BILL NUMBER: SB 779 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hall
FEBRUARY 27, 2015
An act to amend Section 1276.65 of the Health and Safety Code, and
to amend Section 14126.022 of the Welfare and Institutions Code,
relating to health care facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 779, as introduced, Hall. Skilled nursing facilities: certified
nurse assistant staffing.
(1) Existing law provides for the licensure and regulation by the
State Department of Public Health of health facilities, including
skilled nursing facilities. Existing law requires the department to
develop regulations that become effective August 1, 2003, that
establish staff-to-patient ratios for direct caregivers working in a
skilled nursing facility. Existing law requires that these ratios
include separate licensed nurse staff-to-patient ratios in addition
to the ratios established for other direct caregivers. Existing law
also requires every skilled nursing facility to post information
about staffing levels in the manner specified by federal
requirements. Existing law makes it a misdemeanor for any person to
willfully or repeatedly violate these provisions.
This bill would require the department to develop regulations that
become effective June 1, 2016, and include separate staff-to-patient
ratios for certified nurse assistants that comply with specified
requirements. The bill would require the posted information to
include an accurate report of the number of staff working each shift
and to be posted in specified locations, including an area used for
employee breaks. The bill would require a skilled nursing facility to
make staffing data available, upon oral or written request and at a
reasonable cost, within 15 days of receiving a request. By expanding
the scope of a crime, this bill would impose a state-mandated local
program.
(2) Existing law provides for the Medi-Cal program, which is
administered by the State Department of Health Care Services, under
which qualified low-income individuals receive health care services.
The Medi-Cal program is, in part, governed and funded by federal
Medicaid Program provisions.
Existing law, the Medi-Cal Long-Term Care Reimbursement Act,
operative until August 1, 2015, requires the department to make a
supplemental payment to skilled nursing facilities based on specified
criteria and according to performance measure benchmarks. Existing
law requires the department to establish and publish quality and
accountability measures, which are used to determine supplemental
payments. Existing law requires, beginning in the 2011-12 fiscal
year, the measures to include, among others, compliance with
specified nursing hours per patient per day requirements.
This bill would also require, beginning in the 2016-17 fiscal
year, the measures to include compliance with specified certified
nursing assistant staff-to-patient ratio requirements. The bill would
make this provision contingent on the Medi-Cal Long-Term Care
Reimbursement Act being operative on January 1, 2016.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1276.65 of the Health and Safety Code is
amended to read:
1276.65. (a) For purposes of this section, the following
definitions shall apply:
(1) "Direct caregiver" means a registered nurse, as referred to in
Section 2732 of the Business and Professions Code, a licensed
vocational nurse, as referred to in Section 2864 of the Business and
Professions Code, a psychiatric technician, as referred to in Section
4516 of the Business and Professions Code, and a certified nurse
assistant, as defined in Section 1337.
(2) "Skilled nursing facility" means a skilled nursing facility as
defined in subdivision (c) of Section 1250.
(b) A person employed to provide services such as food
preparation, housekeeping, laundry, or maintenance services shall not
provide nursing care to residents and shall not be counted in
determining ratios under this section.
(c) (1) (A) Notwithstanding any other
provision of law, the State Department of
Health Services Public Health shall develop
regulations that become effective August 1, 2003,
June 1, 2016, that establish staff-to-patient ratios for
direct caregivers working in a skilled nursing facility. These ratios
shall include separate licensed nurse staff-to-patient ratios
and certified nurse assistant staff-to-patient ratios, in
addition to the ratios established for other direct caregivers.
(B) (i) The certified nurse assistant staff-to-patient ratios
developed pursuant to subparagraph (A) shall be no less than the
following:
(I) During the day shift, one certified nurse assistant for every
five patients, or fraction thereof.
(II) During the evening shift, one certified nurse assistant for
every seven patients, or fraction thereof.
(III) During the night shift, one certified nurse assistant for
every 16 patients, or fraction thereof.
(ii) For the purposes of this subparagraph, the following terms
have the following meanings:
(1) "Day shift" means the 8-hour period during which the facility'
s patients require the greatest amount of care.
