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1.Establishes the CRFC, which repealed the California Uniform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---
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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
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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
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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
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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
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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
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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."
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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.
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