Category: Mike’s Column

The February 7, 2022, update to Title 22, found in CDSS Manual Letter NO. CCL-22-05, was not released to the public until March 28. What did the update do, or unfortunately, not do?

          Some history.

          In October 2018, DSS placed the new personal rights laws from 2015 into Title 22 but did not update Title 22s Table of Contents (TOC) to advise the public two new sections were added. With the 2022 update the consumer can discover the THREE personal rights sections in the TOC, but for over three years these new sections were not in the TOC. No big deal?

          Also in October 2018, DSS completely changed Title 22 section 87468, the old personal or resident rights section (from 1989) and added sections 87468.1 and 87468.2. These changes and additions required DSS to revise other Title 22 sections including 87724, 87411, 87507, 87611, 87613, 87705, and 87758, but DSS did not do that. Any Title 22 section referencing section 87468 is incorrect and has been incorrect for nearly four years. No big deal?

          Notwithstanding the 2022 update to the TOC just below the personal rights sections is the obsolete reference to “Advance Health Care Directives, Requests to Forego Resuscitative Measures, and Do-Not-Resuscitate Forms.” In 2015, DSS renamed Title 22 section 87469 to “Advance Directives and Requests Regarding Resuscitative Measures,” but did not change the name in the TOC, nor did it revise other regulations to reflect its 2015 changes.

          A 2009 change to California Probate Code 4780 required DSS to make  changes to Title 22, but that didn’t happen. There are several obsolete definitions that should have been changed in 2015, 2017, 2018 and certainly could have been changed in 2022, but DSS is not diligently keeping Title 22 updated and coherent. Remember, no proofreaders or factcheckers.

          Health and Safety Code 1569.30 demands DSS “adopt, amend and repeal” regulations. When DSS placed Health and Safety Codes 1569.261 – .269 into Title 22 it just “cut and pasted” the new laws into the regulations without providing “interpretation” as required by the California Administrative Procedures Act. Even worse the Office of Administrative Law, the agency tasked with oversight of new regulations, did not honor the legal approval methods, which requires state agencies to “interpret” statute or law to make the law’s intent clear.

          Regulations are NOT supposed to be confusing, unclear and complex, but have clarity for citizens to know what is wanted, needed, expected and required. The placing of laws, categorized as “wholly enabling or susceptible to interpretation,” into regulations without interpretation, violates the Administrative Procedures Act.

          The Office of Administrative Law sees “wholly enabling” laws as not having any legal effect without the enactment of a regulation i.e., “The department may set an annual licensing fee up to $500.” How much is the fee? Without a regulation it is unknown and unenforceable; it is wholly enabling as defined.

          When a law is classified as “susceptible to interpretation,” it has language that needs a regulation for “its efficient enforcement.” An example is, “There shall be adequate space between beds.” That law can’t be enforced as whose interpretation of “adequate” will be used?

          California Government Code 11340 states in part: “The Legislature finds and declares…the language of many regulations is frequently unclear and unnecessarily complex…. The language is often confusing to the persons who must comply with the regulations. [This] has placed an unnecessary burden on California citizens…. The complexity and lack of clarity in many regulations put small businesses, which do not have the resources to hire experts to assist them, at a distinct disadvantage.”

          After the Legislature passed the punitive “RCFE Reform Act of 2014,” the new laws on personal rights with ambiguous terms required DSS to not “cut and paste” the laws into the regulations because some language in the laws is “susceptible to interpretation.” Thus, the regulations are “unclear and unnecessarily complex.” The personal rights laws used words susceptible to interpretation: “reasonable,” “choices about daily life,” “enhance autonomy,” “staff that are sufficient in numbers,” “resident preferences concerning roommate choices,” “privately paid personal assistants,” and “prompt access.”

          DSS, in cutting and pasting the laws into state regulations without interpretation, failed to assist facilities with compliance. Even worse, the state legislature, knowing conformity to the personal rights might be too difficult, exempted all “publicly operated” or state operated facilities from honoring any of the new personal rights. Is that not discrimination against small businesses and an unfair business practice? Just no big deal, right?

