BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 2297|
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                                 THIRD READING


          Bill No:  AB 2297
          Author:   Hayashi (D)
          Amended:  5/15/12 in Assembly
          Vote:     21

           
           SENATE HEALTH COMMITTEE  :  9-0, 6/27/12
          AYES:  Hernandez, Harman, Alquist, Anderson, Blakeslee, De 
            León, DeSaulnier, Rubio, Wolk

           SENATE APPROPRIATIONS COMMITTEE :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  77-0, 5/21/12 - See last page for vote


           SUBJECT  :    California Retail Food Code:  skilled nursing 
          facilities: 
                      intermediate care facilities for the 
          developmentally disabled

           SOURCE  :     Author


           DIGEST  :    This bill excludes intermediate care facilities 
          for the developmentally disabled (ICF/DDs) 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 
          over licensed skilled nursing facilities (SNFs) when 
          enforcing structural modification requirements in the CRFC.

           ANALYSIS  :    Existing law:

                                                           CONTINUED





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          1.Establishes the CRFC, which repealed the California 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 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 







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               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. 

          1.Provides for the licensure and regulation of ICF/DDs and 
            SNFs by the Department of Public Health (DPH) Licensing 
            and Certification Branch. 

          2.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.

          3.Authorizes OSHPD to prescribe minimum construction 
            standards of adequacy and safety for health facilities in 
            California.

          4.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, 







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            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 DPH 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.

           Background
           
           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.

           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 DPH, the scope of its authority for all of 







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          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. DPH notes that, during federal 
          recertification surveys, it does not have the authority to 
          enforce the CRFC, and DPH 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. 

          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 permitting and 
          inspection requirements by LEHDs.  According to DPH, 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.  

           DPH report  .  In a June 2009 DPH report comparing food 
          safety-related requirements for LTCFs, DPH 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, DPH 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, 







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          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. 

           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 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.

           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.

           OSHPD  .  OSHPD is responsible for monitoring the 
          construction, renovation, and seismic safety of hospitals 







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          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. 

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  Yes

           SUPPORT  :   (Verified  8/7/12)

          Association of Regional Center Agencies
          Congress of California Seniors
          Crestwood Behavioral Health, Inc.
          California Association of Health Facilities

           ARGUMENTS IN 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. 
          


           ASSEMBLY FLOOR  :  77-0, 5/21/12
          AYES:  Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, 







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            Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Butler, Charles Calderon, Campos, 
            Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, 
            Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth 
            Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, 
            Hagman, Halderman, Hall, Harkey, Hayashi, Hill, Huber, 
            Hueso, Huffman, Jeffries, Jones, Knight, Lara, Logue, 
            Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, 
            Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, 
            V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, 
            Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, 
            Williams, Yamada, John A. Pérez
          NO VOTE RECORDED:  Fletcher, Roger Hernández, Perea


          CTW:nd  8/17/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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