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: 8/24/12 in Senate
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 (Consent) - 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.
Senate Floor Amendments of 8/24/12 prevent chaptering-out
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conflicts with AB 1616 (Gatto), and clarify that ICF/DDs
with six beds or fewer, as described, are excluded from
classification as licensed health care facilities under the
CRFC.
ANALYSIS : 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1.Establishes the CRFC, which repealed the California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 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 four 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
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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 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 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 four to eight 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
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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 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
SNFs 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.
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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
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
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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.
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, which regulated these facilities, found that full
implementation of CURFFL (now CRFC) would have adversely
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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
and SNFs in California. The Facilities Development
Division Building Standards Unit within OSHPD develops
administrative regulations and building standards, per the
California Building Standards Code, for the construction of
hospitals, SNFs, 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 8/27/12)
Association of Regional Center Agencies
California Association of Health Facilities
Congress of California Seniors
Crestwood Behavioral Health, Inc.
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.
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ASSEMBLY FLOOR : 77-0, 5/21/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
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 8/27/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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