          DSS revised page 6 of the regulations removing the statement that new or revised regulations will no longer be identified with a vertical line [ | ] in the left column of the page. Now, new regulations placed into Title 22 will not be identified with the line in the left margin. No big deal?

          DSS removed two definitions from Section 87101, “Universal Precautions” and “Standard Precautions,” and page 24 is missing.

          Title 22 section 87208, Plan of Operation, was amended adding facilities must have an infection control plan. DSS revised the section but left many mistakes, including misspelled words, in 87208. Here’s one: “designation of the rooms to be used…for bedridden residents, other than for a termporary illness or recovery from surgery.” I understand not having proofreaders but how about spell check software? DSS did not reference the new infection control section, 87470, in the “Note: Authority Cited” that concludes 87208. That’s right, no proofreader or factchecker was available.

          The biggest travesty involves sections 87411, Personnel Requirements – General, and 87412, Personnel Records. Never mind the obsolete statement,

“All persons who supervise employees or who supervise or care for residents shall be at least eighteen (18) years of age” (the age has been 21 since 2015). Never mind training direct care staff only in first aid when CPR is required (since 2015), and never mind section 87411 does not list all areas of training for staff, like emergency procedures, but it did add staff must be trained in infection control.

          The 2022 “update,” did not create regulations requiring new staff training for 40 hours in the first four weeks of employment then 20 hours annually. DSS did not place the 2009 requirements for medication training in the regulations, but indolently stated, “All RCFE staff who assist residents with personal activities of daily living shall receive initial and annual training as specified in Health and Safety Code sections 1569.625 and 1569.69.”

          How long has DSS downplayed the law in deference to the regulations? Now, it is stating, “go look at the law.” DSS has long ignored state laws if those laws do not fit into DSS’ agenda i.e., allowing admission and retention of prohibited conditions (1569.39) and using the complete definition of bedridden.

          Suddenly, DSS wants facilities to know the laws about personnel training without obeying the law: “the department shall adopt regulations” to “consist of 40 hours of training.” The law on staff training, H&S Code 1569.625, needs clarification to alleviate the legal confusion found in the law, but DSS avoided any attempt at interpreting the law.

          Here’s part of the confusion. The law requires 40 hours of training to include 6 hours on dementia and 4 hours on postural supports, restricted health conditions and hospice care. Six plus four equals 10, but the law states, “the remaining 20 hours.” Forty minus 10 equals 30, but the law states only 20 hours remain. Huh?

          Thirty hours remain and require 6 more hours on dementia. That’s 30 minus 6, 24 hours, but then the law states, “the additional 16 hours shall be hands on training.” No proofreaders or factcheckers in the Legislature either?

          When I went to school 20 minus 6 equaled 14, not 16. The law requires 12 hours on dementia, 16 hours of hands-on training (which should be defined in Title 22), and 4 hours on postural supports, restricted health conditions and hospice. The math is 12 plus 16 plus 4 equals 32 hours, but 40 is required. Eight hours are missing. No big deal, right?

          This should be explained in regulations! DSS chose to let the math stand.

          The Personnel Records section 87412(c)(1)(A) was not updated to reflect the 40 hours of required training. Instead, this section still states, “The following staff training and orientation shall be documented…of at least ten hours of initial training within the first four weeks of employment, and at least four hours of training annually thereafter…” (emphasis added).

          Get it? Title 22 section 87412 requires only “ten hours of initial training” and “four hours annually.” It is obsolete! How does DSS miss this? Ignorance of the regulations, lack of due diligence, lack of caring, no proofreaders, all of the above?

          DSS has yet to address the hiring of nurse assistants, LVNs or RNs and their required training in “resident characteristics.” What are resident characteristics? Need regulations to clarify “susceptible to interpretation” laws. No big deal, right?

          The medication training, required since 2009, is not addressed in the new regulations. DSS just mentioned the law, H&S Code 1569.69, about medication training in section 87411. This is not what DSS is supposed to do. Instead of writing new regulations, DSS is attempting to enforce its medication guide, written in 2016 and revised in 2021. Why not write new regulations instead?

