BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 2297 AUTHOR: Hayashi AMENDED: May 15, 2012 HEARING DATE: June 27, 2012 CONSULTANT: Orr SUBJECT : California Retail Food Code: skilled nursing facilities: intermediate care facilities for the developmentally disabled. SUMMARY : Excludes intermediate care facilities for the developmentally disabled (ICF/DDs) from regulation as food facilities under the California Retail Food Code (CRFC). Clarifies that the Office of Statewide Health Planning and Development (OSHPD) has primary jurisdiction over licensed skilled nursing facilities (SNFs) when enforcing structural modification requirements in the CRFC. Existing law: 1.Establishes the CRFC, which repealed the California Uniform Retail Food Facilities Law (CURFFL) and recast, expanded, and revised its provisions into the CRFC, effective July 1, 2007. Governs all aspects of retail food safety and sanitation in California under the CRFC. Specifies that primary responsibility for enforcement of the CRFC is with local enforcement agencies, typically local environmental health departments (LEHDs). 2.Defines food facility to mean an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level. Includes permanent and nonpermanent food facilities, such as public and private school cafeterias, commissaries, vending machines and licensed health care facilities. Excludes child day care facilities, community care facilities, residential care facilities for the elderly or chronically ill, and others, as defined, from this definition and requires the Department of Social Services to establish guidelines regarding food preparation provisions for those facilities. 3.Subjects food facilities to routine inspections by LEHDs. Requires that any construction, alteration, remodeling, or operation of a food facility be approved by the LEHD in Continued--- AB 2297 | Page 2 accordance with all applicable local, state, and federal statutes, regulations, and ordinances, including but not limited to, fire, building, and zoning codes. 4.Defines three types of ICF/DDs: a. Intermediate care facility/developmentally disabled habilitative (ICF/DD-H): a facility with a capacity of 4 to 15 beds that provides 24-hour personal care, habilitation, developmental, and supportive health services to 15 or fewer persons with developmental disabilities with intermittent recurring needs for nursing services, but who have been certified by a physician and surgeon as not requiring continuous skilled nursing care; b. Intermediate care facility/developmentally disabled-nursing (ICF/DD-N): a facility with a capacity of 4 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 with developmental disabilities or persons who demonstrate significant developmental delay that may lead to a developmental disability if not treated; and c. Intermediate care facility/developmentally disabled-continuous nursing (ICF/DD-CN): a home-like facility with a capacity of 4-8 beds that provides 24-hour personal care, developmental services, and nursing supervision for persons with developmental disabilities who have been certified by a physician and surgeon as warranting continuous skilled nursing care. ICF/DD-CNs serve medically fragile persons who have developmental disabilities or demonstrate significant developmental delay that may lead to a developmental disability if not treated. 5.Provides for the licensure and regulation of ICF/DDs and SNFs by the California Department of Public Health (CDPH) Licensing and Certification Branch. 6.Defines SNFs as health facilities that provide skilled nursing care and supportive care to patients whose primary need is for availability of skilled nursing care on an extended basis. 7.Authorizes OSHPD to prescribe minimum construction standards AB 2297 | Page 3 of adequacy and safety for health facilities in California. 8.Establishes, under regulations pertaining to long term care facilities (LTCFs), 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. Also establishes, in federal Medicare and Medicaid law and regulations for LTCFs, various dietary service requirements relating to staffing, menus and nutritional adequacy, food preparation, therapeutic diets, frequency of meals, assistive devices, paid feeding assistants, and sanitary conditions. This bill: 1.Excludes ICF/DDs, as defined, with a capacity of six beds or fewer, from the definition of a food facility subject to regulation under the CRFC. 2.Requires these ICF/DDs to report any foodborne illness or outbreak to the LEHD and CDPH within 24 hours. 