Category: Mike’s Column

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 PAs and NPs can sign medical assessments and facility should not have to get a waiver from a clearly outdated (inconsistent with law) regulation.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.

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.

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?

Health and Safety Code 1569.695 was revised to require RCFEs to update emergency disaster plans on January 1. The new law, heavily influenced by special interest groups, placed ambiguous requirements into law such as “updating the facility sketch to include assembly points. Where do 6-bedders assembly on site if the facility is on fire? DSS cannot create new regulations as the law states, “Nothing…shall create a new or additional requirement for the department to evaluate the emergency and disaster plan.” But will DSS require facilities to submit updated sketches for approval? The new law also states if a facility makes any interior changes for disaster preparedness it requires an updated sketch and even a new fire clearance.

Other provisions include identifying and having supplies required to shelter in place and one of the two currently required relocation sites must be “outside the immediate area.” How far away is unknown. Facilities must provide initial and annual employee staff training on disasters and conduct quarterly fire and earthquake drills to prepare for all emergencies. DSS cannot define those emergencies but may attempt to do so. Facilities will be required to update its resident rosters to include a date of birth. The new law requires a facility, if it evacuates, to take all resident “appraisal of resident needs and services plan.” The Legislature has never defined what those plans are, but the special interest groups refer to these as “care plans.”

As of January 1, licensing must confirm, during its annual visits, which are also supposed to happen on the 1^st, that the emergency and disaster plan is on file at the facility and includes required content.

The assisted living industry holds its collective breath to see if our new governor, new majority Legislature and special interest groups attempt another “reform,” such as requiring awake-night staff; complicated medication management, including medical and recreational marijuana; more administrator re-certification hours; greater reporting requirements; and dreaded care plans. The problem is some “reformers” are trying to make RCFEs more “nursing home-like” with care plans and MARs.

Plus, our industry faces hiring challenges as California’s job pool continues to shrink. The San Diego Union-Tribune reported California has 12% of the nation’s overall population, but 34% of the nation’s welfare recipients. Minimum wage has/will reach $15/hour or more, and worker’s compensation and employers’ tax rates will climb.

Do we stay in California? The Centers for Disease Control states the “West” has the nation’s highest growth in assisted living facilities. The West is Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming, but California has the highest current minimum wage and Idaho and Utah have the lowest—$7.25.

DSS released a new chapter to Title 22, chapter 10, titled “Temporary Management of Adult Community Care Facilities and Residential Care Facilities for the Elderly.” The purpose is to ensure residents of care facilities do not suffer an abrupt removal from their “home” because the facility license was temporarily suspended by DSS. The regulations, beginning at 89600, will place a “temporary manager” at the facility who will be empowered to hire, fire, make facility improvements, work toward compliance and/or secure a new facility license.

DSS may have to front some of the expense money to accomplish its goals, but then go after the former licensee for reimbursement. Will this affect a currently operating facility? No. DSS is acting to prevent the removal of clients from a facility that has or is losing its license. Let’s review state law.

If a licensee loses control of property via a sale or other means the license under the law is forfeit and DSS can enact the above chapter to ensure clients are not removed. Never let escrow close on an operating facility until the new owner has obtained a license. See H&S Code 1569.19 and 1569.191.