          State law does not allow any agency to “issue, utilize, enforce or attempt to enforce any guideline…” (Government Code 11340.5). The guide does reference the medication law and some regulations, but this guide is filled with illegal provisions, references to regulations that do not exist, misrepresentations and “best practices” that are not best practices at all.

          Back to the TOC. It added section 87470, Infection Control Requirements. Unfortunately, DSS did NOT add Title 22 section 87470, but instead added 87440 into the regulations. How is that possible? That’s right, no proofreaders.

          Then, ta da! DSS, lacking that proofreader, puts the new infection control requirements into Title 22 but has it as “87440.” It is supposed to be section 87470. That’s embarrassing and inexcusable. No one at DSS noticed this? I keep forgetting DSS does not employ proofreaders!

          The Infection Control Requirements mentions “volunteers” having to “perform hand hygiene,” “wearing gloves” when “coming into contact with blood or body fluids such as saliva, stool, vomit or urine.”

          When or why would volunteers come into contact with resident blood and urine? Would that be when caregiving? Volunteers?

          It continues with allowing volunteers to be “assigned to assist residents with the self-administration of medication and assigned to the care of a resident.” Seriously?! DSS is allowing volunteers to assist with medication and care of residents? Really? And volunteers are to be trained annually how to wear PPE, too.

          Section 87440 (87470) references staff assisting with injections. This is also found in section 87465. The staff assisting residents with injections has never been clarified in Title 22. Volunteers are passing medications and doing resident care and staff are assisting with injections? These new infection control requirements are contradicting laws and existing regulations. How did DSS get away with this?

          Then comes the skilled nursing requirement to have an “Infection Preventionist.” A what? Well, the term is frequently used in skilled nursing settings, and now RCFEs, need one, too, and it can be a member of staff. DSS requires facilities to identify a staff member as this preventionist and then report it to the local DSS office.

          The “preventionist” must be trained by a “medical professional, local health official, health department, or other research-based medical authority that provides infection control training that will include enforcement of the Infection Control Plan.” The preventionist must train staff and all new hires in the facility’s infection control plan.

          The training and the trainer is not clearly stated in the regulations. Of course not, right? However, in another one of those PINs, is information about the source of training, but are “skilled nursing focused.” One is from the California Department of Public Health and is titled, “Infection Preventionist Training for Skilled Nursing Facilities.” This is an online course described as a 14-hour self-paced course designed for healthcare professionals. It does not have to be completed in one session. “This online course provides practical guidance for implementing an infection prevention program in a skilled nursing facility…for preventing healthcare-associated infections including central line associated bloodstream infections, Clostridioides difficile infection, catheter-associated urinary tract infections, COVID-19, and pneumonia.”

          Is that an RCFE? Central lines?

          Other training is available through the CDC and PIN 22-13-ASC lists those trainings.

          The last of the February 2022 revisions is in section 87629, Injections, just to reference the Infection Control Requirements.

          DSS has failed the industry with these “emergency regulations.” What happens to LIC808, the mitigation plan? Does it become obsolete? Well, since DSS did not reference this form in the new regulations, then, it cannot be required. What happens to all of those PINs? Bye bye. NONE of the PINs can be enforce once the “state of emergency” is lifted, thought to be June 30. If you took the time to read this, how about confronting your analyst with this? How about telling your state legislature with the multiple problems this revision has had upon licensees and administrators?

The battle with that darn virus continues and DSS has released several more provider information notices or PINs. The latest PINs address vaccinations and boosters for staff.

          PIN 22-05.1-ASC, an update to 22-05-ASC, informs licensees, staff, residents and resident representatives of the update from the state’s public health officer.

          All facility workers had to have received their first dose of a one-dose vaccine (J&J/Janssen) or their second dose of a two-dose vaccine (Pfizer or Moderna) by November 20, 2021. A booster dose was required by March 1, 2022, if the required amount of time had elapsed, usually six months after the one-dose or two-dose vaccine.

          ***Workers with a recent COVID-19 diagnosis who received their one- or two-dose vaccines, may delay their booster dose for up to 90 days from the date of their first “positive test or clinical diagnosis.” These workers may get a booster after March 1, but no later than 15 days after the 90-day deferral period ends. They must remain asymptomatic to be exempt from weekly testing during that 90-day grace period. These workers should wear a mask while working.

