CHAPTER 2.4. Quality of Long-Term Health Facilities [1417 - 1439.8]
( Chapter 2.4 added by Stats. 1973, Ch. 1057. )
This chapter shall be known and may be cited as the Long-Term Care, Health, Safety, and Security Act of 1973.
(Added by Stats. 1973, Ch. 1057.)
It is the intent of the Legislature in enacting this chapter to establish (1) a citation system for the imposition of prompt and effective civil sanctions against long-term health care facilities in violation of the laws and regulations of this state, and the federal laws and regulations as applicable to nursing facilities as defined in subdivision (k) of Section 1250, relating to patient care; (2) an inspection and reporting system to ensure that long-term health care facilities are in compliance with state statutes and regulations pertaining to patient care; and (3) a provisional licensing mechanism to ensure that full-term licenses are issued only to those long-term health care facilities that meet state standards relating to patient care.
(Amended by Stats. 1992, Ch. 1163, Sec. 2. Effective January 1, 1993. Amendatory changes are conditionally inoperative as prescribed by Sec. 8 of Ch. 1163.)
(a)
(1)
If one or more of the following remedies is actually imposed for violation of state or federal requirements, the long-term health care facility shall post a notice of the imposed remedy or remedies, in the form specified in subdivision (c), on all doors providing ingress to or egress from the facility, except as specified in paragraph (2):
(A)
License suspension.
(B)
Termination of certification for Medicare or Medi-Cal.
(C)
Denial of payment by Medicare or Medi-Cal for all otherwise eligible residents.
(D)
Denial of payment by Medicare or Medi-Cal for otherwise eligible incoming residents.
(E)
Ban on admission of any type.
(2)
For purposes of this subdivision, a distinct part nursing facility shall only be required to post the notice on all main doors providing ingress to or egress from the distinct part, and not on all of the doors providing ingress to or egress from the facility. An intermediate care facility/developmentally disabled habilitative and an intermediate care facility/developmentally disabled-nursing shall post this notice on the inside of all doors providing ingress to or egress from the facility.
(b)
A violation of the requirement of subdivision (a) shall be issued and enforced in the manner of a class “B” violation.
(c)
The form of the notice established pursuant to subdivision (a) shall be entitled “Notice of Violation Remedies.” Each notice shall list the remedy or remedies imposed, as set forth in subdivision (a), and shall include the date the remedy was imposed. The notice shall be typeset on white bond paper, 8
1/2 x 11 inches in size, in boldface black type in a 16-point sans serif type font. A facility may remove the notice on or after the date on which the sanction is lifted.
(Amended by Stats. 2001, Ch. 685, Sec. 11. Effective January 1, 2002.)
(a) Notwithstanding Section 1428, moneys collected as a result of state and federal civil penalties imposed under this chapter or federal law shall be deposited into accounts that are hereby established in the Special Deposit Fund created pursuant to Section 16370 of the Government Code. These accounts are titled the State Health Facilities Citation Penalties Account, into which moneys derived from civil penalties for violations of state law shall be deposited, and the Federal Health Facilities Citation Penalties Account, into which moneys derived from civil penalties for violations of federal law shall be deposited. Moneys from these accounts shall be used, notwithstanding Section 16370 of the Government Code, upon appropriation by the Legislature, in accordance with state and federal law for the protection of health or
property of residents of long-term health care facilities, including, but not limited to, the following:
(1) Relocation expenses incurred by the department, in the event of a facility closure.
(2) Maintenance of facility operation pending correction of deficiencies or closure, such as temporary management or receivership, in the event that the revenues of the facility are insufficient.
(3) Reimbursing residents for personal funds lost. In the event that the loss is a result of the actions of a long-term health care facility or its employees, the revenues of the facility shall first be used.
(4) The costs associated with informational meetings required under Section 1327.2.
(5) Support for
the Long-Term Care Ombudsman Program established pursuant to Chapter 11 (commencing with Section 9700) of Division 8.5 of the Welfare and Institutions Code in an amount appropriated from the State Health Facilities Citation Penalties Account for this purpose in the annual Budget Act.
(b) Notwithstanding subdivision (a), the balance in the State Health Facilities Citation Penalties Account shall not, at any time, exceed ten million dollars ($10,000,000).
(c) Moneys from the Federal Health Facilities Citation Penalties Account may also be used, notwithstanding Section 16370 of the Government Code, upon
appropriation by the Legislature, in accordance with state and federal law for the improvement of quality of care and quality of life for long-term health care facilities residents pursuant to Section 1417.3.
(d) The department shall post on its
internet website, and shall update on a quarterly basis, all of the following regarding the funds in the State Health Facilities Citation Penalties Account and the Federal Health Facilities Citation Penalties Account:
(1) The specific sources of funds deposited into the account.
(2) The amount of funds in the account that have not been allocated.
(3) A detailed description of how funds in the account have been allocated and expended, including, but not limited to, the names of persons or entities that received the funds, the amount of salaries paid to temporary managers, and a description of equipment purchased with the funds. However, the description shall not include the names of residents.
(Amended by Stats. 2023, Ch. 42, Sec. 18. (AB 118) Effective July 10, 2023.)
The department shall promote quality of care and quality of life for residents, clients, and patients in long-term health care facility services through specific activities that include, but are not limited to, all of the following:
(a)
Research and evaluation of innovative facility resident care models.
(b)
(1)
Provision of statewide training on effective facility practices.
(2)
Training also shall include topics related to the provision of quality of care and quality of life for facility residents. The topics for training shall be identified by the department through a periodic survey. The curriculum for the training provided under this paragraph shall be developed in consultation with representatives from provider associations, consumer associations, and others, as deemed appropriate by the state department.
(c)
The establishment of separate units to respond to facility requests for technical assistance regarding licensing and certification requirements, compliance with federal and state standards, and related operational issues.
(d)
State employees providing technical assistance to facilities pursuant to this section are only required to report violations they discover during the provision of the assistance to the appropriate district office if the violations constitute an immediate and serious threat to the health and welfare of, or have resulted in actual harm to, patients, residents, or clients of the facility.
(e)
The state department shall measure facility satisfaction and the effectiveness of the technical assistance provided pursuant to subdivision (c).
(f)
No person employed in the technical assistance or training units under subdivisions (b) and (c) shall also participate in the licensing, surveying, or direct regulation of facilities.
(g)
This section shall not diminish the department’s ongoing survey and enforcement process.
(Amended by Stats. 2001, Ch. 685, Sec. 12. Effective January 1, 2002.)
(a)
There is hereby established in the state department the Quality Awards Program for nursing homes.
(b)
The department shall establish criteria under the program, after consultation with stakeholder groups, for recognizing all skilled nursing facilities that provide exemplary care to residents.
(c)
(1)
Monetary awards shall be made to Quality Awards Program recipients that serve high proportions of Medi-Cal residents to the extent funds are appropriated each year in the annual Budget Act.
(2)
Monetary awards presented under this section and paid for by funds appropriated from the General Fund shall be used for staff bonuses and distributed in accordance with criteria established by the department.
(3)
Monetary awards presented under this section and paid for from funds from the Federal Citation Penalty Account shall be used to fund innovative facility grants to improve the quality of care and quality of life for residents in skilled nursing facilities, or to fund innovative efforts to increase employee recruitment, or retention, or both, subject to federal approval.
(d)
The department shall establish criteria for selecting facilities to receive the quality awards, in consultation with senior advocacy organizations, employee labor organizations representing facility employees, nursing home industry representatives, and other interested parties as deemed appropriate by the department. The criteria established pursuant to this subdivision shall not be considered regulations within the meaning of Section 11342 of the Government Code, and shall not be subject to adoption as regulations pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(e)
The department shall publish an annual listing of the Quality Awards Program recipients with the dollar amount awarded, if applicable. The department shall also publish an annual listing of the Quality Awards Program recipients that receive innovative facility grants with the purpose of the grant and the grant amount.
(f)
All of the funds available for the programs described in this section shall be disbursed to qualified facilities by January 1, 2002, and January 1 of each year thereafter.
(Amended by Stats. 2001, Ch. 171, Sec. 2.3. Effective August 10, 2001.)
As used in this chapter:
(a) “Long-term health care facility” means any facility licensed pursuant to Chapter 2 (commencing with Section 1250) that is any of the following:
(1) Skilled nursing facility.
(2) Intermediate care facility.
(3) Intermediate care facility/developmentally disabled.
(4) Intermediate care facility/developmentally disabled habilitative.
(5) Intermediate care facility/developmentally disabled-nursing.
(6) Congregate living health facility.
(7) Nursing facility.
(8) Intermediate care facility/developmentally disabled-continuous nursing.
(b) “Long-term health care facility” also includes a pediatric day health and respite care facility licensed pursuant to Chapter 8.6 (commencing with Section 1760).
(c) “Long-term health care facility” does not include a general acute care hospital or an acute psychiatric hospital, except for that distinct part of the hospital that provides skilled nursing facility, intermediate care facility, intermediate care facility/developmentally disabled, or pediatric day health and respite care facility services.
(d) “Licensee” means the holder of a license issued under Chapter 2 (commencing with Section 1250) or Chapter 8.6 (commencing with Section 1760) for a long-term health care facility.
(Amended by Stats. 2013, Ch. 724, Sec. 2. (SB 651) Effective January 1, 2014.)
(a)
Any person receiving respite care services shall be permitted to bring medications to the skilled nursing facility or intermediate care facility if the contents have been examined and positively identified upon the patient’s admission to the facility by the patient’s personal physician and surgeon or a pharmacist retained by the facility.
(b)
A skilled nursing facility or intermediate care facility providing respite care services shall not be required to afford a person receiving respite care services a bedhold when the person is transferred to a general acute care hospital, as defined in Section 1250.
(c)
A skilled nursing facility or intermediate care facility providing respite care services shall permit the personal physician and surgeon of a person receiving respite care services to issue advance orders for care and treatment for a period not to exceed 90 days from the date of admission of the person, based on the person’s medical history, diagnosis, and physical assessment conducted upon admission. The skilled nursing facility or intermediate care facility may readmit the person for respite care services on the basis of the advance orders for care and treatment, unless the personal physician and surgeon of the person indicates that there has been a significant change in the person’s medical condition. These advance orders shall only be used by the skilled nursing or intermediate care facility during periods in which the person is receiving respite care services.
(d)
A skilled nursing facility or intermediate care facility providing respite care services may implement an abbreviated resident assessment and care planning procedure for persons admitted for respite care services consistent with the facility’s obligation to protect the health and safety of residents and the general public. The abbreviated resident assessment and care planning procedure shall address the necessary care services required by the person admitted for respite care during the length of the respite care stay. The abbreviated resident assessment and care planning procedure documents do not have to be updated with every readmission of the same person to the facility for respite care services, unless the personal physician and surgeon of the person indicates that there has been a significant change in the person’s medical condition.
(e)
As used in this section, “respite care services” means service provided to frail elderly or functionally impaired persons in a licensed skilled nursing facility or intermediate care facility, as defined in Section 1250, on a temporary or periodic basis to relieve persons who are providing their care at home.
(f)
As used in this section, “temporary or periodic” means a period of time not to exceed 15 consecutive days or a total of 45 days in any one year.
(g)
No more than 10 percent of a skilled nursing or intermediate care facility’s total licensed bed capacity may be used during any one calendar year for the provision of respite care services as defined in this section. A facility may exceed this limit with the prior written approval of the State Department of Health Services.
(Added by Stats. 1990, Ch. 1329, Sec. 4. Effective September 26, 1990.)
(a)
Every facility licensed pursuant to subdivisions (c), (d), (e), and (g) of Section 1250 and every skilled nursing facility licensed separately under subdivision (a) of Section 1250 shall establish and maintain a resident council. Each council shall include the residents of the health facility, and may include family members of residents, advocates, or ombudsman groups interested in residents of health facilities, and personnel of the health facility. Family members of residents shall be invited to meetings of resident councils.
The council shall meet at regularly scheduled intervals, maintain written minutes, including names of council members present, and have minutes available for review by the state department upon its request. Facility policies on resident councils shall in no way limit the right of residents to meet independently with outside persons or facility personnel as determined solely by the residents of the facility.
Written minutes of regularly scheduled council meetings may include recommendations from the council to the licensee of the health facility which shall be provided to the licensee. The licensee shall provide evidence of review and action on these recommendations to the state department upon its request.
(b)
Any health facility which fails to establish a resident council as prescribed in subdivision (a) shall be subject to the provisions of Section 1280.
(c)
The state department shall, by regulation, specify those circumstances under which a health facility may be exempted from the provisions of subdivisions (a) and (b), including, but not limited to, the following:
(1)
A resident population consisting of a majority of patients with progressively disabling disorders defined in Section 1250.4.
(2)
Facilities with no more than six residents which provide alternate means for residents to actively share in planning and enhancing of life in the facility.
(3)
Other circumstances as determined by the state department.
(Amended by Stats. 1986, Ch. 1351, Sec. 3.)
(a) A skilled nursing facility that has been certified for purposes of Medicare or Medicaid shall post the overall facility rating information determined by the federal Centers for Medicare and Medicaid Services (CMS) in accordance with the following requirements:
(1) The information shall be posted in at least the following locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, such as dining, resident
council meetings, or activities.
(2) The information shall be posted on white or light-colored paper that includes all of the following, in the following order:
(A) The full name of the facility, in a clear and easily readable font of at least 28 point.
(B) The full address of the facility in a clear and easily readable font of at least 20 point.
(C) The most recent overall star rating given by CMS to that facility, except that a facility shall have seven business days from the date when it receives a different rating from CMS to include the updated rating in the posting. The star rating shall be aligned in the center of the page. The star rating shall be expressed as the number that reflects the number of stars given to the facility by CMS. The number
shall be in a clear and easily readable font of at least two inches print.
(D) Directly below the star symbols shall be the following text in a clear and easily readable font of at least 28 point:
“The above number is out of 5 stars.”
(E) Directly below the text described in subparagraph (D) shall be the following text in a clear and easily readable font of at least 14 point:
“This facility is reviewed annually and has been licensed by the State of California and certified by the federal Centers for Medicare and Medicaid Services (CMS). CMS rates facilities that are certified to accept Medicare or Medicaid. CMS gave the above rating to this facility. A detailed explanation of this rating is maintained at this facility and will be made available upon request. This information can also be accessed
online at the Nursing Home Compare Internet Web site at http://www.medicare.gov/NHcompare. Like any information, the Five-Star Quality Rating System has strengths and limits. The criteria upon which the rating is determined may not represent all of the aspects of care that may be important to you. You are encouraged to discuss the rating with facility staff. The Five-Star Quality Rating System was created to help consumers, their families, and caregivers compare nursing homes more easily and help identify areas about which you may want to ask questions. Nursing home ratings are assigned based on ratings given to health inspections, staffing, and quality measures. Some areas are assigned a greater weight than other areas. These ratings are combined to calculate the overall rating posted here.”
