BILL NUMBER: SB 1312 CHAPTERED
BILL TEXT
CHAPTER 895
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2006
APPROVED BY GOVERNOR SEPTEMBER 30, 2006
PASSED THE SENATE AUGUST 31, 2006
PASSED THE ASSEMBLY AUGUST 30, 2006
AMENDED IN ASSEMBLY AUGUST 29, 2006
AMENDED IN ASSEMBLY AUGUST 24, 2006
AMENDED IN ASSEMBLY AUGUST 21, 2006
AMENDED IN ASSEMBLY JUNE 22, 2006
AMENDED IN SENATE APRIL 25, 2006
INTRODUCED BY Senator Alquist
(Coauthors: Assembly Members Berg and Cohn)
FEBRUARY 16, 2006
An act to amend Sections 1266.9, 1279, and 1422 of, to amend and
repeal Section 1280.1 of, and to add Sections 1280.3 and 1280.6 to,
the Health and Safety Code, relating to health care facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 1312, Alquist Health care facilities.
(1) Under existing law, the State Department of Health Services
regulates the licensure and operation of various health facilities,
including long-term health care facilities, some of which are
collectively classified as nursing homes. Existing law requires the
department to conduct periodic inspections of health facilities for
which a license or special permit has been issued, to ensure the
quality of care. Existing law exempts certain health facilities that
are certified to participate in the federal Medicare and Medicaid
Programs from these inspections.
Existing law establishes the State Department of Health Services,
Licensing, and Certification Program Account within the Special
Deposit Fund, and requires that specified revenues collected from
fees for new and renewal applications for health facility licenses be
deposited in the account and be available for expenditure upon
appropriation to support the Licensing and Certification Program, as
provided.
This bill would revise those provisions to instead create the
State Department of Health Services, Licensing and Certification
Program Fund in the State Treasury.
(2) Existing law, the Long-Term Care, Health, Safety and Security
Act of 1973, requires the State Department of Health Services to
conduct annual inspections, without notice, of long-term health care
facilities, except facilities that have not had serious violations
within the last 12 months, and in any case to inspect every facility
at least once every 2 years, and further requires the department to
vary the cycle for conducting these inspections to reduce the
predictability of the inspections.
This bill would delete the above inspection exemption for
federally certified health facilities. The bill would require the
department to ensure that a periodic inspection required to be
conducted pursuant to those provisions is not announced in advance of
the date of the inspection.
This bill would specify that inspections and investigations of
long-term health care facilities that are certified by the Medicare
Program and the Medicaid Program shall determine compliance with
federal standards and California statutes and regulations.
This bill would require the department, for purposes of inspecting
those long-term health care facilities, to identify state law
standards for the staffing and operation of long-term health care
facilities. The bill would authorize the department to increase
initial licensure and renewal fees for long-term health care
facilities in order to recover any additional costs incurred by these
requirements.
The bill would specify that the aforementioned provisions relating
to the inspection of long-term health facilities shall become
operative on July 1, 2007.
(3) Existing law authorizes the department to assess against a
health facility licensee, including a hospital, who has failed to
correct a deficiency a civil penalty in an amount not to exceed $50
per patient affected by the deficiency.
This bill would revise the circumstances under which the
department is authorized to assess civil penalties against licensee
hospitals, including increasing the maximum penalty amount, and
applying the provisions to deficiencies constituting immediate
jeopardy, as defined.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The protection of residents in California's long-term health
care facilities is of paramount importance to the citizens of
California.
(b) During the last two decades, the Legislature has enacted
numerous nursing home reform measures designed to improve residents'
rights, increase minimum staffing levels, and protect residents from
abuse, neglect, and exploitation.
(c) While federal regulations and state statutory provisions
overlap in some areas, there are numerous state requirements that
exceed federal law and provide greater protection to residents of
long-term health care facilities.
(d) The State Department of Health Services has not developed
survey protocols for examining compliance with state regulatory and
statutory standards during regular inspections.
(e) Nursing homes that do not participate in the federal Medicare
Program or Medicaid Program are not being inspected on a regular
basis.
(f) Existing state law requires the State Department of Health
Services to establish and maintain an inspection and reporting system
to ensure that long-term health care facilities are in compliance
with California statutes and regulations.
(g) Therefore, it is the intent of the Legislature to enact
legislation to do both of the following:
(1) Ensure that California's standards for licensure of long-term
health care facilities are maintained.
(2) Ensure that long-term health care facilities are inspected for
compliance with state standards to the extent that those standards
provide greater protection to residents, or are more precise than
federal standards.
SEC. 2 Section 1266.9 of the Health and Safety Code is amended to
read:
1266.9. There is hereby created in the State Treasury the State
Department of Health Services, Licensing and Certification Program
Fund. The revenue collected in accordance with Section 1266 shall be
deposited in the Licensing and Certification Program Fund and shall
be available for expenditure, upon appropriation by the Legislature,
to support the Licensing and Certification Program's operation.
Interest earned on the funds in the Licensing and Certification
Program Fund shall be deposited as revenue into the account to
support the Licensing and Certification Program's operation.
SEC. 3. Section 1279 of the Health and Safety Code is amended to
read:
1279. (a) Every health facility for which a license or special
permit has been issued shall be periodically inspected by the
department, or by another governmental entity under contract with the
department. The frequency of inspections shall vary, depending upon
the type and complexity of the health facility or special service to
be inspected, unless otherwise specified by state or federal law or
regulation. The inspection shall include participation by the
California Medical Association consistent with the manner in which it
participated in inspections, as provided in Section 1282 prior to
September 15, 1992.
(b) Except as provided in subdivision (c), inspections shall be
conducted no less than once every two years and as often as necessary
to ensure the quality of care being provided.
