Category: Mike’s Column

In response to the COVID-19 precautions, DSS has authorized LIVE STREAMING courses to replace “live, in-person” classes. You will need a computer or laptop. We are not sure how a phone will work (download the Zoom APP). Active participation is required and is monitored; a camera in your device is required.

LIVE STREAMING will be over 4 days, with no more than 6 hours per day. It will only be 20 hours, then 20 hours can be done ONLINE per DDS’ guidelines. Go to Live Courses, RCFE Renewal, and pick a live streaming date or dates. Then go to Mike’s Online Classes and explore possibilities. Remember, you need at least 4 hours of laws and regs (first day of live streaming); 1 hour LGBT, (online); and 8 hours on dementia (days three and four of live streaming) as part of the 40 hours. Course materials will be emailed to you.

We are asking that you pray for an end to the spread of this virus!

We are very thankful to our students who trust us with their continuing education. We are glad more administrators are taking our courses for the first time. We get concerned when our “first-time students” tell us “the other vendor told us” or “my analyst said we had to…” or I got this “DSS memo.”

We understand some vendors teach “recommended practices” or “outdated regulations” which leads to confusion when we teach current state law. From our 20+ experience, we know Title 22 lags behind state laws. According to the Office of Administrative Law, a regulation may not be necessary when a law is clear in its intent. For instance, Health and Safety Code 1569.655, effective January 1, 2003, required RCFEs to provide residents a 60-days’ notice of a rate increase. That law was immediately enforceable even though it was not in Title 22, because the intent was specific: 60-days advance notice of rate increases.

Yet, Title 22 still had the obsolete regulation of a 30-days’ notice until an update in April 2017. The law created a new requirement enforceable over the outdated regulation. Licensees giving a 30 days’ notice from 2003 to 2017 were violating the law, but not the regulation. When new laws are enacted, old regulations are no longer enforceable if contradicting the new law. If the new law had just stated a licensee had to give “adequate notice” or “sufficient notice” then Title 22 would need to clarify that law and define what sufficient notice means.

If someone tells you there is a requirement, but it is not found in the laws and/or the regulations, it is not required even if an analyst said it was required. Without citing a current law or regulation, it may be wanted, but not required.

The New Year. I think everyone, optimists and pessimists alike, have an opinion about it, but really don’t have a clue what to expect. What we do know is, at least for RCFEs in California, there will be higher operating costs. Minimum wage increases in January to $12.00/hour for smaller employers, but in Los Angeles County, it will be $14.25/hour in July. (Employers with 26 or more always pay more.) San Diego city will pay $13.00. With higher wages, come increases in workers compensation and payroll taxes. We know Governor Newsom signed nearly 1,000 bills into law in 2019 most taking effect January 1. A quick review did not find any damaging provisions to the elder care industry, but there is that ridiculous law on centrally storing residents’ guns when brought into facilities.

What changes will DSS undergo? There have been promotions and new hires that have already had an impact on DSS and facilities—time alone will determine if these will have a positive impact. What new DSS regulations will be forthcoming in 2020?

Whatever the future brings, remember it is about caring for the most vulnerable, our elderly. It’s about treating them with love and respect. It’s about treating our staff fairly and affording them respect. Burnout among caregivers is increasing. (A resident was murdered a few weeks ago by a caregiver.)

Compliance is always mandated. Know the laws and obey those laws.

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.

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—48^th 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?

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.