(F) Directly below the text described in subparagraph (E), the following text shall appear in a clear and easily readable font of at least 14 point:
“State licensing information on skilled nursing facilities is available on the State Department of Public Health’s Internet Web site at: www.cdph.ca.gov, under Programs, Licensing and Certification, Health Facilities Consumer Information System.”
(3) For the purposes of this section, “a detailed explanation of this rating” shall include, but shall not be limited to, a printout of the information explaining the Five-Star Quality Rating System that is available on the CMS Nursing Home Compare Internet Web site. This information shall be maintained at the facility and shall be made available upon request.
(4) The requirements of this section shall be in addition to any other posting or inspection report
availability requirements.
(b) Violation of this section shall constitute a class B violation, as defined in subdivision (e) of Section 1424 and, notwithstanding Section 1290, shall not constitute a crime. Fines from a violation of this section shall be deposited into the State Health Facilities Citation Penalties Account, created pursuant to Section 1417.2.
(c) This section shall be operative on January 1, 2011.
(Amended by Stats. 2010, Ch. 328, Sec. 120. (SB 1330) Effective January 1, 2011.)
(a) The Legislature finds and declares that it is the public policy of this state to ensure the health and safety of highly vulnerable persons residing in skilled nursing facilities during power outages that may result from a public safety power shutoff, an emergency, a natural disaster, or other cause.
(b) (1) A skilled nursing facility shall have an alternative source of power to protect resident health and safety for no fewer than 96 hours during any type of power outage.
(2) For purposes of this section, “alternative source of power” means a source of electricity that is not received through an electric utility but is generated or stored onsite, which may include, but is not
limited to, emergency generators using fuel, large capacity batteries, and renewable electrical generation facilities.
(c) For purposes of this section, “resident health and safety” includes, but is not limited to, maintaining a safe temperature for residents, maintaining availability of life-saving equipment, and maintaining availability of oxygen-generating devices.
(d) A facility that uses a generator as its alternative source of power shall maintain sufficient fuel onsite to maintain generator operation for no less than 96 hours or make arrangements for fuel delivery for an emergency event. If fuel is to be delivered during an emergency event, the facility shall ensure that fuel will be available with no delays.
(e) A facility that uses batteries or a combination of batteries in tandem with a renewable electrical
generation facility as its alternative source of power shall have sufficient storage or generation capacity to maintain operation for no fewer than 96 hours. A facility shall also make arrangements for delivery of a generator and fuel in the event power is not restored within 96 hours and the generation capacity of the renewable electrical generation facility is unable to provide sufficient power to comply with state requirements for long-term care facilities.
(f) A facility shall comply with the requirements of this section by January 1, 2024.
(Amended by Stats. 2023, Ch. 131, Sec. 101. (AB 1754) Effective January 1, 2024.)
(a)
Each licensed skilled nursing facility shall, when requested by a member of a patient’s family, allow the family to meet privately with a family member who is a resident in the facility.
(b)
“Family member” for the purposes of this section means an immediate family member or family member designated and documented on the patient’s record at the time of admission to the facility.
(Added by Stats. 1987, Ch. 1125, Sec. 1.)
(a) A licensed skilled nursing facility or intermediate care facility shall not prohibit the formation of a family council. If requested by a member of the resident’s family or the resident representative, the family council shall be allowed to meet in a common meeting room of the facility at least once per month during mutually agreed-upon hours. A family council shall also be allowed to meet virtually or at an offsite location at its discretion.
(b) Facility policies on family councils shall in no way limit the right of residents, family members, and family council members to meet independently with outside persons, including members of nonprofit or
governmental organizations or with facility personnel during nonworking hours.
(c) For purposes of this section, “family council” means a meeting of family members, friends, or representatives of two or more residents to confer in private without facility staff.
(d) A family council shall be provided with adequate space on a prominent bulletin board or other posting area for the display of meeting notices, minutes, newsletters, or other information pertaining to the operation or interest of the family council.
(e) A person other than a family member, friend, or resident
representative, including facility staff, may attend a family council meeting, but only at the invitation of the family council.
(f) The facility shall provide a designated staff person, approved by the family council, who shall be responsible for providing assistance and responding to written requests that result from family council meetings. The family council may request an alternate staff person as needed.
(g) The facility shall consider the views and act upon the grievances and recommendations of a family council concerning proposed policy and operational decisions affecting resident care and life in the facility.
(h) If a family council submits written requests, concerns, or recommendations,
the facility shall respond in writing regarding any action or inaction taken in response to the requests, concerns, or recommendations within 14 calendar days and shall detail its rationale for that response.
(i) (1) If a facility has a family council, the facility shall inform the
resident and the resident’s representatives, family members, or other individuals designated by the resident and identified on the contract of admission, during the admission process, or in the resident’s records of the existence of the family council and provide the name and contact information of the family council representative, as designated by the family council, in writing, prior to or within five business days after the resident’s admission. When family council meeting information is provided by the family council, the facility shall include notice of the family council meetings in quarterly mailings to those family members, friends, and resident representatives. The notice shall include the time, place, and date of meetings, and the name and contact information of the family council representative, as designated by the family council.
(2) If a facility does not have a family council, the facility shall provide, upon admission of a new resident, written information to the resident’s family members, friends, or resident representatives identified on the contract of admission, during the admission process, or in the resident’s records, of their right to form a family council.
(j) (1) A facility shall provide the family council with the names, email addresses, and other contact information
for each resident’s representatives, family members, or other individuals designated by the resident if the person has provided written consent specifying the contact information that may be shared with the family council.
(2) The facility must inform the identified family members, friends, and representatives of their right to have their contact information shared with the family council pursuant to paragraph (1).
(3) This subdivision shall be implemented only to the extent that it is not in conflict with state and federal law.
(k) A facility shall not willfully interfere with the formation, maintenance, or promotion of a family council, or with a family council’s participation in governmental
surveys or inspection activities performed by any applicable departments or other governmental entities. For purposes of this subdivision, willful interference shall include, but shall not be limited to, discrimination or retaliation in any way against an individual as a result of their participation in a family council, refusal to publicize family council meetings or provide appropriate space for meetings or postings as required under this section, failure to respond to written requests, concerns, or recommendations by a family council as required under this section, or the willful scheduling of facility events in conflict with a previously scheduled family council meeting.
(l) (1) A violation of this section shall constitute a violation of resident rights.
(2) A violation of this section shall constitute a class “B” violation, as defined in Section 1424.
(3) A violation of this section shall not be subject to Section 1290.
(Repealed and added by Stats. 2023, Ch. 821, Sec. 3. (AB 979) Effective January 1, 2024.)
No regulation adopted with respect to skilled nursing facilities or intermediate care facilities shall prohibit patients in the facility from storing nonprescription or topical ophthalmic medications at their bedside unless contraindicated by the patient’s attending physician or the facility.
(Amended by Stats. 1982, Ch. 408, Sec. 1.)
No long-term health care facility shall accept or retain any patient for whom it cannot provide adequate care.
(Added by Stats. 1985, Ch. 11, Sec. 7. Effective March 6, 1985.)
(a)
Long-term health care facilities, as defined in Section 1418, shall develop and implement policies and procedures designed to reduce theft and loss.
(b)
The facility program shall include all of the following:
(1)
Establishment and posting of the facility’s theft and loss policies.
(2)
Orientation of employees to those policies.
(3)
Documentation of theft and loss of property with a value of twenty-five dollars ($25) or more.
(4)
Inventory of patient’s personal property upon admission.
(5)
Inventory of and surrender of patient’s personal property upon death or discharge.
(6)
Regular review of the effectiveness of the policies and procedures.
(7)
Marking of patient’s personal property, including dentures and prosthetic and orthopedic devices.
(8)
Reports to local law enforcement of stolen property with a value of one hundred dollars ($100) or more.
(9)
Methods for securing personal property.
(10)
Notification of residents and families of the facility’s policies.
(c)
The policies and procedures developed by the facilities pursuant to this section shall be in accordance with Section 1289.4, as added by Assembly Bill 2047 of the 1987–88 Regular Session of the Legislature, if that bill is enacted and becomes effective.
(d)
If a facility has shown clear and convincing evidence of its efforts to comply with the requirements of this section, no citation shall be issued as a result of the occasional occurrence of theft and loss in a facility.
(Added by Stats. 1987, Ch. 1226, Sec. 1.)
(a) If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to make decisions concerning the resident’s health care and that there is no person with legal authority to make those decisions on behalf of the resident, the physician and surgeon shall inform the skilled nursing facility or intermediate care facility.
(b) For purposes of subdivision (a), a resident lacks capacity to make a decision regarding the resident’s health care if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the patient, review the patient’s medical records, and consult with skilled nursing or intermediate care facility staff, as appropriate, and family members and friends of the resident, if any have been identified.
(c) For purposes of subdivision (a), a person with legal authority to make medical treatment decisions on behalf of a patient is a person designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin. To determine
the existence of a person with legal authority, the physician shall interview the patient, review the medical records of the patient, and consult with skilled nursing or intermediate care facility staff, as appropriate, and with family members and friends of the resident, if any have been identified.
(d) The attending physician and the skilled nursing facility or intermediate care facility may initiate a medical intervention that requires informed consent pursuant to subdivision (e) in accordance with acceptable standards of practice.
(e) Where a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician and surgeon that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and there is no person with legal authority to make those decisions on
behalf of the resident, the facility shall, except as provided in subdivision (h), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention. The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and, where practicable, a patient representative, in accordance with applicable federal and state requirements. The review shall include all of the following:
(1) A review of the physician’s assessment of the resident’s condition.
(2) The reason for the proposed use of the medical intervention.
(3) A discussion of the desires of the patient, where known. To determine the desires of the resident, the interdisciplinary team shall interview the patient, review the patient’s medical records, and consult with family members or friends, if any have been identified.
(4) The type of medical intervention to be used in the resident’s care, including its probable frequency and duration.
(5) The probable impact on the resident’s condition, with and without the use of the medical intervention.
(6) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.
(f) A patient representative may include a family member or friend of the
resident who is unable to take full responsibility for the health care decisions of the resident, but who has agreed to serve on the interdisciplinary team, or other person authorized by state or federal law.
(g) The interdisciplinary team shall periodically evaluate the use of the prescribed medical intervention at least quarterly or upon a significant change in the resident’s medical condition.
(h) In case of an emergency, after obtaining a physician and surgeon’s order as necessary, a skilled nursing or intermediate care facility may administer a medical intervention that requires informed consent prior to the facility convening an interdisciplinary team review. If the emergency results in the application of physical or chemical restraints, the interdisciplinary team shall meet within one week of the emergency for an evaluation of the medical intervention.
(i) Physicians and surgeons and skilled nursing facilities and intermediate care facilities shall not be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering a medical intervention which requires informed consent if the requirements of this section are met.
(j) Nothing in this section shall in any way affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief to review the decision to provide the medical intervention.
(k) No physician or other health care provider, whose action under this section is in accordance with reasonable medical standards, is subject to administrative sanction if the physician or
health care provider believes in good faith that the action is consistent with this section and the desires of the resident, or if unknown, the best interests of the resident.
(l) The determinations required to be made pursuant to subdivisions (a), (e), and (g), and the basis for those determinations shall be documented in the patient’s medical record and shall be made available to the patient’s representative for review.
(m) This section shall remain operative only until the earlier of the following dates, and as of the following January 1, is repealed:
(1) January 1, 2022, or the date the Director of the California
Department of Aging certifies to the State Public Health Officer and provides public notice that the Long-Term Care Patient Representative Program is operational pursuant to Section 9295 of the Welfare and Institutions Code, whichever is later.
(2) July 1, 2022.
(Amended by Stats. 2021, Ch. 85, Sec. 10. (AB 135) Effective July 16, 2021. Conditionally operative July 1, 2022, or earlier date, as prescribed by its own provisions. Repealed on January 1 after operative date. See later operative version added by Sec. 11 of Stats. 2021, Ch. 85.)
(a) The following definitions apply for purposes of this section:
(1) “Emergency” means a situation when medical treatment is immediately necessary for the preservation of life, the prevention of serious bodily harm, or the alleviation of severe physical pain or severe and sustained emotional distress.
(2) “Legal decisionmaker” means any of the following:
(A) A conservator, as authorized by Part 3 (commencing with Section 1800) and Part 4 (commencing with Section 2100) of Division 4 of the Probate Code.
(B) A person designated by a resident as an
agent in an advanced health care directive pursuant to Part 1 (commencing with Section 4600) and Part 2 (commencing with Section 4670) of Division 4.7 of the Probate Code.
(C) A person designated by a resident as a surrogate pursuant to Part 1 (commencing with Section 4600) and Part 2 (commencing with Section 4670) of Division 4.7 of the Probate Code.
(D) A person appointed by a court authorizing treatment pursuant to Part 7 (commencing with Section 3200) of Division 4 of the Probate Code.
(E) A resident’s spouse or registered domestic partner.
(F) A parent or guardian of a resident who is a minor.
(G) A resident’s closest available relative or another person whom the resident’s
physician and surgeon, nurse practitioner, or physician’s assistant reasonably believes has authority to make health decisions on behalf of the resident and that will make decisions in accordance with the resident’s best interests and expressed wishes and values to the extent known.
(H) Any other person authorized by state or federal law.
(3) “Patient” or “resident” means a patient or resident of a skilled nursing facility or an intermediate care facility.
(4) “Patient representative” means a competent person whose interests are aligned with a resident who has agreed to serve on an interdisciplinary team for the purposes of this section. A patient representative may be a family member or friend of the resident who is unable to take full responsibility for the health care decisions of the resident, but who has agreed
to serve on the interdisciplinary team, or another person authorized by state or federal law. If a family member or friend is not available to serve as the patient representative, the Long-Term Care Patient Representative Program may designate a public patient representative.
(5) “Long-Term Care Patient Representative Program” means the program established pursuant to Chapter 3.6 (commencing with Section 9260) of Division 8.5 of the Welfare and Institutions Code in the California Department of Aging, including the Office of the Long-Term Care Patient Representative and local long-term care patient representative programs, as defined in that chapter. Whenever this section requires a notice or communication to be provided to the Long-Term Care Patient Representative Program, the notice shall be provided to the California Department of Aging or the local long-term care patient representative program, as designated by the California Department of
Aging pursuant to that chapter.