(c) For a health facility specified in subdivision (a), (b), or
(f) of Section 1250, inspections shall be conducted no less than once
every three years, and as often as necessary to ensure the quality
of care being provided.
(d) During the inspection, the representative or representatives
shall offer such advice and assistance to the health facility as they
deem appropriate.
(e) For acute care hospitals of 100 beds or more, the inspection
team shall include at least a physician, registered nurse, and
persons experienced in hospital administration and sanitary
inspections. During the inspection, the team shall offer advice and
assistance to the hospital as it deems appropriate.
(f) The department shall ensure that a periodic inspection
conducted pursuant to this section is not announced in advance of the
date of inspection. An inspection may be conducted jointly with
inspections by entities specified in Section 1282. However, if the
department conducts an inspection jointly with an entity specified in
Section 1282 that provides notice in advance of the periodic
inspection, the department shall conduct an additional periodic
inspection that is not announced or noticed to the health facility.
(g) Notwithstanding any other provision of law, the department
shall inspect for compliance with provisions of state law and
regulations during a state or federal periodic inspection, including,
but not limited to, an inspection required under this section.
SEC. 4. Section 1280.1 of the Health and Safety Code is amended to
read:
1280.1. (a) If a licensee of a health facility licensed under
subdivision (a), (b), or (f) of Section 1250 receives a notice of
deficiency constituting an immediate jeopardy to the health or safety
of a patient and is required to submit a plan of correction, the
department may assess the licensee an administrative penalty in an
amount not to exceed twenty-five thousand dollars ($25,000) per
violation.
(b) If the licensee disputes a determination by the department
regarding the alleged deficiency or the alleged failure to correct a
deficiency, or regarding the reasonableness of the proposed deadline
for correction or the amount of the penalty, the licensee may, within
10 days, request a hearing pursuant to Section 100171. Penalties
shall be paid when appeals have been exhausted and the department's
position has been upheld.
(c) For purposes of this section "immediate jeopardy" means a
situation in which the licensee's noncompliance with one or more
requirements of licensure has caused, or is likely to cause, serious
injury or death to the patient.
(d) This section shall apply only to incidents occurring on or
after January 1, 2007.
(e) No new regulations are required or authorized for
implementation of this section.
SEC. 5. Section 1280.3 is added to the Health and Safety Code, to
read:
1280.3. (a) Commencing on the effective date of the regulations
adopted pursuant to this section, the director may assess an
administrative penalty in an amount of up to fifty thousand dollars
($50,000) per immediate jeopardy violation, as defined in Section
1280.1, against a licensee of a health facility licensed under
subdivision (a), (b), or (f) of Section 1250.
(b) Except as provided in subdivision (c), for a violation of this
chapter or the rules and regulations promulgated thereunder that
does not constitute a violation of subdivision (a), the department
may assess an administrative penalty in an amount of up to seventeen
thousand five hundred dollars ($17,500) per violation.
The department shall promulgate regulations establishing the
criteria to assess an administrative penalty against a health
facility licensed pursuant to subdivisions (a), (b), or (f) of
Section 1250. The criteria shall include, but need not be limited to,
the following:
(1) The patient's physical and mental condition.
(2) The probability and severity of the risk that the violation
presents to the patient.
(3) The actual financial harm to patients, if any.
(4) The nature, scope, and severity of the violation.
(5) The facility's history of compliance with related state and
federal statutes and regulations.
(6) Factors beyond the facility's control that restrict the
facility's ability to comply with this chapter or the rules and
regulations promulgated thereunder.
(7) The demonstrated willfulness of the violation.
(8) The extent to which the facility detected the violation and
took steps to immediately correct the violation and prevent the
violation from recurring.
(c) The department shall not assess an administrative penalty for
minor violations.
(d) The regulations shall not change the definition of immediate
jeopardy as established in Section 1280.1.
(e) The regulations shall apply only to incidents occurring on or
after the effective date of the regulations.
(f) If the licensee disputes a determination by the department
regarding the alleged deficiency or alleged failure to correct a
deficiency, or regarding the reasonableness of the proposed deadline
for correction or the amount of the penalty, the licensee may, within
10 working days, request a hearing pursuant to Section 100171.
Penalties shall be paid when all appeals have been exhausted and the
department's position has been upheld.
(g) Moneys collected by the department as a result of
administrative penalties imposed under this section and Section
1280.1 shall be deposited into the Licensing and Certification
Program Fund established pursuant to Section 1266.9. These moneys
shall be tracked and available for expenditure, upon appropriation by
the Legislature, to support internal departmental quality
improvement activities.
SEC. 5.5. Section 1280.6 is added to the Health and Safety Code,
to read:
1280.6. In assessing an administrative penalty pursuant to
Section 1280.1 or Section 1280.3 against a licensee of a health
facility licensed under subdivision (a) of Section 1250 owned by a
nonprofit corporation that shares an identical board of directors
with a nonprofit health care service plan licensed pursuant to
Chapter 2.2 (commencing with Section 1340), the director shall
consider whether the deficiency arises from an incident that is the
subject of investigation of, or has resulted in a fine to, the health
care service plan by the Department of Managed Health Care. If the
deficiency results from the same incident, the director shall limit
the administrative penalty to take into consideration the penalty
imposed by the Department of Managed Health Care.
SEC. 6. Section 1422 of the Health and Safety Code is amended to
read:
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 state
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.
(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. Initial license and renewal fees for
long-term health care facilities may be increased pursuant to Section
1266 in order to recover any additional costs incurred by the
department as a result of this subparagraph.
(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.
SEC. 7. Sections 3 and 6 of this act shall become operative on
July 1, 2007.