(1) The information shall be posted in at least the following
locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, such as
dining, resident council meetings, or activities.
(2) The information shall be posted on white or light-colored
paper that includes all of the following, in the following order:
(A) The full name of the facility, in a clear and easily readable
font of at least 28 point.
(B) The full address of the facility in a clear and easily
readable font of at least 20 point.
(C) The most recent overall star rating given by CMS to that
facility, except that a facility shall have seven business days from
the date when it receives a different rating from CMS to include the
updated rating in the posting. The star rating shall be aligned in
the center of the page. The star rating shall be expressed as the
number that reflects the number of stars given to the facility by
CMS. The number shall be in a clear and easily readable font of at
least two inches print.
(D) Directly below the star symbols shall be the following text in
a clear and easily readable font of at least 28 point:
"The above number is out of 5 stars."
(E) Directly below the text described in subparagraph (D) shall be
the following text in a clear and easily readable font of at least
14 point:
"This facility is reviewed annually and has been licensed by the
State of California and certified by the federal Centers for Medicare
and Medicaid Services (CMS). CMS rates facilities that are certified
to accept Medicare or Medicaid. CMS gave the above rating to this
facility. A detailed explanation of this rating is maintained at this
facility and will be made available upon request. This information
can also be accessed online at the Nursing Home Compare Internet Web
site at https://www.medicare.gov/NHcompare. Like any information, the
Five-Star Quality Rating System has strengths and limits. The
criteria upon which the rating is determined may not represent all of
the aspects of care that may be important to you. You are encouraged
to discuss the rating with facility staff. The Five-Star Quality
Rating System was created to help consumers, their families, and
caregivers compare nursing homes more easily and help identify areas
about which you may want to ask questions. Nursing home ratings are
assigned based on ratings given to health inspections, staffing, and
quality measures. Some areas are assigned a greater weight than other
areas. These ratings are combined to calculate the overall rating
posted here."
(F) Directly below the text described in subparagraph (E), the
following text shall appear in a clear and easily readable font of at
least 14 point:
"State licensing information on skilled nursing facilities is
available on the State Department of Public Health's Internet Web
site at: www.cdph.ca.gov, under Programs, Licensing and
Certification, Health Facilities Consumer Information System."
(3) For the purposes of this section, "a detailed explanation of
this rating" shall include, but shall not be limited to, a printout
of the information explaining the Five-Star Quality Rating System
that is available on the CMS Nursing Home Compare Internet Web site.
This information shall be maintained at the facility and shall be
made available upon request.
(4) The requirements of this section shall be in addition to any
other posting or inspection report availability requirements.
(b) Violation of this section shall constitute a class B
violation, as defined in subdivision (e) of Section 1424 and,
notwithstanding Section 1290, shall not constitute a crime. Fines
from a violation of this section shall be deposited into the State
Health Facilities Citation Penalties Account, created pursuant to
Section 1417.2.
(c) This section shall be operative on January 1, 2011.
1418.3. (a) Each licensed skilled nursing facility shall, when
requested by a member of a patient's family, allow the family to meet
privately with a family member who is a resident in the facility.
(b) "Family member" for the purposes of this section means an
immediate family member or family member designated and documented on
the patient's record at the time of admission to the facility.
1418.4. (a) No licensed skilled nursing facility or intermediate
care facility may prohibit the formation of a family council, and,
when requested by a member of the resident's family or the resident's
representative, the family council shall be allowed to meet in a
common meeting room of the facility at least once a month during
mutually agreed upon hours.
(b) Facility policies on family councils shall in no way limit the
right of residents, family members, and family council members to
meet independently with outside persons, including members of
nonprofit or government organizations or with facility personnel
during nonworking hours.
(c) "Family council" for the purpose of this section means a
meeting of family members, friends, or representatives of two or more
residents to confer in private without facility staff.
(d) Family councils shall also be provided adequate space on a
prominent bulletin board or other posting area for the display of
meeting notices, minutes, newsletters, or other information
pertaining to the operation or interest of the family council.
(e) Staff or visitors may attend family council meetings, at the
group's invitation.
(f) The facility shall provide a designated staff person who shall
be responsible for providing assistance and responding to written
requests that result from family council meetings.
(g) The facility shall consider the views and act upon the
grievances and recommendations of a family council concerning
proposed policy and operational decisions affecting resident care and
life in the facility.
(h) The facility shall respond in writing to written requests or
concerns of the family council, within 10 working days.
(i) When a family council exists, the facility shall include
notice of the family council meetings in at least a quarterly
mailing, and shall inform family members or representatives of new
residents who are identified on the admissions agreement, during the
admissions process, or in the resident's records, of the existence of
the family council. The notice shall include the time, place, and
date of meetings, and the person to contact regarding involvement in
the family council.
(j) No facility shall willfully interfere with the formation,
maintenance, or promotion of a family council. For the purposes of
this subdivision, willful interference shall include, but not be
limited to, discrimination or retaliation in any way against an
individual as a result of his or her participation in a family
council, or the willful scheduling of facility events in conflict
with a previously scheduled family council meeting.
(k) (1) Violation of the provisions of this section shall
constitute a violation of the residents' rights.
(2) Violation of the provisions of this section shall constitute a
class "B" violation, as defined in Section 1424.
1418.5. No regulation adopted with respect to skilled nursing
facilities or intermediate care facilities shall prohibit patients in
the facility from storing nonprescription or topical ophthalmic
medications at their bedside unless contraindicated by the patient's
attending physician or the facility.
1418.6. No long-term health care facility shall accept or retain
any patient for whom it cannot provide adequate care.
1418.7. (a) Long-term health care facilities, as defined in Section
1418, shall develop and implement policies and procedures designed
to reduce theft and loss.
(b) The facility program shall include all of the following:
(1) Establishment and posting of the facility's theft and loss
policies.
(2) Orientation of employees to those policies.
(3) Documentation of theft and loss of property with a value of
twenty-five dollars ($25) or more.
(4) Inventory of patient's personal property upon admission.
(5) Inventory of and surrender of patient's personal property upon
death or discharge.
(6) Regular review of the effectiveness of the policies and
procedures.
(7) Marking of patient's personal property, including dentures and
prosthetic and orthopedic devices.
(8) Reports to local law enforcement of stolen property with a
value of one hundred dollars ($100) or more.
(9) Methods for securing personal property.
(10) Notification of residents and families of the facility's
policies.
(c) The policies and procedures developed by the facilities
pursuant to this section shall be in accordance with Section 1289.4,
as added by Assembly Bill 2047 of the 1987-88 Regular Session of the
Legislature, if that bill is enacted and becomes effective.
(d) If a facility has shown clear and convincing evidence of its
efforts to comply with the requirements of this section, no citation
shall be issued as a result of the occasional occurrence of theft and
loss in a facility.
1418.8. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility or intermediate care facility prescribes
or orders a medical intervention that requires that informed consent
be obtained prior to administration of the medical intervention, but
is unable to obtain informed consent because the physician and
surgeon determines that the resident lacks capacity to make decisions
concerning his or her health care and that there is no person with
legal authority to make those decisions on behalf of the resident,
the physician and surgeon shall inform the skilled nursing facility
or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to
make a decision regarding his or her health care if the resident is
unable to understand the nature and consequences of the proposed
medical intervention, including its risks and benefits, or is unable
to express a preference regarding the intervention. To make the
determination regarding capacity, the physician shall interview the
patient, review the patient's medical records, and consult with
skilled nursing or intermediate care facility staff, as appropriate,
and family members and friends of the resident, if any have been
identified.
(c) For purposes of subdivision (a), a person with legal authority
to make medical treatment decisions on behalf of a patient is a
person designated under a valid Durable Power of Attorney for Health
Care, a guardian, a conservator, or next of kin. To determine the
existence of a person with legal authority, the physician shall
interview the patient, review the medical records of the patient, and
consult with skilled nursing or intermediate care facility staff, as
appropriate, and with family members and friends of the resident, if
any have been identified.
(d) The attending physician and the skilled nursing facility or
intermediate care facility may initiate a medical intervention that
requires informed consent pursuant to subdivision (e) in accordance
with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate
care facility has been prescribed a medical intervention by a
physician and surgeon that requires informed consent and the
physician has determined that the resident lacks capacity to make
health care decisions and there is no person with legal authority to
make those decisions on behalf of the resident, the facility shall,
except as provided in subdivision (h), conduct an interdisciplinary
team review of the prescribed medical intervention prior to the
administration of the medical intervention. The interdisciplinary
team shall oversee the care of the resident utilizing a team approach
to assessment and care planning, and shall include the resident's
attending physician, a registered professional nurse with
responsibility for the resident, other appropriate staff in
disciplines as determined by the resident's needs, and, where
practicable, a patient representative, in accordance with applicable
federal and state requirements. The review shall include all of the
following:
(1) A review of the physician's assessment of the resident's
condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To
determine the desires of the resident, the interdisciplinary team
shall interview the patient, review the patient's medical records,
and consult with family members or friends, if any have been
identified.
(4) The type of medical intervention to be used in the resident's
care, including its probable frequency and duration.
(5) The probable impact on the resident's condition, with and
without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or
utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend
of the resident who is unable to take full responsibility for the
health care decisions of the resident, but who has agreed to serve on
the interdisciplinary team, or other person authorized by state or
federal law.
(g) The interdisciplinary team shall periodically evaluate the use
of the prescribed medical intervention at least quarterly or upon a
significant change in the resident's medical condition.
(h) In case of an emergency, after obtaining a physician and
surgeon's order as necessary, a skilled nursing or intermediate care
facility may administer a medical intervention that requires informed
consent prior to the facility convening an interdisciplinary team
review. If the emergency results in the application of physical or
chemical restraints, the interdisciplinary team shall meet within one
week of the emergency for an evaluation of the medical intervention.
(i) Physicians and surgeons and skilled nursing facilities and
intermediate care facilities shall not be required to obtain a court
order pursuant to Section 3201 of the Probate Code prior to
administering a medical intervention which requires informed consent
if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a
resident of a skilled nursing facility or intermediate care facility
for whom medical intervention has been prescribed, ordered, or
administered pursuant to this section to seek appropriate judicial
relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under
this section is in accordance with reasonable medical standards, is
subject to administrative sanction if the physician or health care
provider believes in good faith that the action is consistent with
this section and the desires of the resident, or if unknown, the best
interests of the resident.