(6) “Public patient representative” means a patient representative selected by the Long-Term Care Patient Representative Program.
(7) “Facilities” means skilled nursing facilities and intermediate care facilities.
(b) If the attending physician and surgeon of a resident in a skilled nursing facility or intermediate care facility prescribes or orders a medical intervention that requires that informed consent be obtained prior to administration of the medical intervention, but is unable to obtain informed consent because the physician and surgeon determines that the resident lacks capacity to provide informed consent, the physician and surgeon shall document the determination that the resident lacks capacity and the basis for that determination in the resident’s medical record, and shall
inform the skilled nursing facility or intermediate care facility. For purposes of this subdivision, a resident lacks capacity to provide informed consent if the resident is unable to understand the nature and consequences of the proposed medical intervention, including its risks and benefits, or is unable to express a preference regarding the intervention. To make the determination regarding capacity, the physician shall interview the resident, review the resident’s medical records, and consult with the staff of the skilled nursing facility or intermediate care facility, as appropriate, and family members and friends of the resident, if any have been identified. The facility shall make a reasonable effort to reach these identified individuals.
(c) (1) Upon being notified by the attending physician of a determination that a resident lacks capacity to provide informed consent, the skilled nursing facility or intermediate
care facility shall act promptly and identify, or use due diligence to search for, a legal decisionmaker. If a legal decisionmaker cannot be identified or located, the skilled nursing or intermediate care facility shall take further steps to promptly identify, or use due diligence to search for, a patient representative to participate on an interdisciplinary team review as set forth in subdivision (e). Due diligence includes, at minimum, interviewing the resident, reviewing the medical records of the resident, and consulting with the staff of the skilled nursing or intermediate care facility, as appropriate, and with family members and friends of the resident, if any have been identified. The facility shall make a reasonable effort to reach these identified individuals.
(2) If the resident is able to express a preference as to the identity of the patient representative, or if the resident previously designated an individual to act as a patient
representative, the facility shall make a good faith effort to utilize this individual as the patient representative to the extent that the individual is available and willing to serve on the interdisciplinary team.
(3) The facility shall document in the resident’s records the efforts that were made to find a legal decisionmaker, or alternatively, a patient representative, to otherwise serve on the interdisciplinary team.
(4) In the event that a facility is unable to identify a family member or friend able to serve as the patient representative within 72 hours of a physician’s determinations pursuant to subdivision (b), the skilled nursing facility or intermediate care facility shall contact the Long-Term Care Patient Representative Program for selection of a public patient representative.
(5) A facility may contact
the Long-Term Care Patient Representative Program for selection of a public patient representative before the completion of 72 hours if the facility determines that a legal decisionmaker, family member, or friend is unlikely to be located. The facility shall continue to use due diligence to search for a legal decisionmaker or a family member or friend able to serve as the patient representative.
(6) If a family member or friend becomes available to serve as the patient representative after the selection of a public patient representative, the family member or friend may replace the public patient representative.
(d) (1) At least five days prior to conducting an interdisciplinary team review pursuant to subdivision (f), the facility shall provide notice to the resident and the patient representative in accordance with subdivision (m).
(2) (A) Notwithstanding paragraph (1), if the physician and surgeon determines that the resident will suffer harm or severe and sustained emotional distress if the prescribed medical intervention is delayed at least five days, an interdisciplinary team review may occur if notice is provided to the resident and patient representative at least 24 hours prior to conducting an interdisciplinary team review.
(B) The physician and surgeon shall document the determination that the resident will suffer harm or severe and sustained emotional distress if the prescribed intervention is delayed at least five days, and the basis for that determination, in the resident’s medical record.
(3) The notice shall include information regarding all of the following:
(A) That the resident lacks capacity to provide informed consent and the reasons for that determination.
(B) That a legal decisionmaker is not available.
(C) A description of the proposed medical intervention that has been prescribed or ordered and the name and telephone number of the medical director of the facility and of the physician and surgeon who ordered the medical intervention.
(D) That a decision on whether to proceed with the medical intervention will be made using the interdisciplinary team review, an explanation of the interdisciplinary team review process for the administration of medical interventions, including that the resident has the right to have a patient representative participate in the interdisciplinary team review process, and that if the resident does not have a representative,
a public patient representative from the Long-Term Care Patient Representative Program will be assigned.
(E) The date and time of the interdisciplinary team review.
(F) The name and contact information of the individual identified by the facility as the resident’s patient representative, or that a public patient representative from the Long-Term Care Patient Representative Program will be assigned.
(G) The name, mailing address, email address, and telephone number of the designated local contact of the Long-Term Care Patient Representative Program.
(H) The name, mailing address, email address, and telephone number of the local office of the Long-Term Care Ombudsman.
(I) The name, mailing
address, email address, and telephone number of the agency responsible for the protection and advocacy of individuals with developmental disabilities or mental disorders.
(J) That the resident has the right to judicial review to contest the physician and surgeon’s determinations, the use of an interdisciplinary team to review and administer medical treatment, or the decisions made by the interdisciplinary team.
(4) The Long-Term Care Patient Representative Program shall provide a standardized template for the notice required by paragraph (3). A facility that utilizes the standardized template shall be responsible for adding information, in sufficient detail, pertaining to the resident and required contact information.
(5) The medical director of the facility or the physician and surgeon who ordered the medical
intervention shall be available to discuss the risks and benefits associated with the medical intervention or interventions proposed, and available alternatives with the patient representative and the resident at least 48 hours prior to the interdisciplinary team review, except for interdisciplinary team reviews occurring with less than five days’ prior notice pursuant to paragraph (2).
(e) (1) When a resident of a skilled nursing facility or intermediate care facility has been prescribed a medical intervention by a physician and surgeon that requires informed consent and the physician has determined that the resident lacks capacity to make health care decisions and the facility has determined that there is no legal decisionmaker, the facility shall, except as provided in subdivision (h), conduct an interdisciplinary team review of the prescribed medical intervention prior to the administration of the medical intervention.
The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning, and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and a patient representative, in accordance with applicable federal and state requirements. An interdisciplinary team review shall not occur without the participation of a patient representative and until the notice required by subdivision (d) has been provided to the resident and patient representative.
(2) The interdisciplinary team review shall include all of the following:
(A) A review of the physician’s assessment of the resident’s condition.
(B) The reason for the proposed use of the
medical intervention.
(C) A discussion of the desires of the resident, if known. To determine the desires of the resident, the interdisciplinary team shall interview the resident, review the resident’s medical records, consult with family members or friends, if any have been identified, and review any prior expressions of the resident’s health care wishes, including checking registries for an advanced health care directive or physician’s orders for life-sustaining treatment, as specified in Part 4 (commencing with Section 4780) of Division 4.7 of the Probate Code, executed prior to the physician’s determinations in subdivision (b) and not executed by the resident during any period of incapacity, to the extent available and capable of being timely accessed. Any specific prior expression of the resident’s health care wishes shall be afforded particular consideration unless the wishes are inconsistent with the best interests of the resident,
require medically ineffective health care, or are contrary to generally accepted health care standards applicable to the health care provider, institution, or resident.
(D) The type of medical intervention to be used in the resident’s care, including its probable frequency and duration.
(E) The probable impact on the resident’s condition, with and without the use of the medical intervention.
(F) Reasonable alternative medical interventions considered or utilized and reasons for their discontinuance or inappropriateness.
(3) The patient representative shall have access to all of the resident’s medical records and otherwise confidential health information in the possession of the facility necessary to prepare for and participate in the interdisciplinary
team review.
(f) A notice of the outcome of the interdisciplinary team review and of the resident’s right to judicial review shall be provided to the resident and patient representative in accordance with subdivision (m).
(g) The interdisciplinary team shall periodically evaluate the use of the prescribed medical intervention at least quarterly, upon a significant change in the resident’s medical condition, or upon the resident’s or the patient representative’s request. The facility shall provide notice of the interdisciplinary team review pursuant to subdivision (d) and the outcome of the interdisciplinary team review pursuant to subdivision (f).
(h) (1) In case of an emergency, after obtaining a physician and surgeon’s order as necessary, a skilled nursing or intermediate care facility may
administer a medical intervention that requires informed consent prior to the facility issuing the notice required pursuant to subdivision (d) and prior to convening an interdisciplinary team review. The emergency shall be documented in the resident’s records and, within 24 hours, notice of the intervention and the resident’s right to judicial review shall be provided to the resident and the patient representative, pursuant to subdivision (m). The facility shall conduct the interdisciplinary team review within one week of the emergency for an evaluation of the medical intervention.
(2) In cases where an emergency results in the application of a medical intervention to treat severe and sustained emotional distress, or the application of physical or chemical restraints, the facility shall notify the Long-Term Care Patient Representative Program within 24 hours of administration of the intervention and shall make prompt efforts to convene an
interdisciplinary team review within three days of administration of the intervention, but no later than one week. The facility shall notify the Long-Term Care Patient Representative Program of an emergency medical intervention described by this paragraph even if an alternative patient representative is available.
(3) If a facility fails to conduct an interdisciplinary team review within the time specified by this subdivision for any reason, including, but not limited to, if a previously identified family member or friend is not available to participate as a patient representative, the facility shall notify the Long-Term Care Patient Representative Program of the delay and its causes. The program may assign a public patient representative when appropriate.
(i) (1) Physicians and surgeons, skilled nursing facilities, and intermediate care facilities shall not
be required to obtain a court order pursuant to Section 3201 of the Probate Code prior to administering a medical intervention which requires informed consent if the requirements of this section are met. Except in case of emergency, as provided in subdivision (h), the proposed medical intervention shall not be administered until it has been reviewed and authorized by the interdisciplinary team, after having reached a consensus, the resident and the patient representative have received notice pursuant to subdivision (f) of the outcome of the interdisciplinary review team process, and the resident has had reasonable opportunity to seek judicial review. If judicial review is sought, the intervention shall not be administered until a final determination is made by a court, except in cases of emergency as provided in subdivision (h).
(2) If an interdisciplinary team does not reach consensus to authorize or continue a medical intervention, and the
facility decides to proceed with the intervention, the facility shall petition to obtain a court order pursuant to Section 3201 of the Probate Code to authorize the medical intervention.
(j) This section does not affect the right of a resident of a skilled nursing facility or intermediate care facility for whom medical intervention has been prescribed, ordered, or administered pursuant to this section to seek appropriate judicial relief, at any time, to review the decision that a resident lacks capacity, that the resident lacks a legal decisionmaker, or to provide the medical intervention.
(k) A physician or other health care provider whose action under this section is in accordance with reasonable medical standards shall not be subject to administrative sanction if the physician or health care provider believes in good faith that the action is consistent with this section and
the desires of the resident, or if unknown, the best interests of the resident.
(l) (1) A facility that conducts an interdisciplinary review shall provide to the Long-Term Care Patient Representative Program data summarizing the notices provided to all residents pursuant to subdivisions (d), (f), and (h), including all of the following:
(A) The total number of interdisciplinary reviews conducted.
(B) The number of unique residents who have had an interdisciplinary team review conducted.
(C) The total number of emergency medical interventions authorized pursuant to subdivision (h).
(D) The number of unique residents who have had an emergency medical intervention
authorized.
(E) A tabulation of medical interventions authorized by type.
(F) A tabulation of the outcomes of the interdisciplinary team reviews.
(G) A tabulation of instances when judicial review was sought.
(H) A tabulation of emergency medical interventions where the interdisciplinary team failed to meet within the time required by subdivision (h), including the causes of the delay and the number of days after the intervention that the interdisciplinary team finally met.
(I) Any other demographic or statistical data as may be required by the program.
(2) Facilities shall report data annually and at any other time, as
requested, in a format specified by the program.
(3) The department may require a facility to include the information described in paragraph (1) in the resident’s minimum data set, as specified by Section 14110.15 of the Welfare and Institutions Code. The department shall obtain any federal approval necessary to implement this paragraph.
(m) (1) Whenever this section requires a notice to be provided to a resident, the notice shall be provided orally and in writing. The notice shall be provided in the resident’s primary or preferred language, if known; however, if written translation services are not timely available, oral notice shall be provided in the resident’s primary or preferred language and written notice may be provided in English. If the resident is hearing impaired or vision impaired, the facility shall provide notice in an accessible format.
(2) Whenever this section requires a notice to be provided to a resident, a copy of the notice in writing, and a second copy translated into English if applicable, shall be concurrently provided to the resident’s patient representative. If a patient representative has not been identified, or if the patient representative cannot be readily contacted, the concurrent notice shall be provided to the Long-Term Care Patient Representative Program.
(3) A copy of a written notice required to be provided by this section, and if applicable, a second copy translated into English, shall be entered into the resident’s record.
(n) (1) A patient representative shall not be a provider of health care to the resident and shall not be financially compensated by, have a financial interest in, or be an employee, former
employee, or volunteer of the facility or related entities. Related organizations include the facility licensee’s entities, organizations, subsidiaries, affiliates, parent companies, contractors, subcontractors, or vendors.
(2) Notwithstanding paragraph (1), a family member of the resident may serve as a patient representative if they are an employee, former employee, or volunteer of the facility or related entities. A former employee or volunteer may serve as a patient representative at the facility they were previously affiliated with after two years of separation from the facility or related entities. A former employee or volunteer is not precluded from serving as a patient representative for a facility that they were not previously affiliated with.
(o) If the Long-Term Care Patient Representative Program is not operational, a facility shall provide all notices otherwise
required by this section to be provided to the Long-Term Care Patient Representative Program, to the local Long-Term Care Ombudsman or any other person or entity as may be permitted by law.
(p) This section shall become operative on the earlier of the following dates:
(1) January 1, 2022, or the date the Director of the California Department of Aging certifies to the State Public Health Officer and provides public notice that the Long-Term Care Patient Representative Program is operational pursuant to Section 9295 of the Welfare and Institutions Code, whichever is later.
(2) July 1, 2022.
(Repealed (in Sec. 10) and added by Stats. 2021, Ch. 85, Sec. 11. (AB 135) Effective July 16, 2021. Conditionally operative July 1, 2022, or earlier date, as prescribed by its own provisions.)