(II) "Evening shift" means the 8-hour period when the facility's
patients require more than minimal care.
(III) "Night shift" means the 8-hour period during which a
facility's patients require the least amount of care.
(2) The department, in developing staff-to-patient ratios for
direct caregivers caregivers,
certified nurse assistants, and licensed nurses required by
this section, shall convert the existing requirement under Section
1276.5 of this code and Section 14110.7 of the Welfare and
Institutions Code for 3.2 nursing hours per patient day of care and
shall ensure that no less care is given than is required pursuant to
Section 1276.5 of this code and Section 14110.7 of the Welfare and
Institutions Code. Further, the department shall develop the ratios
in a manner that minimizes additional state costs, maximizes resident
access to care, and takes into account the length of the shift
worked. In developing the regulations, the department shall develop a
procedure for facilities to apply for a waiver that addresses
individual patient needs except that in no instance shall the minimum
staff-to-patient ratios be less than the 3.2 nursing hours per
patient day required under Section 1276.5 of this code and Section
14110.7 of the Welfare and Institutions Code.
(d) The staffing ratios to be developed pursuant to this section
shall be minimum standards only. Skilled nursing facilities shall
employ and schedule additional staff as needed to ensure quality
resident care based on the needs of individual residents and to
ensure compliance with all relevant state and federal staffing
requirements.
(e) No later than January 1, 2006, and every five years
thereafter, the department shall consult with consumers, consumer
advocates, recognized collective bargaining agents, and providers to
determine the sufficiency of the staffing standards provided in this
section and may adopt regulations to increase the minimum staffing
ratios to adequate levels.
(f) (1) In a manner pursuant to federal
requirements, effective January 1, 2003, every skilled nursing
facility shall post information about staffing levels that includes
the current number of licensed and unlicensed nursing staff directly
responsible for resident care in the facility. This posting shall
include staffing requirements developed pursuant to this
section. section and an accurate report of the number
of staff working each shift. The information shall be posted on paper
that is at least 8.5 inches by 14 inches and shall be printed in a
font of at least 16 point.
(2) The information described in paragraph (1) shall be posted, at
a minimum, in the following locations:
(A) An area readily accessible to members of the public.
(B) An area used for employee breaks.
(C) An area used by residents for communal functions, including,
but not limited to, dining, resident council meetings, or activities.
(3) (A) Upon oral or written request, every skilled nursing
facility shall make direct caregiver staffing data available to the
public for review at a reasonable cost. A skilled nursing facility
shall provide the data to the requestor within 15 days after
receiving a request.
(B) For the purpose of this paragraph, "reasonable cost" includes,
but is not limited to, a ten-cent ($0.10) per page fee for standard
reproduction of documents that are 8.5 inches by 14 inches or smaller
or a retrieval or processing fee not exceeding sixty dollars ($60)
if the requested data is provided on a digital or other electronic
medium and the requestor requests delivery of the data in a digital
or other electronic medium, including electronic mail.
(g) (1) Notwithstanding any other provision of
law, the department shall inspect for compliance with this section
during state and federal periodic inspections, including, but not
limited to, those inspections required under Section 1422. This
inspection requirement shall not limit the department's authority in
other circumstances to cite for violations of this section or to
inspect for compliance with this section.
(2) A violation of the regulations developed pursuant to this
section may constitute a class "B," "A," or "AA" violation pursuant
to the standards set forth in Section 1424.
(h) The requirements of this section are in addition to any
requirement set forth in Section 1276.5 of this code and Section
14110.7 of the Welfare and Institutions Code.
(i) Initial implementation of the staffing ratio developed
pursuant to requirements set forth in this section shall be
contingent on an appropriation in the annual Budget Act or another
statute.
(j) In implementing this section, the department may contract as
necessary, on a bid or nonbid basis, for professional consulting
services from nationally recognized higher education and research
institutions, or other qualified individuals and entities not
associated with a skilled nursing facility, with demonstrated
expertise in long-term care. This subdivision establishes an
accelerated process for issuing contracts pursuant to this section
and contracts entered into pursuant to this section shall be exempt
from the requirements of Chapter 1 (commencing with Section 10100)
and Chapter 2 (commencing with Section 10290) of Part 2 of Division 2
of the Public Contract Code.