         Again, exemptions are allowed if a worker provides a signed, dated form stating either a religious belief prevents vaccination, or they have a qualified medical reason. If either condition exists, then those workers must be tested weekly for COVID-19 to continue working AND wear a mask while on duty and in the facility. Although these exemptions exist, it would be very rare to have a religious belief preventing vaccination. Regarding a qualifying medical reason, these, too, are limited. A healthcare provider’s signed statement is required but does not have to list the actual reason.

We are aware residents are lonely, depressed and need to visit with their families and friends. We are aware of infections occurring after someone is fully vaccinated, and people are refusing the vaccine and are not “fully vaccinated.” We are also aware of the various mutations of the virus. So, are facilities required to accept visitors? A recent provider information notice (PIN) states “yes.”

In PIN 21-17-ASC, DSS admitted “there is still limited information on how much the vaccines reduce the spread of the virus, how long the protection lasts, and effectiveness against emerging variants.” DSS recommended in its PIN for fully vaccinated* residents and staff to continue to wear a face covering, stay at least six feet away from others, avoid crowds and poorly ventilated indoor spaces, wash hands often or use an alcohol-based hand sanitizer, and follow the basic guidance for PPE use and COVID-19 testing. (*Fully vaccinated means two weeks after receiving the second dose in a two-dose series)

For visitors, continue basic screening for Covid-19 symptoms, require face coverings and handwashing or use hand sanitizer, exclude visitors with any symptoms, and keep visitors at least six feet away from others. However, if visitors are fully vaccinated, DSS states, “…they may touch, hug, and assist resident with [ADLs],” but still wear face covering and wash hands. Facilities should obtain proof of a visitor’s full vaccination. Indoor visitations are allowed if facilities are following the above protocols, but DSS prefers outdoor visits which “are safer.”

Another issue is resident outings with family, and with Mother’s Day approaching, this can lead to conflict between facilities and families. DSS is recommending screening residents upon returning from an outing, and quarantine the resident, even if fully vaccinated, if the resident had “close contact” with a Covid-19 person. Quarantining the resident would not be necessary if the resident practiced all the protocols—stayed six feet apart from others, wore a face covering, and did not gather indoors or with more than three households. Basic Covid-19 precautions are taken upon return such as screening the resident for up to 14 days for symptoms and, if symptomatic, isolate and test for the virus.

For new admissions, test for the virus prior to move in and quarantine only if resident had close contact with a Covid-19 positive person. DSS states, “New admissions who are not fully vaccinated will be quarantine.”

Many facilities have thrown in the towel and closing or selling their facilities in part because of the strains of coping with Covid-19: constant testing and screening of residents, staff, and visitors; the cost of testing staff; paying higher worker compensation costs due to a government order; purchasing an ever-increasing amount of personal protective equipment (PPE) at higher and higher prices; the cost of getting staff “fitted” for PPE; getting staff and residents vaccinated; purchasing sanitizing agents and constantly wiping down everything that doesn’t move; complying with more and more difficult “requirements;” and, well, you fill in the blank.

          Many have said they could not keep up with DSS’ provider information notices or PINs due to the shear quantity; conflicting information; hard to comprehended language, even scientific information; redirecting to other sites, then having to “guess” or discern which agency had the stricter requirements.

          Then, the mitigation plan, previously accepted, “changed” and facilities had to submit new policies and procedures because, yet another PIN was released with numerous pages and redirection to other sites. The frustration and confusion have pushed many others to the point of tossing in that proverbial towel.

          Many of those PINs kept stating the situation was “fluid,” meaning everchanging, and that was and is an absolute. The involvement of the state’s public health department complicated the situation as public health staff kept insisting upon “nursing home-type regulations” that were way beyond social models. For instance, a facility was told to have hand sanitizer available to all residents but the residents in the facility had dementia and could foreseeably mismanage the toxic sanitizer. An argument ensued.

