Bill Text: CA SB779 | 2015-2016 | Regular Session | Amended
Bill Title: Skilled nursing facilities: certified nurse assistant staffing.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-02-01 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB779 Detail]
Download: California-2015-SB779-Amended.html
BILL NUMBER: SB 779 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 4, 2015
AMENDED IN SENATE APRIL 20, 2015
INTRODUCED BY Senator Hall
FEBRUARY 27, 2015
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 care facilities.
LEGISLATIVE COUNSEL'S DIGEST
SB 779, as amended, 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 July 1, 2016, and include a minimum overall
staff-to-patient ratio that includes specific staff-to-patient ratios
for certified nurse assistants and for licensed nurses that comply
with specified requirements. 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 "direct care service hours"
for the term "nursing hours" and, commencing July 1, 2016, except as
specified, increase the minimum number of direct care service hours
per patient day to 4.1.
(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, 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 direct care
service hour requirements for skilled nursing facilities.
The bill would make this provision contingent on the Medi-Cal
Long-Term Care Reimbursement Act being operative on January 1, 2016.
(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 subdivision, "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 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) The department shall adopt regulations setting forth the
minimum number of equivalent 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 July 1, 2016, shall be 4.1 hours,
except as provided in paragraph (2) or 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 shall be 3.2 hours, except as provided
in Section 1276.9.
(3) For the purposes of this subdivision, "direct care service
hours" means the number of hours of work performed per patient day by
a direct caregiver, as defined in Section 1276.65, and, in
the distinct part of facilities and freestanding facilities providing
care for persons with developmental disabilities or mental health
disorders, by licensed psychiatric technicians who perform direct
nursing services for patients in skilled nursing facilities.
1276.65.
(c) 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) (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) "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, a certified nurse
assistant, as defined in Section 1337, or a certified
nurse assistant in an approved training program, as defined
in Section 1337, while the certified nurse
assistant in an approved training program is performing nursing
services as described in Section Sections
72309, 72311, and 72315 of Title 22 of the California Code of
Regulations.
(B) "Direct caregiver" also includes (i) a licensed nurse serving
as a minimum data set coordinator and (ii) a person serving as the
director of nursing services in a facility with 60 or more licensed
beds and a person serving as the director of staff development when
that person is providing nursing services in the hours beyond those
required to carry out the duties of these positions, as long as these
direct care service hours are separately documented.
(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, except a
skilled nursing facility that is a distinct part of a facility
licensed as a general acute care hospital. 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 law, the State Department of
Public Health shall develop regulations that become effective July
1, 2016, that establish a minimum staff-to-patient ratio for direct
caregivers working in a skilled nursing facility. The ratio shall
include as a part of the overall staff-to-patient ratio, specific
staff-to-patient ratios for licensed nurses and certified nurse
assistants.
(B) (i) The For a skilled nursing facility
that is not a distinct part of a general acute care hospital, 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, a minimum of one certified nurse
assistant for every six patients, or fraction thereof.
(II) During the evening shift, a minimum of one certified nurse
assistant for every eight patients, or fraction thereof.
(III) During the night shift, a minimum of one certified nurse
assistant for every 17 patients, or fraction thereof.
(ii) For the purposes of this subparagraph, the following terms
have the following meanings:
(I) "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 a moderate amount of 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 an overall staff-to-patient
ratio for direct caregivers, and in developing specific
staff-to-patient ratios for certified nurse assistants and licensed
nurses as required by this section, shall convert the
requirement under Section 1276.5 of this code and Section 14110.7 of
the Welfare and Institutions Code for 3.2 direct care service hours
per patient day care, and commencing July 1, 2016, except as
specified in paragraph (2) of subdivision (b) of Section 1276.5,
for 4.1 direct care service hours per patient day, including a
minimum staff-to-patient ratio for certified nurse
assistants of 2.8 direct care service hours per patient day
for certified nurse assistants, and a minimum
staff-to-patient ratio for licensed nurses of 1.3 direct
care service hours per patient day, day for
licensed nurses, 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 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 direct care service
hours per patient day, and, commencing July 1, 2016, except as
specified in paragraph (2) of subdivision (b) of Section 1276.5,
be less than the 4.1 direct care service 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 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.
(e) No later than January 1, 2018, 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 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
font 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.
(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 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) 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.
(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) The director shall adopt regulations increasing the
minimum number of equivalent direct care service hours per patient
day required in
14110.7. (a) In
skilled nursing facilities to 4.1, in
facilities, the minimum number of equivalent direct care service
hours shall be 3.2, except as set forth in Section 1276.9 of the
Health and Safety Code.
(b) Commencing July 1, 2016, in skilled nursing facilities, except
those skilled nursing facilities that are a distinct part of a
general acute care facility, the minimum number of equivalent direct
care service hours shall be 4.1, except as set forth in Section
1276.9 of the Health and Safety Code.
(c) In skilled nursing facilities
with special treatment programs to 2.3, in
programs, the minimum number of equivalent direct care service hours
shall be 2.3.
(d) In intermediate care
facilities to 1.1, and in facilities, the minimum
number of equivalent direct care service hours shall be 1.1.
(e) In intermediate care
facilities/developmentally disabled to 2.7.
disabled, the minimum number of equivalent direct care service hours
shall be 2.7.
(b) (1) Commencing January 1, 2000, the minimum number of direct
care service hours per patient day required in skilled nursing
facilities shall be 3.2, and, except as provided in paragraph (2),
commencing July 1, 2016, the minimum number of direct care service
hours per patient day required in skilled nursing facilities shall be
4.1, except as set forth in Section 1276.9 of the Health and Safety
Code.
(2) The minimum number of direct care service hours per patient
day required in skilled nursing facilities that are a distinct part
of a facility licensed as a general acute care hospital shall be 3.2,
except as set forth in Section 1276.9 of the Health and Safety Code.
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).
(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 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 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 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) Beginning in the 2016-17 fiscal year, compliance with the
direct care service hour requirements for skilled nursing facilities
established pursuant to Section 1276.65 of the Health and Safety Code
and Section 14110.7.
(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.
(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 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.
(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. 6. 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. 7. Section 5 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.
