BILL ANALYSIS Ó
AB 2297
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
AB 2297 (Hayashi) - As Amended: April 11, 2012
SUBJECT : California Retail Food Code: skilled nursing
facilities: intermediate care facilities for the developmentally
disabled.
SUMMARY : Exempts certain long-term care facilities (LTCFs) with
six beds or less from regulation as food facilities under the
California Retail Food Code (CRFC) and clarifies that the Office
of Statewide Health Planning and Development (OSHPD) has primary
jurisdiction in enforcing structural requirements for licensed
skilled nursing facilities (SNFs) under the CRFC. Specifically,
this bill :
1)Exempts certain LTCFs that are intermediate care facilities
for the developmentally disabled (ICF/DDs) with six beds or
less from the definition of a food facility subject to
regulation under the CRFC.
2)Requires the survey staff within the Licensing and
Certification (L&C) Division of the Department of Public
Health (DPH) to include an inspection of the facilities
exempted in 1) above for compliance with applicable food and
facility sanitation requirements in the annual L&C surveys
required by state and federal law.
3)Requires a facility exempted in 1) above to report any
foodborne illness or outbreak to the local environmental
health department (LEHD) and DPH within 24 hours.
4)Clarifies that OSHPD has primary jurisdiction over licensed
SNFs with regard to enforcing structural modification
requirements in the CRFC.
5)Deems approval of a SNF's building application and plan check
process for structural modifications submitted to OSHPD to be
compliant with structural plan review provisions in the CRFC.
6)States legislative intent to enact legislation to decrease the
cost to the state and eliminate duplicative inspections of
these LTCFs for compliance with the CRFC.
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EXISTING LAW :
1)Defines an ICF/DD, licensed by DPH, according to the following
three categories:
a) "ICF/DD habilitative (ICF/DD-H)" means a facility with a
capacity of four to 15 beds that provides 24-hour personal
care, habilitation, developmental, and supportive health
services to 15 or fewer persons with developmental
disabilities who have intermittent recurring needs for
nursing services;
b) "ICF/DD nursing (ICF/DD-N)" means a facility with a
capacity of four to 15 beds that provides 24-hour personal
care, developmental services, and nursing supervision for
persons with developmental disabilities who have
intermittent recurring needs for skilled nursing care but
have been certified by a physician and surgeon as not
requiring continuous skilled nursing care. These
facilities serve medically fragile persons who have
developmental disabilities or demonstrate significant
developmental delay that may lead to a developmental
disability if not treated; and,
c) "ICF/DD continuous nursing (ICF/DD-CN)" means a homelike
facility with a capacity of four to eight, inclusive, beds
that provides 24-hour personal care, developmental
services, and nursing supervision for persons with
developmental disabilities who have continuous needs for
skilled nursing care and have been certified by a physician
and surgeon as warranting continuous skilled nursing care.
These facilities serve medically fragile persons who have
developmental disabilities or demonstrate significant
developmental delay that may lead to a developmental
disability if not treated.
2)Establishes the CRFC to govern all aspects of retail food
safety and sanitation in California and makes LEHDs primarily
responsible for enforcement through local food safety
inspection programs.
3)Deems existing public and private school cafeterias and
licensed health care facilities, including LTCFs, to be in
compliance with existing structural requirements in the CRFC
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relating to plan review and permits, pending replacement or
renovation, unless a determination is made by the LEHD that
the nonconforming structural conditions pose a public health
hazard.
4)Exempts child day care facilities, community care facilities
(CCFs), and residential care facilities for the elderly
(RCFEs) from CRFC regulation and requires the Department of
Social Services (DSS) to develop regulations regarding food
preparation provisions for these facilities consistent with
the CRFC.
5)Establishes for LTCFs, under state law and regulations,
various dietetic services standards governing food service,
policies and procedures, diet manuals, therapeutic diets,
menus, food storage, sanitation, cleaning and disinfection of
utensils, equipment and supplies, and dietetic personnel and
training requirements.
6)Establishes for LTCFs, under federal Medicare and Medicaid law
and regulations, various dietary services requirements
relating to staffing, menus and nutritional adequacy, food
preparation, therapeutic diets, frequency of meals, assistive
devices, paid feeding assistants, and sanitary conditions.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the sponsor of this bill,
the California Association of Health Facilities (CAHF), the
CRFC recognizes certain food facility exemptions for specified
providers, such as child care facilities and RCFEs, that share
similar features with small ICF/DDs and other LTCFs in that
they are not open to the general public and do not provide
meals in the same manner as restaurants and other food
establishments that are appropriately subject to CRFC
requirements. CAHF argues that ICF/DDs should be excluded
from the CRFC because they are typically six-bed facilities
located in residential neighborhoods equipped with the same
type of kitchen and pantry as those of a single family
residence. In addition, CAHF points out that LTCFs are
subject to multiple inspections relating to food safety and
sanitation, including annual licensing surveys and separate
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certification surveys for participation in the Medicare or
Medicaid programs by DPH, and additional inspections by LEHDs
during the CRFC permitting process because they currently fall
under the definition of a food facility.