(a)
In order to assure the provision of quality patient care and as part of the planning for that quality patient care, commencing at the time of admission, a skilled nursing facility, as defined in subdivision (c) of Section 1250, shall include in a resident’s care assessment the resident’s projected length of stay and the resident’s discharge potential. The assessment shall include whether the resident has expressed or indicated a preference to return to the community and whether the resident has social support, such as family, that may help to facilitate and sustain return to the community. The assessment shall be recorded with the relevant portions of the minimum data set, as described in Section 14110.15 of the Welfare and Institutions Code. The plan of care shall reflect, if applicable, the care ordered by the attending physician needed to assist the resident in achieving the resident’s preference of return to the community.
(b)
The skilled nursing facility shall evaluate the resident’s discharge potential at least quarterly or upon a significant change in the resident’s medical condition.
(c)
The interdisciplinary team shall oversee the care of the resident utilizing a team approach to assessment and care planning and shall include the resident’s attending physician, a registered professional nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and, where practicable, a resident’s representative, in accordance with applicable federal and state requirements.
(d)
If return to the community is part of the care plan, the facility shall provide to the resident or responsible party and document in the care plan the information concerning services and resources in the community. That information may include information concerning:
(1)
In-home supportive services provided by a public authority or other legally recognized entity, if any.
(2)
Services provided by the Area Agency on Aging, if any.
(3)
Resources available through an independent living center.
(4)
Other resources or services in the community available to support return to the community.
(e)
If the resident is otherwise eligible, a skilled nursing facility shall make, to the extent services are available in the community, a reasonable attempt to assist a resident who has a preference for return to the community and who has been determined to be able to do so by the attending physician, to obtain assistance within existing programs, including appropriate case management services, in order to facilitate return to the community. The targeted case management services provided by entities other than the skilled nursing facility shall be intended to facilitate and sustain return to the community.
(f)
Costs to skilled nursing facilities to comply with this section shall be allowable for Medi-Cal reimbursement purposes pursuant to Section 1324.25, but shall not be considered a new state mandate under Section 14126.023 of the Welfare and Institutions Code.
(Added by Stats. 2004, Ch. 875, Sec. 2. Effective September 29, 2004.)
(a)
If the attending physician and surgeon of a resident in a skilled nursing facility prescribes, orders, or increases an order for an antipsychotic medication for the resident, the physician and surgeon shall do both of the following:
(1)
Obtain the informed consent of the resident for purposes of prescribing, ordering, or increasing an order for the medication.
(2)
Seek the consent of the resident to notify the resident’s interested family member, as designated in the medical record. If the resident consents to the notice, the physician and surgeon shall make reasonable attempts, either personally or through a designee, to notify the interested family member, as designated in the medical record, within 48 hours of the prescription, order, or increase of an order.
(b)
Notification of an interested family member is not required under paragraph (2) of subdivision (a) if any of the following circumstances exist:
(1)
There is no interested family member designated in the medical record.
(2)
The resident has been diagnosed as terminally ill by his or her physician and surgeon and is receiving hospice services from a licensed, certified hospice agency in the facility.
(3)
The resident has not consented to the notification.
(c)
As used in this section, the following definitions shall apply:
(1)
“Resident” means a patient of a skilled nursing facility who has the capacity to consent to make decisions concerning his or her health care, including medications.
(2)
“Designee” means a person who has agreed with the physician and surgeon to provide the notice required by this section.
(3)
“Antipsychotic medication” means a medication approved by the United States Food and Drug Administration for the treatment of psychosis.
(4)
“Increase of an order” means an increase of the dosage of the medication above the dosage range stated in a prior consent from the resident.
(d)
This section shall not be construed to require consent from an interested family member for an attending physician and surgeon of a resident to prescribe, order, or increase an order for antipsychotic medication.
(Added by Stats. 2000, Ch. 46, Sec. 1. Effective January 1, 2001.)
(a)
A long-term health care facility shall report all incidents of alleged abuse or suspected abuse of a resident of the facility to the department immediately, or within 24 hours.
(b)
A failure to comply with the requirements of this section shall be a class “B” violation.
(c)
For purposes of this section, “abuse” shall mean any of the conduct described in subdivisions (a) and (b) of Section 15610.07 of the Welfare and Institutions Code.
(d)
This section shall not change any reporting requirements under Section 15630 of the Welfare and Institutions Code, or as otherwise specified in the Elder Abuse and Dependent Adult Civil Protection Act, Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code.
(Added by Stats. 2000, Ch. 451, Sec. 17. Effective January 1, 2001.)
(a)
The department shall establish a centralized consumer response unit within the Licensing and Certification Division of the department to respond to consumer inquiries and complaints.
(b)
Upon receipt of consumer inquiries, the unit shall offer assistance to consumers in resolving concerns about the quality of care and the quality of life in long-term health care facilities.
This assistance may include, but shall not be limited to, all of the following:
(1)
Offering to provide to consumers education and information about state licensing and federal certification standards, resident rights, name and address of facilities, referral to other entities as appropriate, and facility compliance history.
(2)
Offering to participate in telephone conference calls between consumers and providers to resolve concerns within the scope of the authority of the department. If the inquiry or concern is determined to warrant an onsite investigation, the inquiry or concern shall be considered a complaint and handled pursuant to the complaint investigation process set forth in Section 1420.
(3)
Initiating onsite investigations in response to oral or written complaints made pursuant to this section if the unit determines that there is a reasonable basis to believe that the allegations in the complaints describe one or more violations of state law by a long-term care facility.
(c)
Nothing in subdivision (a) or (b) shall preclude the department from taking any or all enforcement actions available under state or federal law.
(d)
Any person may request an inspection of any long-term health care facility in accordance with this chapter by giving to the department oral or written notice of an alleged violation of applicable requirements of state law. Any written notice may be signed by the complainant setting forth with reasonable particularity the matters complained of. Oral notice may be made by telephone or personal visit. Any oral complaint shall be reduced to writing by the department. The substance of the complaint shall be provided to the licensee no earlier than at the commencement of the inspection.
(e)
Neither the substance of the complaint provided the licensee nor any copy of the complaint or record published, released, or otherwise made available to the licensee shall disclose the name of any individual complainant or other person mentioned in the complaint, except the name or names of any duly authorized officer, employee, or agent of the state department conducting the investigation or inspection pursuant to this chapter, unless the complainant specifically requests the release of the name or names or the matter results in a judicial proceeding.
(Amended by Stats. 2001, Ch. 680, Sec. 3. Effective January 1, 2002.)
(a) (1) Upon receipt of a written or oral complaint, the state department shall assign an inspector to make a preliminary review of the complaint and shall notify the complainant within two working days of the receipt of the complaint of the name of the inspector. Unless the state department determines that the complaint is willfully intended to harass a licensee or is without any reasonable basis, it shall make an onsite inspection or investigation within 10 working days of the receipt of the complaint. In any case in which the complaint involves a threat of imminent danger of death or serious bodily harm, the state department shall make an onsite inspection or investigation within 24 hours of the receipt of the complaint.
In any event, the complainant shall be promptly informed of the state department’s proposed course of action and of the opportunity to accompany the inspector on the inspection or investigation of the facility. Upon the request of either the complainant or the state department, the complainant or his or her representative, or both, may be allowed to accompany the inspector to the site of the alleged violations during his or her tour of the facility, unless the inspector determines that the privacy of any patient would be violated thereby.
(2) When conducting an onsite inspection or investigation pursuant to this section, the state department shall collect and evaluate all available evidence and may issue a citation based upon, but not limited to, all of the following:
(A) Observed conditions.
(B) Statements of
witnesses.
(C) Facility records.
(3) (A) For a complaint that involves a threat of imminent danger of death or serious bodily harm that is received on or after July 1, 2016, the state department shall complete an investigation of the complaint within 90 days of receipt of the complaint. At the completion of the complaint investigation, the state department shall notify the complainant and licensee in writing of the state department’s determination as a result of the inspection or investigation.
(B) The time period described in subparagraph (A) may be extended up to an additional 60 days if the investigation cannot be completed due to extenuating circumstances. The state department shall document these circumstances in its final determination and notify the facility and the complainant in
writing of the basis for the extension and the estimated completion date.
(4) (A) For a complaint that does not involve a threat of imminent danger of death or serious bodily harm pursuant to paragraph (3) and that is received on or after July 1, 2017, and prior to July 1, 2018, the state department shall complete an investigation of the complaint within 90 days of receipt of the complaint. At the completion of the complaint investigation, the state department shall notify the complainant and licensee in writing of the state department’s determination as a result of the inspection or investigation.
(B) The time period described in subparagraph (A) may be extended up to an additional 90 days if the investigation cannot be completed due to extenuating circumstances. The state department shall document these circumstances in its final determination and notify
the facility and the complainant in writing of the basis for the extension and the estimated completion date.
(5) (A) For a complaint that is received on or after July 1, 2018, the state department shall complete an investigation of the complaint within 60 days of receipt of the complaint. At the completion of the complaint investigation, the state department shall notify the complainant and licensee in writing of the state department’s determination as a result of the inspection or investigation.
(B) The time period described in subparagraph (A) may be extended up to an additional 60 days if the investigation cannot be completed due to extenuating circumstances. The state department shall document these circumstances in its final determination and notify the facility and the complainant in writing of the basis for the extension and the estimated completion
date.
(b) Upon being notified of the state department’s determination as a result of the inspection or investigation, a complainant who is dissatisfied with the state department’s determination, regarding a matter which would pose a threat to the health, safety, security, welfare, or rights of a resident, shall be notified by the state department of the right to an informal conference, as set forth in this section. The complainant may, within five business days after receipt of the notice, notify the director in writing of his or her request for an informal conference. The informal conference shall be held with the designee of the director for the county in which the long-term health care facility which is the subject of the complaint is located. The long-term health care facility may participate as a party in this informal conference. The director’s designee shall notify the complainant and licensee of his or her determination within 10
working days after the informal conference and shall apprise the complainant and licensee in writing of the appeal rights provided in subdivision (c).
(c) If the complainant is dissatisfied with the determination of the director’s designee in the county in which the facility is located, the complainant may, within 15 days after receipt of this determination, notify in writing the Deputy Director of the Licensing and Certification Division of the state department, who shall assign the request to a representative of the Complainant Appeals Unit for review of the facts that led to both determinations. As a part of the Complainant Appeals Unit’s independent investigation, and at the request of the complainant, the representative shall interview the complainant in the district office where the complaint was initially referred. Based upon this review, the Deputy Director of the Licensing and Certification Division of the state department shall make
his or her own determination and notify the complainant and the facility within 30 days.
(d) Any citation issued as a result of a conference or review provided for in subdivision (b) or (c) shall be issued and served upon the facility within 30 days of the final determination. Service shall be effected either personally or by registered or certified mail. A copy of the citation shall also be sent to each complainant by registered or certified mail.
(e) A miniexit conference shall be held with the administrator or his or her representative upon leaving the facility at the completion of the investigation to inform him or her of the status of the investigation. The state department shall also state the items of noncompliance and compliance found as a result of a complaint and those items found to be in compliance, provided the disclosure maintains the anonymity of the complainant.
In any matter in which there is a reasonable probability that the identity of the complainant will not remain anonymous, the state department shall also notify the facility that it is unlawful to discriminate or seek retaliation against a resident, employee, or complainant.
(f) Any citation issued as a result of the complaint investigation provided for in paragraph (3), (4), or (5) of subdivision (a), and in compliance with Section 1423, shall be issued and served upon the facility within 30 days of the completion of the complaint investigation.
(g) For purposes of this section, “complaint” means any oral or written notice to the state department, other than a report from the facility of an alleged violation of applicable requirements of state or federal law or any alleged facts that might constitute such a violation.
(h) Nothing in this section shall be interpreted to diminish the state department’s authority and obligation to investigate any alleged violation of applicable requirements of state or federal law, or any alleged facts that might constitute a violation of applicable requirements of state or federal law, and to enforce applicable requirements of law.
(Amended by Stats. 2015, Ch. 18, Sec. 9. (SB 75) Effective June 24, 2015.)
(a)
Any duly authorized officer, employee, or agent of the state department may enter and inspect any long-term health care facility, including, but not limited to, interviewing residents and reviewing records, at any time to enforce any provision of this chapter.
(b)
Patients shall be treated with consideration, respect, and full recognition of dignity during the course of the investigation or inspection.
(c)
Inspections conducted pursuant to complaints filed with the state department shall be conducted in such a manner as to ensure maximum effectiveness while respecting the rights of patients in the facility. No advance notice shall be given of any inspection conducted pursuant to this chapter unless previously and specifically authorized by the director or required by federal law.
(d)
Any public employee giving any advance notice in violation of this section shall be deemed to be in violation of subdivision (t) of Section 19572 of the Government Code and shall be suspended from all duties without pay for a period determined by the director.
(e)
Except as otherwise specified by law, any duly authorized officer, employee, or agent of the state department shall not limit the scope of practice of registered nurses acting under Section 2725 of the Business and Professions Code. Further, these agents shall not prohibit the performing of functions by registered nurses when those nurses are performing under standardized procedures, where their activity is consistent with the scope of nursing practice, as set forth in Section 2725 of the Business and Professions Code.
(Amended by Stats. 1986, Ch. 1351, Sec. 4.)
(a)
Within 24 hours of the occurrence of any of the events specified in subdivision (b), the licensee of a skilled nursing facility shall notify the department of the occurrence. This notification may be in written form if it is provided by telephone facsimile or overnight mail, or by telephone with a written confirmation within five calendar days. The information provided pursuant to this subdivision may not be released to the public by the department unless its release is needed to justify an action taken by the department or it otherwise becomes a matter of public record. A violation of this section is a class “B” violation.
(b)
All of the following occurrences shall require notification pursuant to this section:
(1)
The licensee of a facility receives notice that a judgment lien has been levied against the facility or any of the assets of the facility or the licensee.
(2)
A financial institution refuses to honor a check or other instrument issued by the licensee to its employees for a regular payroll.
(3)
The supplies, including food items and other perishables, on hand in the facility fall below the minimum specified by any applicable statute or regulation.
(4)
The financial resources of the licensee fall below the amount needed to operate the facility for a period of at least 45 days based on the current occupancy of the facility. The determination that financial resources have fallen below the amount needed to operate the facility shall be based upon the current number of occupied beds in the facility multiplied by the current daily Medi-Cal reimbursement rate multiplied by 45 days.
(5)
The licensee fails to make timely payment of any premiums required to maintain required insurance policies or bonds in effect, or any tax lien levied by any government agency.
(Amended by Stats. 2001, Ch. 685, Sec. 14. Effective January 1, 2002.)