(k) This section shall not apply to facilities defined in Section
1276.9.
SEC. 2. Section 14126.022 of the Welfare and Institutions Code is
amended to read:
14126.022. (a) (1) By August 1, 2011, the department shall
develop the Skilled Nursing Facility Quality and Accountability
Supplemental Payment System, subject to approval by the federal
Centers for Medicare and Medicaid Services, and the availability of
federal, state, or other funds.
(2) (A) The system shall be utilized to provide supplemental
payments to skilled nursing facilities that improve the quality and
accountability of care rendered to residents in skilled nursing
facilities, as defined in subdivision (c) of Section 1250 of the
Health and Safety Code, and to penalize those facilities that do not
meet measurable standards.
(B) A freestanding pediatric subacute care facility, as defined in
Section 51215.8 of Title 22 of the California Code of Regulations,
shall be exempt from the Skilled Nursing Facility Quality and
Accountability Supplemental Payment System.
(3) The system shall be phased in, beginning with the 2010-11 rate
year.
(4) The department may utilize the system to do all of the
following:
(A) Assess overall facility quality of care and quality of care
improvement, and assign quality and accountability payments to
skilled nursing facilities pursuant to performance measures described
in subdivision (i).
(B) Assign quality and accountability payments or penalties
relating to quality of care, or direct care staffing levels, wages,
and benefits, or both.
(C) Limit the reimbursement of legal fees incurred by skilled
nursing facilities engaged in the defense of governmental legal
actions filed against the facilities.
(D) Publish each facility's quality assessment and quality and
accountability payments in a manner and form determined by the
director, or his or her designee.
(E) Beginning with the 2011-12 fiscal year, establish a base year
to collect performance measures described in subdivision (i).
(F) Beginning with the 2011-12 fiscal year, in coordination with
the State Department of Public Health, publish the direct care
staffing level data and the performance measures required pursuant to
subdivision (i).
(b) (1) There is hereby created in the State Treasury, the Skilled
Nursing Facility Quality and Accountability Special Fund. The fund
shall contain moneys deposited pursuant to subdivisions (g) and (j)
to (l), inclusive. Notwithstanding Section 16305.7 of the Government
Code, the fund shall contain all interest and dividends earned on
moneys in the fund.
(2) Notwithstanding Section 13340 of the Government Code, the fund
shall be continuously appropriated without regard to fiscal year to
the department for making quality and accountability payments, in
accordance with subdivision (m), to facilities that meet or exceed
predefined measures as established by this section.
(3) Upon appropriation by the Legislature, moneys in the fund may
also be used for any of the following purposes:
(A) To cover the administrative costs incurred by the State
Department of Public Health for positions and contract funding
required to implement this section.
(B) To cover the administrative costs incurred by the State
Department of Health Care Services for positions and contract funding
required to implement this section.
(C) To provide funding assistance for the Long-Term Care Ombudsman
Program activities pursuant to Chapter 11 (commencing with Section
9700) of Division 8.5.
(c) No appropriation associated with this bill is intended to
implement the provisions of Section 1276.65 of the Health and Safety
Code.
(d) (1) There is hereby appropriated for the 2010-11 fiscal year,
one million nine hundred thousand dollars ($1,900,000) from the
Skilled Nursing Facility Quality and Accountability Special Fund to
the California Department of Aging for the Long-Term Care Ombudsman
Program activities pursuant to Chapter 11 (commencing with Section
9700) of Division 8.5. It is the intent of the Legislature for the
one million nine hundred thousand dollars ($1,900,000) from the fund
to be in addition to the four million one hundred sixty-eight
thousand dollars ($4,168,000) proposed in the Governor's May Revision
for the 2010-11 Budget. It is further the intent of the Legislature
to increase this level of appropriation in subsequent years to
provide support sufficient to carry out the mandates and activities
pursuant to Chapter 11 (commencing with Section 9700) of Division
8.5.
