Bill Text: CA AB2079 | 2015-2016 | Regular Session | Amended
Bill Title: Skilled nursing facilities: staffing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2016-11-30 - Died on Senate inactive file. [AB2079 Detail]
Download: California-2015-AB2079-Amended.html
BILL NUMBER: AB 2079 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2016
AMENDED IN SENATE JUNE 13, 2016
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 18, 2016
INTRODUCED BY Assembly Member Calderon
FEBRUARY 17, 2016
An act to amend Sections 1276.5 and 1276.65 of the Health and
Safety Code, and to amend Section 14126.022 of, and to repeal and add
Section 14110.7 of, the Welfare and Institutions Code, relating to
health facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 2079, as amended, Calderon. Skilled nursing facilities:
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. facility, as
specified, and requires that skilled nursing facilities have a
minimum of 3.2 nursing hours per patient day. Existing law
requires that these the
staff-to-patient 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 replace the requirement for staff-to-patient
ratios in skilled nursing facilities with a requirement for direct
care service hours per patient day, as defined, which, commencing
January 1, 2018, except as specified, would increase from 3.2 to 4.1
hours on a specified incremental basis by January 1, 2020.
This bill, instead, would require the department to
develop regulations that become effective January 1, 2018, and
include a minimum number of direct care service hours per patient day
for direct caregivers working in skilled nursing facilities, as
specified. The bill would require the posted information to
include a resident census and 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 generally requires that skilled nursing
facilities have a minimum number of nursing hours per patient day of
3.2 hours.
This bill would substitute the term "equivalent direct care
service hours" for the term "nursing hours" as applicable to
intermediate care facilities, and would substitute the term "direct
care service hours" for the term "nursing hours" as applicable to
skilled nursing facilities. The bill would define the term "direct
care service hours" and, commencing January 1, 2018, except as
specified, increase the minimum number of direct care service hours
per patient day to 4.1 hours on a specified incremental basis by
January 1, 2020.
This bill would also authorize the State Department of Health Care
Services and the State Department of Public Health to develop
regulations to create a short-term waiver of the direct service hour
requirements for skilled nursing facilities in order to address a
shortage of available health care professionals, as specified. The
bill would require the waivers to be reviewed annually and either
renewed or revoked.
(2) Existing law requires the State Department of Public Health to
adopt regulations setting forth the minimum number of equivalent
nursing hours per patient required in skilled nursing and
intermediate care facilities.
This bill would replace the term "nursing hours" with the term
"direct care service hours," as defined, for purposes of intermediate
care facilities.
(3) 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 requires the Director of
Health Care Services to adopt regulations relating to the nursing
hours provided per patient in skilled nursing facilities.
This bill would require the department to adopt
regulations setting forth the minimum number of
equivalent direct care service hours per patient required
in skilled nursing facilities, at facilities
to be the same as the incrementally increasing rate
as required above, except as specified.
(4) 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 1276.5 of the Health and Safety Code is amended
to read:
1276.5. (a) (1) The department shall adopt regulations setting
forth the minimum number of equivalent direct care service hours per
patient required in intermediate care facilities, subject to the
specific requirements of Section 14110.7 of the Welfare and
Institutions Code.
(2) For the purposes of this section, "equivalent direct care
service hours" means the number of hours of work performed per
patient day by aides, nursing assistants, or orderlies plus two times
the number of hours worked per patient day by registered nurses and
licensed vocational nurses (except directors of nursing in facilities
of 60 or larger capacity) and, in the distinct part of facilities
and freestanding facilities providing care for persons with
developmental disabilities or mental health disorders
disorders, by licensed psychiatric technicians
who perform direct nursing services for patients in intermediate care
facilities, except when the intermediate care facility is licensed
as a part of a state hospital.
(b) (1) (A) The department shall adopt regulations setting forth
the minimum number of direct care service hours per patient required
in skilled nursing facilities, subject to the specific requirements
of Section 14110.7 of the Welfare and Institutions Code. However,
notwithstanding Section 14110.7 of the Welfare and Institutions Code
or any other law, the minimum number of direct care service hours per
patient required in a skilled nursing facility shall be 3.2 hours,
and, commencing January 1, 2018, nursing facilities shall be required
to increase their direct care service hours incrementally, as
described in this paragraph, except as provided in paragraph (2) or
Section 1276.9.
(B) Commencing January 1, 2018, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 3.5 per patient day, with 2.4
hours per patient day for certified nursing assistants (CNAs) and
1.1 hours per patient day for licensed nurses, except as set forth in
Section 1276.9.
(C) Commencing January 1, 2019, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 3.8 per patient day, with 2.6
hours per patient day for CNAs and 1.2 hours per patient day for
licensed nurses, except as set forth in Section 1276.9.
(D) Commencing January 1, 2020, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 4.1 per patient day, with 2.8
hours per patient day for CNAs and 1.3 hours per patient day for
licensed nurses, except as set forth in Section 1276.9.