(l) The determinations required to be made pursuant to
subdivisions (a), (e), and (g), and the basis for those
determinations shall be documented in the patient's medical record
and shall be made available to the patient's representative for
review.
1418.81. (a) In order to assure the provision of quality patient
care and as part of the planning for that quality patient care,
commencing at the time of admission, a skilled nursing facility, as
defined in subdivision (c) of Section 1250, shall include in a
resident's care assessment the resident's projected length of stay
and the resident's discharge potential. The assessment shall include
whether the resident has expressed or indicated a preference to
return to the community and whether the resident has social support,
such as family, that may help to facilitate and sustain return to the
community. The assessment shall be recorded with the relevant
portions of the minimum data set, as described in Section 14110.15 of
the Welfare and Institutions Code. The plan of care shall reflect,
if applicable, the care ordered by the attending physician needed to
assist the resident in achieving the resident's preference of return
to the community.
(b) The skilled nursing facility shall evaluate the resident's
discharge potential at least quarterly or upon a significant change
in the resident's medical condition.
(c) The interdisciplinary team shall oversee the care of the
resident utilizing a team approach to assessment and care planning
and shall include the resident's attending physician, a registered
professional nurse with responsibility for the resident, other
appropriate staff in disciplines as determined by the resident's
needs, and, where practicable, a resident's representative, in
accordance with applicable federal and state requirements.
(d) If return to the community is part of the care plan, the
facility shall provide to the resident or responsible party and
document in the care plan the information concerning services and
resources in the community. That information may include information
concerning:
(1) In-home supportive services provided by a public authority or
other legally recognized entity, if any.
(2) Services provided by the Area Agency on Aging, if any.
(3) Resources available through an independent living center.
(4) Other resources or services in the community available to
support return to the community.
(e) If the resident is otherwise eligible, a skilled nursing
facility shall make, to the extent services are available in the
community, a reasonable attempt to assist a resident who has a
preference for return to the community and who has been determined to
be able to do so by the attending physician, to obtain assistance
within existing programs, including appropriate case management
services, in order to facilitate return to the community. The
targeted case management services provided by entities other than the
skilled nursing facility shall be intended to facilitate and sustain
return to the community.
(f) Costs to skilled nursing facilities to comply with this
section shall be allowable for Medi-Cal reimbursement purposes
pursuant to Section 1324.25, but shall not be considered a new state
mandate under Section 14126.023 of the Welfare and Institutions Code.
1418.9. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility prescribes, orders, or increases an order
for an antipsychotic medication for the resident, the physician and
surgeon shall do both of the following:
(1) Obtain the informed consent of the resident for purposes of
prescribing, ordering, or increasing an order for the medication.
(2) Seek the consent of the resident to notify the resident's
interested family member, as designated in the medical record. If the
resident consents to the notice, the physician and surgeon shall
make reasonable attempts, either personally or through a designee, to
notify the interested family member, as designated in the medical
record, within 48 hours of the prescription, order, or increase of an
order.
(b) Notification of an interested family member is not required
under paragraph (2) of subdivision (a) if any of the following
circumstances exist:
(1) There is no interested family member designated in the medical
record.
(2) The resident has been diagnosed as terminally ill by his or
her physician and surgeon and is receiving hospice services from a
licensed, certified hospice agency in the facility.
(3) The resident has not consented to the notification.
(c) As used in this section, the following definitions shall
apply:
(1) "Resident" means a patient of a skilled nursing facility who
has the capacity to consent to make decisions concerning his or her
health care, including medications.
(2) "Designee" means a person who has agreed with the physician
and surgeon to provide the notice required by this section.
(3) "Antipsychotic medication" means a medication approved by the
United States Food and Drug Administration for the treatment of
psychosis.
(4) "Increase of an order" means an increase of the dosage of the
medication above the dosage range stated in a prior consent from the
resident.
(d) This section shall not be construed to require consent from an
interested family member for an attending physician and surgeon of a
resident to prescribe, order, or increase an order for antipsychotic
medication.
1418.91. (a) A long-term health care facility shall report all
incidents of alleged abuse or suspected abuse of a resident of the
facility to the department immediately, or within 24 hours.
(b) A failure to comply with the requirements of this section
shall be a class "B" violation.
(c) For purposes of this section, "abuse" shall mean any of the
conduct described in subdivisions (a) and (b) of Section 15610.07 of
the Welfare and Institutions Code.
(d) This section shall not change any reporting requirements under
Section 15630 of the Welfare and Institutions Code, or as otherwise
specified in the Elder Abuse and Dependent Adult Civil Protection
Act, Chapter 11 (commencing with Section 15600) of Part 3 of Division
9 of the Welfare and Institutions Code.
1419. (a) The department shall establish a centralized consumer
response unit within the Licensing and Certification Division of the
department to respond to consumer inquiries and complaints.
(b) Upon receipt of consumer inquiries, the unit shall offer
assistance to consumers in resolving concerns about the quality of
care and the quality of life in long-term health care facilities.
This assistance may include, but shall not be limited to, all of
the following:
(1) Offering to provide to consumers education and information
about state licensing and federal certification standards, resident
rights, name and address of facilities, referral to other entities as
appropriate, and facility compliance history.
(2) Offering to participate in telephone conference calls between
consumers and providers to resolve concerns within the scope of the
authority of the department. If the inquiry or concern is determined
to warrant an onsite investigation, the inquiry or concern shall be
considered a complaint and handled pursuant to the complaint
investigation process set forth in Section 1420.
(3) Initiating onsite investigations in response to oral or
written complaints made pursuant to this section if the unit
determines that there is a reasonable basis to believe that the
allegations in the complaints describe one or more violations of
state law by a long-term care facility.
(c) Nothing in subdivision (a) or (b) shall preclude the
department from taking any or all enforcement actions available under
state or federal law.
(d) Any person may request an inspection of any long-term health
care facility in accordance with this chapter by giving to the
department oral or written notice of an alleged violation of
applicable requirements of state law. Any written notice may be
signed by the complainant setting forth with reasonable particularity
the matters complained of. Oral notice may be made by telephone or
personal visit. Any oral complaint shall be reduced to writing by the
department. The substance of the complaint shall be provided to the
licensee no earlier than at the commencement of the inspection.
(e) Neither the substance of the complaint provided the licensee
nor any copy of the complaint or record published, released, or
otherwise made available to the licensee shall disclose the name of
any individual complainant or other person mentioned in the
complaint, except the name or names of any duly authorized officer,
employee, or agent of the state department conducting the
investigation or inspection pursuant to this chapter, unless the
complainant specifically requests the release of the name or names or
the matter results in a judicial proceeding.
1420. (a) (1) Upon receipt of a written or oral complaint, the
state department shall assign an inspector to make a preliminary
review of the complaint and shall notify the complainant within two
working days of the receipt of the complaint of the name of the
inspector. Unless the state department determines that the complaint
is willfully intended to harass a licensee or is without any
reasonable basis, it shall make an onsite inspection or investigation
within 10 working days of the receipt of the complaint. In any case
in which the complaint involves a threat of imminent danger of death
or serious bodily harm, the state department shall make an onsite
inspection or investigation within 24 hours of the receipt of the
complaint. In any event, the complainant shall be promptly informed
of the state department's proposed course of action and of the
opportunity to accompany the inspector on the inspection or
investigation of the facility. Upon the request of either the
complainant or the state department, the complainant or his or her
representative, or both, may be allowed to accompany the inspector to
the site of the alleged violations during his or her tour of the
facility, unless the inspector determines that the privacy of any
patient would be violated thereby.
(2) When conducting an onsite inspection or investigation pursuant
to this section, the state department shall collect and evaluate all
available evidence and may issue a citation based upon, but not
limited to, all of the following:
(A) Observed conditions.
(B) Statements of witnesses.
(C) Facility records.
(3) Within 10 working days of the completion of the complaint
investigation, the state department shall notify the complainant and
licensee in writing of the department's determination as a result of
the inspection or investigation.
(b) Upon being notified of the state department's determination as
a result of the inspection or investigation, a complainant who is
dissatisfied with the state department's determination, regarding a
matter which would pose a threat to the health, safety, security,
welfare, or rights of a resident, shall be notified by the state
department of the right to an informal conference, as set forth in
this section. The complainant may, within five business days after
receipt of the notice, notify the director in writing of his or her
request for an informal conference. The informal conference shall be
held with the designee of the director for the county in which the
long-term health care facility which is the subject of the complaint
is located. The long-term health care facility may participate as a
party in this informal conference. The director's designee shall
notify the complainant and licensee of his or her determination
within 10 working days after the informal conference and shall
apprise the complainant and licensee in writing of the appeal rights
provided in subdivision (c).
(c) If the complainant is dissatisfied with the determination of
the director's designee in the county in which the facility is
located, the complainant may, within 15 days after receipt of this
determination, notify in writing the Deputy Director of the Licensing
and Certification Division of the state department, who shall assign
the request to a representative of the Complainant Appeals Unit for
review of the facts that led to both determinations. As a part of the
Complainant Appeals Unit's independent investigation, and at the
request of the complainant, the representative shall interview the
complainant in the district office where the complaint was initially
referred. Based upon this review, the Deputy Director of the
Licensing and Certification Division of the state department shall
make his or her own determination and notify the complainant and the
facility within 30 days.
(d) Any citation issued as a result of a conference or review
provided for in subdivision (b) or (c) shall be issued and served
upon the facility within three working days of the final
determination, unless the licensee agrees in writing to an extension
of this time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant by registered or certified mail.
(e) A miniexit conference shall be held with the administrator or
his or her representative upon leaving the facility at the completion
of the investigation to inform him or her of the status of the
investigation. The department shall also state the items of
noncompliance and compliance found as a result of a complaint and
those items found to be in compliance, provided the disclosure
maintains the anonymity of the complainant. In any matter in which
there is a reasonable probability that the identity of the
complainant will not remain anonymous, the state department shall
also notify the facility that it is unlawful to discriminate or seek
retaliation against a resident, employee, or complainant.