3.Clarifies that OSHPD has primary jurisdiction over licensed SNFs when enforcing structural modification requirements in the CRFC. Requires SNFs to complete a building application and plan check process as required by OSHPD when making structural modifications to the facility. Deems approval of these plans by OSHPD as compliant with the plan approval process required by local enforcement agencies under the CRFC. 4.Makes legislative findings and declarations regarding the burden of duplicative inspections by both state and local authorities resulting from the inadvertent inclusion of ICFs within the CRFC. FISCAL EFFECT : The Assembly Appropriations Committee estimates a negligible state fiscal effect. PRIOR VOTES : Assembly Health: 19- 0 Assembly Appropriations:17- 0 Assembly Floor: 77- 0 COMMENTS : 1.Author's statement. Under current law, intermediate care AB 2297 | Page 4 facilities for the disabled are classified as "food facilities." Because of this classification, these facilities experience a duplication of inspections at both the state and local levels. CRFC recognizes food facility exemptions for provider categories such as residential care facilities for the elderly and child care facilities, but not for these intermediate care facilities. Duplicate inspections and enforcement obligations are costly and can increase the cost of care for residents. AB 2297 streamlines the inspection process at the local level by exempting these facilities with a limited number of beds from the definition of a food facility under the CRFC and requires the Office of Statewide Health Planning and Development (OSPHD) to maintain its primary enforcement obligations over skilled nursing facilities regarding remodels, routine maintenance or modernization projects. 2.ICF/DDs. ICF/DDs provide less intensive nursing care than skilled nursing facilities, and also provide pharmacy, personal care, and social and activity services to developmentally disabled individuals who need occasional or continuous nursing care. ICF/DDs fall under the umbrella of LTCFs. 3.Inspection requirements. LTCFs are subject to multiple inspections at the state and local level. In order to participate in the federal Medicare and Medicaid programs, the state is required by federal regulations to conduct recertification surveys of SNFs at specified intervals. According to CDPH, the scope of its authority for all of these federal certification inspections is limited to enforcing provisions set forth by federal regulations, including requirements that each facility 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. CDPH notes that, during federal recertification surveys, it does not have the authority to enforce the CRFC, and CDPH licensing evaluators may only fine facilities for violations that present immediate jeopardy to the residents' health and safety and may only require a plan of corrective action for all other violations that do not rise to the level of immediate jeopardy. CDPH also conducts an annual separate state licensing survey for these facilities and inspects their food and sanitation AB 2297 | Page 5 standards in accordance with state regulations. In addition, because LTCFs are also currently subject to the CRFC, they must undergo additional permitting and inspection requirements by LEHDs. According to CDPH, local agencies had long-standing legal authority to initiate the licensure and inspection of LTCF food service operations but didn't begin to do so until 2007. This added layer of regulatory oversight was unexpected by some LTCF operators, who believed that compliance with L&C requirements should also constitute compliance with CRFC requirements. Facility operators also objected to the cost of the health permit fees paid to local agencies that were in addition to L&Cs licensing fees. 4.CDPH report. In a June 2009 CDPH report comparing food safety-related requirements for LTCFs, CDPH asserts that food service operations at LTCFs in California are subject to both state and federal laws, which are enforced by local, state and federal agencies. Enforcement of these laws is conducted by 62 LEHDs, CDPH Licensing and Certification Division, OSHPD, and the U.S. Centers for Medicare and Medicaid Services. After completing a detailed comparison of the laws, inspection process, enforcement options, inspection frequency, new and remodel construction requirements, inspector/surveyor education background and knowledge requirements, and complaint response, the report asserts that there is overlap in 4 of 33 areas of food safety requirements. The report goes on to suggest that CRFC requirements are more protective of the public's health. The report did not find any apparent conflicts between state regulations and CRFC requirements for food services at LTCFs. The report concluded that patients and residents at LTCFs are considered a highly susceptible population in that they have compromised medical and physical conditions that make them at high risk for the complications of food-borne illness. In addition, these residents are often captive audiences, in that their only sources of meals are the meals the LTCFs provide. 