(2) Notwithstanding Section 14110.7 or any other law, the minimum
number of direct care service hours per patient required in a skilled
nursing facility that is a distinct part of a facility licensed as a
general acute care hospital or that is operated by the State
Department of State Hospitals shall be 3.2 hours per patient day,
except as provided in Section 1276.9.
(3) For purposes of this subdivision "direct care service hours"
means the actual hours of work performed per patient day by a direct
caregiver, as defined in Section 1276.65, without doubling the hours
performed per patient day by registered nurses and licensed
vocational nurses.
(c)
(b) Notwithstanding Section 1276, the department shall
require the utilization of a registered nurse at all times if the
department determines that the services of a skilled nursing and
intermediate care facility require the utilization of a registered
nurse.
(d)
(c) (1) Except as otherwise provided by law, the
administrator of an intermediate care facility/developmentally
disabled, intermediate care facility/developmentally disabled
habilitative, or an intermediate care facility/developmentally
disabled--nursing shall be either a licensed nursing home
administrator or a qualified intellectual disability professional as
defined in Section 483.430 of Title 42 of the Code of Federal
Regulations.
(2) To qualify as an administrator for an intermediate care
facility for the developmentally disabled, a qualified intellectual
disability professional shall complete at least six months of
administrative training or demonstrate six months of experience in an
administrative capacity in a licensed health facility, as defined in
Section 1250, excluding those facilities specified in subdivisions
(e), (h), and (i).
SEC. 2. 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) (A) Except as provided in subparagraph (B), "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, or a certified nursing assistant or a
nursing assistant who is participating in an approved training
program, as defined in Section 1337, while performing nursing
services as described in Sections 72309, 72311, and 72315 of Title 22
of the California Code of Regulations.
(B) A person serving as the director of nursing services in a
facility with 60 or more licensed beds is not a direct caregiver.
(2) "Licensed nurse" 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, and a psychiatric technician, as referred to in
Section 4516 of the Business and Professions Code.
(3) "Skilled nursing facility" means a skilled nursing facility as
defined in subdivision (c) of Section 1250.
(b) Notwithstanding any other law, the State Department of Public
Health shall develop regulations that become effective January 1,
2018, and establish a minimum number of direct care service hours per
patient day for direct caregivers working in a skilled nursing
facility, as specified in subdivision (b) of Section 1276.5. The
regulations shall require that no less care be given than is required
pursuant to Section 1276.5 and Section 14110.7 of the Welfare and
Institutions Code.
(b) (1) (A) Notwithstanding Section 14110.7 of the Welfare and
Institutions Code or any other law, the minimum number of direct care
service hours per patient day required in a skilled nursing facility
shall be 3.2 hours, and, commencing January 1, 2018, skilled nursing
facilities shall be required to increase their direct care service
hours incrementally, as described in this paragraph, except as
provided in paragraph (2) or Section 1276.9.
(B) Commencing January 1, 2018, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 3.5 per patient day, with 2.4
hours per patient day for certified nursing assistants (CNAs) and
1.1 hours per patient day for licensed nurses, except as set forth in
Section 1276.9.
(C) Commencing January 1, 2019, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 3.8 per patient day, with 2.6
hours per patient day for CNAs and 1.2 hours per patient day for
licensed nurses, except as set forth in Section 1276.9.
(D) Commencing January 1, 2020, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 4.1 per patient day, with 2.8
hours per patient day for CNAs and 1.3 hours per patient day for
licensed nurses, except as set forth in Section 1276.9.
(2) Notwithstanding Section 14110.7 of the Welfare and
Institutions Code or any other law, the minimum number of direct care
service hours per patient required in a skilled nursing facility
that is a distinct part of a facility licensed as a general acute
care hospital or that is operated by the State Department of State
Hospitals shall be 3.2 hours per patient day, except as provided in
Section 1276.9.
(3) For purposes of this subdivision, "direct care service hours"
means the actual hours of work performed per patient day by a direct
caregiver, as defined in Section 1276.65, without doubling the hours
performed per patient day by registered nurses and licensed
vocational nurses.
(c) A person employed to provide services such as food
preparation, housekeeping, laundry, or maintenance services shall not
provide nursing care to a resident and shall not be counted in
determining ratios under this section.
(c)
(d) The direct care service hour requirements of this
section shall be minimum standards only and shall be satisfied daily.
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.
(d)
(e) No later than January 1, 2019,
July 1, 2017, 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 standards
to adequate levels.
(e)
(f) (1) In a manner pursuant to federal requirements,
effective January 1, 2003, every skilled nursing facility shall post
information about resident census and 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 and
an accurate report of the number of direct care staff working during
the current shift, including a report of the number of registered
nurses, licensed vocational nurses, psychiatric technicians, and
certified nurse assistants. The information shall be posted on paper
that is at least 8.5 inches by 14 inches and shall be printed in a
type of at least 16 point.