(f) For purposes of this section, "complaint" means any oral or
written notice to the state department, other than a report from the
facility of an alleged violation of applicable requirements of state
or federal law or any alleged facts that might constitute such a
violation.
1421. (a) Any duly authorized officer, employee, or agent of the
state department may enter and inspect any long-term health care
facility, including, but not limited to, interviewing residents and
reviewing records, at any time to enforce any provision of this
chapter.
(b) Patients shall be treated with consideration, respect, and
full recognition of dignity during the course of the investigation or
inspection.
(c) Inspections conducted pursuant to complaints filed with the
state department shall be conducted in such a manner as to ensure
maximum effectiveness while respecting the rights of patients in the
facility. No advance notice shall be given of any inspection
conducted pursuant to this chapter unless previously and specifically
authorized by the director or required by federal law.
(d) Any public employee giving any advance notice in violation of
this section shall be deemed to be in violation of subdivision (t) of
Section 19572 of the Government Code and shall be suspended from all
duties without pay for a period determined by the director.
(e) Except as otherwise specified by law, any duly authorized
officer, employee, or agent of the state department shall not limit
the scope of practice of registered nurses acting under Section 2725
of the Business and Professions Code. Further, these agents shall not
prohibit the performing of functions by registered nurses when those
nurses are performing under standardized procedures, where their
activity is consistent with the scope of nursing practice, as set
forth in Section 2725 of the Business and Professions Code.
1421.1. (a) Within 24 hours of the occurrence of any of the events
specified in subdivision (b), the licensee of a skilled nursing
facility shall notify the department of the occurrence. This
notification may be in written form if it is provided by telephone
facsimile or overnight mail, or by telephone with a written
confirmation within five calendar days. The information provided
pursuant to this subdivision may not be released to the public by the
department unless its release is needed to justify an action taken
by the department or it otherwise becomes a matter of public record.
A violation of this section is a class "B" violation.
(b) All of the following occurrences shall require notification
pursuant to this section:
(1) The licensee of a facility receives notice that a judgment
lien has been levied against the facility or any of the assets of the
facility or the licensee.
(2) A financial institution refuses to honor a check or other
instrument issued by the licensee to its employees for a regular
payroll.
(3) The supplies, including food items and other perishables, on
hand in the facility fall below the minimum specified by any
applicable statute or regulation.
(4) The financial resources of the licensee fall below the amount
needed to operate the facility for a period of at least 45 days based
on the current occupancy of the facility. The determination that
financial resources have fallen below the amount needed to operate
the facility shall be based upon the current number of occupied beds
in the facility multiplied by the current daily Medi-Cal
reimbursement rate multiplied by 45 days.
(5) The licensee fails to make timely payment of any premiums
required to maintain required insurance policies or bonds in effect,
or any tax lien levied by any government agency.
1421.5. (a) (1) Within 24 hours of the filing of a bankruptcy
petition under Title 11 of the United States Code or any other laws
of the United States, by any person or entity holding a controlling
interest in a long-term health care facility, the licensee of the
long-term health care facility shall provide written notification to
the department of the filing of the petition and the location of the
court in which the petition was filed. The written notification may
be provided to the department by telephone facsimile or overnight
mail.
(2) Within 24 hours of the appointment of a trustee by the
bankruptcy court, the long-term health care facility shall provide
written notification to the department of the name, address, and
telephone number of the trustee. The written notification may be
provided to the department by telephone facsimile or overnight mail.
(3) The department shall provide written notification to the
trustee of the requirements of operating a licensed long-term health
care facility within three days of being notified of the appointment
of the trustee. The contents of this written notice may be provided
to the trustee by telephone facsimile or overnight mail and shall
include, but not be limited to, all of the following:
(A) The trustee is required to manage and operate the long-term
health care facility according to the requirements of state law, in
the same manner that the owner or possessor of the facility would be
required to manage and operate the facility, including, but not
limited to, complying with Article 8.5 (commencing with Section 1336)
of Chapter 2, Chapter 3.9 (commencing with Section 1599), and
Sections 72527, 73523, and 76525 of Title 22 of the California Code
of Regulations.
(B) The transfer of patients pursuant to the liquidation of a
licensed long-term health care facility presents a compelling public
health and safety risk, and the trustee will not be exempted from
complying with applicable state law for any reason.
(b) (1) As mandated by subdivision (b) of Section 959 of Title 28
of the United States Code, an individual appointed as a trustee in a
bankruptcy proceeding described in this section that involves any
person or entity holding a controlling interest in a long-term health
care facility shall comply with all state licensing and federal
certification requirements applicable to the long-term health care
facility, including, but not limited to, those governing patient
rights, transfer or discharge, and facility closure. The transfer of
patients pursuant to the liquidation of a licensed long-term health
care facility presents a compelling public health and safety risk,
and a trustee shall not be exempted from complying with applicable
state law for any reason.
(2) If a trustee fails to comply with the state licensing
requirements applicable to a long-term health care facility, the
department shall report the trustee's actions to the bankruptcy court
and intervene as appropriate to ensure continued facility compliance
with those requirements.
1422. (a) The Legislature finds and declares that it is the public
policy of this state to ensure that long-term health care facilities
provide the highest level of care possible. The Legislature further
finds that inspections are the most effective means of furthering
this policy. It is not the intent of the Legislature by the amendment
of subdivision (b) enacted by Chapter 1595 of the Statutes of 1982
to reduce in any way the resources available to the state department
for inspections, but rather to provide the state department with the
greatest flexibility to concentrate its resources where they can be
most effective. It is the intent of the Legislature to create a
survey process that includes state-based survey components and that
determines compliance with federal and California requirements for
certified long-term health care facilities. It is the further intent
of the Legislature to execute this inspection in the form of a single
survey process, to the extent that this is possible and permitted
under federal law. The inability of the state to conduct a single
survey in no way exempts the state from the requirement under this
section that state-based components be inspected in long-term health
care facilities as required by law.
(b) (1) (A) Notwithstanding Section 1279 or any other provision of
law, without providing notice of these inspections, the department,
in addition to any inspections conducted pursuant to complaints filed
pursuant to Section 1419, shall conduct inspections annually, except
with regard to those facilities which have no class "AA," class "A,"
or class "B" violations in the past 12 months. The state department
shall also conduct inspections as may be necessary to ensure the
health, safety, and security of patients in long-term health care
facilities. Every facility shall be inspected at least once every two
years. The department shall vary the cycle in which inspections of
long-term health care facilities are conducted to reduce the
predictability of the inspections.
(B) Inspections and investigations of long-term health care
facilities that are certified by the Medicare Program or the Medicaid
Program shall determine compliance with federal standards and
California statutes and regulations to the extent that California
statutes and regulations provide greater protection to residents, or
are more precise than federal standards, as determined by the
department. Notwithstanding any other provision of law, the
department may, without taking regulatory action 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
paragraph by means of an All Facilities Letter (AFL) or similar
instruction. Prior to issuing an AFL or similar instruction, the
department shall consult with interested parties and shall inform the
appropriate committees of the Legislature. The department shall also
post the AFL or similar instruction on its Web site so that any
person may observe which California laws and regulations provide
greater protection to its residents or are more precise than federal
standards. Nothing in this subdivision is intended to change existing
statutory or regulatory requirements governing the care provided to
long-term health care facility residents.
(C) In order to ensure maximum effectiveness of inspections
conducted pursuant to this article, the department shall identify all
state law standards for the staffing and operation of long-term
health care facilities. Costs of the additional survey and inspection
activities required by Chapter 895 of the Statutes of 2006 shall be
included as Licensing and Certification Program activities for the
purposes of calculating fees in accordance with Section 1266.
(2) The state department shall submit to the federal Department of
Health and Human Services on or before July 1, 1985, for review and
approval, a request to implement a three-year pilot program designed
to lessen the predictability of the long-term health care facility
inspection process. Two components of the pilot program shall be (A)
the elimination of the present practice of entering into a one-year
certification agreement, and (B) the conduct of segmented inspections
of a sample of facilities with poor inspection records, as defined
by the state department. At the conclusion of the pilot project, an
analysis of both components shall be conducted by the state
department to determine effectiveness in reducing inspection
predictability and the respective cost benefits. Implementation of
this pilot project is contingent upon federal approval.
(c) Except as otherwise provided in subdivision (b), the state
department shall conduct unannounced direct patient care inspections
at least annually to inspect physician and surgeon services, nursing
services, pharmacy services, dietary services, and activity programs
of all the long-term health care facilities. Facilities evidencing
repeated serious problems in complying with this chapter or a history
of poor performance, or both, shall be subject to periodic
unannounced direct patient care inspections during the inspection
year. The direct patient care inspections shall assist the state
department in the prioritization of its efforts to correct facility
deficiencies.
(d) All long-term health care facilities shall report to the state
department any changes in the nursing home administrator or the
director of nursing services within 10 calendar days of the changes.
(e) Within 90 days after the receipt of notice of a change in the
nursing home administrator or the director of nursing services, the
state department may conduct an abbreviated inspection of the
long-term health care facilities.
(f) If a change in a nursing home administrator occurs and the
Board of Nursing Home Administrators notifies the state department
that the new administrator is on probation or has had his or her
license suspended within the previous three years, the state
department shall conduct an abbreviated survey of the long-term
health care facility employing that administrator within 90 days of
notification.
1422.1. (a) Notwithstanding Section 1422, the State Department of
Health Services shall conduct, when feasible, annual licensing
inspections of licensed long-term health care facilities providing
special treatment programs for the mentally disordered, concurrently
with inspections conducted by the State Department of Mental Health
for the purposes of approving the special treatment program.
(b) The State Department of Health Services survey teams
conducting inspections pursuant to this section shall include at
least one licensed mental health professional if the inspections are
not done concurrently pursuant to subdivision (a).
(c) Survey team members shall receive training specific to the
mental health treatment needs of mentally disordered residents served
in these facilities.
