Laws OR Regulations? Which is it?

Officials from the Department of Social Services (DSS) have told me if Title 22 is not updated with a new law, then Title 22 is enforceable even if the new law contradicts existing regulations. I think that’s my biggest frustration with DSS: “selective enforcement.” By that I mean new laws are suppressed, ignored and seemingly surrendered to old, obsolete regulations unless DSS prefers new laws over old regulations.

For over 11 years, DSS decided new hospice laws would not be enforced because Title 22 regulations had not yet been revised and were stricter, but that selective enforcement violated resident and licensee’s civil rights and was a restraint of trade. In contrast, the 60-day notice of rate increases, enacted in 2003, was enforced immediately despite the absence of regulations until 2017. The new law overturned the regs, as it did for hospice, but DSS decided one law was worth enforcing but another law was not; selective enforcement. And don’t get me started on bedridden where the 2010 regulations reflected an illegally written but enforced 2007 memo attempting to “amend” a 1992 law. The memo was a solicitation to evaluators to diagnose a resident’s physical condition, a task, by law, reserved only for a health care professional.

Health and Safety Code 1569.30 demands that DSS adopt regulations consistent with all state laws. It does not allow DSS to suppress new or old laws and enforce obsolete regulations. Tort law does not recognize mistakes or purposeful omissions but considers it negligence or fraud. The failure to update regulations in light of new law cannot promote regulations above the law.

Stagnant Growth in California’s Assisted Living Industry

The Department of Social Services released statistics on the number of RCFEs currently licensed in California as of July 1, 2019—7,253. However, on July 1, 2018, California had 7,252 RCFEs meaning there was an increase of only ONE RCFE in the past year, and the number of residents residing in RCFEs dropped from 185,000 from just 10 years ago to its current level of 155,700 residents.

            Does that sound right?

It does to me. There are as many facilities opening as there are closing for many reasons. The business environment of California ranks among the worst in the nation—48th in fact—because of its demand to pay escalating minimum wages; worker’s compensation costs are creeping up because of those minimum wage increases; unchecked and escalating RCFE liability insurance costs; higher payroll and personal income taxes; punitive laws and regulations overlaid upon the industry by the Legislature; shortages of qualified staff; demand for health professionals as staff; paid sick days; demands to provide employee health insurance; a senior population leaving the state; rising costs of care; etc.

I continue to write applications for new licenses, but most are “take overs” of existing facilities. Good facilities charging appropriate fees will survive, but many will go under because of never being in position to charge competitive rates. There are many licensees who run facilities just for the money and are illegally underpaying staff, cutting care corners, working outside the facility and are rarely present to manage the facility.

So, the future? Your future?

Staff “determines” bedridden status?

You’ve heard of bedridden, right? Well, does it really exist in residential care facilities? That’s both a yes and a no, depending upon your staff and assistive devices.

Health and Safety Code 1569.72(b)(1) has the true and legal definition of bedridden: “For the purposes of this section, ‘bedridden’ means requiring assistance in turning and repositioning in bed or being unable to independently transfer to and from bed, except in a facility with appropriate and sufficient care staff, mechanical devices, if necessary, and safety precautions, as determined by the director in regulations.”

If clients need assistance turning or changing position—are they bedridden? If clients need help transferring in and out of bed—are they bedridden? Is your staff trained and implored to turn, reposition, and/or transfer residents out of bed? If so, according to the legal definition of bedridden, no client is bedridden if staff turn, reposition or assist in transferring clients! However, if staff is neglecting clients, i.e. not turning, repositioning or assisting with a bed transfer, then clients are bedridden, and the licensee and the staff are abusing the clients. Does the staff need more supervision and training? Perhaps staff should be terminated for neglecting the clients? Should the licensee be “fined” or “closed” for being negligent?

Does the facility have mechanical devices to assist with turning or repositioning and assisting clients out of bed? Then, again, the client is not bedridden. It is just that simple even if an analyst states otherwise.

Before admission or during any physician visit, provide the client’s physician with the legal definition of bedridden (stated above) or use our medical assessment. (A facility is not obligated to use LIC602 or LIC602A). The law defining bedridden is not quoted or referenced in the state’s forms but is in our medical assessment. Remember, ONLY a healthcare professional can diagnose or determine a client’s bedridden or ambulatory status. Business and Professions Code 2052 prohibits anyone without a medical certificate to diagnose or determine a client’s bedridden or ambulatory status.

A Waiver for an Outdated Regulation?