(2) The information described in paragraph (1) shall be posted
daily, 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.
(f)
(g) (1) Notwithstanding any other 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 any
regulations developed pursuant to this section may constitute a class
"B," "A," or "AA" violation pursuant to the standards set forth in
Section 1424.
(g)
(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.
(h)
(i) 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.
(i)
(j) This section shall not apply to facilities defined
in Section 1276.9.
SEC. 3. Section 14110.7 of the Welfare and Institutions Code is
repealed.
SEC. 4. Section 14110.7 is added to the Welfare and Institutions
Code, to read:
14110.7. (a) In skilled nursing facilities, the minimum number of
direct care service hours per patient day shall be 3.2,
except as set forth in Section 1276.9 of the Health and Safety Code.
(b) (1) The department shall adopt regulations setting
forth the minimum number of direct care service hours per patient
required in skilled nursing facilities, subject to the specific
requirements of this section. However, notwithstanding
Notwithstanding this section or any other law, the
minimum number of direct care service hours per patient required in a
skilled nursing facility shall be 3.2 hours, and, commencing January
1, 2018, skilled nursing facilities shall be required to increase
their direct care service hours incrementally, as described in this
subdivision, except as otherwise provided in subdivisions (c) to (e),
inclusive, and Section 1276.9 of the Health and Safety Code.
(2) Commencing January 1, 2018, the skilled nursing facilities,
except those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a
minimum number of direct care service hours of 3.5 per patient day,
with 2.4 hours per patient day for certified nursing assistants
(CNAs) and 1.1 hours per patient day for licensed nurses, except as
set forth in Section 1276.9 of the Health and Safety Code.
(3) Commencing January 1, 2019, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 3.8 per patient day, with 2.6
hours per patient day for CNAs and 1.2 hours per patient day for
licensed nurses, except as set forth in Section 1276.9 of the Health
and Safety Code.
(4) Commencing January 1, 2020, skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility or a state hospital, shall have a minimum
number of direct care service hours of 4.1 per patient day, with 2.8
hours per patient day for CNAs and 1.3 hours per patient day for
licensed nurses, except as set forth in Section 1276.9 of the Health
and Safety Code.
(c) In skilled nursing facilities with special treatment programs,
the minimum number of equivalent direct care
service hours shall be 2.3.
(d) In intermediate care facilities, the minimum number of
equivalent direct care service hours shall be 1.1.
(e) In intermediate care facilities/developmentally disabled, the
minimum number of equivalent direct care service hours shall be 2.7.
SEC. 5. 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).
(5) The department, in coordination with the State Department of
Public Health, shall report to the relevant Assembly and Senate
budget subcommittees by May 1, 2016, information regarding the
quality and accountability supplemental payments, including, but not
limited to, its assessment of whether the payments are adequate to
incentivize quality care and to sustain the program.
(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 (m), 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 (n), 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 direct care service 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 direct care service hours per patient per day requirements
pursuant to Section 1276.5 1276.65 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 Sections 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 direct care service 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) 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) 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.
(D) Beginning with the 2015-16 fiscal year, the department, in
consultation with representatives from the long-term care industry,
organized labor, and consumers, shall incorporate direct care staff
retention as a performance measure in the methodology developed
pursuant to this section.
(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) For 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, for 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) Beginning with the 2015-16 rate year, and each subsequent rate
year thereafter for which this article is operative, an amount equal
to the amount deposited in the fund pursuant to subdivisions (k) and
(l) for the 2014-15 rate year shall be deposited into the Skilled
Nursing Facility Quality and Accountability Special Fund, for the
purposes specified in this section.
(n) (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 direct care service 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.
(o) 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.
(p) 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, 2020.
(q) 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.
(r) Notwithstanding paragraph (1) of subdivision (n), 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
(n) are invalid, unlawful, or contrary to any federal law or
regulation, or 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 and 2014-15 rate years, any rate increase shall
be reduced by the amounts described in subdivisions (j) to (l),
inclusive.
SEC. 6. The State Department of Health Care
Services and the State Department of Public Health may develop
regulations to create a short-term waiver of the direct service hour
requirements established in Section 1276.65 of the Health and Safety
Code and Section 14110.7 of the Welfare and Institutions Code, as
amended by this act, for skilled nursing facilities in order to
address a shortage of available health care professionals. At a
minimum to qualify for a waiver, the departments shall require that a
skilled nursing facility demonstrate that it offers wages that are
sufficient to recruit qualified and appropriate staff,
that the skilled nursing facility does not have a direct care service
staff turnover rate that is higher than the state average, and that
the facility is located in a designated workforce shortage area, as
established by the California Healthcare Workforce Policy Commission.
Waivers granted pursuant to these provisions shall be reviewed
annually and either renewed or revoked.
SEC. 6. SEC. 7. 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.