1422.5. (a) The department shall develop and establish a consumer
information service system to provide updated and accurate
information to the general public and consumers regarding long-term
care facilities in their communities. The consumer information
service system shall include, but need not be limited to, all of the
following elements:
(1) An on-line inquiry system accessible through a statewide
toll-free telephone number and the Internet.
(2) Long-term health care facility profiles, with data on services
provided, a history of all citations and complaints for the last two
full survey cycles, and ownership information. The profile for each
facility shall include, but not be limited to, all of the following:
(A) The name, address, and telephone number of the facility.
(B) The number of units or beds in the facility.
(C) Whether the facility accepts Medicare or Medi-Cal patients.
(D) Whether the facility has a special care unit or program for
people with Alzheimer's disease and other dementias, and whether the
facility participates in the voluntary disclosure program for special
care units.
(E) Whether the facility is a for-profit or not-for-profit
provider.
(3) Information regarding substantiated complaints shall include
the action taken and the date of action.
(4) Information regarding the state citations assessed shall
include the status of the state citation, including the facility's
plan or correction, and information as to whether an appeal has been
filed.
(5) Any appeal resolution pertaining to a citation or complaint
shall be updated on the file in a timely manner.
(b) Where feasible, the department shall interface the consumer
information service system with its Automated Certification and
Licensure Information Management System.
(c) It is the intent of the Legislature that the department, in
developing and establishing the system pursuant to subdivision (a),
maximize the use of available federal funds.
(d) (1) Notwithstanding the consumer information service system
established pursuant to subdivision (a), by January 1, 2002, the
state department shall develop a method whereby information is
provided to the public and consumers on long-term health care
facilities. The information provided shall include, but not be
limited to, all of the following elements:
(A) Substantiated complaints, including the action taken and the
date of the action.
(B) State citations assessed, including the status of any citation
and whether an appeal has been filed.
(C) State actions, including license suspensions, revocations, and
receiverships.
(D) Federal enforcement sanctions imposed, including any denial of
payment, temporary management, termination, or civil money penalty
of five hundred dollars ($500) or more.
(E) Any information or data beneficial to the public and
consumers.
(2) This subdivision shall become inoperative on July 1, 2003.
(e) In implementing this section, the department shall ensure the
confidentiality of personal and identifying information of residents
and employees and shall not disclose this information through the
consumer information service system developed pursuant to this
section.
1422.6. Each skilled nursing facility and intermediate care
facility shall post a copy of the notice required pursuant to Section
9718 of the Welfare and Institutions Code in a conspicuous location
in at least four areas of the facility, as follows:
(a) One location that is accessible to members of the public.
(b) One location that is used for employee breaks.
(c) One location that is next to a telephone designated for
resident use.
(d) One location that is used for communal functions for
residents, such as for dining or resident council meetings and
activities.
1422.7. The state department shall provide the office, as defined
in subdivision (c) of Section 9701 of the Welfare and Institutions
Code, with copies of inspection reports for long-term health care
facilities upon request. The state department shall provide the
office with copies of all class "AA," "A," and "B" citations issued.
1423. (a) If upon inspection or investigation the director
determines that any nursing facility is in violation of any state or
federal law or regulation relating to the operation or maintenance of
the facility, or determines that any other long-term health care
facility is in violation of any statutory provision or regulation
relating to the operation or maintenance of the facility, the
director shall promptly, but not later than 24
1417. This chapter shall be known and may be cited as the Long-Term
Care, Health, Safety, and Security Act of 1973.
1417.1. It is the intent of the Legislature in enacting this
chapter to establish (1) a citation system for the imposition of
prompt and effective civil sanctions against long-term health care
facilities in violation of the laws and regulations of this state,
and the federal laws and regulations as applicable to nursing
facilities as defined in subdivision (k) of Section 1250, relating to
patient care; (2) an inspection and reporting system to ensure that
long-term health care facilities are in compliance with state
statutes and regulations pertaining to patient care; and (3) a
provisional licensing mechanism to ensure that full-term licenses are
issued only to those long-term health care facilities that meet
state standards relating to patient care.
1417.15. (a) (1) If one or more of the following remedies is
actually imposed for violation of state or federal requirements, the
long-term health care facility shall post a notice of the imposed
remedy or remedies, in the form specified in subdivision (c), on all
doors providing ingress to or egress from the facility, except as
specified in paragraph (2):
(A) License suspension.
(B) Termination of certification for Medicare or Medi-Cal.
(C) Denial of payment by Medicare or Medi-Cal for all otherwise
eligible residents.
(D) Denial of payment by Medicare or Medi-Cal for otherwise
eligible incoming residents.
(E) Ban on admission of any type.
(2) For purposes of this subdivision, a distinct part nursing
facility shall only be required to post the notice on all main doors
providing ingress to or egress from the distinct part, and not on all
of the doors providing ingress to or egress from the facility. An
intermediate care facility/developmentally disabled habilitative and
an intermediate care facility/developmentally disabled-nursing shall
post this notice on the inside of all doors providing ingress to or
egress from the facility.
(b) A violation of the requirement of subdivision (a) shall be
issued and enforced in the manner of a class "B" violation.
(c) The form of the notice established pursuant to subdivision (a)
shall be entitled "Notice of Violation Remedies." Each notice shall
list the remedy or remedies imposed, as set forth in subdivision (a),
and shall include the date the remedy was imposed. The notice shall
be typeset on white bond paper, 8 1/2 x 11 inches in size, in
boldface black type in a 16-point sans serif type font. A facility
may remove the notice on or after the date on which the sanction is
lifted.
1417.2. (a) Notwithstanding Section 1428, moneys collected as a
result of state and federal civil penalties imposed under this
chapter or federal law shall be deposited into accounts that are
hereby established in the Special Deposit Fund created pursuant to
Section 16370 of the Government Code. These accounts are titled the
State Health Facilities Citation Penalties Account, into which moneys
derived from civil penalties for violations of state law shall be
deposited, and the Federal Health Facilities Citation Penalties
Account, into which moneys derived from civil penalties for
violations of federal law shall be deposited. Moneys from these
accounts shall be used, notwithstanding Section 16370 of the
Government Code, upon appropriation by the Legislature, in accordance
with state and federal law for the protection of health or property
of residents of long-term health care facilities, including, but not
limited to, the following:
(1) Relocation expenses incurred by the department, in the event
of a facility closure.
(2) Maintenance of facility operation pending correction of
deficiencies or closure, such as temporary management or
receivership, in the event that the revenues of the facility are
insufficient.
(3) Reimbursing residents for personal funds lost. In the event
that the loss is a result of the actions of a long-term health care
facility or its employees, the revenues of the facility shall first
be used.
(4) The costs associated with informational meetings required
under Section 1327.2.
(b) Notwithstanding subdivision (a), the balance in the State
Health Facilities Citation Penalties Account shall not, at any time,
exceed ten million dollars ($10,000,000).
(c) Moneys from the Federal Health Facilities Citation Penalties
Account, in the amount not to exceed one hundred thirty thousand
dollars ($130,000), may also be used, notwithstanding Section 16370
of the Government Code, upon appropriation by the Legislature, in
accordance with state and federal law for the improvement of quality
of care and quality of life for long-term health care facilities
residents pursuant to Section 1417.3.
(d) The department shall post on its Internet Web site, and shall
update on a quarterly basis, all of the following regarding the funds
in the State Health Facilities Citation Penalties Account and the
Federal Health Facilities Citation Penalties Account:
(1) The specific sources of funds deposited into the account.
(2) The amount of funds in the account that have not been
allocated.
(3) A detailed description of how funds in the account have been
allocated and expended, including, but not limited to, the names of
persons or entities that received the funds, the amount of salaries
paid to temporary managers, and a description of equipment purchased
with the funds. However, the description shall not include the names
of residents.
1417.3. The department shall promote quality of care and quality of
life for residents, clients, and patients in long-term health care
facility services through specific activities that include, but are
not limited to, all of the following:
(a) Research and evaluation of innovative facility resident care
models.
(b) (1) Provision of statewide training on effective facility
practices.
(2) Training also shall include topics related to the provision of
quality of care and quality of life for facility residents. The
topics for training shall be identified by the department through a
periodic survey. The curriculum for the training provided under this
paragraph shall be developed in consultation with representatives
from provider associations, consumer associations, and others, as
deemed appropriate by the state department.
(c) The establishment of separate units to respond to facility
requests for technical assistance regarding licensing and
certification requirements, compliance with federal and state
standards, and related operational issues.
(d) State employees providing technical assistance to facilities
pursuant to this section are only required to report violations they
discover during the provision of the assistance to the appropriate
district office if the violations constitute an immediate and serious
threat to the health and welfare of, or have resulted in actual harm
to, patients, residents, or clients of the facility.
(e) The state department shall measure facility satisfaction and
the effectiveness of the technical assistance provided pursuant to
subdivision (c).
(f) No person employed in the technical assistance or training
units under subdivisions (b) and (c) shall also participate in the
licensing, surveying, or direct regulation of facilities.
(g) This section shall not diminish the department's ongoing
survey and enforcement process.
1417.4. (a) There is hereby established in the state department the
Quality Awards Program for nursing homes.
(b) The department shall establish criteria under the program,
after consultation with stakeholder groups, for recognizing all
skilled nursing facilities that provide exemplary care to residents.
(c) (1) Monetary awards shall be made to Quality Awards Program
recipients that serve high proportions of Medi-Cal residents to the
extent funds are appropriated each year in the annual Budget Act.
(2) Monetary awards presented under this section and paid for by
funds appropriated from the General Fund shall be used for staff
bonuses and distributed in accordance with criteria established by
the department.
(3) Monetary awards presented under this section and paid for from
funds from the Federal Citation Penalty Account shall be used to
fund innovative facility grants to improve the quality of care and
quality of life for residents in skilled nursing facilities, or to
fund innovative efforts to increase employee recruitment, or
retention, or both, subject to federal approval.