(a)
(1)
Within 24 hours of the filing of a bankruptcy petition under Title 11 of the United States Code or any other laws of the United States, by any person or entity holding a controlling interest in a long-term health care facility, the licensee of the long-term health care facility shall provide written notification to the department of the filing of the petition and the location of the court in which the petition was filed. The written notification may be provided to the department by telephone facsimile or overnight mail.
(2)
Within 24 hours of the appointment of a trustee by the bankruptcy court, the long-term health care facility shall provide written notification to the department of the name, address, and telephone number of the trustee. The written notification may be provided to the department by telephone facsimile or overnight mail.
(3)
The department shall provide written notification to the trustee of the requirements of operating a licensed long-term health care facility within three days of being notified of the appointment of the trustee. The contents of this written notice may be provided to the trustee by telephone facsimile or overnight mail and shall include, but not be limited to, all of the following:
(A)
The trustee is required to manage and operate the long-term health care facility according to the requirements of state law, in the same manner that the owner or possessor of the facility would be required to manage and operate the facility, including, but not limited to, complying with Article 8.5 (commencing with Section 1336) of Chapter 2, Chapter 3.9 (commencing with Section 1599), and Sections 72527, 73523, and 76525 of Title 22 of the California Code of Regulations.
(B)
The transfer of patients pursuant to the liquidation of a licensed long-term health care facility presents a compelling public health and safety risk, and the trustee will not be exempted from complying with applicable state law for any reason.
(b)
(1)
As mandated by subdivision (b) of Section 959 of Title 28 of the United States Code, an individual appointed as a trustee in a bankruptcy proceeding described in this section that involves any person or entity holding a controlling interest in a long-term health care facility shall comply with all state licensing and federal certification requirements applicable to the long-term health care facility, including, but not limited to, those governing patient rights, transfer or discharge, and facility closure. The transfer of patients pursuant to the liquidation of a licensed long-term health care facility presents a compelling public health and safety risk, and a trustee shall not be exempted from complying with applicable state law for any reason.
(2)
If a trustee fails to comply with the state licensing requirements applicable to a long-term health care facility, the department shall report the trustee’s actions to the bankruptcy court and intervene as appropriate to ensure continued facility compliance with those requirements.
(Added by Stats. 1998, Ch. 474, Sec. 1. Effective January 1, 1999.)
(a) The Legislature finds and declares that it is the public policy of this state to ensure that long-term health care facilities provide the highest level of care possible. The Legislature further finds that inspections are the most effective means of furthering this policy. It is not the intent of the Legislature by the amendment of subdivision (b) enacted by Chapter 1595 of the Statutes of 1982 to reduce in any way the resources available to the department for inspections, but rather to provide the department with the greatest flexibility to concentrate its resources where they can be most effective. It is the intent of the Legislature to create a survey process that includes state-based survey components and that determines
compliance with federal and California requirements for certified long-term health care facilities. It is the further intent of the Legislature to execute this inspection in the form of a single survey process, to the extent that this is possible and permitted under federal law. The inability of the state to conduct a single survey in no way exempts the state from the requirement under this section that state-based components be inspected in long-term health care facilities as required by law.
(b) (1) Notwithstanding Section 1279 or any other law, without providing notice of these inspections, the department, in addition to any inspections conducted pursuant to
complaints filed pursuant to Section 1419, shall conduct inspections
of each skilled nursing facility at least once every 30 months and all other long-term care facilities at least once every 24 months, and as often as necessary to ensure the health, safety, and security of patients in long-term health care facilities. Facilities that have been issued a class “AA,” class “A,” or class “B” citation within the past 12 months shall be inspected annually. The department shall vary the cycle in which inspections of long-term health care facilities are conducted to reduce the predictability of the inspections.
(2) Inspections and investigations of long-term health care facilities that are certified by the Medicare Program or the Medicaid program shall determine compliance with federal standards and California statutes and regulations to the extent that California statutes and regulations provide greater protection to residents, or are more precise than federal standards, as determined by the department. Notwithstanding any other law, the department, without taking regulatory action pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code, may implement, interpret, or make specific this paragraph by means of an All Facilities Letter (AFL) or similar instruction. Prior to issuing an AFL or similar instruction, the department shall consult with interested parties and shall inform the appropriate committees of the Legislature. The department shall also post the AFL or similar instruction on its internet website so that any person may observe which California laws and regulations provide greater protection to its residents or are more precise than federal standards. This subdivision is not intended to change existing statutory or regulatory requirements governing the care provided to long-term health care facility residents.
(3) In order to ensure maximum effectiveness of inspections conducted pursuant to this article, the department shall identify all state law standards for the staffing and operation of long-term health care facilities. Costs of the additional survey and inspection activities required by Chapter 895 of the Statutes of 2006 shall be included as Licensing and Certification Program activities for the purposes of calculating fees in accordance with Section 1266.
(c) Except as otherwise provided in subdivision (b), the department shall conduct unannounced direct patient care inspections to inspect physician and surgeon services, nursing services, pharmacy services, dietary services, and activity programs of all the long-term health care facilities. Facilities evidencing repeated serious problems in complying with this chapter or a history of poor performance, or both, shall be
subject to periodic unannounced direct patient care inspections during the inspection year. The direct patient care inspections shall assist the department in the prioritization of its efforts to correct facility deficiencies.
(d) A long-term health care facility shall report to the department any changes in the nursing home administrator or the director of nursing services within 10 calendar days of the
changes.
(e) Within 90 days after the receipt of notice of a change in the nursing home administrator or the director of nursing services, the department may conduct an abbreviated inspection of the long-term health care facilities.
(f) If a change in a nursing home administrator occurs and the Board of Nursing Home Administrators notifies the department that the new administrator is on probation or has had their license suspended within the previous three years, the department shall conduct an abbreviated survey of the long-term health care facility employing that administrator within 90 days of notification.
(Amended by Stats. 2022, Ch. 277, Sec. 2. (AB 1907) Effective January 1, 2023.)
(a) Notwithstanding Section 1422, the State Department of Public Health shall conduct, when feasible, annual licensing inspections of licensed long-term health care facilities providing special treatment programs for the mentally disordered, concurrently with inspections conducted by the State Department of Health Care Services for the purposes of approving the special treatment program.
(b) The State Department of Public Health survey teams conducting inspections pursuant to this section shall include at least one licensed mental health professional if the inspections are not done concurrently pursuant to subdivision (a).
(c) Survey team members shall receive training specific to the mental health treatment needs of mentally disordered residents served in these facilities.
(Amended by Stats. 2012, Ch. 34, Sec. 15. (SB 1009) Effective June 27, 2012.)
(a)
The department shall develop and establish a consumer information service system to provide updated and accurate information to the general public and consumers regarding long-term care facilities in their communities. The consumer information service system shall include, but need not be limited to, all of the following elements:
(1)
An on-line inquiry system accessible through a statewide toll-free telephone number and the Internet.
(2)
Long-term health care facility profiles, with data on services provided, a history of all citations and complaints for the last two full survey cycles, and ownership information. The profile for each facility shall include, but not be limited to, all of the following:
(A)
The name, address, and telephone number of the facility.
(B)
The number of units or beds in the facility.
(C)
Whether the facility accepts Medicare or Medi-Cal patients.
(D)
Whether the facility has a special care unit or program for people with Alzheimer’s disease and other dementias, and whether the facility participates in the voluntary disclosure program for special care units.
(E)
Whether the facility is a for-profit or not-for-profit provider.
(3)
Information regarding substantiated complaints shall include the action taken and the date of action.
(4)
Information regarding the state citations assessed shall include the status of the state citation, including the facility’s plan or correction, and information as to whether an appeal has been filed.
(5)
Any appeal resolution pertaining to a citation or complaint shall be updated on the file in a timely manner.
(b)
Where feasible, the department shall interface the consumer information service system with its Automated Certification and Licensure Information Management System.
(c)
It is the intent of the Legislature that the department, in developing and establishing the system pursuant to subdivision (a), maximize the use of available federal funds.
(d)
(1)
Notwithstanding the consumer information service system established pursuant to subdivision (a), by January 1, 2002, the state department shall develop a method whereby information is provided to the public and consumers on long-term health care facilities. The information provided shall include, but not be limited to, all of the following elements:
(A)
Substantiated complaints, including the action taken and the date of the action.
(B)
State citations assessed, including the status of any citation and whether an appeal has been filed.
(C)
State actions, including license suspensions, revocations, and receiverships.
(D)
Federal enforcement sanctions imposed, including any denial of payment, temporary management, termination, or civil money penalty of five hundred dollars ($500) or more.
(E)
Any information or data beneficial to the public and consumers.
(2)
This subdivision shall become inoperative on July 1, 2003.
(e)
In implementing this section, the department shall ensure the confidentiality of personal and identifying information of residents and employees and shall not disclose this information through the consumer information service system developed pursuant to this section.
(Amended by Stats. 2001, Ch. 685, Sec. 16. Effective January 1, 2002.)
Each skilled nursing facility and intermediate care facility shall post a copy of the notice required pursuant to Section 9718 of the Welfare and Institutions Code in a conspicuous location in at least four areas of the facility, as follows:
(a)
One location that is accessible to members of the public.
(b)
One location that is used for employee breaks.
(c)
One location that is next to a telephone designated for resident use.
(d)
One location that is used for communal functions for residents, such as for dining or resident council meetings and activities.
(Added by Stats. 2000, Ch. 451, Sec. 22. Effective January 1, 2001.)
(a) Prior to or at the time of admission, a skilled nursing facility, as defined in subdivision (c) of Section 1250, or an intermediate care facility, as defined in subdivision (d) of Section 1250, shall provide to a prospective resident, or the resident’s representative, if any, a written notice, including the telephone number, internet website address, and email address for the local long-term care ombudsman and links to the State Department of Public Health’s licensing and certification internet website, the California Health Facility Information Database (Cal Health Find) page, and to CalLongTermCareCompare.org. The notice also shall state that the ombudsman is intended as a resource for both of the following purposes:
(1) Accessing
additional information regarding resident care at the facility.
(2) Reporting resident care complaints.
(b) The notice required by this section is in addition to any other notice a skilled nursing facility or an intermediate care facility is required by law to provide. Notwithstanding paragraph (1) of subdivision (b) of Section 1599.61, the notice may be incorporated into the skilled nursing facility and intermediate care facility standard admission agreement required by Section 1599.61.
(Added by Stats. 2022, Ch. 577, Sec. 1. (AB 895) Effective January 1, 2023.)
The state department shall provide the office, as defined in subdivision (c) of Section 9701 of the Welfare and Institutions Code, with copies of inspection reports for long-term health care facilities upon request. The state department shall provide the office with copies of all class “AA,” “A,” and “B” citations issued.
(Added by Stats. 1984, Ch. 1632, Sec. 3.)
(a) If upon inspection or investigation the director determines that a nursing facility is in violation of any state or federal law or regulation relating to the operation or maintenance of the facility, or determines that any other long-term health care facility is in violation of any statutory provision or regulation relating to the operation or maintenance of the facility, the director shall promptly, but not later than 24 hours, excluding Saturday, Sunday, and holidays, after the director determines or has reasonable cause to determine that an alleged violation has occurred, issue a notice to correct the violation and of intent to issue a citation to the licensee. Before completing the investigation and making the final determination whether
to issue a citation, the department shall hold an exit conference with the licensee to identify the potential for issuing a citation for any violation, discuss investigative findings, and allow the licensee to provide the department with additional information related to the violation. The department shall consider this additional information, in conjunction with information from the inspection or investigation, in determining whether to issue a citation, or whether other action would be appropriate. If the department determines that the violation warrants the issuing of a citation and an exit conference has been completed it shall do either of the following:
(1) Recommend the imposition of a federal enforcement remedy or remedies on a nursing facility in accordance with federal law; or
(2) (A) Issue a citation pursuant to state licensing laws, and, if the facility is a nursing facility, may recommend the imposition of a federal enforcement remedy.
(B) A state citation shall be served upon the licensee within 30 days after completion of the investigation. Service shall be effected either personally or by registered or certified mail. A copy of the citation shall also be sent to each complainant. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the statutory provision, standard, rule, or regulation alleged to have been violated, the particular place or area of the facility in which the violation occurred, as well as the amount of any proposed assessment of a civil penalty. The name of any patient jeopardized by the
alleged violation shall not be specified in the citation in order to protect the privacy of the patient. However, at the time the licensee is served with the citation, the licensee shall also be served with a written list of each of the names of the patients alleged to have been jeopardized by the violation, which shall not be subject to disclosure as a public record. The citation shall fix the earliest feasible time for the elimination of the condition constituting the alleged violation, when appropriate.
(b) When no harm to patients, residents, or guests has occurred, a single incident, event, or occurrence shall result in no more than one citation for each statute or regulation violated.
(c) A citation shall not be issued for a violation that has been reported by the licensee to
the department, or its designee, as an “unusual occurrence,” if all of the following conditions are met:
(1) The violation has not caused harm to any patient, resident, or guest, or significantly contributed thereto.
(2) The licensee has promptly taken reasonable measures to correct the violation and to prevent a recurrence.
(3) The unusual occurrence report was the first source of information reported to the department, or its designee, regarding the violation.
(Amended by Stats. 2022, Ch. 28, Sec. 83. (SB 1380) Effective January 1, 2023.)
(a)
The state department shall centrally review federal deficiencies and supporting documentation that may require the termination of certification for a nursing facility. The state department shall develop a standardized methodology for conducting the central review of these deficiencies. The standardized methodology shall assess all of the following:
(1)
The extent to which the survey team followed established survey protocols.
(2)
The thoroughness of the investigation or review.
(3)
The quality of documentation.
(4)
The consistency in interpreting federal requirements.
(b)
The state department shall develop a system for tracking patterns and a quality assurance process for preventing, detecting, and correcting inconsistent or poor quality survey practices.
(c)
(1)
On or before December 1 of each year, the state department shall provide to the Legislature a summary of federal and state enforcement actions taken against nursing facilities during the previous state fiscal year.
(2)
The report summarizing federal and state enforcement actions required under this subdivision shall be combined with the report required under Section 1438 into a single report. The time period for each report shall cover the previous state fiscal year.
(Amended by Stats. 2001, Ch. 685, Sec. 17. Effective January 1, 2002.)
Citations issued pursuant to this chapter shall be classified according to the nature of the violation and shall indicate the classification on the face thereof.
(a) In determining the amount of the civil penalty, all relevant facts shall be considered, including, but not limited to, the following:
(1) The probability and severity of the risk that the violation presents to the resident’s mental and physical condition.