          There was a perceived lack of common sense in facility oversight placing licensees and administrators in vicarious positions. Many just hoped the next day did not produce another “information notice,” or there would be another, sometimes misinformed, “consultant” telling facilities what to do. Does the state really need consultants? Are the employees of the state incapable of handling the situation? Perhaps, that is another problem along with the pandemic and lack of support from analysts who just told facilities, “Read the PIN.”

The California Legislature passed AB1766 creating H&S Codes 1507.4 (ARFs) and 1569.4 (RCFEs). The new laws require DSS to inform county mental or behavioral health departments on facilities that accept SSI, admit residents with serious mental disorders and the number of beds at each facility. Facilities are not required take SSI or admit residents with serious mental disorders.

Complete DSS’ paperwork, but perhaps you are asking why were these laws necessary? How about some lengthy history for an answer? It is that history that explains why NOW the state is seeking your facility to place persons on SSI with serious mental disorders. You do not have to!

The California Department of State Hospitals (DSH) manages the state’s mental hospitals, totaling just five. In the late 1950s, the state began to remove patients from its mental hospitals into nursing homes and residential care, a process called “deinstitutionalization.”

Under Governor Reagan, California passed the Lanterman-Petris-Short (LPS) Act, enacting a “patient’s bill of rights.” It ended the practice of institutionalizing patients against their will or keeping patients “forever” when they were suitable for community placement. It also virtually abolished involuntary hospitalizations except in extreme cases.

Confinement now required “due process of law.” By the early 1970s, California moved most mentally ill patients out of its hospitals. The LPS Act made it difficult to get them back if patients relapsed or needed additional care. The number of mental hospitals dropped under Reagan and successive governors. Reagan realized his mistake as many of the mentally ill ended up in prison, so he restored funding. However, Governor Jerry Brown made deeper cuts.

Governor Reagan also signed the Community Care Facilities Act in the early 70s creating adult residential facilities for the purpose of accepting the mentally ill into “homelike” environments. Unfortunately, the rush to open ARFs and child-care facilities created more of a ghetto than quality care.
Before Reagan’s steps in California, in 1963, President Kennedy signed the Community Mental Health Act pushing the responsibility of mentally ill patients away from the states and toward the federal government’s programs and hospitals. Shortly after Kennedy signed the Act, he was assassinated, and the Act did not go forward. That left 2,000 community mental health centers with unstable funding. President Carter tried to resurrect the Act, but President Reagan repealed it altogether.

In the 90s, two major court decisions—Coffelt and Olmstead—reinforced the LPS Act and maintained the patient’s bill of rights to due process and release programs. These two decisions forced institutions to find alternative, homelike environments for patients. Many entered assisted living facilities but could not be forced to stay.

The Washington Post reported Governor Brown did severe damage to the mental health system more than any other governor. “The system has deteriorated to the point that thousands of patients are being pushed out of mental hospitals to find their way through the inhospitable worlds of skid rows, flophouses, and county jails.” Brown’s critics said he failed to “fund adequately the state hospitals or the community care facilities since the Reagan years.” Brown vetoed many bills meant to “upgrade hospital staffing standards” and “his repeated refusal to spend large amounts on community care facilities as proof of what [critics] call his malignant neglect of the mentally ill,” the newspaper wrote.

An internal audit of the state’s hospitals found 1,285 suspicious deaths were associated with staff and physician negligence including over medicated patients. Several of the state’s hospitals lost federal accreditation and millions in funding. The term “dumping” came up in the Federal government’s audit of California’s mental hospitals, causing the loss of additional federal funding. In 1972, the Agnews State Hospital near San Jose released 3,800 patients and created a “mental health ghetto.”

According to The Balance, a fiscal watchdog, the state’s policy of “deinstitutionalization” led to annual budgets cuts—since the 1960s. About 16% of former patients ended up in the state’s prisons and are now being released due to Covid-19. More homeless?

The discovery of psychiatric drugs, especially Thorazine, in the 1950s, were thought to assist in the deinstitutionalization of patients. The only approaches up to that time were electroshock therapy, straightjackets, padded cells, hydrotherapy, and lobotomies. Society began to accept that mental illness needed to be treated and “locking people up” was not the right treatment.