(d) The department shall establish criteria for selecting
facilities to receive the quality awards, in consultation with senior
advocacy organizations, employee labor organizations representing
facility employees, nursing home industry representatives, and other
interested parties as deemed appropriate by the department. The
criteria established pursuant to this subdivision shall not be
considered regulations within the meaning of Section 11342 of the
Government Code, and shall not be subject to adoption as regulations
pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code.
(e) The department shall publish an annual listing of the Quality
Awards Program recipients with the dollar amount awarded, if
applicable. The department shall also publish an annual listing of
the Quality Awards Program recipients that receive innovative
facility grants with the purpose of the grant and the grant amount.
(f) All of the funds available for the programs described in this
section shall be disbursed to qualified facilities by January 1,
2002, and January 1 of each year thereafter.
1417.5. (a) The department, in consultation with stakeholders,
shall develop recommendations to address the findings published in
the June 2010 report entitled, "Department of Public Health: It
Reported Inaccurate Financial Information and Can Likely Increase
Revenues for the State and Federal Health Facilities Citation
Penalties Accounts" (Report 2010-108). The recommendations shall
address, but not be limited to, all of the following:
(1) Streamlining the citation appeal process, including the
citation review conference process.
(2) Increasing citation penalty amounts, including late penalty
fees, and annually adjusting penalty amounts to reflect an inflation
indicator, such as the California Consumer Price Index.
(3) Revising state law to enable the department to recommend that
the federal Centers for Medicare and Medicaid Services impose a
federal civil money penalty when the department's Licensing and
Certification Division determines that a facility is out of
compliance with both state and federal requirements.
(4) Authorizing the department to collect citation penalty amounts
upon appeal of the citation and allowing the department to place
those funds into a special interest bearing account.
(b) The department shall provide the recommendations to the fiscal
and policy committees of the Legislature no later than March 1,
2011.
1418. As used in this chapter:
(a) "Long-term health care facility" means any facility licensed
pursuant to Chapter 2 (commencing with Section 1250) that is any of
the following:
(1) Skilled nursing facility.
(2) Intermediate care facility.
(3) Intermediate care facility/developmentally disabled.
(4) Intermediate care facility/developmentally disabled
habilitative.
(5) Intermediate care facility/developmentally disabled-nursing.
(6) Congregate living health facility.
(7) Nursing facility.
(8) Intermediate care facility/developmentally disabled-continuous
nursing.
(b) "Long-term health care facility" also includes a pediatric day
health and respite care facility licensed pursuant to Chapter 8.6
(commencing with Section 1760).
(c) "Long-term health care facility" does not include a general
acute care hospital or an acute psychiatric hospital, except for that
distinct part of the hospital that provides skilled nursing
facility, intermediate care facility, or pediatric day health and
respite care facility services.
(d) "Licensee" means the holder of a license issued under Chapter
2 (commencing with Section 1250) or Chapter 8.6 (commencing with
Section 1760) for a long-term health care facility.
1418.1. (a) Any person receiving respite care services shall be
permitted to bring medications to the skilled nursing facility or
intermediate care facility if the contents have been examined and
positively identified upon the patient's admission to the facility by
the patient's personal physician and surgeon or a pharmacist
retained by the facility.
(b) A skilled nursing facility or intermediate care facility
providing respite care services shall not be required to afford a
person receiving respite care services a bedhold when the person is
transferred to a general acute care hospital, as defined in Section
1250.
(c) A skilled nursing facility or intermediate care facility
providing respite care services shall permit the personal physician
and surgeon of a person receiving respite care services to issue
advance orders for care and treatment for a period not to exceed 90
days from the date of admission of the person, based on the person's
medical history, diagnosis, and physical assessment conducted upon
admission. The skilled nursing facility or intermediate care facility
may readmit the person for respite care services on the basis of the
advance orders for care and treatment, unless the personal physician
and surgeon of the person indicates that there has been a
significant change in the person's medical condition. These advance
orders shall only be used by the skilled nursing or intermediate care
facility during periods in which the person is receiving respite
care services.
(d) A skilled nursing facility or intermediate care facility
providing respite care services may implement an abbreviated resident
assessment and care planning procedure for persons admitted for
respite care services consistent with the facility's obligation to
protect the health and safety of residents and the general public.
The abbreviated resident assessment and care planning procedure shall
address the necessary care services required by the person admitted
for respite care during the length of the respite care stay. The
abbreviated resident assessment and care planning procedure documents
do not have to be updated with every readmission of the same person
to the facility for respite care services, unless the personal
physician and surgeon of the person indicates that there has been a
significant change in the person's medical condition.
(e) As used in this section, "respite care services" means service
provided to frail elderly or functionally impaired persons in a
licensed skilled nursing facility or intermediate care facility, as
defined in Section 1250, on a temporary or periodic basis to relieve
persons who are providing their care at home.
(f) As used in this section, "temporary or periodic" means a
period of time not to exceed 15 consecutive days or a total of 45
days in any one year.
(g) No more than 10 percent of a skilled nursing or intermediate
care facility's total licensed bed capacity may be used during any
one calendar year for the provision of respite care services as
defined in this section. A facility may exceed this limit with the
prior written approval of the State Department of Health Services.
1418.2. (a) Every facility licensed pursuant to subdivisions (c),
(d), (e), and (g) of Section 1250 and every skilled nursing facility
licensed separately under subdivision (a) of Section 1250 shall
establish and maintain a resident council. Each council shall include
the residents of the health facility, and may include family members
of residents, advocates, or ombudsman groups interested in residents
of health facilities, and personnel of the health facility. Family
members of residents shall be invited to meetings of resident
councils.
The council shall meet at regularly scheduled intervals, maintain
written minutes, including names of council members present, and have
minutes available for review by the state department upon its
request. Facility policies on resident councils shall in no way limit
the right of residents to meet independently with outside persons or
facility personnel as determined solely by the residents of the
facility.
Written minutes of regularly scheduled council meetings may
include recommendations from the council to the licensee of the
health facility which shall be provided to the licensee. The licensee
shall provide evidence of review and action on these recommendations
to the state department upon its request.
(b) Any health facility which fails to establish a resident
council as prescribed in subdivision (a) shall be subject to the
provisions of Section 1280.
(c) The state department shall, by regulation, specify those
circumstances under which a health facility may be exempted from the
provisions of subdivisions (a) and (b), including, but not limited
to, the following:
(1) A resident population consisting of a majority of patients
with progressively disabling disorders defined in Section 1250.4.
(2) Facilities with no more than six residents which provide
alternate means for residents to actively share in planning and
enhancing of life in the facility.
(3) Other circumstances as determined by the state department.
1418.21. (a) A skilled nursing facility that has been certified for
purposes of Medicare or Medicaid shall post the overall facility
rating information determined by the federal Centers for Medicare and
Medicaid Services (CMS) in accordance with the following
requirements:
(1) The information shall be posted in at least the following
locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, such as
dining, resident council meetings, or activities.
(2) The information shall be posted on white or light-colored
paper that includes all of the following, in the following order:
(A) The full name of the facility, in a clear and easily readable
font of at least 28 point.
(B) The full address of the facility in a clear and easily
readable font of at least 20 point.
(C) The most recent overall star rating given by CMS to that
facility, except that a facility shall have seven business days from
the date when it receives a different rating from CMS to include the
updated rating in the posting. The star rating shall be aligned in
the center of the page. The star rating shall be expressed as the
number that reflects the number of stars given to the facility by
CMS. The number shall be in a clear and easily readable font of at
least two inches print.
(D) Directly below the star symbols shall be the following text in
a clear and easily readable font of at least 28 point:
"The above number is out of 5 stars."
(E) Directly below the text described in subparagraph (D) shall be
the following text in a clear and easily readable font of at least
14 point:
"This facility is reviewed annually and has been licensed by the
State of California and certified by the federal Centers for Medicare
and Medicaid Services (CMS). CMS rates facilities that are certified
to accept Medicare or Medicaid. CMS gave the above rating to this
facility. A detailed explanation of this rating is maintained at this
facility and will be made available upon request. This information
can also be accessed online at the Nursing Home Compare Internet Web
site at https://www.medicare.gov/NHcompare. Like any information, the
Five-Star Quality Rating System has strengths and limits. The
criteria upon which the rating is determined may not represent all of
the aspects of care that may be important to you. You are encouraged
to discuss the rating with facility staff. The Five-Star Quality
Rating System was created to help consumers, their families, and
caregivers compare nursing homes more easily and help identify areas
about which you may want to ask questions. Nursing home ratings are
assigned based on ratings given to health inspections, staffing, and
quality measures. Some areas are assigned a greater weight than other
areas. These ratings are combined to calculate the overall rating
posted here."
(F) Directly below the text described in subparagraph (E), the
following text shall appear in a clear and easily readable font of at
least 14 point:
"State licensing information on skilled nursing facilities is
available on the State Department of Public Health's Internet Web
site at: www.cdph.ca.gov, under Programs, Licensing and
Certification, Health Facilities Consumer Information System."
(3) For the purposes of this section, "a detailed explanation of
this rating" shall include, but shall not be limited to, a printout
of the information explaining the Five-Star Quality Rating System
that is available on the CMS Nursing Home Compare Internet Web site.
This information shall be maintained at the facility and shall be
made available upon request.
(4) The requirements of this section shall be in addition to any
other posting or inspection report availability requirements.
(b) Violation of this section shall constitute a class B
violation, as defined in subdivision (e) of Section 1424 and,
notwithstanding Section 1290, shall not constitute a crime. Fines
from a violation of this section shall be deposited into the State
Health Facilities Citation Penalties Account, created pursuant to
Section 1417.2.
(c) This section shall be operative on January 1, 2011.
1418.3. (a) Each licensed skilled nursing facility shall, when
requested by a member of a patient's family, allow the family to meet
privately with a family member who is a resident in the facility.
(b) "Family member" for the purposes of this section means an
immediate family member or family member designated and documented on
the patient's record at the time of admission to the facility.
1418.4. (a) No licensed skilled nursing facility or intermediate
care facility may prohibit the formation of a family council, and,
when requested by a member of the resident's family or the resident's
representative, the family council shall be allowed to meet in a
common meeting room of the facility at least once a month during
mutually agreed upon hours.
