Bill Text: CA AB3082 | 2019-2020 | Regular Session | Amended
Bill Title: Nurse-to-patient ratios.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-05-05 - Re-referred to Com. on HEALTH. [AB3082 Detail]
Download: California-2019-AB3082-Amended.html
|
Amended
IN
Assembly
May 04, 2020 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
Assembly Bill
No. 3082
| Introduced by Assembly Member Gabriel |
February 21, 2020 |
An act to amend Section 131056 Sections 1276 and 1280.3 of the Health and Safety Code, relating to public health. health facilities.
LEGISLATIVE COUNSEL'S DIGEST
AB 3082, as amended, Gabriel.
State Department of Public Health: duties. Nurse-to-patient ratios.
(1) Existing law requires the State Department of Public Health to adopt regulations that establish minimum, specific, and numerical licensed nurse-to-patient ratios for all licensed general acute care hospitals, acute psychiatric hospitals, or special hospitals. Existing law generally authorizes the department or the Office of Statewide Health Planning and Development to permit program flexibility as to various prescribed standards relating to a health facility’s physical plant or staffing as long as statutory requirements are met and the program flexibility has prior written approval. A person who violates specified licensing provisions related to these health facilities is guilty of a crime.
This bill would additionally require any program flexibility granted by the department or the office to not compromise patient care. The bill would specifically authorize the department to grant a staffing ratio program flexibility request, relating to nurse-to-patient ratios, pursuant to a prescribed procedure that includes, among other things, a requirement that the department post a staffing ratio program flexibility request on the department’s publicly accessible internet website and solicit public comment on the request. The bill would authorize the department to revoke its approval of a staffing ratio program flexibility request for any reason and authorize an individual to request the department to review and consider revocation of an approved staffing ratio program flexibility request.
(2) Existing law requires the department to assess a monetary administrative penalty on a licensed general acute care hospital, acute psychiatric hospital, or special hospital for a violation of the nurse-to-patient ratios established by the department, except as specified.
This bill would additionally require the department to require one of these licensed health facilities that violated the nurse-to-patient ratios to post a notice relating to the violation. The bill would require the notice to include specific information, including a description, written in plain terms, of the date and nature of the violation, and further require the notice to be posted in certain locations inside the health facility for up to one year, as specified. By imposing these requirements on licensed health facilities, this bill would expand an existing crime, thereby imposing a state-mandated local program.
(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.
Existing law establishes the State Department of Public Health and prescribes its duties and organization. Existing law authorizes the department to commence and maintain actions and proceedings for specified purposes, including enforcing its regulations.
This bill would make technical, nonsubstantive changes to those provisions.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1276 of the Health and Safety Code is amended to read:1276.
(a) The building standards published in the State Building Standards Code by the Office of Statewide Health Planning and Development, and the regulations adopted by the(b) These regulations shall permit program flexibility by the use of alternate concepts, methods, procedures, techniques, equipment, personnel qualifications, bulk purchasing of pharmaceuticals, or conducting
of pilot projects as long as statutory requirements are met
met, the proposed alternative does not compromise patient care, and the use has the prior written approval of the department or the office, as applicable. The approval of the department or the office shall provide for the terms and conditions under which the exception is granted. A written request plus supporting evidence shall be submitted by the applicant or licensee to the department or office regarding the exception, as applicable.
(c) While it is the intent of the Legislature that health facilities shall maintain continuous, ongoing compliance with the licensing rules and regulations, it is the further intent of the Legislature that the state department expeditiously review and approve, if appropriate, applications for program flexibility. The Legislature recognizes that health care technology, practice,
pharmaceutical procurement systems, and personnel qualifications and availability are changing rapidly. Therefore, requests for program flexibility require expeditious consideration.
(d) The state department shall, on or before April 1, 1989, develop shall provide a standardized form and format for requests by health facilities for program flexibility. Health facilities A health facility shall thereafter apply to the state
department for program flexibility in the prescribed manner. After the state
department receives a complete application requesting program flexibility, it the department shall have 60 days within which to approve, approve with conditions or modifications, or deny the application. Denials and approvals with conditions or modifications shall be accompanied by an analysis and a detailed justification for any conditions or modifications imposed. Summary denials to meet the 60-day timeframe shall not be permitted.
(e) (1) For purposes of this section, an application by a health facility for program flexibility or for an extension of program flexibility relating to Section 1276.4 and the staffing ratios established
by the department pursuant to that section shall be referred to as a “staffing ratio program flexibility request” or “request.”
