RCFEs may be subject to rent control—act now!

Longstanding law would be overturned if California State Senator Ben Allen gets his way, and the Legislature passes his legislation. Health and Safety Code 1569.147, enacted in 1985, prohibits all cities, counties and the state from imposing any form of “rent control” upon residential care facilities. Mr. Allen has written SB1406 to completely void that law.

          Senator Allen sees rent control as a resident right.

          If his bill passes it would allow any city or county to enforce rent control limiting the amount of “rent” charged by a facility, despite the rising costs of wages, food, utilities, employee benefits, fuel, taxes, etc.

          The elder care industry is under attack because the state wants to place aging prisoners, the homeless, and the mentally ill into residential care, and with rent control in place the fees for care would inevitably be lower saving the state money.

          The concept of rent control enforced upon RCFEs would not be a new issue for California Governor Gavin Newsom. Newsom, while serving as Mayor of San Francisco, supported a 2007 legislative challenge to the rent control law when Assembly Member Mark Leno (now State Senator Leno) proposed AB2598, a bill with the sole purpose of allowing rent control to be imposed upon RCFEs. Newsom and the City of San Francisco supported the bill under resolution File No. 070513. However, the bill did not pass, and no rent controls were ever implemented. If SB1406 passes and it goes to the pro-rent control governor, it is likely to be signed into law. Consequently, with passage, it would open the door for cities, counties and even the state to regulate fees charged to residents.

          How would an RCFE be classified when compared to apartments, Airbnb, long-term room rentals, etc.? That could even be up to your LPA!

The Feds may regulate and control your facility

What would happen if the federal government started to regulate the fees and services in California’s assisted living industry? It’s possible as Congress is “studying” the industry, gathering information from three of the largest assisted living providers in the United States to “evaluate resident safety, facility staffing and pricing.” One senator wants to call out the industry’s “exorbitant costs and insidious hidden fees.” Another senator believes there have been “serious health and safety problems in assisted living communities that have not been addressed yet.”

          In response to these perceptions, Congress has created a website asking consumers to share their “bills and experiences” and to get public input into how and why the government should get involved. Will Congress study staffing challenges, rising operating costs, diminished reimbursements and recent assisted living bankruptcies, which hit a record high last year due to “cost inflation” or “reimbursements not in line with rising costs.”

          Through CalAIM, ALWP and similar programs, California has been pushing assisted living facilities to act more like skilled nursing facilities and admit low-income and Medi-Cal residents, aging prisoners, the homeless and persons with mental disabilities, but with higher operating expenses and greater compliance oversight, can the industry afford it?

          According to the 2020 Genworth Cost of Care Survey, the average cost of nursing home care was about $304 per day or well over $9,000 a month, but the average assisted living fee in California is $5,250 according to a recent Forbes study. If California and the U.S. continue to withhold adequate funding and reimbursement to nursing homes and then push assisted living facilities to accept nursing home-level residents, both ARF and RCFEs will be forced to admit post-surgical hip operations and abdominal surgeries. In addition, residents are likely to have various forms of cancers, traumatic brain injuries, strokes, wounds and AIDS.

The most recent statistics show a decline in California nursing homes from 1,230 in 2020 to 1,176 in 2023, attributed to overregulation, higher staffing requirements, and lower reimbursement rates. What about facility declines?

New laws will have negative impact on facilities

California governor Gavin Newsom said, “This year California delivered on critical action to make people’s lives better, safer, healthier, and happier in putting people first, safeguarding freedoms, and creating economic opportunity.” Based upon the laws passed, the state has again taken aim at employers but not to create any “economic opportunity.”

          Let’s first clear the air about SB525, the healthcare worker minimum wage. It will NOT increase minimum wage to $25.00 hour for facility staff. The law is for nurse assistants, custodians, housekeepers, gift shop workers, kitchen staff, etc. who work in hospitals, nursing homes and similar medical settings. The raise was justified because of the “courage shown by workers during the pandemic.” Did the fast-food workers display similar courage meriting a $20.00 minimum wage hike starting April 1? Didn’t facility staff exhibit the same if not more courage?

          The state’s new $16.00 per hour minimum wage law will go into effect January 1, but some counties and cities have exceeded the state’s minimum hourly wage. The website to check on your city or county’s minimum wage is https://www.dir.ca.gov/dlse/minimum_wage.htm. Because fast food workers get $4.00 more per hour, it is likely caregivers will leave the assisted living industry to flip burgers rather than flip—turn—residents.

          Cannabis users will get “additional work protections” including the prevention of discrimination during the hiring process and there will be restrictions on terminating the cannabis user for off the job and away from the workplace use.

          More persons are now eligible for conservatorship because they are unable to provide for their personal safety, necessary medical care or have a “severe substance use disorder or serious mental health illness.” That’s in line with the state’s failed attempt to expand Medi-Cal services under the state’s CalAIM and Master Plan programs that force the mentally ill into mental health facilities then get discharged after “treatment” to adult and senior assisted living facilities. Each county, and thus taxpayer, will be on the financial hook for the treatment and care of such persons.

          On January 1, if a facility is located near a church or independent college, it may have to deal with a large number of homeless persons because the state approved the “Yes in God’s Backyard” legislation for use of church and college parking lots and other properties to house “low-income persons.” These sites can “bypass most local permitting and environmental review rules.” Coupled with this is the state’s expansion “of lifesaving treatment” allowing “more mobile pharmacies to be created in communities across the state” to dispense “treatment medications for opioid use disorder.”

A new law now voids noncompete clauses or agreements—both current and future—in employment contracts starting February 14.