(2) The department, in partnership with the California Department
of Aging, shall seek approval from the federal Centers for Medicare
and Medicaid Services to obtain federal Medicaid reimbursement for
activities conducted by the Long-Term Care Ombudsman Program. The
department shall report to the fiscal committees of the Legislature
during budget hearings on progress being made and any unresolved
issues during the 2011-12 budget deliberations.
(e) There is hereby created in the Special Deposit Fund
established pursuant to Section 16370 of the Government Code, the
Skilled Nursing Facility Minimum Staffing Penalty Account. The
account shall contain all moneys deposited pursuant to subdivision
(f).
(f) (1) Beginning with the 2010-11 fiscal year, the State
Department of Public Health shall use the direct care staffing level
data it collects to determine whether a skilled nursing facility has
met the nursing hours per patient per day requirements pursuant to
Section 1276.5 of the Health and Safety Code.
(2) (A) Beginning with the 2010-11 fiscal year, the State
Department of Public Health shall assess a skilled nursing facility,
licensed pursuant to subdivision (c) of Section 1250 of the Health
and Safety Code, an administrative penalty if the State Department of
Public Health determines that the skilled nursing facility fails to
meet the nursing hours per patient per day requirements pursuant to
Section 1276.5 of the Health and Safety Code as follows:
(i) Fifteen thousand dollars ($15,000) if the facility fails to
meet the requirements for 5 percent or more of the audited days up to
49 percent.
(ii) Thirty thousand dollars ($30,000) if the facility fails to
meet the requirements for over 49 percent or more of the audited
days.
(B) (i) If the skilled nursing facility does not dispute the
determination or assessment, the penalties shall be paid in full by
the licensee to the State Department of Public Health within 30 days
of the facility's receipt of the notice of penalty and deposited into
the Skilled Nursing Facility Minimum Staffing Penalty Account.
(ii) The State Department of Public Health may, upon written
notification to the licensee, request that the department offset any
moneys owed to the licensee by the Medi-Cal program or any other
payment program administered by the department to recoup the penalty
provided for in this section.
(C) (i) If a facility disputes the determination or assessment
made pursuant to this paragraph, the facility shall, within 15 days
of the facility's receipt of the determination and assessment,
simultaneously submit a request for appeal to both the department and
the State Department of Public Health. The request shall include a
detailed statement describing the reason for appeal and include all
supporting documents the facility will present at the hearing.
(ii) Within 10 days of the State Department of Public Health's
receipt of the facility's request for appeal, the State Department of
Public Health shall submit, to both the facility and the department,
all supporting documents that will be presented at the hearing.
(D) The department shall hear a timely appeal and issue a decision
as follows:
(i) The hearing shall commence within 60 days from the date of
receipt by the department of the facility's timely request for
appeal.
(ii) The department shall issue a decision within 120 days from
the date of receipt by the department of the facility's timely
request for appeal.
(iii) The decision of the department's hearing officer, when
issued, shall be the final decision of the State Department of Public
Health.
(E) The appeals process set forth in this paragraph shall be
exempt from Chapter 4.5 (commencing with Section 11400) and Chapter 5
(commencing with Section 11500), of Part 1 of Division 3 of Title 2
of the Government Code. The provisions of Section 100171 and 131071
of the Health and Safety Code shall not apply to appeals under this
paragraph.
(F) If a hearing decision issued pursuant to subparagraph (D) is
in favor of the State Department of Public Health, the skilled
nursing facility shall pay the penalties to the State Department of
Public Health within 30 days of the facility's receipt of the
decision. The penalties collected shall be deposited into the Skilled
Nursing Facility Minimum Staffing Penalty Account.
(G) The assessment of a penalty under this subdivision does not
supplant the State Department of Public Health's investigation
process or issuance of deficiencies or citations under Chapter 2.4
(commencing with Section 1417) of Division 2 of the Health and Safety
Code.