A former nurse’s aide in a California veteran’s hospital, Ken Kesey, wrote “One Flew Over the Cuckoo’s Nest” published in 1962. The movie was made in 1975 and turned the public off to the barbaric treatment of shock therapy and lobotomies. In 1965, President Johnson signed social security amendments to fund health care but not mental hospitals resulting in the mentally ill going to nursing homes for payment by the Federal Government, and California’s psychiatric institutions were emptied as a result.

In 2009, the Great Recession forced many states, including California, to cut funding to mental health programs. In 2010, President Obama signed the Affordable Care Act forcing insurance companies to fund treatment for mental health including substance abuse addiction.

Through the years of deinstitutionalization, it became clear it was not appropriate to release the mentally ill into the community and were better served in long-term, in-patient care, but the funding was not there. Courts were more reluctant to “put people away” because of higher court decisions. In 2018, those suffering from mental health issues comprised 40% of the prison population and 20% of the homeless population.

California state hospitals now serve patients “committed” through civil and mostly criminal court action. In 2017, about 91 percent of the 13,000 patients treated by DSH were being held relating to criminal cases, in dispositions including not guilty by reason of insanity, incompetent to stand trial, sexually violent predator, and mentally disordered offender designations. The population was 87 percent male, 42 percent white, 25 percent black, 25 percent Latino, 79 percent were high school dropouts, with only one percent claiming, “some college.” About half of the patients are over 40, 40 percent are diagnosed as schizophrenic disorders, which include mood disorders like mania or depression, 16% diagnosed with paraphilia, a diagnosis of “abnormal” sexual desires; and 20 percent “other” make up the balance. Are these the residents you wish to admit?

Since deinstitutionalization and the subsequent funding cuts, California has worked to replace funding for community mental health services, passing Proposition 63, the Mental Health Services Act, in 2004. The Act imposes a one percent tax on personal income above $1 million, with the revenues used for prevention, early intervention, service needs and ancillary support.

The apparent first U.S. death related to COVID-19 (C-19) occurred on January 20, 2020 (according to USA Today) in Snohomish County in Washington State. California governor Gavin Newsom declared a state of emergency on March 4 related to the spread of C-19, and DSS released its first provider information notice (PIN) on February 28. Each DSS-issued PIN was an attempt to keep facility operators and administrators informed about the pandemic and prevent its spread into the states’ assisted living facilities. Health and Safety Code 1569.1 describes RCFEs as “not primarily medically oriented” and a “homelike environment.” The agency tasked with enforcing the laws of California is, according to Health and Safety Code, “the State Department of Social Services.” It is not a medical agency, and Title 22 and Health and Safety Code state DSS is “not responsible for the evaluation of medical services provided to the resident….” DSS has presented several zoom webinars to non-medical, facility operators using health care “consultants” to explain issues, precautions, and management of the virus. Since facilities are not medical, why the medical consultants? Health and Safety Code also states RCFEs under six-beds—the majority of elder care homes in California—are considered a “residential use of property,” the “residents and operators of the facility shall be considered a family,” and facilities are no different “in any other way from a family dwelling.” Was it appropriate for the hundreds of non-medical facilities to be told what to do by non-DSS staff, medical consultants Questions arose when these consultants were telling facilities to discuss C-19 with dementia clients. Since March 6, 2020, DSS has released over 50 PINs to inform licensees how to manage the pandemic. Here is how the industry has responded to these PINs: there are too many and no time to read them all; too expensive to do everything the PINs require; each one seems to cancel a previously issued PIN; the language is confusing; having to look up too many external references for information; which agency am I supposed to obey; and analysts want immediate compliance or want what is not in the PIN. I believe it is the intent of DSS to assist facilities to prevent the spread of C-19, but the PINs are overwhelming the industry with confusing, lengthy, hard to comprehend information, then using “consultants” without hands-on, facility-operating experience telling operators what to do. Should the PINs stop? No, but should be in “lay terms,” not redirect licensees to “authorities” that conflict other “authorities,” then tell licensees to pick the stricter provisions without expressly telling facilities which are the strictest provisions. In other words, keep it simple so compliance is easier.