(b) Facility policies on family councils shall in no way limit the
right of residents, family members, and family council members to
meet independently with outside persons, including members of
nonprofit or government organizations or with facility personnel
during nonworking hours.
(c) "Family council" for the purpose of this section means a
meeting of family members, friends, or representatives of two or more
residents to confer in private without facility staff.
(d) Family councils shall also be provided adequate space on a
prominent bulletin board or other posting area for the display of
meeting notices, minutes, newsletters, or other information
pertaining to the operation or interest of the family council.
(e) Staff or visitors may attend family council meetings, at the
group's invitation.
(f) The facility shall provide a designated staff person who shall
be responsible for providing assistance and responding to written
requests that result from family council meetings.
(g) The facility shall consider the views and act upon the
grievances and recommendations of a family council concerning
proposed policy and operational decisions affecting resident care and
life in the facility.
(h) The facility shall respond in writing to written requests or
concerns of the family council, within 10 working days.
(i) When a family council exists, the facility shall include
notice of the family council meetings in at least a quarterly
mailing, and shall inform family members or representatives of new
residents who are identified on the admissions agreement, during the
admissions process, or in the resident's records, of the existence of
the family council. The notice shall include the time, place, and
date of meetings, and the person to contact regarding involvement in
the family council.
(j) No facility shall willfully interfere with the formation,
maintenance, or promotion of a family council. For the purposes of
this subdivision, willful interference shall include, but not be
limited to, discrimination or retaliation in any way against an
individual as a result of his or her participation in a family
council, or the willful scheduling of facility events in conflict
with a previously scheduled family council meeting.
(k) (1) Violation of the provisions of this section shall
constitute a violation of the residents' rights.
(2) Violation of the provisions of this section shall constitute a
class "B" violation, as defined in Section 1424.
1418.5. No regulation adopted with respect to skilled nursing
facilities or intermediate care facilities shall prohibit patients in
the facility from storing nonprescription or topical ophthalmic
medications at their bedside unless contraindicated by the patient's
attending physician or the facility.
1418.6. No long-term health care facility shall accept or retain
any patient for whom it cannot provide adequate care.
1418.7. (a) Long-term health care facilities, as defined in Section
1418, shall develop and implement policies and procedures designed
to reduce theft and loss.
(b) The facility program shall include all of the following:
(1) Establishment and posting of the facility's theft and loss
policies.
(2) Orientation of employees to those policies.
(3) Documentation of theft and loss of property with a value of
twenty-five dollars ($25) or more.
(4) Inventory of patient's personal property upon admission.
(5) Inventory of and surrender of patient's personal property upon
death or discharge.
(6) Regular review of the effectiveness of the policies and
procedures.
(7) Marking of patient's personal property, including dentures and
prosthetic and orthopedic devices.
(8) Reports to local law enforcement of stolen property with a
value of one hundred dollars ($100) or more.
(9) Methods for securing personal property.
(10) Notification of residents and families of the facility's
policies.
(c) The policies and procedures developed by the facilities
pursuant to this section shall be in accordance with Section 1289.4,
as added by Assembly Bill 2047 of the 1987-88 Regular Session of the
Legislature, if that bill is enacted and becomes effective.
(d) If a facility has shown clear and convincing evidence of its
efforts to comply with the requirements of this section, no citation
shall be issued as a result of the occasional occurrence of theft and
loss in a facility.
1418.8. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility or intermediate care facility prescribes
or orders a medical intervention that requires that informed consent
be obtained prior to administration of the medical intervention, but
is unable to obtain informed consent because the physician and
surgeon determines that the resident lacks capacity to make decisions
concerning his or her health care and that there is no person with
legal authority to make those decisions on behalf of the resident,
the physician and surgeon shall inform the skilled nursing facility
or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to
make a decision regarding his or her health care if the resident is
unable to understand the nature and consequences of the proposed
medical intervention, including its risks and benefits, or is unable
to express a preference regarding the intervention. To make the
determination regarding capacity, the physician shall interview the
patient, review the patient's medical records, and consult with
skilled nursing or intermediate care facility staff, as appropriate,
and family members and friends of the resident, if any have been
identified.
(c) For purposes of subdivision (a), a person with legal authority
to make medical treatment decisions on behalf of a patient is a
person designated under a valid Durable Power of Attorney for Health
Care, a guardian, a conservator, or next of kin. To determine the
existence of a person with legal authority, the physician shall
interview the patient, review the medical records of the patient, and
consult with skilled nursing or intermediate care facility staff, as
appropriate, and with family members and friends of the resident, if
any have been identified.
(d) The attending physician and the skilled nursing facility or
intermediate care facility may initiate a medical intervention that
requires informed consent pursuant to subdivision (e) in accordance
with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate
care facility has been prescribed a medical intervention by a
physician and surgeon that requires informed consent and the
physician has determined that the resident lacks capacity to make
health care decisions and there is no person with legal authority to
make those decisions on behalf of the resident, the facility shall,
except as provided in subdivision (h), conduct an interdisciplinary
team review of the prescribed medical intervention prior to the
administration of the medical intervention. The interdisciplinary
team shall oversee the care of the resident utilizing a team approach
to assessment and care planning, and shall include the resident's
attending physician, a registered professional nurse with
responsibility for the resident, other appropriate staff in
disciplines as determined by the resident's needs, and, where
practicable, a patient representative, in accordance with applicable
federal and state requirements. The review shall include all of the
following:
(1) A review of the physician's assessment of the resident's
condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To
determine the desires of the resident, the interdisciplinary team
shall interview the patient, review the patient's medical records,
and consult with family members or friends, if any have been
identified.
(4) The type of medical intervention to be used in the resident's
care, including its probable frequency and duration.
(5) The probable impact on the resident's condition, with and
without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or
utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend
of the resident who is unable to take full responsibility for the
health care decisions of the resident, but who has agreed to serve on
the interdisciplinary team, or other person authorized by state or
federal law.
(g) The interdisciplinary team shall periodically evaluate the use
of the prescribed medical intervention at least quarterly or upon a
significant change in the resident's medical condition.
(h) In case of an emergency, after obtaining a physician and
surgeon's order as necessary, a skilled nursing or intermediate care
facility may administer a medical intervention that requires informed
consent prior to the facility convening an interdisciplinary team
review. If the emergency results in the application of physical or
chemical restraints, the interdisciplinary team shall meet within one
week of the emergency for an evaluation of the medical intervention.
(i) Physicians and surgeons and skilled nursing facilities and
intermediate care facilities shall not be required to obtain a court
order pursuant to Section 3201 of the Probate Code prior to
administering a medical intervention which requires informed consent
if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a
resident of a skilled nursing facility or intermediate care facility
for whom medical intervention has been prescribed, ordered, or
administered pursuant to this section to seek appropriate judicial
relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under
this section is in accordance with reasonable medical standards, is
subject to administrative sanction if the physician or health care
provider believes in good faith that the action is consistent with
this section and the desires of the resident, or if unknown, the best
interests of the resident.
(l) The determinations required to be made pursuant to
subdivisions (a), (e), and (g), and the basis for those
determinations shall be documented in the patient's medical record
and shall be made available to the patient's representative for
review.
1418.81. (a) In order to assure the provision of quality patient
care and as part of the planning for that quality patient care,
commencing at the time of admission, a skilled nursing facility, as
defined in subdivision (c) of Section 1250, shall include in a
resident's care assessment the resident's projected length of stay
and the resident's discharge potential. The assessment shall include
whether the resident has expressed or indicated a preference to
return to the community and whether the resident has social support,
such as family, that may help to facilitate and sustain return to the
community. The assessment shall be recorded with the relevant
portions of the minimum data set, as described in Section 14110.15 of
the Welfare and Institutions Code. The plan of care shall reflect,
if applicable, the care ordered by the attending physician needed to
assist the resident in achieving the resident's preference of return
to the community.
(b) The skilled nursing facility shall evaluate the resident's
discharge potential at least quarterly or upon a significant change
in the resident's medical condition.
(c) The interdisciplinary team shall oversee the care of the
resident utilizing a team approach to assessment and care planning
and shall include the resident's attending physician, a registered
professional nurse with responsibility for the resident, other
appropriate staff in disciplines as determined by the resident's
needs, and, where practicable, a resident's representative, in
accordance with applicable federal and state requirements.
(d) If return to the community is part of the care plan, the
facility shall provide to the resident or responsible party and
document in the care plan the information concerning services and
resources in the community. That information may include information
concerning:
(1) In-home supportive services provided by a public authority or
other legally recognized entity, if any.
(2) Services provided by the Area Agency on Aging, if any.
(3) Resources available through an independent living center.
(4) Other resources or services in the community available to
support return to the community.
(e) If the resident is otherwise eligible, a skilled nursing
facility shall make, to the extent services are available in the
community, a reasonable attempt to assist a resident who has a
preference for return to the community and who has been determined to
be able to do so by the attending physician, to obtain assistance
within existing programs, including appropriate case management
services, in order to facilitate return to the community. The
targeted case management services provided by entities other than the
skilled nursing facility shall be intended to facilitate and sustain
return to the community.
(f) Costs to skilled nursing facilities to comply with this
section shall be allowable for Medi-Cal reimbursement purposes
pursuant to Section 1324.25, but shall not be considered a new state
mandate under Section 14126.023 of the Welfare and Institutions Code.
1418.9. (a) If the attending physician and surgeon of a resident in
a skilled nursing facility prescribes, orders, or increases an order
for an antipsychotic medication for the resident, the physician and
surgeon shall do both of the following:
(1) Obtain the informed consent of the resident for purposes of
prescribing, ordering, or increasing an order for the medication.
(2) Seek the consent of the resident to notify the resident's
interested family member, as designated in the medical record. If the
resident consents to the notice, the physician and surgeon shall
make reasonable attempts, either personally or through a designee, to
notify the interested family member, as designated in the medical
record, within 48 hours of the prescription, order, or increase of an
order.
(b) Notification of an interested family member is not required
under paragraph (2) of subdivision (a) if any of the following
circumstances exist:
(1) There is no interested family member designated in the medical
record.