(g) The State Department of Public Health shall transfer, on a
monthly basis, all penalty payments collected pursuant to subdivision
(f) into the Skilled Nursing Facility Quality and Accountability
Special Fund.
(h) Nothing in this section shall impact the effectiveness or
utilization of Section 1278.5 or 1432 of the Health and Safety Code
relating to whistleblower protections, or Section 1420 of the Health
and Safety Code relating to complaints.
(i) (1) Beginning in the 2010-11 fiscal year, the department, in
consultation with representatives from the long-term care industry,
organized labor, and consumers, shall establish and publish quality
and accountability measures, benchmarks, and data submission
deadlines by November 30, 2010.
(2) The methodology developed pursuant to this section shall
include, but not be limited to, the following requirements and
performance measures:
(A) Beginning in the 2011-12 fiscal year:
(i) Immunization rates.
(ii) Facility acquired pressure ulcer incidence.
(iii) The use of physical restraints.
(iv) Compliance with the nursing hours per patient per day
requirements pursuant to Section 1276.5 of the Health and Safety
Code.
(v) Resident and family satisfaction.
(vi) Direct care staff retention, if sufficient data is available.
(B) Beginning in the 2016-17 fiscal year, compliance with the
certified nursing assistant staff-to-patient ratio requirements
pursuant to Section 1276.65 of the Health and Safety Code.
(B)
( C) If this act is extended beyond the
dates on which it becomes inoperative and is repealed, in accordance
with Section 14126.033, the department, in consultation with
representatives from the long-term care industry, organized labor,
and consumers, beginning in the 2013-14 rate year, shall incorporate
additional measures into the system, including, but not limited to,
quality and accountability measures required by federal health care
reform that are identified by the federal Centers for Medicare and
Medicaid Services.
(C)
( D) The department, in consultation with
representatives from the long-term care industry, organized labor,
and consumers, may incorporate additional performance measures,
including, but not limited to, the following:
(i) Compliance with state policy associated with the United States
Supreme Court decision in Olmstead v. L.C. ex rel. Zimring (1999)
527 U.S. 581.
(ii) Direct care staff retention, if not addressed in the 2012-13
rate year.
(iii) The use of chemical restraints.
(j) (1) Beginning with the 2010-11 rate year, and pursuant to
subparagraph (B) of paragraph (5) of subdivision (a) of Section
14126.023, the department shall set aside savings achieved from
setting the professional liability insurance cost category, including
any insurance deductible costs paid by the facility, at the 75th
percentile. From this amount, the department shall transfer the
General Fund portion into the Skilled Nursing Facility Quality and
Accountability Special Fund. A skilled nursing facility shall provide
supplemental data on insurance deductible costs to facilitate this
adjustment, in the format and by the deadlines determined by the
department. If this data is not provided, a facility's insurance
deductible costs will remain in the administrative costs category.
(2) Notwithstanding paragraph (1), for the 2012-13 rate year only,
savings from capping the professional liability insurance cost
category pursuant to paragraph (1) shall remain in the General Fund
and shall not be transferred to the Skilled Nursing Facility Quality
and Accountability Special Fund.
(k) Beginning with the 2013-14 rate year, if there is a rate
increase in the weighted average Medi-Cal reimbursement rate, the
department shall set aside the first 1 percent of the weighted
average Medi-Cal reimbursement rate increase for the Skilled Nursing
Facility Quality and Accountability Special Fund.
( l ) If this act is extended beyond the dates on which
it becomes inoperative and is repealed, in accordance with Section
14126.033, beginning with the 2014-15 rate year, in addition to the
amount set aside pursuant to subdivision (k), if there is a rate
increase in the weighted average Medi-Cal reimbursement rate, the
department shall set aside at least one-third of the weighted average
Medi-Cal reimbursement rate increase, up to a maximum of 1 percent,
from which the department shall transfer the General Fund portion of
this amount into the Skilled Nursing Facility Quality and
Accountability Special Fund.