A waiver is defined in Title 22 as a “variance to a specific regulation based on a facility-wide need or circumstance which is not typically tied to a specific resident or staff person.” In a DSS “provider information notice” (PIN) it states a facility must seek a waiver if a healthcare professional, other than a physician, signs the physician’s report or medical assessment. Section 87458(a) states in part “…documentation of a medical assessment, signed by a physician….”

Health & Safety Code 1569.30 requires DSS to write “regulations…not inconsistent with any statute of this state,” and 87458 is inconsistent. Nurse practitioners (NPs) and physician assistants (PAs) under Title 22 section 53810(gg) may act as “primary care providers.” Business and Professions Code 2837 authorizes “a nurse practitioner…to perform specified acts.” Public Law 111-48 states, “The Institute of Medicine of the National Academies has recommended full practice authority for nurse practitioners.
Furthermore, nurse practitioners will assist in addressing the primary care provider shortage by removing delays in the provision of care that are created when dated regulations require a physician’s signature or protocol before a patient can initiate treatment or obtain diagnostic tests”
(emphasis added).

Title 22 has a “dated regulation,” 87458. NPs and PAs can, without the oversight or signature of a physician, “perform a physical exam,” and “establish a diagnosis by client history, physical examination;” and “order, furnish, prescribe, or procure drugs or devices.”

According to the American Academy of Physician Assistants, PAs take histories, perform physical exams, order diagnostic and therapeutic procedures, formulate working diagnoses, and develop and implement treatment plans, all independent of a physician. However, DSS PIN 19-01- ASC insists a waiver must be obtained for a facility to accept a resident’s medical assessment signed by a licensed medical professional other than a physician. That regulation is “dated.” PAs and NPs can sign medical assessments and facility should not have to get a waiver from a clearly outdated (inconsistent with law) regulation.

Business and Professions 2837 made 87458 “dated,” but DSS prefers memos over regulation updates.

The Elusive “care plan”

Why have “care plans” become such an issue? Should it be an issue? Care plans do exist in residential care but are not written by administrators or staff. Instead, and as required by laws and regulations, home health and hospice staff write care plans for one simple and understandable reason—care plans are a medical approach to a resident’s medical condition. There is only one definition of “care plan” in Title 22 and it is clearly for hospice, and the definition references “plan of care.” The definition is plain: “‘Hospice Care Plan’ means the hospice agency’s written plan of care for a terminally ill resident. The hospice shall retain overall responsibility for the development and maintenance of the plan….”

Why do analysts insist that social, non-medical facilities write “care plans” when no requirements exists? Residential care represents “the least restrictive environment” states Health and Safety Code 1569.71, and 1569.1 states that RCFEs are “not primarily medically oriented” and “represent a humane approach to meeting the housing, social and service needs of older persons, and can provide a homelike environment.”

What place do care plans have in a “least restrictive” and “homelike environments?” The truth is simple: care plans are not required unless written by a medical professional for a medical condition and as ordered by a medical provider as a “method of intervention” under Title 22 87611(b). Title 22s resident records section does not require anything remotely tied to a care plan, and “needs and services plans” has never been in the RCFE Title 22. The approach is “Where in Title 22, clearly and plainly stated in the regulations of the state, are care plans required?” No analyst can show you.

When should/must an administrator be in the facility?

Several recent substantiated citations show a tremendous lack of supervision and oversight by licensees and/or administrators. Although Title 22 does not have an exact, required number of hours for management to be present in the facility, it does appear some have taken this “lack of clarity” as a ticket to just NOT be present at all. Hence, the lack of supervision does not always mean insufficient staff. In fact, some recent citations were for “absence of staff.” On duty staff had run errands and left the facility unattended.

We encounter individuals who are the licensee and/or the administrator but have full-time jobs. IF they do get to their facility, it’s after business hours and perhaps are just checking to see if the house isn’t on fire…yet! So, who is answering the facility’s phone? Is it staff with some communication limitations? If Licensing shows up, is staff competent to effectively communicate to analysts? Are families wanting to see licensee or administrator, but that person is never around?

ARE THE CAREGIVERS RUNNING THE FACILITY?

A Los Angeles County RCFE was found “guilty” of tying up residents—and facility staff had pictures! Staff was dispensing meds but not trained, clients were locked into their rooms to prevent wandering, clients were eating their diapers, and staff placed wooden slats into the wheels to prevent the wheelchairs from moving.

Where was management? Did this happen at night? No, during the day shift!

DSS is now supposed to honor a law mandating annual facility visits, and DSS has a new inspection tool it is supposed to be using this year to do “comprehensive visits.” If licensees and administrators are not around, how will these visits go? LPAs talking to caregivers instead of management?