(2) The resident’s medical condition.
(3) The resident’s mental condition and the resident’s history of
mental disability or disorder.
(4) The good faith efforts exercised by the facility to prevent the violation from occurring.
(5) The licensee’s history of compliance with regulations.
(b) Relevant facts considered by the department in determining the amount of the civil penalty shall be documented by the department on an attachment to the citation and available in the public record. This requirement shall not preclude the department or a facility from introducing facts not listed on the citation to support or challenge the amount of the civil penalty in any proceeding set forth in Section 1428.
(c) (1) Class “AA” violations are violations that
meet the criteria for a class “A” violation and that the department determines to have been a substantial factor in the death of a resident of a long-term health care facility. Except as provided in Section 1424.5, a class “AA” citation is subject to a civil penalty in the amount of not less than five thousand dollars ($5,000) and not exceeding twenty-five thousand dollars ($25,000) for each citation. In any action to enforce a citation issued under this subdivision, the department shall prove all of the following:
(A) The violation was a substantial factor in the death of a resident. A substantial factor is more than a remote or trivial factor, but is not required to be the only cause of harm.
(B) The death resulted from an occurrence of the nature that the
regulation was designed to prevent.
(C) The resident suffering the death was among the class of persons for whose protection the regulation was adopted.
(2) If the department meets this burden of proof, the licensee shall have the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, then the citation shall be dismissed.
(3) Except as provided in Section 1424.5, for each class “AA” citation within a 12-month period that has become final, the department shall consider the suspension or revocation of the facility’s license in accordance with Section 1294. For
a third or subsequent class “AA” citation in a facility within that 12-month period that has been sustained, the department shall commence action to suspend or revoke the facility’s license in accordance with Section 1294.
(d) (1) Class “A” violations are violations that the department determines present either (1) imminent danger that death or serious harm to the residents of the long-term health care facility would result therefrom, or (2) substantial probability that death or serious physical harm to residents of the long-term health care facility would result therefrom. A physical condition or one or more practices, means, methods, or operations in use in a long-term health care facility may constitute a class “A” violation. The condition or practice constituting a class “A” violation shall be abated or
eliminated immediately, unless a fixed period of time, as determined by the department, is required for correction. Except as provided in Section 1424.5, a class “A” citation is subject to a civil penalty in an amount not less than one thousand dollars ($1,000) and not exceeding ten thousand dollars ($10,000) for each citation.
(2) If the department establishes that a violation occurred, the licensee shall have the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, then the citation shall be dismissed.
(e) (1) Except as provided in paragraph (4) of subdivision (a) of Section
1424.5, class “B” violations are violations that the department determines have a direct or immediate relationship to the health, safety, or security of long-term health care facility residents, other than class “AA” or “A” violations. Unless otherwise determined by the department to be a class “A” violation pursuant to this chapter and regulations adopted pursuant thereto, a violation of a patient’s rights as set forth in Sections 72527 and 73523 of Title 22 of the California Code of Regulations, that is determined by the department to cause or under circumstances likely to cause significant humiliation, indignity, anxiety, or other emotional trauma to a patient is a class “B” violation. A class “B” citation is subject to a civil penalty in an amount not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) for each citation. A class “B” citation shall specify the
time within which the violation is required to be corrected. If the department establishes that a violation occurred, the licensee shall have the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, then the citation shall be dismissed.
(2) When a citation is issued pursuant to this paragraph, if the department establishes that a violation occurred, the licensee shall have the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, then the citation shall be dismissed.
(f) (1) A willful material falsification or willful material omission in the health record of a resident of a long-term health care facility is a violation.
(2) “Willful material falsification,” as used in this section, means any entry in the resident’s health care record pertaining to the administration of medication, or treatments ordered for the patient, or pertaining to services for the prevention or treatment of pressure ulcers or contractures, or pertaining to tests and measurements of vital signs, or notations of input and output of fluids, that was made with the knowledge that the records falsely reflect the condition of the resident or the care or services provided.
(3) As used in this section,
“willful material omission” means the willful failure to record any untoward event that has affected the health, safety, or security of the specific resident, and that was omitted with the knowledge that the records falsely reflect the condition of the resident or the care or services provided.
(g) Except as provided in subdivision (a) of Section 1424.5, a violation of subdivision (f) may result in a civil penalty not to exceed ten thousand dollars ($10,000), as specified in paragraphs (1) to (3), inclusive.
(1) The willful material falsification or willful material omission is subject to a civil penalty of not less than two thousand five hundred dollars ($2,500) or more than ten thousand dollars ($10,000) in instances where the health care record is relied upon by
a health care professional to the detriment of a resident by affecting the administration of medications or treatments, the issuance of orders, or the development of plans of care. In all other cases, violations of this subdivision are subject to a civil penalty not exceeding two thousand five hundred dollars ($2,500).
(2) (A) When the penalty assessed is one thousand dollars ($1,000) or less, the violation shall be issued and enforced, except as provided in this subdivision, in the same manner as a class “B” violation, and shall include the right of appeal as specified in Section 1428. Where the assessed penalty is in excess of one thousand dollars ($1,000), or for skilled nursing facilities or intermediate care facilities as specified in paragraphs (1) and (2) of subdivision (a) of Section 1418, in excess of two thousand dollars
($2,000), the violation shall be issued and enforced, except as provided in this subdivision, in the same manner as a class “A” violation, and shall include the right of appeal as specified in Section 1428.
(B) This section does not change previous law enacted by Chapter 11 of the Statutes of 1985 relative to this paragraph, but is a clarification of existing law.
(3) This subdivision does not preclude the department from issuing a class “A” or class “B” citation for any violation that meets the requirements for that citation, regardless of whether the violation also constitutes a violation of this subdivision. However, a single act, omission, or occurrence may not be cited both as a class “A” or class “B” violation and as a violation of this subdivision.
(h) When the licensee has failed to post the notices required by Section 9718 of the Welfare and Institutions Code in the manner required under Section 1422.6, the department shall assess the licensee a civil penalty in the amount of one hundred dollars ($100) for each day the failure to post the notices continues. When the total penalty assessed is less than two thousand dollars ($2,000), the violation shall be issued and enforced in the same manner as a class “B” violation, and shall include the right of appeal as specified in Section 1428. When the assessed penalty is equal to or in excess of two thousand dollars ($2,000), the violation shall be issued and enforced in the same manner as a class “A” violation and shall include the right of appeal as specified in Section 1428. Fines collected pursuant to this subdivision shall be used
to fund the costs incurred by the California Department of Aging in producing and posting the posters.
(i) The director shall prescribe procedures for the issuance of a notice of violation with respect to violations having only a minimal relationship to resident safety or health.
(j) The department shall provide a copy of all citations issued under this section to the affected residents whose treatment was the basis for the issuance of the citation, to the affected residents’ designated family member or representative of each of the residents, and to the complainant if the citation was issued as a result of a complaint.
(k) This section is not intended to change existing statutory or regulatory requirements
governing the ability of a licensee to contest a citation pursuant to Section 1428.
(l) The department shall ensure that district office activities performed under Sections 1419 to 1424, inclusive, are consistent with the requirements of these sections and all applicable laws and regulations. To ensure the integrity of these activities, the department shall establish a statewide process for the collection of postsurvey evaluations from affected facilities.
(Amended by Stats. 2021, Ch. 458, Sec. 2. (AB 323) Effective January 1, 2022.)
(a) On and after the effective date of this section, no citation shall be issued or sustained under this chapter for a violation of any regulation discovered and recorded by a facility if all of the following conditions have been met:
(1) The facility maintains an ongoing quality assurance and patient care audit program, which includes maintenance of a quality assurance log which is made available to the state department at the commencement of each inspection and investigation. The facility shall retain this log for the current year and the preceding three years.
(2) The violation was not willful and resulted in no actual harm to any patient or guest.
(3) The violation was first discovered by the licensee and was promptly and accurately recorded in the quality assurance log prior to discovery by the state department.
(4) Promptly upon discovery, the facility implemented remedial action satisfactory to the state department to correct the violation and prevent a recurrence. If the state department determines that remedial action voluntarily undertaken by the facility is unsatisfactory, the state department shall allow the facility reasonable time to augment the remedial action before the condition shall be deemed to be a violation.
(b) Except as otherwise provided in this section, a quality assurance log which meets the criteria of this section shall not be discoverable or admissible in any action against the licensee. The quality assurance log shall be discoverable pursuant to a motion to produce under Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure and admissible only for purposes of impeachment. However, the court, in a motion pursuant to Section 2025.420 of the Code of Civil Procedure, or at trial or other proceeding, may limit access to those entries which would be admissible for impeachment purposes.
(c) The quality assurance log shall be made available upon request to any of the following:
(1) Full-time state employees of the Office of the State Long-Term Care Ombudsman.
(2) Ombudsman coordinators, as defined in Section 9701 of the Welfare and Institutions Code.
(3) Ombudsmen qualified by medical training as defined in Section 9701 of the Welfare and Institutions Code, with the approval of either the State Long-Term Care Ombudsman or ombudsman coordinator.
The licensee may make the quality assurance log available, in the licensee’s discretion, to any representative of the Office of the State Long-Term Care Ombudsman, as defined in Section 9701 of the Welfare and Institutions Code, without liability for the disclosure. Each representative of the Office of the State Long-Term Care Ombudsman who has been provided access to a facility’s quality assurance log pursuant to this section shall maintain all disclosures in confidence.
(Amended by Stats. 2005, Ch. 294, Sec. 22. Effective January 1, 2006.)
(a) (1) Beginning January 1, 2023, if a licensee provider fails to pay a penalty assessed pursuant to Section 1424.5 or 1425 in full when all appeals have been exhausted and the department’s position has been upheld, the department shall give written notice to the licensee provider and related parties in which the licensee provider has an ownership or control interest of 5 percent or more that the department may take appropriate legal action to recover the unpaid penalty amount from the provider licensee’s financial interest in the related party. If the department determines, after two notifications, that the related parties are not financially viable or recovery is unlikely, the department shall document this
determination. The documentation shall include the names of the related parties notified, detailed information on the methods used by the department to make the determination, and a clear justification for the department’s determination. The documentation of the department’s determination and supporting explanation shall be available to the public by request, unless the records are not subject to disclosure under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), in which case the department shall provide the reason for not disclosing the records.
(2) When a citation is issued under Section 1424, the department shall give initial written notice to related parties of the basis for the citation, and the subsequent disciplinary action that is imminent if the violation is not remedied
immediately, up to and including assessment of administrative penalties, for which the related party may be held responsible pursuant to this subdivision.
(b) “Related party” has the same meaning as in Section 128734.
(Amended by Stats. 2022, Ch. 28, Sec. 84. (SB 1380) Effective January 1, 2023.)
(a) In lieu of the fines specified in subdivisions (c), (d), (e), and (g) of Section 1424, fines imposed on skilled nursing facilities or intermediate care facilities, as specified in paragraphs (1) and (2) of subdivision (a) of Section 1418, shall be as follows:
(1) A class “AA” citation is subject to a civil penalty in an amount not less than thirty thousand dollars ($30,000) and not exceeding one hundred twenty thousand dollars ($120,000) for each citation. For a second or subsequent class “AA” citation in a skilled nursing facility or intermediate care facility within a 24-month period, the state department shall commence action to suspend or revoke the facility’s license in
accordance with Section 1294.
(2) A class “A” citation is subject to a civil penalty in an amount not less than three thousand five hundred dollars ($3,500) and not exceeding twenty-five thousand dollars ($25,000) for each citation. A class “A” citation that involved the death of a patient or resident is subject to a civil penalty in an amount not less than fifteen thousand dollars ($15,000) and not exceeding sixty thousand dollars ($60,000).
(3) Any “willful material falsification” or “willful material omission,” as those terms are defined in subdivision (f) of Section 1424, in the
health record of a resident is subject to a civil penalty in an amount not less than three thousand five hundred dollars ($3,500) and not exceeding twenty-five thousand dollars ($25,000) for each citation.
(4) A class “B” citation is subject to a civil penalty in an amount not less than one hundred fifty dollars ($150) and not exceeding three thousand dollars ($3,000). Class “B” violations are violations that the department determines have a direct or immediate relationship to the health, safety, or security of long-term health care facility residents, other than class “AA” or “A” violations. Unless otherwise determined by the department to be a class “A” violation pursuant to this chapter and regulations adopted pursuant thereto, any violation of a patient’s rights as set forth in Sections 72527 and 73523 of Title 22 of the
California Code of Regulations, that is determined by the department to cause, or under circumstances to be likely to cause, significant humiliation, indignity, anxiety, or other emotional trauma to a resident is a class “B” violation. A class “B” citation shall specify the time within which the violation is required to be corrected. If the department establishes that a violation occurred, the licensee shall have the burden of proving that the licensee did what might reasonably be expected of a long-term health care facility licensee, acting under similar circumstances, to comply with the regulation. If the licensee sustains this burden, then the citation shall be dismissed.
(b) A licensee may, in lieu of contesting a class “AA” or class “A” citation pursuant to Section 1428, transmit to the department, the minimum amount specified by law,
or 65 percent of the amount specified in the citation, whichever is greater, for each violation, within 30 business days after the issuance of the citation.
(Amended by Stats. 2021, Ch. 458, Sec. 3. (AB 323) Effective January 1, 2022.)
Failure by a developmental center to report incidents as required under subdivision (a) of Section 4427.5 of the Welfare and Institutions Code shall be deemed a class B violation if the incident occurs in a distinct part long-term health care facility, and shall be subject to the penalties specified in Section 1424.5 for distinct part skilled nursing facilities or distinct part intermediate care facilities, or Section 1424 for other distinct part long-term health care facilities.
(Added by Stats. 2013, Ch. 724, Sec. 3. (SB 651) Effective January 1, 2014.)
Where a licensee has failed to correct a violation within the time specified in the citation, the state department shall assess the licensee a civil penalty in the amount of fifty dollars ($50) for each day that such deficiency continues beyond the date specified for correction. If the licensee disputes a determination by the state department regarding alleged failure to correct a violation or regarding the reasonableness of the proposed deadline for correction, the licensee may request an informal conference and contest such determination.
(Amended by Stats. 1980, Ch. 1082.)