(m) (1) (A) Beginning with the 2013-14 rate year, the department
shall pay a supplemental payment, by April 30, 2014, to skilled
nursing facilities based on all of the criteria in subdivision (i),
as published by the department, and according to performance measure
benchmarks determined by the department in consultation with
stakeholders.
(B) (i) The department may convene a diverse stakeholder group,
including, but not limited to, representatives from consumer groups
and organizations, labor, nursing home providers, advocacy
organizations involved with the aging community, staff from the
Legislature, and other interested parties, to discuss and analyze
alternative mechanisms to implement the quality and accountability
payments provided to nursing homes for reimbursement.
(ii) The department shall articulate in a report to the fiscal and
appropriate policy committees of the Legislature the implementation
of an alternative mechanism as described in clause (i) at least 90
days prior to any policy or budgetary changes, and seek subsequent
legislation in order to enact the proposed changes.
(2) Skilled nursing facilities that do not submit required
performance data by the department's specified data submission
deadlines pursuant to subdivision (i) shall not be eligible to
receive supplemental payments.
(3) Notwithstanding paragraph (1), if a facility appeals the
performance measure of compliance with the nursing hours per patient
per day requirements, pursuant to Section 1276.5 of the Health and
Safety Code, to the State Department of Public Health, and it is
unresolved by the department's published due date, the department
shall not use that performance measure when determining the facility'
s supplemental payment.
(4) Notwithstanding paragraph (1), if the department is unable to
pay the supplemental payments by April 30, 2014, then on May 1, 2014,
the department shall use the funds available in the Skilled Nursing
Facility Quality and Accountability Special Fund as a result of
savings identified in subdivisions (k) and (l), less the
administrative costs required to implement subparagraphs (A) and (B)
of paragraph (3) of subdivision (b), in addition to any Medicaid
funds that are available as of December 31, 2013, to increase
provider rates retroactively to August 1, 2013.
(n) The department shall seek necessary approvals from the federal
Centers for Medicare and Medicaid Services to implement this
section. The department shall implement this section only in a manner
that is consistent with federal Medicaid law and regulations, and
only to the extent that approval is obtained from the federal Centers
for Medicare and Medicaid Services and federal financial
participation is available.
(o) In implementing this section, the department and the State
Department of Public Health may contract as necessary, with
California's Medicare Quality Improvement Organization, or other
entities deemed qualified by the department or the State Department
of Public Health, not associated with a skilled nursing facility, to
assist with development, collection, analysis, and reporting of the
performance data pursuant to subdivision (i), and with demonstrated
expertise in long-term care quality, data collection or analysis, and
accountability performance measurement models pursuant to
subdivision (i). This subdivision establishes an accelerated process
for issuing any contract pursuant to this section. Any contract
entered into pursuant to this subdivision shall be exempt from the
requirements of the Public Contract Code, through December 31, 2013.
(p) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the
following shall apply:
(1) The director shall implement this section, in whole or in
part, by means of provider bulletins, or other similar instructions
without taking regulatory action.
(2) The State Public Health Officer may implement this section by
means of all facility letters, or other similar instructions without
taking regulatory action.
(q) Notwithstanding paragraph (1) of subdivision (m), if a final
judicial determination is made by any state or federal court that is
not appealed, in any action by any party, or a final determination is
made by the administrator of the federal Centers for Medicare and
Medicaid Services, that any payments pursuant to subdivisions (a) and
(m), are invalid, unlawful, or contrary to any provision of federal
law or regulations, or of state law, these subdivisions shall become
inoperative, and for the 2011-12 rate year, the rate increase
provided under subparagraph (A) of paragraph (4) of subdivision (c)
of Section 14126.033 shall be reduced by the amounts described in
subdivision (j). For the 2013-14 rate year, and for each subsequent
rate year, any rate increase shall be reduced by the amounts
described in subdivisions (j) to (l), inclusive.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or
changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
SEC. 4. Section 2 of this act shall only become operative if the
Medi-Cal Long-Term Care Reimbursement Act (Article 3.8 (commencing
with Section 14126) of Chapter 7 of Part 3 of Division 9 of the
Welfare and Institutions Code) is operative on January 1, 2016.