(2) The resident has been diagnosed as terminally ill by his or
her physician and surgeon and is receiving hospice services from a
licensed, certified hospice agency in the facility.
(3) The resident has not consented to the notification.
(c) As used in this section, the following definitions shall
apply:
(1) "Resident" means a patient of a skilled nursing facility who
has the capacity to consent to make decisions concerning his or her
health care, including medications.
(2) "Designee" means a person who has agreed with the physician
and surgeon to provide the notice required by this section.
(3) "Antipsychotic medication" means a medication approved by the
United States Food and Drug Administration for the treatment of
psychosis.
(4) "Increase of an order" means an increase of the dosage of the
medication above the dosage range stated in a prior consent from the
resident.
(d) This section shall not be construed to require consent from an
interested family member for an attending physician and surgeon of a
resident to prescribe, order, or increase an order for antipsychotic
medication.
1418.91. (a) A long-term health care facility shall report all
incidents of alleged abuse or suspected abuse of a resident of the
facility to the department immediately, or within 24 hours.
(b) A failure to comply with the requirements of this section
shall be a class "B" violation.
(c) For purposes of this section, "abuse" shall mean any of the
conduct described in subdivisions (a) and (b) of Section 15610.07 of
the Welfare and Institutions Code.
(d) This section shall not change any reporting requirements under
Section 15630 of the Welfare and Institutions Code, or as otherwise
specified in the Elder Abuse and Dependent Adult Civil Protection
Act, Chapter 11 (commencing with Section 15600) of Part 3 of Division
9 of the Welfare and Institutions Code.
1419. (a) The department shall establish a centralized consumer
response unit within the Licensing and Certification Division of the
department to respond to consumer inquiries and complaints.
(b) Upon receipt of consumer inquiries, the unit shall offer
assistance to consumers in resolving concerns about the quality of
care and the quality of life in long-term health care facilities.
This assistance may include, but shall not be limited to, all of
the following:
(1) Offering to provide to consumers education and information
about state licensing and federal certification standards, resident
rights, name and address of facilities, referral to other entities as
appropriate, and facility compliance history.
(2) Offering to participate in telephone conference calls between
consumers and providers to resolve concerns within the scope of the
authority of the department. If the inquiry or concern is determined
to warrant an onsite investigation, the inquiry or concern shall be
considered a complaint and handled pursuant to the complaint
investigation process set forth in Section 1420.
(3) Initiating onsite investigations in response to oral or
written complaints made pursuant to this section if the unit
determines that there is a reasonable basis to believe that the
allegations in the complaints describe one or more violations of
state law by a long-term care facility.
(c) Nothing in subdivision (a) or (b) shall preclude the
department from taking any or all enforcement actions available under
state or federal law.
(d) Any person may request an inspection of any long-term health
care facility in accordance with this chapter by giving to the
department oral or written notice of an alleged violation of
applicable requirements of state law. Any written notice may be
signed by the complainant setting forth with reasonable particularity
the matters complained of. Oral notice may be made by telephone or
personal visit. Any oral complaint shall be reduced to writing by the
department. The substance of the complaint shall be provided to the
licensee no earlier than at the commencement of the inspection.
(e) Neither the substance of the complaint provided the licensee
nor any copy of the complaint or record published, released, or
otherwise made available to the licensee shall disclose the name of
any individual complainant or other person mentioned in the
complaint, except the name or names of any duly authorized officer,
employee, or agent of the state department conducting the
investigation or inspection pursuant to this chapter, unless the
complainant specifically requests the release of the name or names or
the matter results in a judicial proceeding.
1420. (a) (1) Upon receipt of a written or oral complaint, the
state department shall assign an inspector to make a preliminary
review of the complaint and shall notify the complainant within two
working days of the receipt of the complaint of the name of the
inspector. Unless the state department determines that the complaint
is willfully intended to harass a licensee or is without any
reasonable basis, it shall make an onsite inspection or investigation
within 10 working days of the receipt of the complaint. In any case
in which the complaint involves a threat of imminent danger of death
or serious bodily harm, the state department shall make an onsite
inspection or investigation within 24 hours of the receipt of the
complaint. In any event, the complainant shall be promptly informed
of the state department's proposed course of action and of the
opportunity to accompany the inspector on the inspection or
investigation of the facility. Upon the request of either the
complainant or the state department, the complainant or his or her
representative, or both, may be allowed to accompany the inspector to
the site of the alleged violations during his or her tour of the
facility, unless the inspector determines that the privacy of any
patient would be violated thereby.
(2) When conducting an onsite inspection or investigation pursuant
to this section, the state department shall collect and evaluate all
available evidence and may issue a citation based upon, but not
limited to, all of the following:
(A) Observed conditions.
(B) Statements of witnesses.
(C) Facility records.
(3) Within 10 working days of the completion of the complaint
investigation, the state department shall notify the complainant and
licensee in writing of the department's determination as a result of
the inspection or investigation.
(b) Upon being notified of the state department's determination as
a result of the inspection or investigation, a complainant who is
dissatisfied with the state department's determination, regarding a
matter which would pose a threat to the health, safety, security,
welfare, or rights of a resident, shall be notified by the state
department of the right to an informal conference, as set forth in
this section. The complainant may, within five business days after
receipt of the notice, notify the director in writing of his or her
request for an informal conference. The informal conference shall be
held with the designee of the director for the county in which the
long-term health care facility which is the subject of the complaint
is located. The long-term health care facility may participate as a
party in this informal conference. The director's designee shall
notify the complainant and licensee of his or her determination
within 10 working days after the informal conference and shall
apprise the complainant and licensee in writing of the appeal rights
provided in subdivision (c).
(c) If the complainant is dissatisfied with the determination of
the director's designee in the county in which the facility is
located, the complainant may, within 15 days after receipt of this
determination, notify in writing the Deputy Director of the Licensing
and Certification Division of the state department, who shall assign
the request to a representative of the Complainant Appeals Unit for
review of the facts that led to both determinations. As a part of the
Complainant Appeals Unit's independent investigation, and at the
request of the complainant, the representative shall interview the
complainant in the district office where the complaint was initially
referred. Based upon this review, the Deputy Director of the
Licensing and Certification Division of the state department shall
make his or her own determination and notify the complainant and the
facility within 30 days.
(d) Any citation issued as a result of a conference or review
provided for in subdivision (b) or (c) shall be issued and served
upon the facility within three working days of the final
determination, unless the licensee agrees in writing to an extension
of this time. Service shall be effected either personally or by
registered or certified mail. A copy of the citation shall also be
sent to each complainant by registered or certified mail.
(e) A miniexit conference shall be held with the administrator or
his or her representative upon leaving the facility at the completion
of the investigation to inform him or her of the status of the
investigation. The department shall also state the items of
noncompliance and compliance found as a result of a complaint and
those items found to be in compliance, provided the disclosure
maintains the anonymity of the complainant. In any matter in which
there is a reasonable probability that the identity of the
complainant will not remain anonymous, the state department shall
also notify the facility that it is unlawful to discriminate or seek
retaliation against a resident, employee, or complainant.
(f) For purposes of this section, "complaint" means any oral or
written notice to the state department, other than a report from the
facility of an alleged violation of applicable requirements of state
or federal law or any alleged facts that might constitute such a
violation.
1421. (a) Any duly authorized officer, employee, or agent of the
state department may enter and inspect any long-term health care
facility, including, but not limited to, interviewing residents and
reviewing records, at any time to enforce any provision of this
chapter.
(b) Patients shall be treated with consideration, respect, and
full recognition of dignity during the course of the investigation or
inspection.
(c) Inspections conducted pursuant to complaints filed with the
state department shall be conducted in such a manner as to ensure
maximum effectiveness while respecting the rights of patients in the
facility. No advance notice shall be given of any inspection
conducted pursuant to this chapter unless previously and specifically
authorized by the director or required by federal law.
(d) Any public employee giving any advance notice in violation of
this section shall be deemed to be in violation of subdivision (t) of
Section 19572 of the Government Code and shall be suspended from all
duties without pay for a period determined by the director.
(e) Except as otherwise specified by law, any duly authorized
officer, employee, or agent of the state department shall not limit
the scope of practice of registered nurses acting under Section 2725
of the Business and Professions Code. Further, these agents shall not
prohibit the performing of functions by registered nurses when those
nurses are performing under standardized procedures, where their
activity is consistent with the scope of nursing practice, as set
forth in Section 2725 of the Business and Professions Code.
1421.1. (a) Within 24 hours of the occurrence of any of the events
specified in subdivision (b), the licensee of a skilled nursing
facility shall notify the department of the occurrence. This
notification may be in written form if it is provided by telephone
facsimile or overnight mail, or by telephone with a written
confirmation within five calendar days. The information provided
pursuant to this subdivision may not be released to the public by the
department unless its release is needed to justify an action taken
by the department or it otherwise becomes a matter of public record.
A violation of this section is a class "B" violation.
(b) All of the following occurrences shall require notification
pursuant to this section:
(1) The licensee of a facility receives notice that a judgment
lien has been levied against the facility or any of the assets of the
facility or the licensee.
(2) A financial institution refuses to honor a check or other
instrument issued by the licensee to its employees for a regular
payroll.
(3) The supplies, including food items and other perishables, on
hand in the facility fall below the minimum specified by any
applicable statute or regulation.
(4) The financial resources of the licensee fall below the amount
needed to operate the facility for a period of at least 45 days based
on the current occupancy of the facility. The determination that
financial resources have fallen below the amount needed to operate
the facility shall be based upon the current number of occupied beds
in the facility multiplied by the current daily Medi-Cal
reimbursement rate multiplied by 45 days.
(5) The licensee fails to make timely payment of any premiums
required to maintain required insurance policies or bonds in effect,
or any tax lien levied by any government agency.
1421.5. (a) (1) Within 24 hours of the filing of a bankruptcy
petition under Title 11 of the United States Code or any other laws
of the United States, by any person or entity holding a controlling
interest in a long-term health care facility, the licensee of the
long-term health care facility shall provide written notification to
the department of the filing of the petition and the location of the
court in which the petition was filed. The written notification may
be provided to the department by telephone facsimile or overnight
mail.