After consultation with industry, professional, and consumer groups affected thereby, but not later than three months after the effective date of this chapter, the director shall publish proposed regulations setting forth the criteria and, where feasible, the specific acts that constitute class “A” and “B” violations under this chapter. Not later than six months after the effective date of this chapter, the director shall adopt regulations setting forth criteria and, where feasible, specific acts constituting class “A” and “B” violations. The regulations shall be adopted as prescribed in Chapter 4.5 (commencing with Section 11371) of Part 1 of Division 3 of Title 2 of the Government Code, except that such regulations shall not be adopted as emergency regulations pursuant to subdivision (b) of Section 11421 of the Government Code and shall not mandate a quality of care or new procedures which were not required on January 1, 1974, without providing additional reimbursement if the change in quality of care or the new procedures entail substantial new costs.
For purposes of this section, “new costs” shall not include costs which are the direct or indirect consequence of meeting the requirements of the citation system established under this chapter.
(Added by Stats. 1973, Ch. 1057.)
(a)
When the administration of medications, treatments, or other care is not recorded, as required by law, in the health care record for a patient of a long-term health care facility, it shall be presumed that the required medication, treatment, or care has not been provided.
(b)
The presumption established by this section may be rebutted by a licensee only upon a showing of a preponderance of the evidence.
(c)
This presumption applies to any action against any long-term health care facility which is filed by the state department pursuant to this chapter or Chapter 2 (commencing with Section 1250). In any other action against a long-term health care facility, the court may apply the presumption when the interests of justice requires.
(Repealed and added by Stats. 1985, Ch. 11, Sec. 11. Effective March 6, 1985.)
(a) If the licensee desires to contest a citation or the proposed assessment of a civil penalty therefor, the licensee shall use the processes described in subdivisions (b) and (c) for classes “AA,” “A,” or “B” citations.
(b) If a licensee intends to contest a class “AA” or a class “A” citation, the licensee shall inform the director in writing, within 15 business days of the service of the citation of the licensee’s intent to adjudicate the validity of the citation in the superior court in the county in which the long-term health care facility is located. In order to perfect a judicial appeal of a contested citation, a licensee shall file a civil action in the superior court in the
county in which the long-term health care facility is located. The action shall be filed no later than 90 calendar days after a licensee notifies the director that he or she intends to contest the citation, and served not later than 90 days after filing. Notwithstanding any other provision of law, a licensee prosecuting a judicial appeal shall file and serve a case management statement pursuant to Rule 212 of the California Rules of Court within six months after the department files its answer in the appeal. Notwithstanding subdivision (d), the court shall dismiss the appeal upon motion of the department if the case management statement is not filed by the licensee within the period specified. The court may affirm, modify, or dismiss the citation, the level of the citation, or the amount of the proposed assessment of the civil penalty.
(c) If a licensee desires to contest a class “B” citation, the licensee shall, within 15 working days after
service of the citation, notify the director or the director’s designee that he or she wishes to appeal the citation through the procedures set forth in Section 100171 or elects to submit the matter to binding arbitration in accordance with subdivision (d). The administrative law judge may affirm, modify, or dismiss the citation or the proposed assessment of a civil penalty. The licensee may choose to have his or her appeal heard by the administrative law judge or submit the matter to binding arbitration by notifying the director in writing within 15 business days of the service of the citation.
(d) If a licensee is dissatisfied with the decision of the administrative law judge, the licensee may, in lieu of seeking judicial review of the decision as provided in Section 1094.5 of the Code of Civil Procedure, elect to submit the matter to binding arbitration by filing, within 60 days of its receipt of the decision, a request for arbitration with
the American Arbitration Association. The parties shall agree upon an arbitrator designated from the American Arbitration Association in accordance with the association’s established rules and procedures. The arbitration hearing shall be set within 45 days of the election to arbitrate, but in no event less than 28 days from the date of selection of an arbitrator. The arbitration hearing may be continued up to 15 additional days if necessary at the arbitrator’s discretion. Except as otherwise specifically provided in this subdivision, the arbitration hearing shall be conducted in accordance with the American Arbitration Association’s established rules and procedures. The arbitrator shall determine whether the licensee violated the regulation or regulations cited by the department, and whether the citation meets the criteria established in Sections 1423 and 1424. If the arbitrator determines that the licensee has violated the regulation or regulations cited by the department, and that the class of the citation
should be upheld, the proposed assessment of a civil penalty shall be affirmed, subject to the limitations established in Section 1424. The licensee and the department shall each bear its respective portion of the cost of arbitration. A resident, or his or her designated representative, or both, may make an oral or written statement regarding the citation, at any arbitration hearing to which the matter has been submitted.
(e) If an appeal is prosecuted under this section, including an appeal taken in accordance with Section 100171, the department shall have the burden of establishing by a preponderance of the evidence that (1) the alleged violation did occur, (2) the alleged violation met the criteria for the class of citation alleged, and (3) the assessed penalty was appropriate. The department shall also have the burden of establishing by a preponderance of the evidence that the assessment of a civil penalty should be upheld. If a licensee
appeals a contested citation or the assessment of a civil penalty, no civil penalty shall be due and payable unless and until the appeal is terminated in favor of the department.
(f) In assessing the civil penalty for a violation, all relevant facts shall be considered, including, but not limited to, all of the following:
(1) The probability and severity of the risk which the violation presents to the patient’s or resident’s mental and physical condition.
(2) The patient’s or resident’s medical condition.
(3) The patient’s or resident’s mental condition and his or her history of mental disability.
(4) The good faith efforts exercised by the facility to prevent the violation from
occurring.
(5) The licensee’s history of compliance with regulations.
(g) Except as otherwise provided in this subdivision, an assessment of civil penalties for a class “A” or class “B” violation shall be trebled and collected for a second and subsequent violation for which a citation of the same class was issued within any 12-month period. Trebling shall occur only if the first citation issued within the 12-month period was issued in the same class, a civil penalty was assessed, and a plan of correction was submitted for the previous same-class violation occurring within the period, without regard to whether the action to enforce the previous citation has become final. However, the increment to the civil penalty required by this subdivision shall not be due and payable unless and until the previous action has terminated in favor of the department.
If the class “B” citation is issued for a patient’s rights violation, as defined in subdivision (e) of Section 1424, it shall not be trebled unless the department determines the violation has a direct or immediate relationship to the health, safety, security, or welfare of long-term health care facility residents.
(h) The director shall prescribe procedures for the issuance of a notice of violation with respect to violations having only a minimal relationship to safety or health.
(i) Actions brought under this chapter shall be set for trial at the earliest possible date and shall take precedence on the court calendar over all other cases except matters to which equal or superior precedence is specifically granted by law. Times for responsive pleading and for hearing the proceeding shall be set by the judge of the court with the object of
securing a decision as to subject matters at the earliest possible time.
(j) If the citation is dismissed, the department shall take action immediately to ensure that the public records reflect in a prominent manner that the citation was dismissed.
(k) Penalties paid on violations under this chapter shall be applied against the department’s accounts to offset any costs incurred by the state pursuant to this chapter. Any costs or penalties assessed pursuant to this chapter shall be paid within 30 days of the date the decision becomes final. If a facility does not comply with this requirement, the state department shall withhold any payment under the Medi-Cal program until the debt is satisfied. No payment shall be withheld if the department determines that it would cause undue hardship to the facility or to patients or residents of the facility.
(l) The amendments made to subdivisions (a) and (c) of this section by Chapter 84 of the Statutes of 1988, to extend the number of days allowed for the provision of notification to the director, do not affect the right, that is also contained in those amendments, to request judicial relief from these time limits.
(m) If a licensee exercises its right to a citation review conference prior to January 1, 2012, the citation review conference and all notices, reviews, and appeals thereof shall be conducted pursuant to this section as it read on December 31, 2011.
(Amended by Stats. 2011, Ch. 729, Sec. 5. (AB 641) Effective January 1, 2012.)
Except as provided in subdivision (b) of Section 1424.5, a licensee may, in lieu of contesting a citation pursuant to Section 1428, transmit to the state department the minimum amount specified by law, or 65 percent of the amount specified in the citation, whichever is greater, for each violation within 15 business days after the issuance of the citation.
(Amended by Stats. 2001, Ch. 685, Sec. 19. Effective January 1, 2002.)
In the case of a class “A” or class “AA” citation issued to a long-term health care facility which is appealed, the citation shall expire and have no further legal effect, if the Attorney General has not filed an action in the court of competent jurisdiction, within one year from the date the facility notifies the State Department of Public Health of its intent to contest the citation in court.
(Amended by Stats. 2011, Ch. 729, Sec. 6. (AB 641) Effective January 1, 2012.)
(a) Each class “AA” and class “A” citation specified in subdivisions (c) and (d) of Section 1424 that is issued, or a copy or copies thereof, shall be prominently posted for 120 days. The citation or copy shall be posted in a place or places in plain view of the patients or residents in the long-term health care facility, persons visiting those patients or residents, and persons who inquire about placement in the facility.
(1) The citation shall be posted in at least the following locations in the facility:
(A) An area accessible and visible to members of the public.
(B) An area used for employee
breaks.
(C) An area used by residents for communal functions, such as dining, resident council meetings, or activities.
(2) The citation, along with a cover sheet, shall be posted on a white or light-colored sheet of paper, at least 81/2 by 11 inches in size, that includes all of the following information:
(A) The full name of the facility, in a clear and easily readable font in at least 28-point type.
(B) The full address of the facility, in a clear and easily readable font in at least 20-point type.
(C) Whether the citation is class “AA” or class “A.”
(3) The facility may post the plan of correction.
(4) The facility may post a statement disputing the citation or a statement showing the appeal status, or both.
(5) The facility may remove and discontinue the posting required by this section if the citation is withdrawn or dismissed by the department.
(b) Each class “B” citation specified in subdivision (e) of Section 1424 that is issued pursuant to this section and that has become final, or a copy or copies thereof, shall be retained by the licensee at the facility cited until the violation is corrected to the satisfaction of the department. Each citation shall be made promptly available by the licensee for inspection or examination by any member of the public who so requests. In addition, every licensee
shall post in a place or places in plain view of the patient or resident in the long-term health care facility, persons visiting those patients or residents, and persons who inquire about placement in the facility, a prominent notice informing those persons that copies of all final uncorrected citations issued by the department to the facility will be made promptly available by the licensee for inspection by any person who so requests.
(c) A violation of this section shall constitute a class “B” violation, and shall be subject to a civil penalty in the amount of one thousand dollars ($1,000), as provided in subdivision (e) of Section 1424. Notwithstanding Section 1290, a violation of this section shall not constitute a crime. Fines imposed pursuant to this section shall be deposited into the State Health Facilities Citation Penalties Account, created pursuant to Section 1417.2.
(Amended by Stats. 2011, Ch. 729, Sec. 7. (AB 641) Effective January 1, 2012.)
(a)
If a long-term health care facility licensed as a skilled nursing facility or an intermediate care facility, as defined in paragraphs (1) and (2) of subdivision (a) of Section 1418, has one or more of the following remedies actually imposed for violation of state or federal requirements, the facility shall provide written notification of the action to each resident, the resident’s responsible party and legal representative, and all applicants for admission to the facility:
(1)
Termination of the facility’s provider agreement to participate in the Medicare program, medicaid program, or both programs.
(2)
Denial of Medicare or medicaid payment for new admissions to the facility.
(3)
Denial by the Health Care Financing Administration of Medicare or medicaid payment for all individuals in the facility.
(4)
A ban on admissions, of any type.
(b)
A violation of the requirements of this section shall be a class “B” violation.
(Added by Stats. 2000, Ch. 451, Sec. 28. Effective January 1, 2001.)
(a) Except when the state department has taken action and the violations have been corrected to its satisfaction, a licensee who commits a class “A” or “B” violation may be enjoined from permitting the violation to continue or may be sued for civil damages within a court of competent jurisdiction. An action for injunction or civil damages, or both, may be prosecuted by the Attorney General in the name of the people of the State of California upon the Attorney General’s own complaint or upon the complaint of a board, officer, person, corporation, or association, or by a person acting for the interests of itself, its members, or the general public. The amount of civil damages that may be recovered in an action
brought pursuant to this section may not exceed the maximum amount of civil penalties that could be assessed on account of the violation or violations.
(b) (1) A current or former resident or patient, or the legal representative, personal representative, or successor in interest of a current or former resident or patient, of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined in subdivision (d) of Section 1250, may bring a civil action against the licensee of a facility who violates any rights of the resident or patient as set forth in
Section 72527 or 73523 of Title 22 of the California Code of Regulations, or any other right provided for by federal or state law or regulation. The suit shall be brought in a court of competent jurisdiction. The licensee shall be liable for the acts of the licensee’s employees.
(A) For violations that occurred prior to March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) and for costs and attorney’s fees, and may be enjoined from permitting the violation or violations to continue.
(B) For violations that occur on or after March 1, 2021, the licensee shall be liable for up to five hundred dollars ($500) for each violation, and for costs and attorney’s fees, and may be enjoined from permitting the violation or violations to continue.
(C) An agreement by a resident or
patient of a skilled nursing facility or intermediate care facility to waive that resident’s or patient’s rights to sue pursuant to this subdivision is void as contrary to public policy.
(2) In assessing the amount of the statutory damages to be awarded under this subdivision, the following factors shall be considered:
(A) The nature and seriousness of each violation.
(B) The likelihood and severity of the risk that each violation would cause a resident to suffer indignity, discomfort, or pain.
(C) The efforts made by the facility to prevent each violation from occurring or to prevent future violations.
(c) The remedies specified in this section are in addition to any other remedy provided by law.
(Amended by Stats. 2021, Ch. 471, Sec. 1. (AB 849) Effective January 1, 2022.)
It is a misdemeanor for any person to do any of the following:
(a)
Willfully prevent, interfere with, or attempt to impede in any way the work of any duly authorized representative of the state department in the lawful enforcement of any provision of this chapter.
(b)
Willfully prevent or attempt to prevent any such representative from examining any relevant books or records in the conduct of his official duties under this chapter.
(c)
Willfully prevent or interfere with any such representative in the preserving of evidence of any violation of any of the provisions of this chapter or of the rules and regulations promulgated under this chapter.
(Added by Stats. 1973, Ch. 1057.)
(a)
No licensee shall discriminate or retaliate in any manner against any complainant, or any patient or employee in its long-term health care facility, on the basis or for the reason that the complainant, patient, employee, or any other person has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity relating to care, services, or conditions at that facility. A licensee who violates this section is subject to a civil penalty of no more than ten thousand dollars ($10,000), to be assessed by the director and collected in the manner provided in Section 1430.