(2) On or before July 1, 2021, the department shall create a standardized form and process for a health facility to submit a staffing ratio program flexibility request. The form shall require, at a minimum, the health facility to submit supporting evidence that includes documentation establishing the need for a staffing ratio program flexibility request and demonstrating how the proposed program flexibility will not compromise patient care.
(3) (A) The department shall post a health facility’s submitted staffing ratio program flexibility request, including the supporting evidence submitted with the request, on the department’s
publicly accessible internet website within five calendar days of receipt by the department.
(B) The department, at the same time it posts a health facility’s staffing ratio program flexibility request pursuant to subparagraph (A), shall solicit public comment on the request and provide a period of at least 40 days for public comment. The department may extend the 60-day period provided in subdivision (d) to solicit additional public comment or to consider public comment.
(4) Before or at the same time that a health facility submits its staffing ratio program flexibility request to the department, the health facility shall do all of the following:
(A) Conspicuously post the request and supporting evidence
inside each unit and area of the health facility for which program flexibility is requested.
(B) Conspicuously post the request and supporting evidence in a location accessible to patients and employees.
(C) Provide copies of the request and supporting evidence to affected employees and employee representatives.
(5) Only for purposes of a staffing ratio program flexibility request, the 60-day period provided in subdivision (d) shall begin on the later of either the date that the department posts the health facility’s staffing ratio program flexibility request and supporting evidence on its internet
website pursuant to paragraph (3) or the date the health facility complies with all the requirements in paragraph (4).
(6) The department shall not approve a health facility’s staffing ratio program flexibility request for a period of more than one year.
(7) (A) The department may revoke its approval of a health facility’s staffing ratio program flexibility request for any reason, including, but not limited to, there is no longer a need for program flexibility, the approved program flexibility results in compromising patient care, or the approved program flexibility does not adequately protect patient safety.
(B) Any individual may request the department to review and consider revocation
of a health facility’s approved staffing ratio program flexibility request.
(e)
(f) Notwithstanding any other provision of law or regulation, the State Department of Health Services shall provide flexibility in its pharmaceutical services requirements to permit any state department that operates state facilities subject to these provisions to establish a single statewide formulary or to procure pharmaceuticals through a departmentwide or multidepartment bulk purchasing arrangement. It is the intent of the Legislature that consolidation of these activities be permitted in order to allow the more cost-effective use and procurement of pharmaceuticals
for the benefit of patients and residents of state facilities.
SEC. 2.
Section 1280.3 of the Health and Safety Code is amended to read:1280.3.
(a) Commencing on the effective date of the regulations adopted pursuant to this section, the director may assess an administrative penalty against a licensee of a health facility licensed under subdivision (a), (b), or (f) of Section 1250 for a deficiency constituting an immediate jeopardy violation as determined by the department up to a maximum of seventy-five thousand dollars ($75,000) for the first administrative penalty, up to one hundred thousand dollars ($100,000) for the second subsequent administrative penalty, and up to one hundred twenty-five thousand dollars ($125,000) for the third and every subsequent violation. An administrative penalty issued after three years from the date of the last issued immediate jeopardy violation shall be considered a first administrative penalty so long as the facility has not received additional immediate jeopardy violations and is found by the department to be in substantial compliance with all state and federal licensing laws and regulations. The department shall have full discretion to consider all factors when determining the amount of an administrative penalty pursuant to this section.(b) (1) Except as provided in subdivision (c), for a violation of this chapter or the rules and regulations promulgated thereunder that does not constitute a violation of subdivision (a), the department may assess an administrative penalty in an amount of up to twenty-five thousand dollars ($25,000) per violation. This subdivision shall also apply to violation of regulations set forth in Article
1 (commencing with Section 127400) of Chapter 2.5 of Part 2 of Division 107 or the rules and regulations promulgated thereunder.
The
(2) The department shall promulgate regulations establishing the criteria to assess an administrative penalty against a health facility licensed pursuant to subdivision (a), (b), or (f) of Section 1250. The criteria shall include, but need not be limited to, the following:
(1)
(A) The patient’s physical and mental condition.
(2)
(B) The probability and severity of the risk that the violation presents to the patient.
(3)
(C) The actual financial
harm to patients, if any.
(4)
(D) The nature, scope, and severity of the violation.