(2) Within 24 hours of the appointment of a trustee by the
bankruptcy court, the long-term health care facility shall provide
written notification to the department of the name, address, and
telephone number of the trustee. The written notification may be
provided to the department by telephone facsimile or overnight mail.
(3) The department shall provide written notification to the
trustee of the requirements of operating a licensed long-term health
care facility within three days of being notified of the appointment
of the trustee. The contents of this written notice may be provided
to the trustee by telephone facsimile or overnight mail and shall
include, but not be limited to, all of the following:
(A) The trustee is required to manage and operate the long-term
health care facility according to the requirements of state law, in
the same manner that the owner or possessor of the facility would be
required to manage and operate the facility, including, but not
limited to, complying with Article 8.5 (commencing with Section 1336)
of Chapter 2, Chapter 3.9 (commencing with Section 1599), and
Sections 72527, 73523, and 76525 of Title 22 of the California Code
of Regulations.
(B) The transfer of patients pursuant to the liquidation of a
licensed long-term health care facility presents a compelling public
health and safety risk, and the trustee will not be exempted from
complying with applicable state law for any reason.
(b) (1) As mandated by subdivision (b) of Section 959 of Title 28
of the United States Code, an individual appointed as a trustee in a
bankruptcy proceeding described in this section that involves any
person or entity holding a controlling interest in a long-term health
care facility shall comply with all state licensing and federal
certification requirements applicable to the long-term health care
facility, including, but not limited to, those governing patient
rights, transfer or discharge, and facility closure. The transfer of
patients pursuant to the liquidation of a licensed long-term health
care facility presents a compelling public health and safety risk,
and a trustee shall not be exempted from complying with applicable
state law for any reason.
(2) If a trustee fails to comply with the state licensing
requirements applicable to a long-term health care facility, the
department shall report the trustee's actions to the bankruptcy court
and intervene as appropriate to ensure continued facility compliance
with those requirements.
1422. (a) The Legislature finds and declares that it is the public
policy of this state to ensure that long-term health care facilities
provide the highest level of care possible. The Legislature further
finds that inspections are the most effective means of furthering
this policy. It is not the intent of the Legislature by the amendment
of subdivision (b) enacted by Chapter 1595 of the Statutes of 1982
to reduce in any way the resources available to the state department
for inspections, but rather to provide the state department with the
greatest flexibility to concentrate its resources where they can be
most effective. It is the intent of the Legislature to create a
survey process that includes state-based survey components and that
determines compliance with federal and California requirements for
certified long-term health care facilities. It is the further intent
of the Legislature to execute this inspection in the form of a single
survey process, to the extent that this is possible and permitted
under federal law. The inability of the state to conduct a single
survey in no way exempts the state from the requirement under this
section that state-based components be inspected in long-term health
care facilities as required by law.
(b) (1) (A) Notwithstanding Section 1279 or any other provision of
law, without providing notice of these inspections, the department,
in addition to any inspections conducted pursuant to complaints filed
pursuant to Section 1419, shall conduct inspections annually, except
with regard to those facilities which have no class "AA," class "A,"
or class "B" violations in the past 12 months. The state department
shall also conduct inspections as may be necessary to ensure the
health, safety, and security of patients in long-term health care
facilities. Every facility shall be inspected at least once every two
years. The department shall vary the cycle in which inspections of
long-term health care facilities are conducted to reduce the
predictability of the inspections.
(B) Inspections and investigations of long-term health care
facilities that are certified by the Medicare Program or the Medicaid
Program shall determine compliance with federal standards and
California statutes and regulations to the extent that California
statutes and regulations provide greater protection to residents, or
are more precise than federal standards, as determined by the
department. Notwithstanding any other provision of law, the
department may, without taking regulatory action 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
paragraph by means of an All Facilities Letter (AFL) or similar
instruction. Prior to issuing an AFL or similar instruction, the
department shall consult with interested parties and shall inform the
appropriate committees of the Legislature. The department shall also
post the AFL or similar instruction on its Web site so that any
person may observe which California laws and regulations provide
greater protection to its residents or are more precise than federal
standards. Nothing in this subdivision is intended to change existing
statutory or regulatory requirements governing the care provided to
long-term health care facility residents.
(C) In order to ensure maximum effectiveness of inspections
conducted pursuant to this article, the department shall identify all
state law standards for the staffing and operation of long-term
health care facilities. Costs of the additional survey and inspection
activities required by Chapter 895 of the Statutes of 2006 shall be
included as Licensing and Certification Program activities for the
purposes of calculating fees in accordance with Section 1266.
(2) The state department shall submit to the federal Department of
Health and Human Services on or before July 1, 1985, for review and
approval, a request to implement a three-year pilot program designed
to lessen the predictability of the long-term health care facility
inspection process. Two components of the pilot program shall be (A)
the elimination of the present practice of entering into a one-year
certification agreement, and (B) the conduct of segmented inspections
of a sample of facilities with poor inspection records, as defined
by the state department. At the conclusion of the pilot project, an
analysis of both components shall be conducted by the state
department to determine effectiveness in reducing inspection
predictability and the respective cost benefits. Implementation of
this pilot project is contingent upon federal approval.
(c) Except as otherwise provided in subdivision (b), the state
department shall conduct unannounced direct patient care inspections
at least annually to inspect physician and surgeon services, nursing
services, pharmacy services, dietary services, and activity programs
of all the long-term health care facilities. Facilities evidencing
repeated serious problems in complying with this chapter or a history
of poor performance, or both, shall be subject to periodic
unannounced direct patient care inspections during the inspection
year. The direct patient care inspections shall assist the state
department in the prioritization of its efforts to correct facility
deficiencies.
(d) All long-term health care facilities shall report to the state
department any changes in the nursing home administrator or the
director of nursing services within 10 calendar days of the changes.
(e) Within 90 days after the receipt of notice of a change in the
nursing home administrator or the director of nursing services, the
state department may conduct an abbreviated inspection of the
long-term health care facilities.
(f) If a change in a nursing home administrator occurs and the
Board of Nursing Home Administrators notifies the state department
that the new administrator is on probation or has had his or her
license suspended within the previous three years, the state
department shall conduct an abbreviated survey of the long-term
health care facility employing that administrator within 90 days of
notification.
1422.1. (a) Notwithstanding Section 1422, the State Department of
Health Services shall conduct, when feasible, annual licensing
inspections of licensed long-term health care facilities providing
special treatment programs for the mentally disordered, concurrently
with inspections conducted by the State Department of Mental Health
for the purposes of approving the special treatment program.
(b) The State Department of Health Services survey teams
conducting inspections pursuant to this section shall include at
least one licensed mental health professional if the inspections are
not done concurrently pursuant to subdivision (a).
(c) Survey team members shall receive training specific to the
mental health treatment needs of mentally disordered residents served
in these facilities.
1422.5. (a) The department shall develop and establish a consumer
information service system to provide updated and accurate
information to the general public and consumers regarding long-term
care facilities in their communities. The consumer information
service system shall include, but need not be limited to, all of the
following elements:
(1) An on-line inquiry system accessible through a statewide
toll-free telephone number and the Internet.
(2) Long-term health care facility profiles, with data on services
provided, a history of all citations and complaints for the last two
full survey cycles, and ownership information. The profile for each
facility shall include, but not be limited to, all of the following:
(A) The name, address, and telephone number of the facility.
(B) The number of units or beds in the facility.
(C) Whether the facility accepts Medicare or Medi-Cal patients.
(D) Whether the facility has a special care unit or program for
people with Alzheimer's disease and other dementias, and whether the
facility participates in the voluntary disclosure program for special
care units.
(E) Whether the facility is a for-profit or not-for-profit
provider.
(3) Information regarding substantiated complaints shall include
the action taken and the date of action.
(4) Information regarding the state citations assessed shall
include the status of the state citation, including the facility's
plan or correction, and information as to whether an appeal has been
filed.
(5) Any appeal resolution pertaining to a citation or complaint
shall be updated on the file in a timely manner.
(b) Where feasible, the department shall interface the consumer
information service system with its Automated Certification and
Licensure Information Management System.
(c) It is the intent of the Legislature that the department, in
developing and establishing the system pursuant to subdivision (a),
maximize the use of available federal funds.
(d) (1) Notwithstanding the consumer information service system
established pursuant to subdivision (a), by January 1, 2002, the
state department shall develop a method whereby information is
provided to the public and consumers on long-term health care
facilities. The information provided shall include, but not be
limited to, all of the following elements:
(A) Substantiated complaints, including the action taken and the
date of the action.
(B) State citations assessed, including the status of any citation
and whether an appeal has been filed.
(C) State actions, including license suspensions, revocations, and
receiverships.
(D) Federal enforcement sanctions imposed, including any denial of
payment, temporary management, termination, or civil money penalty
of five hundred dollars ($500) or more.
(E) Any information or data beneficial to the public and
consumers.
(2) This subdivision shall become inoperative on July 1, 2003.
(e) In implementing this section, the department shall ensure the
confidentiality of personal and identifying information of residents
and employees and shall not disclose this information through the
consumer information service system developed pursuant to this
section.
1422.6. Each skilled nursing facility and intermediate care
facility shall post a copy of the notice required pursuant to Section
9718 of the Welfare and Institutions Code in a conspicuous location
in at least four areas of the facility, as follows:
(a) One location that is accessible to members of the public.
(b) One location that is used for employee breaks.
(c) One location that is next to a telephone designated for
resident use.
(d) One location that is used for communal functions for
residents, such as for dining or resident council meetings and
activities.
1422.7. The state department shall provide the office, as defined
in subdivision (c) of Section 9701 of the Welfare and Institutions
Code, with copies of inspection reports for long-term health care
facilities upon request. The state department shall provide the
office with copies of all class "AA," "A," and "B" citations issued.
1423. (a) If upon inspection or investigation the director
determines that any nursing facility is in violation of any state or
federal law or regulation relating to the operation or maintenance of
the facility, or determines that any other long-term health care
facility is in violation of any statutory provision or regulation
relating to the operation or maintenance of the facility, the
director shall promptly, but not later than 24