2)ICF/DDs . ICF/DDs provide less intensive nursing care than
skilled nursing, and also provide dietary, pharmacy, personal
care, and social and activity services to developmentally
disabled individuals who need occasional or continuous nursing
care. ICF/DD-Hs provide services for the purpose of enhancing
or preventing regression of intellect, functional skills, and
the emotional well-being of developmentally disabled
residents. ICF/DD-Ns and -CNs serve persons with
developmental disabilities who have continuous needs for
nursing care, such as the monitoring of medications or
conditions. More than 90% of ICF/DD-N clients utilize
wheelchairs. Typically, care for these individuals is
provided in a group home setting. CAHF indicates that the
exemption from the CRFC for six and under facilities provided
in this bill would apply to 96% (1,138) of California's 1,170
ICF/DDs.
3)CURRENT INSPECTION REQUIREMENTS . LTCFs are subject to
multiple inspections at the state and local level. In order
to be certified to participate in the federal Medicare and
Medicaid programs, LTCFs are inspected by DPH every 15 months.
The authority granted to DPH to conduct these federal
certification inspections, including evaluating dietary
services, is limited to those provisions specified in federal
regulations, including requirements for each facility to
employ a qualified dietician; employ sufficient support
personnel competent to carry out the functions of dietary
services; and, provide all residents with a nourishing,
palatable, well-balanced diet that meets their daily
nutritional and special dietary needs. DPH notes that during
federal re-certification surveys, it does not have the
authority to enforce CRFC and DPH licensing evaluators can
only fine facilities for violations that present immediate
jeopardy to the residents' health and safety and require a
corrective action plan for all other violations that do not
rise to the level of immediate jeopardy. DPH also conducts an
annual separate state licensing survey for these facilities
and inspects their food and sanitation standards in accordance
with state regulations. In addition, because LTCFs are also
currently subject to the CRFC, they must undergo additional
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permitting and inspection requirements by LEHDs. Therefore,
CAHF asserts that an exemption from the CRFC is needed for the
smaller ICF/DDs in order to reduce duplication of food
inspections done by LEHDs that often, according to CAHF, have
standards that conflict with what is required in L&C
inspections done by DPH and the federal Centers for Medicaid
and Medicare Services.
4)DPH REPORT . In 2008, CAHF sponsored AB 1773 (Hayashi) that
would have exempted all LTCFs from CRFC requirements but
agreed to suspend the development of legislation when DPH
agreed to conduct a comprehensive review of the food safety
and food services provisions in the federal certification and
state licensure regulations and compare them to the CRFC
requirements used by LEHDs during the inspection of LTCFs. In
its October 2011 report, DPH notes that despite long-standing
authority to inspect LTCFs under the CRFC, many LEHDs only
initiated inspections of LTCF food service operations in
October 2007. DPH notes that this added layer of oversight
was unexpected by some facility operators, who believed that
compliance with L&C requirements should also constitute
compliance with CRFC requirements. DPH adds that facility
operators also objected to the cost of the health permit fees
paid to LEHDs that were on top of L&C's licensing fees. DPH
indicates that its report reflects the following key findings
from its review:
a) The CRFC is much more detailed, scientifically current,
and public health protective than either state or federal
regulations as they pertain to food services;
b) Each inspection/survey entity has unique and separate
compliance authority;
c) While some overlap exists in four of 33 food safety
requirements that were reviewed, the scope of the L&C
survey is done by registered nurses and is very different
from the scope of the LEHD inspection that is often done by
registered environmental health specialists who are trained
to focus on factors that contribute to foodborne illnesses
and outbreaks;
d) LEHDs have a higher inspection frequency of two to four
times per year compared to L&C surveys every 15 months;
e) LEHDs have more enforcement authority and options
available to gain compliance in the food safety arena than
does L&C; and,
f) Residents in LTCFs are considered a highly susceptible
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population with compromised medical and physical conditions
that warrant, at a minimum, the same food safety
protections as members of the general public who dine at
restaurants in their community.