          Paid “sick leave” will expand to five paid days per year (more in some cities and counties). The rational for the expansion: “Too many folks are still having to choose between skipping a day’s pay and taking care of themselves or their family members when they get sick,” said Governor Newsom.

          Another new law will expand the number of eligible days a person can have for experiencing a “reproductive loss.” AB352 will support non-Californians entering the state to access “reproductive rights” at taxpayer expense. Low-income Californians of all ages and regardless of immigration status will be able to access Medi-Cal starting in 2024. AB352 protects “all Californians’ and visitors’ electronic medical records related to abortion, gender-affirming care, pregnancy loss and other sensitive services.”

But, what about all of those PINs?

DSS’ website states Provider Information Notices (PIN) did not appear until late 2016. It previously used “Provider Letters and CCLD Information Releases” to “…formally communicate important license-related information to CCLD-licensed providers.” The information may be useful and timely, but the content of a PIN is not legally enforceable.

          The problem has always been the problem, but that problem is a good problem, and the problem is not going away. The problem for DSS is California law does not allow it to use PINs, letters, or releases as substitutes for state regulations.

          For example, a January 10, 2019 PIN, 19-01-ASC, claimed all medical assessments to admit RCFE residents could only be “signed by a physician” as stated in Title 22 section 87458(a). The PIN claimed an RCFE had to obtain a waiver to allow a non-physician to conduct and sign the medical assessment. However, Health and Safety Code 1569.30 does not allow DSS to enforce anything “inconsistent with any statute of this state.” [For ARFs, Title 22 section 80069(a)(1) allows medical assessments to be “performed by a licensed physician or designee.”] For RCFEs to obtain a waiver to an outdated regulation makes no legal sense.

          Are there laws allowing a physician assistant and nurse practitioner to perform a physical exam and sign it?

          Yes, there are: US Public Law 111-148; California Business and Professions Code, Division 2, Chapter 6, 2834 – 2837, Nurse Practitioners; and Business and Professions Code, Division 2, Chapter 7.7, Article 1, the Physician Assistant Practice Act. However, the PIN upholds the obsolescence of the regulation and ignores state and federal law.

          California Government Code 11340.5 prevents all state agencies from issuing and enforcing memos, PINs, letters, releases, manuals, etc., unless the PINs, letters, releases, manuals, have been adopted as a regulation.

          During the recent state of emergency, the state’s constitution and its emergency services act allowed special powers and authority to be used to “preserve public health” for a period of time “not to exceed the duration of the emergency.”

          The emergency is over and so is the need for more PINs!

          A PIN cannot and does not create a new policy and procedure or regulation. An evaluator cannot enforce PIN compliance because the law prevents all agencies from issuing, using, enforcing or attempting to enforce anything not adopted as a regulation. A citation or deficiency cannot be based upon anything other than an adopted state regulation or chaptered state law. No PINs allowed.

Is Covid-19 really gone?

Viruses mutate. That is one reason elders and others at risk are encouraged to get annual flu shots. So, what about COVID-19 the SARS-CoV-2 virus?

          The California Public Health Department (CPHD) has said the SARS-CoV-2 virus is “constantly mutating,” and it is not likely the virus is gone.

          In February, DSS released Provider Information Notice 23-02-ASC to update licensees on testing, screening, precautions, etc. Regrettably, the situation, according to the PIN, will “continue to be reassessed” by CDPH.

          Facilities should always screen new admissions and existing residents for COVID-19 symptoms—fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle and/or body aches, headache, new loss of taste or smell and sore throat. However, facilities no longer have to do daily temperature checks. DSS requires facilities to monitor staff for symptoms and post signs for staff to “self-screen” for COVID-19 symptoms.

          Licensees do not have to conduct routine diagnostic screening tests on asymptomatic staff, test new staff nor test staff returning from leave or vacation, etc. New residents should be screened and tested prior to admission, but testing residents returning from a hospitalization or an outing is not needed for asymptomatic residents.

          CDPH is still requiring staff to wear masks when indoors, but residents do not. (N95 masks are not required nor is the “fitting” of those masks). Staff may wear a mask when going with residents to appointments or outings. Residents may consider wearing a mask when inside the facility or when leaving the facility. For individuals who have not been vaccinated they should always wear masks both indoor and when outdoors and around others.

SSI Rates Increase Nine Percent but Still Woefully Low

It is predicted the 2023 SSI/SSP rates are going up more than its traditional one percent. The rates will increase 9.1% to $1324.82. If a person is eligible, there is an additional $20 from Social Security retirement or disability.
          Given California’s substantial push to place into assisted living facilities the homeless, infirm prisoners, and the mentally ill, the new SSI rates are woefully low and insufficient for facilities to keep pace with California’s inflation, the third highest in the nation. It hinders facilities from paying the newly declared minimum wage of $15.50 (and some cities and counties require $17/hr. or more), higher worker’s compensation rates based upon those higher wages, higher food costs, the highest price for gasoline in the nation, increasing utility costs, and the list goes on.
          What is California’s leadership thinking? Could it make a law mandating ALL facilities accept SSI or admit a homeless resident? Could the state make ALL facilities apply for the assisted living waiver when the federal government limits the number of enrollees?
          The state is able to do whatever it wants without logical restrictions, and facility owners close, tolerate it, or move out of the state. The number of RCFEs in California dropped by over 120 from July 2021 – June 2022. Was that only because the consequences of COVID-19?
          Obviously, the election is over, but what did the electorate of California do to its assisted living industry? Is there anyone in Sacramento who gets the challenges facing facility operators? Is there anyone who cares?
The new SSI rates for RCFEs will be room and board, $646.82; care and supervision, $678; and personal and incidental needs, $168.