5.CRCF. The CRFC was enacted on July 1, 2007, to repeal CURFFL and enhance food safety laws based on the best available science. CRFC is modeled after the federal Model Food Code, developed by the federal Food and Drug Administration and updated every two years. CRFC makes several enhancements to CURFFL, relative to documentation, uniformity and consistency, best available science, at-risk populations, and flexibility AB 2297 | Page 6 of provisions. As the primary enforcement agencies of the CRFC, LEHDs focus their food facility inspections to violations relating to food-borne illness risk factors as identified by the Centers for Disease Control and Prevention. 6.Exemptions for specified facilities. AB 1188 (Leslie), Chapter 606, Statutes of 1989, created a temporary exemption for child day care facilities, community care facilities, and residential care facilities for the elderly (RCFEs) from provisions of the CURFFL (now CRFC), pending the development and adoption of alternative food preparation standards for the exempted facilities by January 1, 1991. At that time, the Department of Social Services (DSS), which regulated these facilities, found that full implementation of CURFFL (now CRFC) would have adversely affect many of these facilities and would be inappropriate for these facilities which, in many instances, serve six or fewer children or adults. 7.OSHPD. OSHPD is responsible for monitoring the construction, renovation, and seismic safety of hospitals and skilled nursing facilities in California. The Facilities Development Division Building Standards Unit within OSHPD develops administrative regulations and building standards, per the CA Building Standards Code, for the construction of hospitals, skilled nursing facilities, licensed clinics and correctional treatment centers in California. Any remodeling or upgrades that occur in an LTCF must first go through the OSHPD review and approval process. 8.Prior legislation. AB 1014 (Fletcher), Chapter 159, Statutes of 2011, exempts premises set aside by a beer manufacturer, as defined, for beer tasting, from the definition of a food facility, thereby, exempting beer tasting premises from the provisions of the CRFC. AB 1773 (2008) would have required CDPH to review the food safety and dietary services requirements for LTCFs by January 1, 2010. AB 1773 died on the Senate inactive file. SB 144 (Runner), Chapter 23, Statutes of 2006, repealed CURFFL, and effective July 1, 2007, enacted its provisions into the CRFC to govern all aspects of retail food sanitation in California. AB 1188 exempts child day care facilities, CCFs, and RCFEs from the CRFC and requires DSS to develop alternative food AB 2297 | Page 7 preparation provisions to apply to these facilities. 9.Support. The California Association of Health Facilities (CAHF) supports this bill because it resolves two substantial concerns CAHF members have expressed with CRFC. CAHF explains that the problems this bill is attempting to solve started back in 2006 when the CURFFL was recast into the CRFC. That legislation classified licensed health care facilities under the definition of "food facility" and subjected them to CRFC requirements, including permitting and inspection by the LEHDs. Many CAHF facilities expressed concern about the duplication of inspections done by the county, often with differing standards than those required by state and federal agencies. CAHF notes that current CRFC statutes recognize certain exemptions for other provider categories, such as RCFEs and child care facilities, which are not deemed to be food facilities. Similar to ICF/DD facilities, these examples are also subject to state licensing requirements and are routinely inspected by their respective state oversight entities. CAHF also notes additional problems with inspections at SNFs, where county surveyors have cited facilities for physical plant issues that were supposed to be grandfathered under the provisions of SB 144. This has created unintentional conflict between the county-level structural improvement process for food facilities and the current system which places health facilities under the jurisdiction of OSHPD for oversight of structural improvements. 10.Policy comment. According to proponents, the majority of ICF/DD facilities have fewer than six beds. Proponents have limited the number of beds in this bill to six, asserting that facilities with six or fewer beds are more likely to be regular homes. Facilities with more than six beds are more likely to be nursing or residential care facilities, and less expected to be home-like. The definitions in statute allow for capacity of up to eight beds in an ICF/DD-CN, and up to fifteen beds in an ICF/DD-H and ICF/DD-N. Should this bill pass, there will be entities within the same licensing category that will be subject to different inspection requirements. 11.Technical Amendment. On page 6, line 12, staff recommends replacing "compliance" with "compliant." AB 2297 | Page 8 SUPPORT AND OPPOSITION : Support: Aging Services of California (with amendment) Association of Regional Center Agencies Congress of California Seniors Crestwood Behavioral Health, Inc. California Association of Health Facilities Oppose: None received. -- END --