5)FEES . According to DPH, LTCFs pay a licensing fee but no
direct fee for inspection of dietary services. The licensing
fee for the smaller six and fewer ICF/DDs levied for fiscal
year 2011-12 is about $553 per bed. According to CAHF,
currently, ICF/DD facilities pay a licensing fee to DPH to pay
for state and federal inspections, at a cost of approximately
$3,300 per year for a typical ICF/DD facility. The California
Association of Environmental Health Administrators (CAEHA),
which represents all 62 LEHDs, indicates that county
inspections are fee-for-service programs that assess fees
ranging from $150-$750 per inspection, depending on the size
of the facility.
6)BACKGROUND ON EXISTING EXEMPTIONS . The CRFC currently exempts
child day care facilities, CCFs, and RCFEs from permits and
inspections. Prior legislation, AB 1188 (Leslie), Chapter
606, Statutes of 1989, created this exemption temporarily,
pending the development and adoption of alternative food
preparation standards for the exempted facilities by January
1, 1991. AB 1188 directed DSS to present to the Legislature
recommendations for statutory requirements regarding food
preparation appropriate for these facilities. In its report
to the Legislature, DSS concluded that existing statute
provides adequate food preparation and service safeguards for
these facilities and new statutory requirements were not
necessary. The report noted that current law authorizes DSS
to regulate the storage, preparation, and service of food
served in child day care facilities, CCFs, and RCFEs. For
each facility category, DSS food service regulations are based
on federal dietary guidelines, which specify the types and
quantities of food to be provided each day to individuals in
various age groups, ranging from preschool children to older
adults. According to DSS, food storage and preparation
regulations for CCFs and RCFEs have been derived from those
applicable to intermediate care facilities licensed by DPH,
but reflect the specific needs of people receiving non-medical
out-of-home care. DSS reported that these regulations
generally conform to the CRFC and stated that existing law
affords adequate food safety protection in these facilities
when backed by the authority to cite facilities for
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violations, to assess civil penalties if compliance is not
achieved, and to consult and seek assistance from LEHDs as
appropriate.
7)OSHPD . OSHPD is responsible for overseeing all aspects of the
design and construction of certain health facilities,
including LTCFs, in California. OSHPD's responsibilities
include establishing building standards that govern
construction of these types of facilities; reviewing the plans
and specifications for new construction, alteration,
renovation, or additions to these facilities; and ensuring
compliance with the approved plans and specifications. Any
remodeling or upgrades that occur in a LTCF must go through
the OSHPD review and approval process. According to CAHF,
some of its SNF members have encountered problems during the
current CRFC inspection process where the county inspectors
have inappropriately cited the facility for certain physical
plant issues that should be covered under the CRFC's
provisions that allow nonconforming structural conditions for
LTCFs. To address this issue, CAHF states that this bill
clarifies that OSHPD, rather than LEHDs, retains primary
jurisdiction over structural modification to these facilities.
8)CRFC . According to the California Retail Food Safety
Coalition, a broad-based coalition of federal, state, and
local regulators and the retail food industry, the CRFC is
modeled after the federal Model Food Code, developed by the
federal Food and Drug Administration and updated every two
years. As the primary enforcement agencies of the CRFC, LEHDs
focus their food facility inspections on violations relating
to the federal Centers for Disease Control and Prevention
(CDC) identified food-borne illness risk factors and public
health interventions. The CDC food-borne illness risk factors
are: food from unsafe sources; inadequate cooking; improper
holding temperatures; contaminated equipment; and, poor
personal hygiene. The public health interventions identified
by CDC include: demonstration of knowledge; employee health;
time and temperature control; hands as a source of
contamination; and, consumer advisories.
9)PREVIOUS LEGISLATION .
a) AB 1773 would have required DPH to review the food
safety and dietary services requirements for LTCFs by
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January 1, 2010. AB 1773 died on the Senate inactive file.
b) SB 144 (Runner), Chapter 23, Statutes of 2006, repealed
the California Uniform Retail Food Facilities Law, and
effective July 1, 2007, enacted its provisions into the
CRFC to govern all aspects of retail food sanitation in
California.
c) AB 1188 (Leslie), Chapter 606, Statutes of 1989, exempts
child day care facilities, CCFs, and RCFEs from the CRFC
and requires DSS to develop alternative food preparation
provisions to apply to these facilities.
10)TECHNICAL AMENDMENT . On page 5, line 20, after "disabled"
insert "with a capacity of 6 beds or less".
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Health Facilities (sponsor)
Opposition
None on file.
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097