(5)
(E) The facility’s history of compliance with related state and federal statutes and regulations.
(6)
(F) Factors beyond the facility’s control that restrict the facility’s ability to comply with this chapter or the rules and regulations promulgated thereunder.
(7)
(G) The demonstrated willfulness of the violation.
(8)
(H) The extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring.
(c) The department shall not assess an administrative penalty for minor violations.
(d) The regulations shall not change the definition of immediate jeopardy as established in this section.
(e) The regulations shall apply only to incidents occurring on or after the effective date of the regulations.
(f) (1) Notwithstanding subdivision (a), if the department determines that a health facility licensed under subdivision (a), (b), or (f) of Section 1250 has violated a regulation adopted pursuant to Section 1276.4, the department shall assess an administrative penalty of
fifteen thousand dollars ($15,000) for the first violation and thirty thousand dollars ($30,000) for the second and each subsequent violation. For purposes of this subdivision, multiple violations found on the same inspection survey shall constitute a single violation for purposes of determining whether the violation was a first, second, or subsequent violation.
(2) A violation occurring more than three years after the date of the last violation shall be treated as a first violation.
(3) Notwithstanding any other law, the department may, without taking any regulatory actions pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, implement, interpret, or make specific this subdivision by means of an All Facilities Letter (AFL) or similar instruction.
(4) (A) Notwithstanding paragraph (1), a general acute care hospital shall not be subject to an administrative penalty under that paragraph if the hospital demonstrates to the satisfaction of the department all of the following:
(i) That any fluctuation in required staffing levels was unpredictable and uncontrollable.
(ii) Prompt efforts were made to maintain required staffing levels.
(iii) In making those efforts, the hospital immediately used and subsequently exhausted the hospital’s on-call list of nurses and the charge nurse.
(B) Nothing in this paragraph shall be construed to affect the obligation of a general acute care hospital to maintain proper staffing levels as prescribed in Section 70217 of Title 22 of the
California Code of Regulations.
(5) Nothing in this section prohibits the department from issuing an administrative penalty for a staffing violation pursuant to this section and an administrative penalty for any resulting harm pursuant to subdivision (a).
(6) (A) If the department determines that a health facility licensed pursuant to subdivision (a), (b), or (f) of Section 1250 violated a regulation adopted pursuant to Section 1276.4, the department shall require the licensee to post a notice that complies with this paragraph.
(B) The notice shall include all of the following information:
(i) A description, written in plain terms, of the date and
nature of the violation the department determined to have occurred, including, but not limited to, an identification of the mandated staffing ratio and the staffing ratio the department determined to have occurred.
(ii) The amount of any administrative penalty imposed by the department.
(C) The licensee shall post the notice in all of the following locations:
(i) Immediately adjacent to its license required to be posted pursuant to Section 70123 of Title 22 of the California Code of Regulations, as it read on January 1, 2020.
(ii) In a conspicuous location within each unit and area of the facility in which the department determines a violation of a regulation adopted pursuant to Section 1276.4 has occurred.
(D) The notice shall remain posted for a period of either one year or until the department conducts a subsequent inspection and determines that the licensee is in compliance with regulations adopted pursuant to Section 1276.4, whichever period is shorter.
(g) If the licensee disputes a determination by the department regarding the alleged deficiency or alleged failure to correct a deficiency, or regarding the reasonableness of the proposed deadline for correction or the amount of the penalty, the licensee may, within 10 working days, request a hearing pursuant to Section 131071. Penalties shall be paid when all appeals have been exhausted and the department’s position has been upheld.
(h) For purposes of this section, “immediate jeopardy” means a situation in which the licensee’s noncompliance with
one or more requirements of licensure has caused, or is likely to cause, serious injury or death to the patient.
(i) In enforcing subdivision (a) and paragraph (1) of subdivision (f), the department shall take into consideration the special circumstances of small and rural hospitals, as defined in Section 124840, in order to protect access to quality care in those hospitals.
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.(a)The department may commence and maintain actions and proceedings for any of the following purposes:
(1)To enforce its regulations.
(2)To enjoin and abate nuisances dangerous to health.
(3)To compel the performance of an act
specifically enjoined upon any person, officer, or board, by
a law of this state relating to the public health.
(4)To protect and preserve the public health.
(b)The department may defend all actions and proceedings involving its powers and duties. In all actions and proceedings
it shall sue and be sued under the name of the department.