(b)
Any attempt to expel a patient from a long-term health care facility, or any type of discriminatory treatment of a patient by whom, or upon whose behalf, a grievance or complaint has been submitted, directly or indirectly, to any governmental entity or received by a long-term health care facility administrator or any proceeding instituted under or related to this chapter within 180 days of the filing of the complaint or the institution of the action, shall raise a rebuttable presumption that the action was taken by the licensee in retaliation for the filing of the complaint.
(c)
Any attempt to terminate the employment, or other discriminatory treatment, of any employee who has presented a grievance or complaint or has initiated, participated, or cooperated in any investigation or proceeding of any governmental entity as specified in subdivision (a), and where the facility or licensee had knowledge of the employee’s initiation, participation, or cooperation, shall raise a rebuttable presumption that the action was taken by the licensee in retaliation if it occurs within 120 days of the filing of the grievance or complaint, or the institution of the action.
(d)
Presumptions provided for in subdivisions (b) and (c) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code.
(e)
Where the civil penalty assessed is one thousand dollars ($1,000) or less, the violation shall be issued and enforced in the same manner as a class “B” violation, except in no case shall the penalty be trebled. Where the civil penalty assessed is in excess of one thousand dollars ($1,000), the violation shall be issued and enforced in the same manner as a class “A” violation, except in no case shall the penalty be trebled.
(f)
Any person who willfully violates this section is guilty of an infraction punishable by a fine of not more than ten thousand dollars ($10,000).
(g)
A licensee who violates this section is subject to a civil penalty or a criminal fine, but not both.
(h)
Each long-term health care facility shall prominently post in a facility location accessible to staff, patients, and visitors written notice of the right to request an inspection pursuant to Section 1419, the procedure for doing so, including the right to remain anonymous, and the prohibition against retaliation.
(i)
For purposes of this section, “complainant” means any person who has filed a complaint, as defined in Section 1420.
(Amended by Stats. 2001, Ch. 685, Sec. 20. Effective January 1, 2002.)
No licensee shall be cited for any violation caused by any person licensed pursuant to the Medical Practice Act (Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code) if the person is independent of, and not connected with, the licensee and the licensee shows that he or she has exercised reasonable care and diligence in notifying these persons of their duty to the patients in the licensee’s long-term health care facility.
(Added by Stats. 1984, Ch. 1631, Sec. 6.)
The remedies provided by this chapter are cumulative, and shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of any party, and no judgment under this chapter shall preclude any party from obtaining additional relief based upon the same facts.
(Added by Stats. 1973, Ch. 1057.)
Commencing in 1974, the state department shall, on or before February 1 of each year, notify all public agencies which refer patients to long-term health care facilities of all of the long-term health care facilities in the area found upon inspection within the previous 12-month period to be without class “A” or “B” violations. Public agencies shall give priority to such long-term health care facilities in referring publicly assisted patients. No public agency shall refer patients to long-term health care facilities with any uncorrected class “A” violations or five or more uncorrected class “B” violations, except those long-term health care facilities which the director may exempt because of a lack of facilities of the same type in the area sufficient to satisfy the demand for services provided by such type of facilities.
(Added by Stats. 1973, Ch. 1057.)
On or before July 1, 1974, the state department shall provide for additional and ongoing training for inspectors charged with implementation of this chapter in investigative techniques and standards relating to the quality of care provided by long-term health care facilities. The investigative-technique element of such training shall be adopted after consultation with the Department of Justice and such investigative training may, but need not, be provided through a contract with the Department of Justice.
(Added by Stats. 1973, Ch. 1057.)
If a health facility, or an applicant for a license has not been previously licensed pursuant to Chapter 2 (commencing with Section 1250), the state department may only provisionally license the facility as provided in this section. A provisional license to operate a health facility shall terminate six months from the date of issuance. Within 30 days of the termination of a provisional license, the state department shall give the facility a full and complete inspection, and, if the facility meets all applicable requirements for licensure, a regular license shall be issued. If the health facility does not meet the requirements for licensure but has made substantial progress towards meeting the requirements, as determined by the state department, the initial provisional license shall be renewed for six months. If the state department determines that there has not been substantial progress towards meeting licensure requirements at the time of the first full inspection provided by this section, or, if the state department determines upon its inspection made within 30 days of the termination of a renewed provisional license that there is lack of full compliance with the requirements, no further license shall be issued.
If an applicant for a provisional license to operate a health facility has been denied provisional licensing by the state department, he or she may contest the denial by filing a request for a hearing pursuant to Section 100171.
The department shall not apply less stringent criteria when granting a provisional license pursuant to this section than it applies when granting a permanent license.
General acute care hospitals and acute psychiatric hospitals are exempt from this section.
(Amended by Stats. 1997, Ch. 220, Sec. 17. Effective August 4, 1997.)
(a) If a facility is certified to participate in the federal Medicare program as a skilled nursing facility under Title XVIII of the Social Security Act, in the medicaid program as a nursing facility under Title XIX of the Social Security Act, or in both and any of the following occurs, the state department may rescind its regular license to operate and issue a provisional license under Section 1437:
(1) The facility’s provider agreement is terminated, by the federal government or the department.
(2) A temporary manager is appointed, under federal law, to operate it.
(3) Payment becomes due on a
federal civil money penalty of seven thousand dollars ($7,000) per day, or greater, imposed on it.
(4) A federal civil monetary penalty of any amount is imposed and has continued for a period of 30 days or more.
(5) A federal civil monetary penalty of any amount is imposed and has accrued in an amount equal to, or greater than, thirty-five thousand dollars ($35,000).
(b) The state department may not take action pursuant to subdivision (a) until a final administrative decision is issued if the facility has requested a hearing pursuant to federal law, until a facility has waived its right to a hearing under federal law, or until the time for requesting a hearing under federal law has expired and a hearing request was not received by federal authorities.
(c) If a receiver or temporary manager is appointed to operate a skilled nursing facility or an intermediate care facility, specified in paragraphs (1) and (2) of subdivision (a) of Section 1418, pursuant to state law, or as otherwise specified in regulations adopted by the department, the state department may rescind its regular license to operate and issue a provisional license under this section.
(d) (1) A provisional license issued pursuant to this section shall terminate six months from the date of issuance unless extended by the department.
(2) At least 30 days prior to the termination of a provisional license, the department shall give the facility a full and complete inspection. Beginning January 1, 2023, the department shall provide written notice to related parties described in subdivision (a) of Section 1424.3, of the outcome of the
inspection and the possible outcomes set forth in this paragraph. If, at the time of the inspection, it is determined that the facility meets all applicable requirements for licensure, a regular license shall be restored. If, at the time of the inspection, it is determined that the facility does not meet the requirements for licensure, but the facility has made substantial progress towards meeting the requirements, as determined by the department, the provisional license shall be renewed for six months. If, at the time of the first inspection, the department determines that there has not been substantial progress towards meeting the requirements for licensure, or, if at any subsequent inspection the department determines that there has not been substantial progress towards meeting requirements identified at the most recent previous inspection, a regular license shall not be issued.
(e) The facility may request a hearing in writing within 10
days of the receipt of notice from the department denying a regular license under this section. The provisional license shall remain in effect during the pendency of the hearing. The hearing shall be held in accordance with Section 100171. The hearing officer shall uphold the denial of a regular license if the department proves, by a preponderance of the evidence, that the licensee did not meet the requirements for licensure.
(Amended by Stats. 2021, Ch. 475, Sec. 4. (AB 1042) Effective January 1, 2022.)
The state department shall review the effectiveness of the enforcement system in maintaining the quality of care provided by long-term health care facilities and shall submit a report thereon to the Legislature on enforcement activities, on or before December 1, 2001, and annually thereafter, together with any recommendations of the state department for additional legislation which it deems necessary to improve the effectiveness of the enforcement system or to enhance the quality of care provided by long-term health care facilities. This report shall be combined with the report required under Section 1423.5 into a single report. The time period for each report shall cover the previous state fiscal year.
(Amended by Stats. 2001, Ch. 685, Sec. 22. Effective January 1, 2002.)
Any writing received, owned, used, or retained by the state department in connection with the provisions of this chapter is a public record within the meaning of Section 7920.530 of the Government Code, and, as a public record, is open to public inspection pursuant to Sections 7922.500 to 7922.545, inclusive, 7923.000, and 7923.005 of the Government Code. However, the names of any persons contained in those records, except the names of duly authorized officers, employees, or agents of the state department conducting an investigation or inspection in response to a complaint filed pursuant to this chapter, shall not be open to public inspection and copies of the records provided for public inspection shall have those names
deleted.
(Amended by Stats. 2021, Ch. 615, Sec. 233. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Sec. 463 of Stats. 2021, Ch. 615.)
Every long-term health care facility shall provide an activity program to the residents of the facility to meet the needs and interests of the residents and to encourage self-care and resumption of normal activities, in accordance with a patient activity plan developed by the facility including, but not limited to, self-help skills, such as personal hygiene, care of personal effects and living environment, nutrition, management of bedside medications of nonprescription drugs, management of petty funds for personal use, and cooperative relations with peers and staff to help keep them closer to the reality of their environment. The patient activity plan of each individual shall be reviewed and approved in writing at least quarterly by the attending physician as not being in conflict with the patient’s treatment plan.
(Added by Stats. 1984, Ch. 1029, Sec. 1.)
(a)
The state department shall undertake the immediate development, implementation, and maintenance of an automated information system. The automated information system shall be developed to ensure both of the following:
(1)
The most effective operation of this chapter and Chapter 2 (commencing with Section 1250), including, but not limited to, all of the following:
(A)
Gathering data necessary to maximize enforcement and monitoring capabilities.
(B)
Increasing accessibility of facility information.
(C)
Identifying any trends of substandard care.
(D)
Providing management information.
(2)
The provision of information to the general public pursuant to subdivision (b).
The state department shall take all necessary action to obtain maximum federal funding assistance to develop, implement, and maintain an automated information system.
(b)
The state department shall develop a consumer information system, pursuant to Section 1422.5, to provide information to the general public and long-term health care services consumers regarding long-term health care facilities in this state. The state department shall utilize, to the extent possible, the information provided by its automated information system. Prior to implementation, the consumer information system shall be presented to the Health Care Advisory Committee for its review and comments.
(Added by Stats. 1985, Ch. 11, Sec. 14. Effective March 6, 1985.)
(a) Except as provided in subdivision (b), if a resident is notified in writing of a facility-initiated transfer or discharge from a long-term health care facility, the facility shall also send a copy of the notice to the local long-term care ombudsman at the same time notice is provided to the resident or the resident’s representative.
(b) If a resident is subject to a facility-initiated transfer to a general acute care hospital on an emergency basis, the facility shall provide a copy of the notice to the ombudsman as soon as practicable.
(c) The copy of the notice shall be sent by fax machine or email, as may be directed by the local long-term care ombudsman, unless the facility does not have
fax or email capability, in which case the copy of the notice shall be sent by first-class mail, postage prepaid. A facility’s failure to timely send a copy of the notice shall constitute a class B violation, as defined in subdivision (e) of Section 1424.
(d) For the purposes of this section, a “facility-initiated transfer or discharge” is a transfer or discharge that is initiated by the facility and not by the resident, whether or not the resident agrees to the facility’s decision.
(e) Within 48 hours of giving the written notice of a facility-initiated transfer or discharge, the facility shall provide to the resident and, if applicable, the resident’s representative a copy of both of the following:
(1) The evaluation of the
resident’s discharge needs and discharge plan as required by federal law and regulations or the most current discharge care plan.
(2) In the case of the transfer or discharge being necessary for the resident’s welfare because the resident’s needs cannot be met in the facility, all of the following information if the following information is not included in the most current discharge care plan:
(A) A written description of the specific resident’s needs that cannot be met.
(B) Facility attempts to meet the resident’s needs.
(C) The services available at the receiving facility that meet the resident’s needs.
(f) Prior to the proposed transfer or discharge date, the facility shall provide to
the resident and, if applicable, the resident’s representative a copy of the resident’s discharge summary.
(g) Any documents provided to the resident and, if applicable, the resident’s representative pursuant to this section shall be at no cost to the resident and, if applicable, the resident’s representative.
(h) The documents described in subdivisions (e) and (f) do not have to be provided to the resident and, if applicable, the resident’s representative if the resident or the resident’s representative request that the documents not be provided or if no discharge is proposed.
(i) If a transfer or discharge appeal hearing is requested by the resident or, if applicable, the resident’s representative, the facility shall provide to the resident or the resident’s representative the opportunity to examine, at a
reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing, all documents and records to be used by the facility at the hearing. The resident or, if applicable, the resident’s representative shall provide to the facility the opportunity to examine, at a reasonable time before the date of the hearing, absent exigent circumstances, and during the hearing, all documents and records to be used by the resident or, if applicable, the resident’s representative at the hearing.
(j) The provisions of this section are intended to be consistent with federal law and regulations.
(Amended by Stats. 2023, Ch. 835, Sec. 1. (AB 1309) Effective January 1, 2024.)
Notwithstanding Section 14124.7 of the Welfare and Institutions Code, a long-term health care facility participating as a provider under the Medi-Cal program may transfer or seek to evict a resident, within 90 days of admission, if all of the following conditions are met:
(a)
The facility requests specific information regarding the assets and liabilities of a prospective private-pay resident prior to acceptance of the resident into the facility.
(b)
The facility relies on the information provided pursuant to subdivision (a) in deciding to admit the resident.
(c)
The facility promptly and diligently investigates the representation regarding the resident’s assets and liabilities, and discovers that the resident’s financial assets and liabilities are materially different than represented.
(d)
The 90-day limit on transfer or eviction shall not apply if, in fact, the resident fraudulently misrepresented his or her assets and liabilities so that if the material facts were known at the time by the facility the resident would not have been admitted, and the facility could not have discovered the misrepresentation with the exercise of reasonable diligence.
(e)
In no event, shall the facility take action to transfer or evict a resident under subdivision (d) unless the action is initiated within 18 months of the date of admission.
(f)
A facility shall promptly notify the state department and the Office of the Long-Term Care Ombudsman as defined in subdivision (c) of Section 9701 of the Welfare and Institutions Code, prior to taking action to transfer or evict a resident under this section.
(Added by Stats. 1985, Ch. 11, Sec. 15. Effective March 6, 1985.)
Every long-term health care facility shall reveal to applicants for admission, or their designated representatives, orally and in writing, and prior to admission, whether the facility participates in the Medi-Cal program, and the circumstances under which the law permits a Medi-Cal recipient to be transferred involuntarily.
(Added by Stats. 1985, Ch. 11, Sec. 16. Effective March 6, 1985.)